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HARVARD  LAW  SCHOOL 
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DICTIONARY  AND  DIGEST 


LAW    OF    SCOTLAND 


WITH  SHORT  EXPLANATIONS  OF 


THE  MOST  OEDINAET  ENGLISH  LAW  TEEMS. 


BT  TUB  LATB 


WILLUM  BELL.  ESQ.,  ADVOCATE. 


KEVIBED  AND  COBRECTED,  WITH  NUMEBOUS  ADDITIONS, 


BY 


GEORGE  ROSS,  ESQ.,  ADVOCATE. 


tW.i- 


EDINBURGH: 
BELL  &  BRADFUTE,  12  BANK  STREET. 
LONDON :  WILLIAM  MAXWELL. 
HDCCCL^L 

Digitized  by  LjOOQIC 


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J'    ' 


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3  /»73. 


PRINTED  BT  NEILL  *  CO.,  EDIMBCROH. 

Digitized  byCjOOQlC 


PREFACE. 


The  work,  of  whicli  a  New  Edition  is  now  presented  to  the  public,  was,  on 
its  original  publication,  and  still  continues  to  be,  a  most  valuable  contribution 
to  the  Legal  Literature  of  Scotland.     Indeed,  a  more  valuable  aid  to  all 
engaged  in  the  practice,  as  weU  as  in  the  study,  of  the  law  of  Scotland,  could 
not  have  been  furnished.    One  of  the  great  merits  of  the  work  is,  that  it 
gives  the  law  applicable  to  the  subjects  of  its  various  articles  in  the  language 
of  the  Institutional  Writers  themselves,  so  that  the  legal  student  or  praj6<- 
titioner  who  may  consult  it  has  at  once  brought  before  him  an  authoritative 
abstract  of  the  law.    No  other  work  of  a  similar  kind  is  equal  to  it,  and 
indeed  no  other  work  has  ever  attempted  to  rival  or  displace  it.    A  New 
Edition  has  been  called  for,  both  on  account  of  the  former  impression  being 
exhausted,  and  also  on  account  of  the  various  changes  in  the  law  which 
have  taken  place  during  the  last  twenty  years  of  legislation.     These  changes, 
which  relate  principally  to  Conveyancing,  have  been  incorporated  iu  the 
present  Edition.     A  few  articles  are  almost,  or  entirely  new,  such  as  thit 
of  "  Appbobate  and  Eepeobatb,"  which   also  comprehends  the   English 
doctrine  of"  Electiok."    The  article  "  AsskSnation"  is  considerably  enlarged, 
and  that  of  "  Assignment"  is  almost  entirely  new.    In  the  former  of  theto 
articles  the  law  relating  to  Latent  Trusts  is  more  fully  set  forth  ;  and  in  tlW 
latter  the  English  law  of  Notice  in  the  case  of  Assignments  is  attempted  to 
be  explained.    The  article  "  Compensation"  is  also  considerably  enlarged, 
and  the  various  cases  in  which  the  plea  of  compensation  may  arise  with 
reference  to  debts  due  to  or  by  a  Company,  and  debts  due  to  or  by  its  Part- 
ners, are  pointed  out.    Under  the  article  "  Statutes"  will  be  found  au  Index 
to  the  important  Statutes  which  have  been  passed  during  the  present  reign. 

In  consulting  the  earlier  Articles,  it  is  important  to  observe  that  they  were 
sent  to  Press  before  the  passing  of  some  of  the  recent  Statutes  introducing 
changes  in  the  law.  This  circumstance  wiU  account  for  no  notice  having 
been  taken  of  these  changes,  but  in  subsequent  Articles,  opportunities  were 
afforded  for  remedying  the  omission. 

The  article  "  Titles  to  Land"  is  entirely  new,  and  details  the  various 
successive  alterations  that  have  been  made  in  conveyancing  since  1845.  At 
the  close  of  this  article,  there  is  also  indicated  what  still  remains  to  be  done, 
in  order  to  free  the  transfer  of  land  of  all  the  feudal  hindrances  with  which 

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iy  PREFACE. 

it  may  still  be  considered  to  be  fettered.  The  change  suggested  is  a  very 
simple,  but  at  the  same  time  a  very  important  one.  It  is  simply  this,  that  in 
future  there  should  be  no  recurrence  to  the  Superior  for  an  entry,  by  a  Vassal's 
heir  or  disponee,  but  that  the  decree  of  service  in  favour  of  the  former 
should  be  pronounced,  and  that  the  conveyance  in  favour  of  the  latter  should 
be  granted,  under  burden  of  all  the  superior's  rights,  contained  in  the  Origi- 
nal Charter  of  the  lands,  or  in  any  subsequent  Charter  by  Progress,  recorded 
in  the  Books  of  Council  and  Session,  or  in  the  Register  of  Sasines,  and  sub- 
ject also  to  those  rights  which  are  the  legal  incidents  of  a  right  of  Superio- 
rity. By  this  means  all  the  substantial  rights  of  superiors  would  remain  in- 
tact, with  this  additional  advantage  provided  to  them,  that  every  proprietor 
whose  name  appears  on  the  Register  of  Sasines  should  be  held  to  be  the 
vassal  in  the  lands  on  the  death  of  the  former  vassal,  and  thus  the  heir  of 
the  former  vassal  would  be  prevented  from  offering  to  enter  as  vassal,  and 
so  depriving  the  superior  of  his  compositioiu 

A  less  violent  change  on  the  present  system  could  not  possibly  be  pro- 
posed, and  yet  complete  freedom  in  the  transfer  of  land  from  all  feudal 
trammels  would  be  effected.  Superiors  and  vassals  would  have  it  in  their 
power,  as  now,  to  transact  in  regard  to  the  sale  and  purchase  of  the  duties 
and  casualties  exigible  by  a  superior,  but  a  compulsory  sale  of  those  rights 
iRuld  not  be  enforced.  If  a  superior  were  to  be  compelled  to  sell  his  feu- 
daties,  the  creditor  in  a  ground-annual  must  equally  be  compelled  to  sell 
his  right  of  ground-annual ;  and  on  the  same  principle,  too,  a  landlord 
ahould  be  compelled  to  sell  his  right  under  a  long  lease.  This,  however, 
vould  be  an  unnecessary  interference  with  the  rights  of  property,  for  it  is 
difficult  to  furnish  a  satisfactory  answer  to  the  question — ^Why  should  annual 
payments  out  of  land  not  be  permitted,  if  parties  choose  to  create  such  rights  ? 
When  it  is  the  interest  of  both  parties  that  such  payments  should  be  re- 
deemed, their  redemption  will  be  effected.  To  facilitate  their  redemption, 
heirs  of  entail  who  are  superiors  ought  to  be  authorised  to  sell,  and  those 
who  are  vassals  to  purchase,  rights  of  superiority — ^the  price  in  the  case  of 
a  superior  selling  being  invested  in  the  purchase  of  lands,  and  in  the 
case  of  a  vassal  purchasing,  being  imposed  as  a  burden  on  the  entailed 
estate,  in  the  same  manner  as  is  authorised  by  the  Titles  to  Land  Act  in 
the  case  of  Writs  of  Im'estiture.  Where  the  rights  of  superiority  are  sold 
to  the  vassal,  a  Writ  of  Discharge  should  be  granted  in  his  favour  by  the 
superior,  and  that  writ,  on  being  recorded  in  the  Register  of  Sasines,  would 
free  the  land  for  ever  of  all  the  duties  discharged  by  it. 

The  existence  of  a  fen-duty,  ground-annual,  or  other  annual  payment,  is 
no  obstacle  to  the  free  transfer  of  land.  On  the  contrary,  where  the  annual 
payment  is  considerable,  the  burden  may  be  considered  as  a  means  of  faci- 
litating its  transfer.    For  what  is  a  reserved  annual  burden  but  a  part  of 

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PREFACE.  V 

the  price  onpaid  by  the  purchaser  and  secured  upon  the  land,  with  this 
important  difference,  that  the  purchaser  can  never  be  called  on  to  pay  the 
principal  sun  reserved  ?  To  compel,  therefore,  a  sale  of  feu-duties  or  ground- 
•nnnftla  against  the  will  of  the  party  in  right  of  them,  is  to  interfere  un- 
necessarily with  the  private  pactions  of  individuals ;  and  it  may  be  doubi 
"whether,  if  such  an  interference  were  authorised  by  the  Legislature,  ma; 
Tsssals  would  avail  themselves  of  their  statutory  privilege  of  redemption. 

.    In  the  case  of  Vassal  Corporations,  where  the  rights  of  the  superior 
not  discharged,  the  superior  should  be  entitled  to  payment  of  a  compositi( 
firom  the  Corporation,  not  only  on  the  death  of  the  last  vassal  from  whoi 
the  Corporation  may  have  purchased  the  land,  but  also  at  every  twenty-fifl 
or  thirty-third  year  from  the  payment  of  the  last  composition. 

The  Crown  rights  of  superiority  stand  in  a  different  position  from  the 
of  Subject  Superiors.    In  regard  to  these,  therefore,  a  sale  compulsory  ^ 
the  part  of  the  Crown,  but  optional  on  the  part  of  the  vassal,  ought  ft,'^fe?^ 
be  authorised ;  and  on  a  sale  taking  place,  a  Writ  of  Discharge  should  "^ 
granted,  and  thereafter  an  entry  by  the  Crown  should  no  longer  be  require| 
The  price  to  be  paid  by  a  Crown  vassal  for  a  Writ  of  Discharge  might 
fixed  at  twenty  years'  purchase  of  the  annual  feu-duty,  along  with  t|| 
amount  of  a  single  composition.    Where  the  feu-duty  is  not  payable 
money,  but  in  grain  or  other  articles  in  kind,  such  duties  might  be  co 
▼erted  into  money  in  the  same  manner  as  they  are  now  converted  in  E] 
chequer  when  such  duties  are  exacted  from  a  vassal. 

If  the  suggestion  now  proposed  were  adopted,  the  Feudal  system  of 
veyancing  would  be  entirely  aboUshed.    No  vestige  of  it  would  then  tei 
Charters,  and  Writs,  of  Confirmation  and  of  Eesignation,  Charters  of  Sal 
and  of  Adjudication,  Precepts,  and  Writs  of  Clare  Constat,  would  all  foll( 
in  the  train  of  those  once  equally  powerful  instruments  of  Feudal  machinel 
— Obligations  to  infeft  by  a  double  manner  of  holding,  Procuratories  and  II 
Btnunents  of  Besignation,  Precepts  and  Instruments  of  Sasine.    The  chanj 
too,  would  be  a  voluntary  one.    For  one  of  the  distinguishing  features 
all  recent  legislation  in  regard  to  the  forms  of  conveyancing  is,  that  it  p^ 
mits,  but  does  not  compel, — it  creates,  but  does  not  destroy, — it  introduci  . 
something  new,  but  does  not  abolish  what  is  old.    A  right  to  elect  betwe(  p 
the  old  and  the  new  forms  is  conferred,  and  thus  the  merits  of  the  latter  a  tt 

tested  before  the  former  are  entirely  laid  aside.  T 

i  ■ 

Although,  however,  the  Feudal  system  of  Conveyancing  would  be  virtualljr 
abolished,  the  substantial  rights  of  superiors  would  not  be  interfered  witk. 
That  system  is  based  on  the  relation  of  Superior  and  Vassal,  and  on  requiri: 
a  formal  acknowledgment  to  be  granted  on  every  change  of  vassal.     If  th 

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I 


vi  PREFACE. 

relation  were  aboliabed,  the  more  simple  one  of  Landlord  and  Tenant  as  under 
a  perpetual  Lease,  or  that  of  debtor  and  creditor  as  under  a  Contract  of  ground 
annual,  would  be  substituted  instead.  In  neither  of  these  cases  is  any 
renewal  of  the  original  deed  required.  A  lease,  however  long,  endures 
until  its  term  of  duration  expires.  A  contract  of  ground-annual  can  always 
be  enforced.  Why,  then,  should  any  renewal  of  a  grant  of  land  be  necessary  ? 
A  vassal  is  nothing  else  than  a  holder  of  land  under  an  irrevocable  grant, 
with  certain  annual  and  other  payments  to  make  to  the  granter,  in  consi- 
deration of  his  right.  What  is  this  but  a  tenant  of  land  under  a  perpetu^ 
lease  ?  This  is  the  modem  character  of  a  Feu  right.  Formerly,  a  vassal 
could  renounce  his  feu  against  the  will  of  his  superior.  Modern  notions 
refuse  to  recognise  any  such  right.  Both  superior  and  vassal  are  bound  by 
the  original  grant  The  one  cannot  revoke,  the  other  cannot  renounce. 
This  doctrine,  although  now  fully  established,  was  at  one  time  strongly 
opposed  by  some  who  deemed  it  an  unwarrantable  innovation  on  the  pure 
principles  of  the  Feudal  system. 

The  rights  and  obligations  of  the  two  parties  interested  in  the  land 
would  thus  remain  as  before.  The  annual  feu-duty  would  just  be  a  ground- 
annual,  which  is  the  form  the  transaction  assumes  when  subinfeudation  is 
prohibited.  The  casualties  of  Composition  and  Belief  would  also  be  exacted 
as  formerly.  A  superior  may  perhaps  object  that,  when  the  lands  are  sold, 
he  has  no  means  of  ascertaining  the  death  of  his  former  vassal,  on  which 
event  depends  his  right  to  exact  a  composition.  To  such  an  objection  it  is 
answered,  that,  under  the  present  system,  a  superior  is  constantly  exposed 
to  the  same  inconvenience,  as  the  new  vassal  seldom  demands  an  entry  from 
the  superior,  but  waits  until  an  entry  is  demanded  of  him.  There  might, 
nowever,  be  no  objection  to  benefit  the  superior  so  far,  as  to  allow  the  com- 
position to  carry  interest  from  the  death  of  the  last  vassal.  Or  perhaps  it 
anght  be  an  advantage  to  both  parties  to  allow  a  composition  at  fixed  periods, 
at  suggested  in  the  case  of  corporations;  but  with  this  proviso,  that  not  more 
than  one  composition  should  be  demanded  from  the  same  vassal. 

The  effect  of  the  change  now  proposed  would  be  considerable.  All  feudal 
hindrance  to  the  free  transfer  of  land  would  be  removed.  There  would  bo 
no  recurring  to  the  superior  for  an  entry  in  any  case.  All  the  valuable 
rights  of  the  superior  would  remain,  but  the  feudal  dignity  of  granting 
Charters  by  Progress  would  cease.  That  being  accomplished,  the  owners  of 
land  would  have  no  ground  of  complaint,  and  the  transfer  of  land  might 
become  as  simple  as  it  was  in  the  earlier  ages  of  conveyancing. 

Januaut  1, 1861. 


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DICTIONARY  AND  DIGEST 


OP  TRB 


LAW    OF    SCOTLAND. 


ABA 

Abandoning  an  Aetitm.  It  is  competent 
to  s  pnreuer,  after  the  record  is  closed,  to 
ahaadoB  the  cause  on  paying  full  expenses  to 
tie  defender,  and  to  bring  a  new  action  if 
othtrwise  competent ;  6  Geo.  IV.,  c.  120,  §  10. 
But  thia  regulation  only  applies  to  the  case 
vbere  the  abandonment  is  made  before  an 
interlocotor  has  been  pronounced,  assoilzieing 
the  defender  in  irhole  or  in  part,  or  leading, 
by  necessary  inference,  to  such  absolvitor; 
A.  S.  nth  July  1828,  §  115.  It  would  seem 
that  an  abandonment  of  the  cause  before 
eloiingthe  record,  although  competent,  is  not 
held  to  fall  under  the  above  statutory  regu- 
Istiwi;  Caledonian  Foundry  v.  CTyne,  14  th 
Dec  1831, 10  S.  <t  D.  133 ;  and  so  the  giv- 
ing »r  refusing  expenses  is  a  matter  of  dis- 
cretion with  the  Court,  in  such  a  case. 

As  to  a  statutory  abandonment  after  the 
record  is  dosed,  see'  Shirreff,  24th  May  1836, 
14  S.  825,  in  which  case  the  Lord  Ordinary, 
instead  of  dUmisning  the  action,  having  at- 
foiUied  without  any  reservation  of  a  right  of 
new  action,  the  pursuer  was,  nevertheless, 
allowed  to  bring  a  new  action.  The  pursuer 
i>  liable  for  expenses  taxed  only  as  between 
psrty  and  party  ;  Lockhari,  loth  July  1845, 
7  D.  1045.  The  minute  of  abandonment 
fflost  be  ratified  by  the  judge,  in  order  to  give 
it  effect  in  patting  an  end  to  the  process ; 
Mtir,  2d  Feb.  1849,  21  Jurist,  139 ;  Gor- 
««*,  25th  June  1846,  8  D.  889  ;  and  a  new 
Ktion  cannot  be  insbted  in,  unless  the  ex- 
penses of  the  previous  one  have  been  either 
P»id  or  consigned ;  Lawton,  Ist  July  1846,  7 
b.  960.  By  A.  8.  \Oth  July  1839,  §  61,  a 
psrsner  before  the  Sheriff  Courts  may,  upon 
paying  full  expenses,  enter  upon  record  an 
•baodonment  of  the  cause,  "  before  any  inter- 
locutor of  abmlvitor  is  pronounced."  See 
'''V«Mr»  Prae.  333 ;  U'GlaOMtCt  Sheriff  Court 
Pnc.  333 ;  Skaw's  Digett,  ii.  992 ;  iii.  354. 
See  Awtendment  of  Libel. 


ABA 

Abandonment;  in  the  law  of  insurance,  ia 

the  relinquishment,  by  the  insured,  to  tho 
underwriters,  of  all  claim  to  the  subject  saved. 
This  right  may  be  exercised  wlierever  ther» 
is  such  a  loss  as  to  make  the  voyage  not  wortk 
pursuing ;  or  where  the  thing  saved  has  lost 
its  chief  value ;  where  the  salvage  is  very 
high  ;  or  where  further  expense  is  necessary, 
which  the  insured  does  not  choose  to  under» 
take.  The  election  to  abandon  must  be  mads 
as  soon  as  the  iusured  has  obtained  correot 
information  as  to  the  loss ;  and  reasonable 
notice  of  the  abandonment  must  be  giveoc 
In  this  country  no  particular  form  of  notio* 
is  required ;  in  some  countries  it  is  by  pro- 
test-. Bell's  Princ.  §  484,  and  authorities  thcrt 
cited;  lUutt.  §  485,  et  seq. ;  Shaw's  Digest,  p.  284. 

The  actual  annihilation  of  a  ship  is  not 
necessary  to  constitute  a  total  loss.     It  i> 
suflScient,  if  the  expenses  of  repairs  would 
exceed  the  value  of  the  ship  when  repaired.^' 
Where,  therefore,  the  damage  to  the  ship  is^ 
so  great,  from  the  perils  insured  against,  ai|. 
that  the  owner  cannot  put  her  in  a  state  r,  v 
repair  necessary  for  pursuing   the  voya;  h 
insured,  except  at  an  expense  greater  th    oi" 
the  value  of  the  ship,  he  is  not  bound 
incur  that  expense,  but  is  at  liberty  to  aliljo- 
don  and  treat  the  loss  as  a  total  less.    Al- 
though, however,  the  assured  may  claim  upon 
a  total  loss  where  the  ship  is  not  actually 
annihilated,  if  they  do  so,  tliey  must  aban- 
don the  vessel  to  the  underwriters,  and  give 
up  along  with  the  ressol  all  benefit  and 
advantage  belonging  or  incident  to  it.     One 
of  the  incident  advantages  or  benefits  is  the 
freight  which  the  vessel  has  earned,  and  tliis 
falls  to  be  given  up  to  the   underwriters 
paying  for  a  total  loss,  as  much  as  the  vessel 
itself,  or  any  matter  of  value  incident  to  it. 
In  Bersonr.  Chapman,  6  M.*  0.  792,  TiK. 

SALL,  C. 

sustained 

1 


1  T.  iinapman,  o  jb.  «c  ir.  i  an,  *»»- 

J.,  observed  : — "  The  assured  has 

I  a  t<M  IM  aC  tlw  Mght  tf  >m 


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abandons  the  ship  to  the  nnderwriten,  and 
ia  justified  in  so  doing ;  for,  aFter  such  aban- 
donment, he  has  no  longer  the  means  of 
earning  the  freight,  or  the  possibility  of  ever 
receiving  it,  if  earned,  such  freight  going 
to  the  underwriters  on  ship."  In  Case  v. 
Ditfldton,  5  M.  <t  S.  79,  Lord  TstrTERDBir 
pbserved : — "  I  have  never  heard  of  an  in- 
stance in  which  the  assured,  after  abandoning 
the  ship  to  the  underwriters,  has  stepped  in 
and  claimed  the  freight  as  against  the  under- 
writers. On  the  contrai7,  the  practice  has 
been  uncontested,  that  the  abandonee  has 
received  the  freight."  In  the  case  of  the 
"  Laurei,'*  the  owner  had  insured  the  vessel 
with  one  company,  and  the  freight  with 
another.  Tlie  cargo  consisted  of  timber,  and 
the  vessel,  on  her  voyage  from  Quebec  to 
Liverpool,  was  seriously  daiqaged  by  an  ice- 
fcig.  She,  however,  reached  Liverpool,  and 
delivered  her  cargo  to  the  consigners,  by 
vhoin  the  freight  w^  paid.  The  owners 
t|)en  gave  notica  of  abandonment  to  the 
fttderwriters,  aiul  brought  an  action  claiming 
m  for  a  total  loss.    The  jury  found  "  that 

Je  vessel    was  a  total  loss,   irrespective   of 
e  decayed  timber  and  deficient  sails."    The 
•ndenvriters  tlieii  claimed  the  freight,  on  the 

tound  that,  ha\  iiig  paid  the  full  value  of 
e  ship,  they  hal  acquired  right  to  all  her 
Mrnings.  This  claim  the  Court  sustained, 
and  tlioir  judgment  was  affirmed.  Lord  Cot- 
■I':nii  Au,  C,  observed : — "  Where  a  ship  has 
peceived  such  repairs  as  entitles  the  owners 
to  treat  her  as  actually  lost,  and  where  the 
owner  consequently  abandons  her  to  the  un- 
^rvvriters,  tlicy  come  in  as  assignees,  and  so 
are  entitled  to  all  freight  afterwards  earned." 
SUaart  v.  Greenock  Inturance  Company,  8  D. 
323,  1  Uacquceu  328. 

Where,  however,  the  owners  elect  to  aban- 

lon  it\9  vessel  to  the  underwriters,  and  where 

'^ -eight  has  boi;n  actually  earned,  and  the 

■kiderwritcrs  on  the  vessel  have  deducted  the 

th^i^M  '■'"'n  t^l>e  sums  assured,  the  owners 

'e  no  claim  against  the  underwriters  on 
freight.  In  the  ease  of  the  "  Laurel"  the 
ownci-s  having  been  compelled  to  surrender 
the  IVeight  to  the  underwriter;  on  the  ves- 
■el,  raised  an  action  against  th^  insurers 
on  the  freight,  on  the  ground  that,  as  the 
■iidornritcrs  on  the  ship  had  been  found 
entitled  to  the  freight,  it  must  be  considered 
■8  lost  to  the  assured,  and  consequently  reco- 
Terable  from  the  underwriters  on  the  freight. 
The  Court  sustained  the  claim  of  the  owners, 
but  their  judgment  was  reversed,  on  the 
ground  that  what  the  underwriters  on  the 
freight  undertook  was,  that  the  voyage  should 
he  performed,  so  that  the  owners  should  be 
able  to  deliver  the  cargo,  and  be  in  a  condi- 
tion to  assert  their  title  to  the  freight,  and 


that  the  nnderwriten  on  the  freight  had 
undoubtedly  performed  this  contract.  Lord 
CoTTEKHAif  observed: — "The  underwriters 
on  freight  engaged  that  the  ship  should  not 
be  prevented  by  perils  of  the  sea  from  en- 
abling the  owners  to  earn  her  freight.  The 
right  of  the  underwriters  on  the  ship  to  claim 
that  freight  arose,  not  from  perils  of  the  sea, 
but  from  the  election  made  by  the  owners, 
after  the  freight  had  been  earned,  to  treat  the 
ship  as  wholly  lost."  Turner  v.  ScoUish  Ma- 
rine Inturance  Company,  13  D.  652,  1  Mae- 
queen,  334. 

The  owners  of  a  vessel  may  be  deprived  of 
their  right  of  abandonment,  and  of  claiming 
as  for  a  total  loss,  where  the  master  elects  to 
repair  the  damage  caused  to  the  vessel.  The 
duty  of  the  master,  in  the  case  of  damage  to 
the  ship,  is  to  do  all  that  can  be  done  towards 
bringing  tl^e  adventure  to  a  successful  ter- 
mination— to  repair  the  ship  if  thei-e  be  a 
reasonable  prospect  of  doing  so,  at  an  expense 
not  ruinous — and  to  bring  home  the  cargo, 
and  earn  the  freight,  if  possible,  Unless, 
therefore,  it  is  shown  that  the  master,  in 
repairing  the  ship,  acted  improperly,  the 
mere  fact  that  the  expenses  of  repair  ulti- 
mately prove  to  be  greater  than  the  value  of 
the  ship,  will  not  be  sufScient  to  show  that  he 
acted  beyond  the  scope  of  his  authority,  for 
he  is  hold  to  have  authority  to  act  as  a  pro- 
vident uninsured  owner  would  have  done. 
This  law  was  applied  by  the  House  of  Lords 
in  the  case  of  Benton  v.  Ghc^pman,  1849,  2C.<t 
F.  696,  where  the  vessel  was  repaired  by  the 
master,  and  the  expenses  exceeded  the  value 
of  the  ship  and  freight.  It  was  hel4  that  the 
case  was  one  of  constructive  total  loss,  and 
that  the  master  might  have  aband^vied  ;  but 
that  as  he  had  elected  tu  repair,  he  must  be 
treated  for  that  purpose  as  the  age^t  of  the 
owner,  whose  acts  bound  the  owner. 

Abbey.  Prior  to  the  Reformation,  an 
abbey  was  a  monastery  or  religious  house, 
where  religious  persons,  whether  men  or 
women,  resided  under  the  direction  and  con- 
trol of  an  Abbot  or  Abbess.  In  Scotland,  the 
word  abbey  is  also  used  colloquially,  to  eig-. 
nify  the  sanctuary  against  personal  diligence 
afforded  by  the  Abbey  of  Holyroodhonse,  as 
having  been  a  royal  residence.  See  Sanctuary. 
Abbot.  An  Abbot  was  the  head  and  go- 
vernor of  a  religious  house  or  abbey.  Ue 
ha4  commonly  a  Prior  under  him ;  and,  before 
the  Reformation,  Abbots  sat  ex  officio  in  the 
Scotch  Parliament.     Ertk.  B.  i.  tit.  5,  §  4. 

Abbreviate  of  A^ndication;  an  abridg- 
ment or  abstract  of  the  decree  of  adjudication, 
containing  the  names  of  the  creditor  and 
debtor,  and  of  the  lands  adjudged,  with  the 
amount  of  the  debt.  This  abbreviate  used 
formerly  to  be  authenticated  by  the  signature 


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ABI 


3 


of  Uie  Lord  Ordinary  by  whom  the  decree 
WM  prnnoanced ;  but  is  now  signed  by  the 
Extractor ;  (1  and  2  Geo.  IV.,  c.  S8,  §  18.) 
The  abbreviate  must  be  recorded  within  sixty 
days.    The  register  of  abbreviates  is  kept  by 
the  clerks  of  the  bills,  and  the  certificate  of 
registration  is  written  on  the  abbreviate.     A 
copy  of  the  abbreviate  is  also  appended  to 
the  extract  of  the  decree,  on  which  likewise 
the  recording  is  certified.    An  abbreviate  is 
necessary  in   all  adjudications,  whether  in 
pajmieDt  or  in  implement;  but,  where  led 
before    the    Sheriff    on    decrees    eogniiionis 
(sua,  the  abbreviate  need  not  be  signed  or 
recorded.    An  omission  to  record  the  abbre* 
Title  will  have  the  effect  of  postponing  the 
aiijadication,    in    competition  with  another 
adjudication  duly  recorded,  but  does  not  infer 
nallity  in  a  question  with  the  debtor.    No 
homing  against  superiors  can  be  obtained 
nnleis  the  abbreviate  be  recorded;   but  if 
infeftment  have  followed  on  the  adjudication, 
the  omission  to  record  the  abbreviate  is  of  no 
consequence  in  a  question  with  creditors  ad- 
judging posterior  to  the  sasine.    Ersk.  B.  ii. 
tit  12,  §  26 ;  1661,  c  31 ;  Reg.   1695,  c. 
24;  i.  &  \m  Jan.  1715;  A.  S.  2d  Vee. 
1742;  A.  S,  10th  July  1811 ;  BeWs  Com.,  i. 
704,722, 746  ;  Shand's  Prac.  ii.  700,  and  au- 
&mlits  there  cited  ;  Mr  More's  Notes  on  Stair,  p. 
cwvi;  BaiA.  vol,  ii.  p.  222,  §  50 ;  BelTs  Princ. 
§  825 ;  Kames'  Stat.  Law  Abridg.  voce  Registra- 
<»»;  SkaWs  Digest,  p.  6t  §  17 ;  Jurid.  Styles, 
2d  edit,  vol.  iii.  p.  888.    See  Adjudication. 

Abdicate;  to  resign.  Oeneially  applied 
to  the  ease  of  a  magistrate  or  other  function- 
ary giving  up  or  quitting  his  office  before  his 
t«ra  of  service  ia  expired.     Tomlins,  h.  i. 

Abdaclion  of  Women;  is  the  unlawful 
taking  sway  of  the  person  of  a  woman, 
whether  child,  wife,  ward,  heiress,  or  women 
generally.  In  England,  the  abduction  of  a 
»ife,  whether  by  open  violence  or  by  fraudu- 
leit  practices,  (which  are  held  equivalent  to 
constraint),  is  punishable  by  fine  and  impri- 
Mnment,  as  a  crime,  and  may  also  found  a 
(iril  action  for  damages.  A  similar  action 
*ill  lie  in  the  ease  of  abduction  of  a  ward,  the 
guardian  being  accountable  to  the  ward  for 
the  damages  recovered ;  although  the  more 
nsasl  remedy  for  such  a  wrong,  is  by  an 
application  to  the  Court  of  Chancery,  as  the 
supreme  guardian  of  all  persons  in  England 
vho  are  nnder  age.  The  abduction  of  an 
heiress,  or  of  any  woman  who  has  property 
in  possession  or  expectation,  from  motives  of 
here,  with  intent  to  marry  her,  is  declared, 
by  9  Geo.  IV.,  c.  31,  as  to  England,  and  by 
10  Geo.  IV.,  cap  34,  as  to  Ireland,  to  be 
fdony,  punishable  by  transportation,  penal 
wvitude,  or  imprisonment  If  marriage  has 
Wlowed,  though  ostensibly  voluntary,  yet  it 


will  be  held  in  law  to  have  been  forcible,  as 
having  proceeded  on  a  consent  fraudulently 
obtained.  Generally,  indeed,  the  abduction 
in  order  to  marriage  of  women  is  a  felony ; 
and  the  woman  who  has  been  thus  married 
may  bear  evidence  as  to  her  abduction  against 
her  husband,  contrary  to  the  ordinary  rule 
of  law.  Under  the  same  statutes,  the  abduc- 
tion of  an  unmarried  girl  under  sixteen  years 
of  age  is  a  felony,  punishable  by  fine  and  impri- 
sonment. In  Scotland,  the  crime  of  abduction 
of  women  is  punishable  arbitrarily.  In  one 
case,  the  forcible  abduction  and  marriage  of 
an  heiress  of  fifteen  years  of  age  was  punished 
by  transportation  for  fourteen  years.  Hume 
on  Crimes,  i.  310  ;  Tomlins,  h.  t. ;  Russdl  on 
Crimes. 

Abduction  of  Voton.  The  abduction  of 
voters  at  an  election  is  an  offence  at  common 
law,  and  punishable  with  an  arbitrary  pain ; 
Alison's  Princ.  p.  642.  But,  although  thb 
was  one  ingredient  in  a  successful  petitira 
against  a  return,  the  effect  of  abduction  _  ^~' 
on  the  election  has  not  yet  been  decided, 
is  apprehended,  however,  that  the  name  of 
voter  should  bo  added  to  the  roll,  there  appi 
ing  to  be  oo  distinction  in  principle  betwl 
this  case  and  that  of  any  other  wrongfu 
excluded  vote.  Warren's  Law  of  Election  Cj 
mittees,  368 ;  Chambers  on  Elections,  A.  (. 

Abettor;  ope  who  incites,  instigates, 
encourages,  or  who  commands,  or  oouni 
another  to  commit  felony.    In  most 
abettor  is  considered  as  much  a  principi 
the  actual  felon.    Tomlins,  h.  t. 

Abeyance ;  an  English  law  term,  im[ 
ing  that  a  freehold  or  inheritance  ia 
vested  in  any  one,  but  is  in  expectation, 
ready  to  descend  upon  him  who  shall  first 
the   character   required  by  the  partici 
quality  of  the  estate.    This  abeyance  or 
pense  being  repugnant  to  the  general  pi 
ciples  of  the  English  law  of  tenure,  is  nej 
allowed  except  when  it  is  unavoidable, 
has  been  compared  to  the  hoeretUlas  ja( 
the  civil  law.     Tomlins'  Diet.  h.  (. 

Abiding  by.  In  an  action  of  reducti 
improbation,  where  the  main  reason  of 
duction  is  forgery  or  falsehood;  or  in 
other  action  where  either  party  founds  oi 
deed  or  writing  to  which  the  objection] 
falsehood  or  forgery  is  proponed  either 
way  of  action  or  of  exception,  the  pi 
founding  on  the  deed  may  be  required  by  ,^ 
adversary  to  abide  by  it, — that  is,  to  decllpl 
judicially  that  he  abides  by  the  deed  ]m 
writing  challenged  or  objected  to,  as  true  afti 
genuine.  If  he  refuse,  decree  of  certificat|ai 
will  be  pronounced  gainst  the  writing  4e 
improbative  or  fake.  The  party  abidingly 
the  deed  does  so  sub  periciuo  falsi ;  i.  e.  -Jt 
the  risk  of  the'  punishment  of  forgery,  if  fMl 


■■.^"i 


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forgery  be  proved ;  and  regularly  the  abider 
by  the  deed  ought  to  appear  in  court  for  the 
purpose ;  although,  in  the  case  of  extreme 
age  or  of  necessary  absence  from  Scotland,  a 
comminion  to  take  his  declaration  will  be 
granted.  It  ■was  formerly  the  practice  to 
admit  parties  to  abide  by  deeds  qwdificaU,  as 
it  was  expressed, — that  is,  with  explanations 
tending  to  show  that  the  deed  came  fairly 
into  the  party's  possession.  This  practice, 
however,  has  gone  into  desuetude ;  but  it  is 
11  competent  and  usual  for  the  .abider  to 
ptest  that  he  shall  be  at  liberty  to  prove 
'  I  and  circumstances  as  to  the  manner  in 
^ich  the  deed  came  into  his  hands,  and  as 
his  belief  of  its  being  genuine,  which, 
^n  if  it  turn  out  to  be  a  forgery,  may  free 
of  acciession  to  the  crime.  After  a  party 
thus  abidden  by  a  deed,  he  cannot  be 
ked  how  the  deed  came  into  his  hands ; 
the  form  of  process  is  to  make  up  the 
cord  in  the  cause,  by  ordering  a  condescend- 
ce  of  articles  improbatory,  and  answers 
ataining  articles  approbatory.  The  writ 
Iquestion  is  also  identi6ed  by  the  signatures 
Itbe  party  abiding  by  it,  and  of  the  judge 
1  commissioner.  Stair,  B.  ir.  tit.  20,  §  19 ; 
l«fc.  B.  iv.  tit  4,  §  69 :  Bank.  B.  i.  tit.  10,  § 
N  ;  Act  if  Sederunt,  11th  July  1828,  §  63  ; 
fl»kf «  Prac.  ii.  642,  et  seq.  and  cases  there 
'  and  notes;  Hume,  i.  157.  See  ArUdes 
r<Aat<ny. 

Lljjnrdtion,  Oath  of;  an  oath  asserting 
I  title  of  the  present  Royal  Family  to  the 
^own  of  England.  The  statutes  enjoining 
are  13  Will.  III.,  c.  6, 1  Geo.  I.,  c.  13,  and 
1t»o.  III.,  c.  £3.  By  this  oath  the  swearer 
ognises  the  right  of  the  Sovereign  under 
Act  of  Settlement ;  engages  to  support 
or  Iter  to  the  utmost  of  his  power ; 
pmises  to  disclose  all  traitorous  conspira- 
I ;  and  expressly  disclaims  any  right  to  the 
^own  of  England  by  the  descendants  of  the 
etender.  This  oath  is  ordered  to  be  taken 
all  persons  holding  offices  in  Scotland, 
|ril  or  military, — by  Peers  before  voting  in 
election  of  Scotch  Peers,  or  taking  their 
(its  in  the  House  of  Lords,— by  judges,  ad- 
cates,  and  practitioners, — by  the  heads  and 
tier  members  of  colleges,- — by  the  clergy  of 
Church  of  Scotland,  and  by  schoolmasters, 
iiakers  and  Moravians  are  allowed  to  make 
affirmation  to  the  same  effect,  in  lieu  of 
1  oath.  8  Geo.  I.,  c.  6 ;  6  Geo.  III.,  c.  63 ; 
ind  4  Will.  IV.,  c.  49,  §  2.  The  oaths  of 
Ijuration  and  allegiance  are  repealed  in 
•Tery  case  as  to  Roman  Catholics  ;  and  by  5 
and  6  Will.  IV.,  c.36,  no  elector  in  England 
is  to  be  required,  at  any  election,  to  take 
them,  or  any  oath  required  by  any  act  to 
be  taken  in  lieu  of  them.  Members  of  Par- 
liament (except  Roman  Catholics)  must  take 


them  before  they  sit  or  vote,  after  the  Speaker 
is>  chosen,  otherwise  the  election  is  void;  13 
Will.  III.,c.  6 ;  and  Roman  Catholics  electe<l 
members  must  take  an  oath  in  lieu  of  the 
oaths  of  abjuration,  allegiance,  and  supre- 
macy, according  to  a  formula  prescribed  bv 
10  Geo.  IV.,  c.  7,  6  2.  Ersk.  B.  i.  tit.  2,  '§ 
33  ;  Swinton's  Abridgment,  v»ce  Oaths ;  Blair's 
Justice  Manual,  h.  t. ;  Chambers'  Election  Law, 
h.  t. ;  Hutch.  Justice  of  Peace.  See  also  Oaths. 
Affirmation. 

Abortion  ;  the  offence  of  administering 
medicine  or  applying  force  to  a  pregnant 
woman,  in  order  to  procure  abortion,  is  not 
murder  of  the  child  tn  Micro,  whether  quick 
or  not.  But  where  the  mother  dies  from  the 
effect  of  the  potion  or  operation  used  to  de- 
stroy or  expel  the  foetus,  there  seems  to  be 
room  for  a  charge  of  murder  against  the  per- 
petrator. An  attempt  to  procure  abortion  is 
a  relevant  charge.  Hume,  i.  186,  263  ; 
Alison,  Princ.  72. 

Abroad ;  persons  resident  abroad,  that  is, 
out  of  Scotland,  are  not,  generally  speaking, 
subject  to  the  jurisdietion  of  any  Scotch  court. 
But  to  this  rule  there  are  several  exceptions. 
A  native  Scotchman,  who  goes  abroad  anitn» 
remanendi,  leaving  no  property,  either  herit- 
able or  moveable,  behind  him,  does  not  re- 
main subject  to  the  jurisdiction  of  the  Scotch 
courts  ratione  originis.  If  a  party  resident 
abroad  have  heritable  property  in  Scotland,  or, 
whether  he  beanatfve  or  not,  if  a  jurisdiction 
has  been  created  by  arresting  his  moveables 
in  Scotland  jurisdictionis  fwrnandac  causa,  he 
may  be  cited  (except  in  questions  of  status) 
in  the  Scotch  courts.  In  the  case  of  a  landed 
estate,  the  lex  rei  sitee  is  the  rule  ;  and  the 
law  presumes  that  the  owner  of  such  an 
estate,  whether  native  or  foreigner,  if  resi- 
dent abroad,  has  employed  some  one  resident 
in  this  country  to  look  after  his  interests  in 
his  absence.  Hence,  not  only  in  the  case 
where  there  is  an  arrestment  to  found  a 
jurisdiction,  but  also  where  there  is  juris- 
diction ratione  rei  sitce,  edictal  citation,  on 
inducis  of  twenty-one  days,  is  competent 
against  the  party,  to  the  effect  of  making 
him  amenable  to  the  Court  of  Session  in 
Scotland.  Parties  resident  abroad,  and 
charged  with  the  commission  of  crimes  in 
Scotland,  may  also  be  cited  as  furth  of  the 
kingdom.  The  effect  of  absconding,  or  going 
abroad  for  the  purpose  of  evading  payment  of 
debt,  or  of  escaping  punishment  for  a  crime, 
will  be  considered  under  other  heads. 

In  the  case  of  Grant  v.  Pedis,  6th  July 
1826,  iW.dbS.  716,  which,  overruling  the 
judgment  of  the  Court  below,  found  that  a 
native  of  Scotland  domiciled  abroad  was 
not  amenable  to  the  jurisdiction  of  the  Courts 
in  Scotland  ratione  originis,  there  was  no 


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personal  eiUtion.  Where,  however,  a  na- 
tire  of  Scotland  domiciled  ahroad  is  cited 
penonally  in  Scotland,  he  is  amenable,  al- 
thoagh  he  may  be  in  Scotland  only  on  a  visit, 
and  may  not  have  resided  there  for  forty  days 
ooBtinaoDsly.  Ritehiev.Fnuer, 9ttiDee.l8b2, 
lo  D.  205.  It  would  rather  seem,  there- 
fore, that  the  moment  that  a  Scotsman  re- 
tarns  home,  the  jurisdiction  of  his  native 
courts  revives,  although  he  be  at  home 
transiently  only,  provided  he  be  cited  person- 
ally. On  this  ground  the  judgment  in  the  case 
otCalda-T.  Wood,  19th  Jan.  1798,M.2250,may 
be  doubted.  There  the  defender  was  a  native  of 
Scotland  domiciled  abroad,  and  had  been  at 
home  on  a  visit  for  more  than  forty  days,  but 
the  citation  was  4eft  at  his  lodging-house 
after  he  had  quitted  it,  and  when  he  was  on 
his  road  to  England  two  or  three  days  before 
the  citation  was  given.  The  older  case  of 
WUde  V.  Muirhtai,  M.  4814,  appears  to 
have  been  correctly  decided,  for  there  the 
defender,  although  domiciled  in  England, 
was  a  Scotsman  by  birth,  and  was  personally 
cited  in  Scotland.  So  soon  as  a  party  leaves 
hit  residence  in  Scotland,-  with  the  intention 
of  establishing  himself  elsewhere,-  he  may  be 
cited  edictally  as  being  furth  of  Scotland,  al- 
though he  may  not  have  acquired  another 
domicile  elsewhere  ;  Brown  v.  BlaUdet  1st  Feb. 
1849, 11 2),  474.  In  that  case  Lord  Jeffrey 
observed  :  "  It  is  a  great  mistake  to  suppose 
^at  the  domicile  for  citation  is  the  same  as 
that  which  regulates  succession,-  and  that  no 
donieUe  for  citation  can  be  lost  until  a  new 
one  is  acquired.  This  is  an  error,  for  such 
doBiieile  may  be  lost  in  the  course  of  twenty- 
four  hours  by  goii^  forth  from  the  realm,  and 
by  intimating  to  all  the  lieges  that  the  pai-ty 
does  not  mean  to  come  back.  The  only 
proper  form  of  citation  from  that  time  forth 
it  edietal  ciUtion." 

On  the  subject  of  this  article  generally,  see 
EtA.  B.  L  tit.  2, 5  17,  rf  wq.  and  Ivory's  Notes; 
awi  B.  iiL  tit.  9,  §  4,  and  tits.  3,  §  33,  and  10, 
{ 18 ;  also,  B.  iv.  tit  1,  §§  6  and  41 ;  Bell's 
Cm.  Tol.  ii.  168  ;  Kernel  Law  Tracts,  vii.  p. 
217 ;  Buwum  Crimes,  ii.  259  ;  Shaturs  Prae- 
«w,  pp.  9, 163;  13  and  14  Vict.,  c.  36,  §§  21, 
^  See  also  Foreigner.  Judicial  Factor. 
Edidal  Citaiion.  Reconvention.  Backing  War- 
'**<.  Absconding.  Meditatio  Fugce.  Border 
VtrrmU.  Jurisdiction.  Fugitation,  Domi- 
4  Fontm.  Mandatary.  Bankrupt,  Arrest- 
■  "Ml  jurisdietumis  fundandce  causa.    Absence. 

Amnte.  To  abrogate  a  law  is  to  repeal 
Krecallit. 

AkmndiBg.  The  act  of  absconding  or 
Ixiag,  in  order  to  evade  payment  of  debt,  is 
Mt  of  the  equivalents  of  legal  bankruptcy, 
■ier  the  act  1696,  c.  5,  and  under  the  hank- 
ie ttatntea.    Burton  on  Bankruptcy,  p.  208< 


Absconding  is  also  one  of  the  indications  of 
guilt  usually  libelled  on  in  indictments  and 
criminal  letters.  If  a  witness  moan  to  ab- 
scond, in  order  to  avoid  giving  evidence  at  a 
trial,  he  may  be  apprehended  and  imprisoned, 
till  he  find  caution  for  his  appearance,  ^ums 
on  Crimes,  ii.  375.  The  prosecutor  (or  pan- 
nel,  as  the  case  may  be)  must  give  in  a 
regular  application,  and  support  it  by  oath, 
that  he  has  good  cause  for  believing  that  the 
witness  means  to  abscond  in  order  to  disap- 
point the- course  of  justice.  Alison's  Prac., 
398.  Dickson  on  Evidence,  951.  See  Bank- 
rupt.   Meditatio  Fugce. 

Absence.  Where  a  defender,  although 
duly  cited,  has  failed  to  appear,  the  Court, 
on  the  ground  that  by  means  of  the  citation 
he  has  had  lawful  notice  of  the  demand,  ac- 
companied by  certification  of  what  will  ensue 
if  he  fail  to  make  appearance,  is  in  use,  on 
the  pursuer's  motion,  to  pronounce  a  decree 
in  terms  of  the  conclusions  of  the  summons  or 
libel,  which  is  called  a  decree  in  abtence.  In 
order  to  warrant  such  a  decree,  the  Court 
must  have  jurisdiction  over  the  defender,  and 
the  decree  must  be  in  terms  of  the  libel ;  or, 
at  least,  the  only  admissible  variation  must 
be  of  the  nature  of  &  restriction  on  the  demand 
in  the  summons,  not  of  an  amendment  of  the 
libel.  The  principle  on  which  this  rests  is, 
that  the  absent  defender  is  presumed  to  have 
laid  his  account  with  a  decree  in  the  terms 
concluded  for ;  while,  if  he  had  been  made 
aware  of  the  variation,  he  might  have  ap- 
peared and  opposed  it.  Where  a  libel  con- 
tains alternative  conclusions,  the  decree  must 
be  made  to  bear  reference  to  one  or  other  of 
them.  In  consistorial actions,  generally,  the 
pursuer  must  prove  his  case  before  getting 
decree,  though  the  defender  has  failed  to  ap- 
pear. In  criminal  process  no  procedure  of. 
the  nature  of  trial,  conviction,  or  sentence, 
can  take  place  in  absence  of  the  accused  ;  al- 
though, if  he  fail  to  appear  on  the  day  to 
which  he  is  cited,  sentence  of  fugitation  or 
outlawry  may  be  pronounced  against  him  in 
his  absence,  whereby  his  person  is  forfeited  in 
law,  and  his  moveables  escheated.  The  effect 
of  absence  where  the  party  has  no  domicil  or 
forum  in  Scotland,  or  where  he  has  lost  hi 
original  forum  and  domicil  by  leaving  the 
country  animo  remanendi,  is,  that  he  is  not 
amenable  to  the  Scotch  courts  in  any  process, 
civil  or  criminal,  except  under  the  circum-. 
stances  explained  in  the  article  Ahroad.  A 
decree  in  absence  not  being  held  as  res  judi- 
cata, the  party  may  be  reponed  against  its 
effects,  in  the  manner  pointed  out  under  the 
article  Decree.  As  to  the  mode  of  providing 
for  the  management  of  the  estate  or  affairs 
of  an  absent  party,  see  Judicial  Factor;  and 
as  to  the  manner  in  which  he  must  sue  an 


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action,  see  Mandatary.  For  the  mode  of  eit- 
ing  Iiim  when  he  has  a  Scotch  fornm,  see  Edic- 
tal  Citation.  As  to  decrees  in  absence  in  Sheriff 
Courts,  see  16  and  17  Viet.,  c.  80,  §  2. 

Where  a  decree  in  absence  is  sought  to  be 
reduced,  the  pursuer,  as  a  condition  of  his 
being  allowed  to  insist  in  the  action,  must 
first  pay  the  expenses  decerned  for  in  the 
previous  decree.    If  he  is  successful  in  the 
reduction,  he  is  not  entitled  to  claim  repay- 
ment of  these  previous  expenses,  as  forming 
part  of  the  expenses  of  the  action  of  re- 
duction.   A  different  judgment  appears  to 
have  been  pronounced  in  one  case,  but  it 
does  not  appear  to  be   supported  by  the 
opinion  of  the  majority  of  the  judges  who,  as 
reported,  were  against  the  claim.     The  judg- 
ment bears  that  the  pursuer  of  the  reduction 
was  entitled  to  repayment  of  the  expenses  of 
^e  principal  action  under  the  deduction  of 
.fie  expenses  of  enrolling  ai)d  obtaining  de- 
"'  ee,  the  taxation,  and  extract ;  and  this  ap- 
lars  to  have  proceeded  on  the  ground  that 
lose  were  the  only  expenses  caused  by  the 
prsuer  of  the  reduction  not  appearing  in  the 
revious  action.    By  his  not  appearing,  how- 
|rer,  the  summons  itself  was  i-endered  use- 
.  and  having  been  unsuccessful  in  the  re- 
liction, he  had  to  pay  the  expense  of  the 
pmmons  of  reduction — the  expense  of  which 
i  caused  by  the  non-appearance  of  the  pur- 
r  in  the  previous  action.     It  would  appear, 
kerefore,  that  his  claim  for  the  previous  ex- 
pnses  ought  to  have  been  disallowed  «n  toto  ; 
"     V.  Wiglon,  22d  May  1852,  14  D.  780. 
1  the  subject  of  the  article  generally,  see 
following  authorities:  Stair,  B.  iv.tit.  38, 
Erik.  B.  i.  tit.  2,  §  16 ;  B.  iv.  tit.  3,  §  6, 
ad  tit.  4,  §  83  ;  Bank.  vol.  i.  p.  461 ;  Huim, 
269  ;  ShaiuPs  Practice,  305,  et  seq.;  Mac- 
!'«  Jury  Practice,  pp.  26,   154,  246 ; 
''Olaihan't  Sher.  Court  Prae.  195.    See  also 
ltn«fu^«n(  of  Libel.    Domicil. 
I  Abtolate  Disposition   is  a  conveyance  un- 
ualifled  by  any  reservation  in  favour  of  the 
bsponer  or  of  any  other  party;  in  contra- 
ustinction  to    a  conveyance   containing  in 
Vcemio  a  power  of  reversion,  or  any  other 
Imitation  or  qualification  of  the  right.    In 
otch  law  language,  however,  the  term  ab- 
I  disposition  is  generally  used  in  relation 
heritable  property,  and  in  connection  with 
Ihat  is  called  a  back-bond ;  that  is,  a  right  ex 
ie  absolute  is  qualified  by  a  separate  deed 
eclaring  a  trust,  or  importing  a  security,  by 
kking  the  disponee  bound  to  redispone  to  the 
Bsponer,  or  his  representatives,  on  repayment 
la  particular  loan  or  advance  of  money,  or 
.  being  relieved  of  certain  obligations  con- 
1  on  the  disponer's  account.    This  is  a 
1  of  security  sometimes  given  for  future 
advances,  or  for  securing  obligations  of  relief. 


When  the  relative  hack-bond  is  published 
by  registration  in  the  record  of  sasines  and 
reversions,  it  becomes,  from  the  date  of  regis- 
tration, a  real  qualification  on  the  disponee's 
right,  which  will  be  effertual  against  the  dis- 
ponee's creditors  and  against  third  parties. 
And  after  such  ragistration,  or  after  judicial 
production  of  the  back-bond,  the  parties  can- 
not disburden  the  disponee's  right  merely  by 
cancelling  or  restricting  the  back-bond.  The 
registration  of  the  back-bond  in  the  record  of 
sasines  and  reversions  is  held  to  be  a  feudal 
limitation  of  the  disponee's  right;   and  in 
oi^der  efectually  to  discharge  it,  the  discharge, 
like  the  burden,  mnst  appear  on  the  record. 
While  the  ba<:k-boiid  remains  unrecorded, 
the,di8poner  is  exposed  to  the  risk  of  the  dis- 
ponee's bankruptcy ;  and  if  it  should  never 
be  recorded,  then  on  the  face  of  the  records, 
and  feudally  speaking,  the  disponee  will  be 
the  absolute  proprietor,  subject  only  to  a  per- 
sonal obligation   to  denude  or  account,  in 
terms  of  the  back-bond.   Although  the  holder 
of  a  disposition  qualified  by  a  recorded  back- 
bond is  virtually  no  more  than  an  heritable 
creditor  to  the  disponer  entitled  to  redeem, 
yet  it  seems  to  be  doubtful  whether  the  dis- 
ponee can  state  himself  as  in  right  of  a  (l«M- 
tum  fundi,  to  the  effect  of  entitling  him  to 
poind  the  ground  of  the  lands  comprehended 
in  the  absolute  disposition   in    his  favour. 
Poinding  of  the  ground  is  a  remedy  competent 
to  the  holder  of  a  dAitxm  fundi,  but  not  com- 
petent, it  would  seem,  to  a  party  holding  a 
title,  in  virtue  of  which  he  can  enter  into  the 
natural  possession  of  the  lands.    Rosses  Lee- 
tures,  vol.  ii.  p.  430,  and  authorities  there  cited; 
BeWs  Com.  i.  672 ;  Princ.  §  913,  and  authori- 
ties there  cited.  See  Burdens.  Bmkrupt.  Wad- 
set.   Poinding  of  the  Ground. 

An  absolute  disposition  qualified  by  a  back- 
bond acknowledging  the  disposition  to  be  in 
security  merely,  covers  all  advances  made  by 
the  disponee,  either  before  or  after  the  date 
of  the  disposition.  If,  however,  the  disposi- 
tion be  recorded,  or  produced  judicially,  it 
will  then  operate  as  a  security  merely  for  the 
sums  advanced  at  the  date  of  the  recording, 
or  of  the  judicial  production.  Riddel  v.  Nib- 
bli^s  Creditors.  16th  Feb.  1782,  M.  1154; 
Keith  V.  Maxwdl,  8th  July  1796,  M.  1163. 

There  existsanimportantdistinction  between 
a  disposition  which  in  gramio  contains  a  trust 
and  sets  forth  cei'tain  specific  trust-purposes, 
and  a  disposition  which  is  ex  facte  absolute,, 
but  is  qualified  by  a  separate  back-bond  by 
the  disponee,  containing  a  general  declara- 
tion of  trust.  The  first  does  not  divest  the 
grantor,  but  merely  burdens  his  right  until 
the  back -bond  hss  been  recorded;  the  lat- 
ter does  divest  him,  leaving  him  merely  the 
creditor  on  the  disponee's  obligation  to  re- 


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tmnj.  The  disponee  vho  possesses  under 
a  title  ex  facte  absolut«,  when  required  t/>  de- 
nude in  fa?onr  of  the  truster,  is  entitled  to 
retain  the  subject  nntil  the  obligations  in- 
enmbent  on  the  truster  towards  him  shall  be 
fnlfiUed.  Where  the  back-bond  is  perfectly 
general  in  its  tenor,  the  security  created  by 
tli«  tmst  not  being  limited  either  expressly 
or  by  implication,  the  disponee  is  entitled  to 
refuse  to  denude  until  he  is  relieved  of  all 
adranees  made  or  obligations  incurred  for  the 
truster,  prior,  as  well  as  posteriori  to  the  date 
of  the  disposition.  Where,  too,  the  back- 
bond is  not  perfectly  general,  but  specifies  par- 
ticular obligations,  still  in  so  far  as  regards 
soteeqaent  advances  by  the  disponee  to  or  for 
the  truster,  he  is  entitled  to  retain  the  sub- 
jects for  his  relief  of  these.  The  presumption 
of  law  in  such  a  case  is,  that  the  truster  in 
obtaining  these  subsequent  advances  con- 
templated the  extension  of  the  trust,  and  that 
the  disponee  holding  the  subjects  under  an  ex 
fide  absolute  title,  made  these  subsequent 
advances  for  the  truster  in  reliance  on  the 
security  actually  held  by  him.  Where,  how- 
ever, it  appears  from  the  back-bond  that  the 
absolute  dispositiou  has  been  granted  in  se- 
curity of  a  particular  debt  specially  named, 
and  the  disponee  is  taken  bound  to  reconvey 
on  the  particular  debt  being  repaid,  in  secu- 
rity of  which  the  disposition  was  specially 
graated,  the  disposition  will  not  be  held  to 
cover  debts  previously  due.  In  such  a  case  the 
tmst  crested  trill  be  hold  to  be  a  new  transac- 
tion, and  its  nature  and  terms  will  fall  to  be 
determined  by  the  intention  of  the  parties  as 
iiscertained  by  competent  evidence ;  for  an  ab- 
sohite  conveyance  with  a  back-bond,  though 
a  trust  or  security  most  favourable  for  the 
trustee,  is  still  but  a  trust  or  security,  and  its 
terms,  like  those  of  any  other  transaction,  are 
a  fit  subject  of  judicial  inquiry.  In  so  far, 
however,  as  regards  subsequent  advances  in 
such  a  ease  as  that  now  supposed,  these 
vill  be  held  to  be  covered  by  the  secu- 
rity, on  the  principle  that  there  was  an  im- 
plied extension  of  the  trnst-purposes,  to  the 
efifect  of  securing  such  subsequent  advances. 
StberttM  r.  Dufi  14th  Jan.  1840,  2  D.  279. 

An  ex/ade  absolute  disposition,  qualified 
bj  a  back-bond,  does  not  exclude  the  widow 
of  the  disponer  from  claiming  her  terce  out 
of  the  lands  conveyed,  o'n  the  ground  that  the 
trsoaaetion,  as  declared  by  the  back-bond,  was 
nothing  more  than  an  heritable  security  over 
the  lands,  and  that  beyond  the  extent  of  the 
•am  secured  the  infeftment  of  the  disponee  was 
truly  the  infeftment  of  the  disponer.  Bartiet  v. 
BtduMOH,  21st  Feb.  1811,  F.  C.  In  the  case 
of  Ota-dftte  v.  Bank  of  Scotiand,  8th  March 
1851,  13  D.  912,  the  Court,  by  a  majority  of 
tbree,  held  that  an  ex  facie  absolute  disponee 


of  a  subject  held  burgage,  was  liable  to  the 
creditor  of  a  ground-annual  secured  over  the 
subjects,  although  he  had  put  upon  record 
a  back-bond,  granted  by  him  at  the  samei 
time  that  he  received  the  disposition,  which  set 
forth  that  the  conveyance  was  to  him  in  se- 
curity merely  of  a  debt,  and  although  he  af- 
terwards executed  and  put  on  record  a  dis^ 
charge  and  renunciation  of  the  security.  This 
judgment  was  clearly  erroneous,  on  the  ground 
that  the  creditor  in  the  ground-annual  had 
no  claim  against  any  disponee  to  whom  the 
lauds  out  of  which  the  ground-annual  was  pay- 
able were  or  might  have  been  conveyed ;  and, 
accordingly,  on  this  ground,  the  judgment  wag 
reversed  in  the  House  of  Lords.  See  Ground- 
Annual.  But  independently  of  this  ground, 
on  which  alone  the  reversal  proceeded,  the 
soundness  of  the  judgment  may  be  doubted, 
OD  the  additional  ground  that  so  soon  as  ft 
back-bond  qualifying  an  ex  facie  absolute  di*r 
position  is  put  on  record,  the  disponee  ceiisei 
to  be  proprietor,  oven  nominally,  and  becomes 
an  heritable  creditor  merely. 

Lord  MoxcREiFi'  dissented  strongly  front 
the  judgment,  and  observed,  "  If  the  transac- 
tion had  been  completed  by  an  ordinary  dis- 
position in  security  and  infeftment  by  resig- 
nation, bearing  the  quality  of  the  right  in  the 
body  ofit,  there  could  not,  I  presume,  have  beea; 
any  doubt  that  it  would  have  been  nothing  but 
atitle  in  security,  which  never  could  have  given 
the  pursuer  any  right  to  the  ground-annual 
as  against  the  creditor  so  infeft,  or  deprived 
him  of  the  benefits  of  his  author's  personal 
obligation  for  payment  of  it.  But  I  have 
long  believed  it  to  be  a  settled  principle  in 
the  law,  that  a  security  constituted  in  the 
form  of  an  absolute  disposition,  but  qualified 
by  a  back-bond,  declaring  this  title  to  be 
limited  to  a  definite  security,  forms  neither 
more  nor  less  than  an  heritable  security  for 
debt.  It  clearly  is  so  in  any  question  with 
the  grantor,  and  it  is  clearly  so  with  any 
other  party  as  soon  as  the  back-boiid  has  been 
recorded  in  the  register  of  sasines  and  rever- 
sions. The  title  of  the  grantor  of  the  dispo- 
sition remains  entire,  subject  only  to  the 
burden  so  constituted.  Nothing  hinders  him 
to  sell  the  property  to  anothei',  subject  to  the 
security  ;  nothing  hinders  him  to  cieate  other 
postponed  securities,  either  in  the  same  form 
or  in  any  other.  And  his  title  remains  en- 
lire  for  other  purposes, °in  regard  to  the  rights 
of  other  parties.  This  point  was  surely  de- 
termined in  the  most  deliberate  manner  in 
the  case  of  Bartlett  v.  Buchanan,  21st  Feb. 
1811,  in  which  it  was  held  that  a  widow's 
right  of  terce  remained  untouched  by  such  4n 
ateolute  disposition  with  infeftment,  quali- 
fied by  back-bond  recorded.  Tlio  Court  un- 
animously found  that  the  husband's  infeft- 


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ment  remained  entire,  subject  to  the  heritable 
debt,  without  which  there  could  have  been 
no  terce,  the  husband's  seisin  being  the  mea- 
sure of  the  wife's  terce.  And  it  is  accordingly 
universally  so  laid  down,  that  a  title  consti- 
tuted in  this  form  creates  nothing  but  an 
heritable  debt"  The  joint  opinion  of  some 
of  the  majority  of  the  Court  contains  the  fol- 
lowing observation :  "  The  fallacy  on  the 
other  side  lies  in  dealing  with  the  right  of 
the  back'bond,  as  if  in  legal  construction  it 
were  one  of  security  only,  and  not  a  proprie- 
tary right.  That,  in  one  sense,  though  not 
in  the  ordinary  sense,  it  may  operate  to  the 
effect  of  a  security,  is  true  enough.  But  in 
its  conception  and  legal  constitution,  it  is  not 
a  security,  which  is  a  mere  burden  in  favour 
of  one  party  on  the  radical  jvi  dominii,  con- 
tinuing separately  to  exist  in  the  person  of 
another.  It  is,  on  the  contrary,  the  proper 
jus  dominii  itself,  transferred _by  divestiture  of 
the  former  into  the  person  'of  the  new  pro- 
prietor, who  in  this  way  comes  by  independ-; 
ent  investiture  into  his  author's  place  quoad 
the  entire  substance  anduniverji^  of  the  real 
right."  In  reference  to  these  remarks,  Lord 
MoNCRKirr  observes,  "  I  see  it  is  said  in  the 
opposite  opinion,  *  The  fallacy  on  the  other 
side  lies  in  dealing  with  the  right  of  the  bank, 
as  if  in  legal  construction  it  were  one  of  se- 
curity only,  and  not  of  proprietary  right.' 
With  all  deference  it  appears  to  me  that  the 
whole  fallacy  in  the  argument  lies  in  assum- 
ing that  it  is  anything  else  but  a  right  in 
security.  In  its  original  constitution,  if  the 
disposition  and  the  back-bond  be  read  toge- 
ther, beyond  all  question  the  only  right  con- 
stituted is  nothing  else  but  a  right  in  secu- 
rity. No  doubt,  as  the  disposition  is  abso- 
lute in  its  terms,  the  qualiftoktion  effected  by 
the  back-bond,  though  referred  to  in  the  dis- 
position, could  have  no  effect  against  third 
parties  until  it  was  registered  in  the  register 
of  sasines ;  but  as  soon  as  it  was  so  regis- 
tered, the  disposition  and  the  registered  back- 
bond constituted  but  one  title,  and  that  a 
title  in  security  merely.  I  shall  only  farther 
remark  that  I  can  conceive  no  greater  fallacy 
in  reasoning  upon  a  feudal  title,  than  to  mis- 
take the  mere  form  in  which  a  security  for 
debt  is  created  for  the  substance  of  the  right ; 
and  that  is  what  I  think  the  Court  are  now 
in  great  danger  of  doing." 

Absolate  Wairuidioe.    See  Warrandica. 

Abstracted  Multures.  This  term  is  ap- 
plied to  that  evasion  of  the  servitude  of 
thirlage  which  consists  in  fraudulently  or 
illegally  carrying  the  grain  of  the  servient 
lands  to  be  ground  elsewhere,  or  otherwise 
disappointing  the  right  of  the  dominant  mill. 
The  remedy  competent  to  the  proprietor  or 
tenant  of  the  mill,  against  the  proprietor  or 


tenant  of  the  astricted  lands,  is  an  action  for 
abstracted  multures,  which  may  be  raised 
either  before  the  Judge  Ordinary  or  in  the 
Court  of  Session ;  and  the  conclusion  of  wh  ich 
is  alternative,  either  for  delivery  of  the  mul- 
ture of  the  abstracted  grain,  or  for  a  sum  of 
money  in  lieu  thereof.  Multures  prescribe  in 
live  years  from  the  time  they  become  dae  ; 
1669,  c.  9.  Where  the  right  of  thirlage  is 
disputed  this  action  is  combined  with  a  de- 
clarator of  thirlage,  which  can  be  competent- 
ly brought  only  in  the  Court  of  Session. 
^r«b.  B.  ii.  tit.9,  §32;  5eH'«  Princ.  §  1030  ; 
Jurid.  Stifles,  iii.  83 ;  Boyd^s  Jud.  Proceedings, 
p.  216 ;  Hunter's  Landlord  and  Tenant,  p.  56 1 , 
Hseq. 

Aboeptanoe;  in  its  general  acceptation,  is 
the  act  whereby  a  party  agrees  to  any  terms, 
offer,  or  proposal  made  to  him,  or  undertakes 
a  trust,  office,  or  duty.    Acceptance  in  this 
sense  may  be  either  express  or  tacit,  verbal 
or  written ;   or  provable  by  facts  and  cir- 
cumstances inferring  acceptance,  and  not  re- 
concileable  with  rejection.  The  evidence,  how- 
ever, whatever  it  may  be,  must  amount  to  a 
clear  indication  of  an  intention  to  accept. 
Thus,  the  mere  possession  of  a  deed  contain- 
ing a  condition  will  not  be  held  as  accept- 
ance.    But,  on  the  other  hand,  the  proposal 
or  offer  may  be  so  made  that,  if  not  rejected, 
acceptance  is  implied.     An  order  in  trade 
does  not  require  acceptance  to  bind  the  party 
giving  the  order;  and  it  will  also  bind  the 
party  to  whom  it  is  addressed,  if  not  rejected 
in  course  of  post,  if  in  the  line  of  his  particu- 
lar trade ;   e.g.,  an  order  for  goods  to  a 
dealer,  or  for  insurance  to  an  insurance- 
broker,  or  the  delivery  of  goods  to  a  common 
carrier  for  transport  to  the  place  of  its  desti- 
nation.    Beirs  Princ.  §  74,  et  sea.;  Ersk.  iii. 
t.  2,  §  45  ;  Stair,  B.  i.  tit.  iii.  §  9,  and  tit. 
10,  §  5  ;  Jfr  Uore's  Notes,  p.  Ixii.;  Bank.  vol. 
i.  p.  288,  §  9,  and  342,  §  6  ;  BeWs  Com.  5th 
edit.,  vol.  i.  p.  326,  et  seq. ;  Bell's  lUustraOons, 
§§  73,  76,  80 ;  Tait  on  Evidente,  p.  172,  3d 
edit. ;  Jurid,  Styles,  vol.  i.  p.  368,  2d  edit. ; 
Kames' Pnne.  of  Equity  {\^2b),  ^.  121 .    See 
Delivery.    Offer.    Carrier. 

A  retractation  of  an  offer  posted  of  the 
same  date  with  the  acceptance  of  the  offer, 
though  before  the  acceptance  has  been  de- 
livered to  the  offerer,  will  not  prevent  the 
completion  of  the  contract.  If  at  the  date 
of  the  acceptance  the  offer  is  a  subsisting  offer, 
the  eoncursus  which  then  takes  place  com- 

?1etes  the  contract.     Thomson  v.  James,  12th 
ulyl855;  18  i>.  1. 

Aoceptanoe  of  a  Bill  of  Exchange;  is 
the  act  whereby  the  drawee  contracts  the 
obligation  to  pay  the  bill.  It  is  usually  done 
by  signing  his  name  either  opposite  to  the 
address,  or  across  the  face  of  the  bill.    The 


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vord  "aeeeptt"  is  also  sometimes  prefixed  to 
the  sigutnre  of  the  acceptor ;  but  this  is  un- 
necesMj.  In  common  parlance  the  accepted 
bill  it  called  "  an  acceptance." 

The  theory  of  a  bill  of  exchange  is  that 
the  bill  is  an  assignment  to  the  payee  of  a 
debt  due  by  the  drawee  to  tho  dravrer,  and 
aueptaoce  by  the  drawee  imports  that  the 
acceptor  is  a  debtor  to  the  drawer,  or  at  least 
that  he  has  effects  of  the  drawer  in  bis  hands. 
Where  the  drawee  has  accepted  he  is  the 
original  debtor  in  the  bill,  and  the  drawer  is 
«Dljr  liable  in  default  of  payment  by  the  ac- 
ceptor. A  bill  must  be  drawn  absolutely, 
bat  it  may  be  accepted  conditionally;  but 
the  payee  is  not  bound  to  receive  a  condi- 
tional or  qualified  acceptance.  If,  howerer, 
he  does  receive  a  conditional  acceptance,  he 
wist  conform  to  the  terms  of  it ;  and  if  he 
<l4«t  not  receive  it,  bat  protests  for  non- 
wceptance,  be  cannot  afterwards  recover 
froB  the  party  who  accepted  conditionally. 
Spnat  v.Matthem,  10th  May  1786 ;  1  T.  R., 
l82.  AVben  a  bill  is  once  accepted,  and  the 
acceptance  has  been  communicated  to  the 
holder,  the  acceptance  cannot  be  recalled, 
eren  with  the  consent  of  the  holder ;  but  an 
acceptance  may  be  cancelled  by  the  drawee 
before  it  has  been  communicated  to  the 
holder.  Coe  v.  Troff,  29th  Jan.  1822 ;  5  B. 
A  M.  474.  The  acceptor  of  a .  bill,  whether 
for  secommodation  or  for  value,  can  only  be 
diicharjted  with  consent  of  the  holder  of  the 
bill  PaUm  v.  Poceck,  16th  Nov.  1813;  6 
ttnt.  R.  190.  The  holder  of  a  bill  may 
dlKharge  any  of  the  parties  to  it ;  but  there 
ii  this  difference  between  the  acceptor  and 
the  other  parties,  that  the  acceptor  is  first 
liable ;  and  in  order  to  be  entitled  to  have 
reeoutse  against  him,  it  is  not  necessary  to 
•how  notice  given  to  him  of  non-payment  by 
any  other  party  to  the  bilL  DingwaU  v.  Dun- 
«fer,15th  Nov.  1779, 1  Doug.  R.MI.  When  a 
hiU  °u  accepted  payable  at  a  particular  place, 
and  at  that  place  only,  a  delay  in  presenting 
there  the  bill  for  payment  will  not  discharge 
the  acceptor,  unless  he  prove  that  he  has  sus- 
tained damage  by  the  delay.  Where  a  party 
*ttepu  a  blank  bill,  he  is  held  to  be  tho  ac- 
ceptor for  the  full  amount  which  the  stamp 
«iU  cover,  and  i>  subject  to  ail  the  liabilities 
attiehing  to  the  character  of  aa  acceptor. 
Saeh  an  acceptance  is  held  to  confer  a  power 
or  maodate  upon  the  party  receiving  the 
ttaop  (0  ligaed  to  pledge  the  security  of  the 
wkieriber  in  any  form  of  bill  or  note  he 
chooses,  and  to  the  full  amount  of  the  sum 
*hidi  the  stamp  will  cover.  Neither  is  such 
w  acceptor  entitled  to  any  notice  of  the  bill 
beiag  filled  up.  Ruud  v.  Langttaffe,  22d 
>««T.  1780,  2  Douglas  514 ;  Smttt  v.  Minjoy, 
2Wi  Jan.  1813, 1  if.  d:  S.  87 ;  Fair  v.  Cran- 


sUm,  11th  July  1801,  M.  1677 ;  0(nlvie  v. 
Moss.  28th  June  1804,  M.  App.,  Bill,  No.  17 ; 
Smith  v.  Taylor,  27th  Feb.  1824,  2  -S.  627  ; 
Lym  V.  Butter,  7th  Dec.  1841,  4  D.  178.  An 
acceptance  by  a  factor  "  for  behoof  of"  his 
constituent  imports  a  personal  liability  on 
the  part  of  the  factor  so  accepting.  Webster 
v.  M'Calman,  3d  June  1848,  10  D.  1133. 
Such  an  acceptance  concerns  only  the  accep- 
tor and  the  person  for  whom  he  acts  in  the 
transaction,  and  to  make  his  relief  more 
easy  after  he  has  fulfilled  his  obligation  to 
the  party  to  whom  he  grants  the  acceptance. 
So  far,  however,  as  relates  to  the  bill,  the 
drawer  is  entitled  to  proceed  against  the 
party  so  accepting. 

Bell's  Princ.  §  314;  Ersk.  B.  iii.  tit.  2,  § 
29 ;  Bank.  vol.  i.  p.  361,  §  9,  et  seq,;  Bell's 
Com,  vol.  i.  p.  396,  et  stq.,  5th  edit. ;  BelPs 
lUustrations,  §  314,  et  seq. ;  Brown's  Synop.,  p. 
259 ;  Thomson  on  Bills,  pp.  355,  et  seq.,  487, 
et  seq. ;  Tail  on  Evidence,  p.  474,  3d  edit.  See 
also  Bill  of  Exchange. 

Aooeptaace  for  Honoiir;  is  acceptance 
of  a  bill  after  it  has  been  protested  against  ' 
the  drawee  for  non-acceptance.  Such  an 
acceptance  is  said  to  be  for  the  honour  of 
the  drawer  or  indorser,  i.e,,  to  save  hh 
credit,  and  may  be  made  either  by  the 
drawee  himself,  or  by  a  third  party^  The 
acceptance  for  honour  is  to  a  certain  extent 
conditional,  as  the  acceptor  is  not  bound  to 
pay  the  bill,  unless  the  holder  retain  it  until 
maturity,  without  returning  it  to  the  drawer 
protested  for  non-acceptance.  And  as  such 
an  acceptor  is  entitled  to  have  evidence  of  hia 
interposition,  which  may  entitle  him  to  re' 
cover  against  the  party  for  whose  honour  he 
has  interposed,  a  formal  protest  may  be  re> 
quired  before  the  bill  is  paid  by  the  acceptor 
for  honour.  He  has  likewise  a  claim  not  only 
against  him  for  whose  honour  he  interfered, 
but  also  against  all  the  parties  on  the  bill 
liable  to  him.  Bell's  Print.  §  322 ;  Bank. 
vol.  i.  p.  361,  §  11 }  Bell's  Oom.  u  p.  401, 
5th  edit.;  Thomson  on  Bills,  p.  491,  etseq.; 
Jurid.  Styles,  iii.  pp.  589,  595,  2d  edit.  See 
Bill  of  Exchange, 

An  at^ceptance  for  honour  is  equivalent  te 
saying  to  the  holder  of  the  bill,  *'  Keep  this 
bill,  don't  return  it,  and  when  the  time  ar^ 
rives  at  which  it  ought  to  be  paid,  if  it  be  not 
paid  by  the  party  on  whom  it  was  originally 
drawn,  come  to  me  and  you  shall  have  the 
money."  It  is  in  the  nature  of  a  conditional  ac- 
ceptance, and  implies  that  the  bill  will  be  paid 
by  the  acceptor  for  honour,  if,  on  its  arriving 
at  maturrty,  it  is  not  paid  by  the  drawer.  An 
acceptor  for  honour,  however,  will  not  be 
liable,  unless  the  bill,  when  it  becomes  due,  it 
duly  presented  for  payment  to  the  drawer. 
When  a  bill  accepted  for  honour  still  remains 


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with  the  holder,  a  second  resort  to  the  drawee 
is  proper,  for  effects  often  reach  the  drawer 
who  has  refused  acceptance  in  the  first  in- 
stance, out  of  which  the  bill  might  be  satis- 
fied if  presented  to  him  again  when  the  period 
of  payment  arrives.  Whatever  is  requisite 
to  enable  a  person,  who  accepts  for  the  hon- 
our of  another,  to  call  upon  that  person  to 
repay  him,  and  to  enable  him  to  recover  over 
against  such  person,  is  also  necessary  to  en- 
able another  party  to  recover  from  such  an  ac- 
ceptor for  honour.  Uoare  v.  Cazenove,  27th 
Nov.  1812, 16  Eatt  391 ;  WiUiamt  v.  Germaine, 
21st  Nov.  1827,  7  B.dC.  468. 

Aeoeptilatioa;  is  the  extinction  of  a  debt, 
by  a  declaration  that  the  debt  has  been  paid 
when  it  has  not ;  or  the  acceptance  of  some- 
thing merely  imaginary  in  satisfaction  of  the 
debt.  Stair,  B.  i.  tit.  8,  §  5 ;  ^rsk.  B.  iii. 
tit.  4,  §  8 ;  Bank.  i.  p.  490,  §  20,  et  teq. 

Aooeuary  or  Accessory.  A.  person  is 
said  to  be  accessary  to  a  crime,  who  aids  the 
perpetrator  with  advice  in  the  commission  of 
it,  or  who  assists  in  its  execution^  One  who 
abets  by  previously  promising  protection  to 
the  crimintil  will  be  considered  in  law  as  an 
accessary.  Our  law  does  not,  like  that  of 
England,  recognize  accession  dfter  the  fact, 
where  unconnected  with  any  earlier  know- 
ledge of,  or  concern  in,  the  deed,  ffume,  i. 
282 ;  Alison's  Princ.  57-70/  Both  principal 
and  accessory  may  be  tried  in  one  indictment, 
and  the  latter,  though  the  principal  has  not 
been  brought  to  trial.-  See  Accomplice ;  Art 
and  Parti 

Accession ;  is  a  term  used  to  signify  the 
commencement  of  the  King's  reign< 

Aceession^  Deed  of;  is  a  deed  by  the  cre- 
ditors of  a  bankrupt  or  insolvent  debtor,  by 
which  they  approve  of  a  trust  executed  by 
their  debtor  for  the  general  behoof,  and  bind 
themselves  to  concur  in  the  fiduciary  arrange- 
ments proposed  for  extricating  his  affairs.  It 
is  analogous  to  the'  English  deed  of  covenants. 
Accession  to  a  trust  for  behoof  of  creditors 
may  be  instructed  without  a  formal  deed,  by 
facts  and  circumstances  inferring  accession,  or 
not  otherwise  explainable^  BeU's  C<nn.  vol. 
ii.  p.  501,  5th  edit. ;  Jurid.  Styles,  2d  edit., 
i.  p.  123,  ii.  pp.  190,  254.     See  Trust. 

A  deed  of  accession  is  a  mutual  contract,  l)y 
which  no  creditor  who  signs  it  is  bound  by  it 
until  all  the  other  creditor^  have  assented. 
This  is  commonly  expressed  as  a  special  con- 
dition to  the  deed,  but  whether  expressed  or 
not,  it  is  an  implied  and  essential  c(mdition  of 
the  contract  that  all  shall  be'  bound  or  none. 
It  has  been  held,  however,- that  although  the 
whole  creditors  have  not  concurred,  it  is  not 
competent  for  one  who  has  acceded  to  begin 
diligence  in  order  to  acquire  a  preference  di- 
rectly or  indirectly,  while  the  non-concurring 


creditors  are  standing  neutral.  In  Wai»onv. 
Fede,  5th  Feb.  1724,  M.  6397,  the  Court  found 
that  a  supersedere  of  diligence  had  been  sig:ned 
by  some  of  the  creditors  on  the  faith  that  all 
the  creditors  were  to  do  the  same,  and  that 
it  was  not  binding  on  those  who  had  signed, 
in  respect  a  small  number  only,  and  not  the 
whole,  had  signed  it.  They  found  also,  how- 
ever, that  a  creditor  who  had  signed  it  eould 
not  be  the  first  user  of  personal  diligence 
against  the  debtor.  Accession  by  a  creditor 
binds  his  assignee  to  the  debt.  It  will  also 
bind  himself  in  respect  of  a  debt  which  he  has 
purchased,  although  the  cedent  of  the  debt 
had  not  acceded.  But  where  a  creditcM*  who 
has  acceded  acquires  a  debt  fortuitously  by 
succession  on  other  unforeseen  means,  in  rela- 
tion to  which  there  has  been  no  accession,  it 
is  doubtful  whether,  in  respect  of  such  debt, 
the  creditor  so  succeeding  is  bound  by  bis  for- 
mer accession. 

Accession— Accessaries.  Accession,  as  a 
mode  of  acquiring  property,  is  either  aaturd, 
or  arttfieialj  By  natural  accession,  the  young 
of  cattle  belong  to  the  owner  of  the  mother, 
and  the  fruits  and  produce  of  the  earth  to  the 
proprietor  of  the  soil.  On  the  same  principle, 
the  gradual  addition  acquired  by  grounds  ly- 
ing on  the  bank  of  a  river  (called  alluvio)  be- 
longs to  the  proprietor  of  the  land  receiving 
this  addition/  Artificial  accession,  again,  is 
that  addition  which  is  the  result  of  human 
industry,  otherwise  called  induslricd  aeetaaiou  ; 
e.g.,  trees  planted,  or  a  house  built  on  the 
property  of  another,  which  belong  to  the  pro- 
prietor of  the  ground,  and  not  iv  the  planter 
or  builder/  The  party  who  has  thus  built  by 
mistake  may  have  a  claim  against  the  owner 
of  the  ground  for  the  value  of  the  house,  in 
so  far  as  H  is  a  melioration  ;  but  the  builder 
is  not  entitled  to  retain  possession  until  repaid 
the  expense  of  building,  and  may  be  sum- 
marily removed.  Stair,  B.  ii.  tit.  1,  §  34; 
Bank,  vol/  i.  p.  506,  §  10,  et  seq.-;  BelPs  Ck>mi 
vol.  i.  p/  752,  et  stq.,  5th  edit. ;  Ersk.  ii.  1. 1, 
§§  14,  15 ;  Bealtie,  27th  May  1831,  9  S.  and 
X'.  639 ;  BeWs  Princ.  §  1473.  See  Heritable 
and  MmecAle.  Industrial  Accession.-  (kmtex- 
ture.  Adjunction.  Specification.  Commixtio*. 
Fixtures. 

AccessOrinm  seqnitnr  principale ;  a  Ro-< 
man  law  maxim,  signifying  that  the  accessory 
right  follows  the  principal.  In  the  law  o( 
Scotland,  the  principle  of  this  maxim  haii 
been  fully  adopted ;  in  so  much  that  the 
maxim  itself  forms  one  of  the  titles  in  Lord 
Karnes'  Didiowtry  of  Decisions,  and  (following 
him)  in  Morison's  Dictionary  and  Brown'a 
Synopsis.-  Stair,  B.  iii.  tit.  1,  §  17  ;  Mr  More't 
Notes,  p.  103 ;  Ersk.  B.  ii.  tit.  1,  §  30 ;  Bank, 
i.  p.  606,  §  10 ;  Karnes'  Princ.  of  Equity  (1825)^ 
p.  156-7. 


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Aoeenory  Actions;  »re  those  actions 
which  sr«  in  some  dej^ree  subservient  to 
etberi,  as  th<Ke  of  tcaieniny  or  of  transference  ; 
bj  the  former  of  which,  a  cause,  after  it  had 
Uia  over  vithont  any  iaterlocator  having 
been  pronounced  in  it  for  the  period  of  a  year 
(lij  which,  technically  speaking,  it  is  said  to 
h&Te/a£m  asleep),  might  have  heen  revived, 
ud  proceeded  in  to  a  conclusion.  By  the 
litter,  an  action  may,  on  the  death  of  the  de- 
fender, be  transferred  in  statu  quo  against 
liis  heir.  Under  this  class  of  actions  are 
ranked  Prorings  of  the  Tenor,  by  which  the 
teaorof  a  lost  deed  is  jndicially  declared,  and 
the  less  thereby  snppiied ;  and  Actions  of 
Tnimnipt,  by  which  copies  of  principal  deeds 
tn  certified.  By  the  recent  acts,  13  and  14 
Vict.,  e.  36,  and  16  and  17  Vict,  c.  80,  im- 
portant provisions  are  made  as  to  the  waken- 
ing and  transference  of  actions,  the  effect  of 
wiiich  is  to  render  actions  of  wakening  no 
longer  necessary.  /Stair,  B.  iv.  tit.  31 ;  Ei-sk. 
B.iT.  tit.  1,  §§  18  and  52 ;  Bank.  ii.  p.  622, 
rf«j.;  M'Gkth.  Sker.  Court  Prac.  pp.  64, 316. 
See  Watering;  Transference, 

AteeuoTj  OUigatioiu;  are  obligations 
si^jeetedto  antecedent  or  primary  obligations. 
Obligations  for  the  regular  payment  of  into- 
r«t,  caationary  obligations,  and  bonds  of  cor- 
roboration, are  examples  of  accessory  obliga- 
tions, and  all  necessarily  refer  to  some  prior 
or  principal  obligation.  Stair.,  B. !.  tit.  17  ; 
Mr  Mere'*  Notes,  ciii. ;  ErsL  B.  iii.  tit.  3,  § 
60;  Bdttk,  iii.  p.  105.    See  Cautionry. 

iMolade ;  a  ceremony  used  in  conferring 
knighthood,  consisting  of  the  King's  putting 
hii  bands  about  the  knight's  neck.  Tovdins, 
it 

AseflBiBedation  Bills;  are  bills  of  ex- 
tbange  granted  without  value  having  been 
rteeired  by  the  acceptors,  for  the  purpose  of 
rsiHBg  Boney  by  discount.  Such  acceptances 
ir«  denominated  wind  or  accommodation 
bills;  and  the  party  for  whose  accommoda- 
tion they  are  granted,  whether  drawer,  ac- 
<*ptor,  or  indorser,  is,  of  conrse,  bound  to  re- 
lieve all  the  other  parties  whoso  names  are  on 
tke  bills  from  the  consequences  of  their  obli- 
vion. On  bankruptcy,  various  nice  and  in- 
arise  with  regard  to  the 

,_^ for  such  debts.     The  gene- 

tl  WRMvlished  seem  to  resolve  into 

^ t  the  onerous  holder  is  en- 

[^■ift[#>  the  estates  of  all  the  parties 
Ml^Cie  effect  of  drawing  full  pay- 
double  ranking  is  allowed, 
acceptor,  though  he  receive 
claim  upon  the  estate  of  the 
accommodation  the  bill  was 
claim  for  the  amount  of  the 
competent  against  the  party 
ithe  case  of  mutual  accommo- 


dation bills  to  the  same  amount,  they  are  hel3^~- 
to  be  good  considerations  for  one  another. 
4^A,  The  ordinary  rules  as  to  due  negotiation 
do  not  apply  to  such  bills.  Hence,  the  drawer 
dr  indorser  of  an  accommodation  bill,  if  he 
has  participated  in  the  accommodation,  can- 
not plead  against  the  holder  the  want  of  no-, 
tice  of  dishonour.  Where,  however,  the  ac- 
commodation is  not  for  the  drawer's  behoof, 
but  for  the  use  of  some  of  the  other  parties, 
the  drawer  has  been  held  entitled  to  notice. 
See  BelVs  Com.  i.  426,  et  seq. ;  Prine.  §  346; 
Ersh  B.  iii.  tit.  2,  §  33,  and  NoU  by  Mt 
ivory ;  Bell's  niust,  ^  346. 

Where  a  bill  of  exchange  is  given  for 
money  really  due  by  the  drawee  to  the  drawer, 
or  is  diuwn  in  the  regular  course  of  business, 
an  indorsee,  though  he  has  not  given  to  the 
indorser  the  full  amount  of  the  bill,  may  yet 
i-ecover  the  whole  ;  but  where  the  bill  is  an 
accommodation  one,  and  that  known  to  the 
indorser,  and  he  pays  only  part  of  the  amount, 
he  can  only  recover  the  amount  he  has  ac* 
tually  paid  for  the  bill.  Wifen  v.  Roberts, 
1  Eepinasse,  261. 

Acoomplice ;  a  soctW  oriminis,  or  associate 
with  another,  or  with  others,  in  the  commis* 
sion  of  a  crime.    An  accomplice  is  an  admis* 
sible  witness  against  his  associates  in  th« 
crime,  his  credibility  being  a  matter  for  the 
jury.    By  the  mere  act  of  calling  an  acconi« 
plice  as  a  witness,  the  public  prosecutor  dis> 
charges  all  title  to  molest  him  for  the  future 
concerning  the  crime  in  question.     In  this 
way  the  supposed  objection  to  his  admissibility 
on  the  ground  of  interest  to  criminate  his-as- 
sociate,  is  obviated.    But  a  private  prosecu- 
tor cannot  tie  np  the  hands  of  the  public  au- 
thorities by  examining  a  socius  criminis.    la 
order  that  the  pannel  may  not  be  deprived  of 
the  benefit  of  exculpatory  witnesses  by  their 
being  included  in  the  same  libel  with  himself, 
it  is  in  the  power  of  the  Court,  upon  special 
cause  shown,  to  disjoin  the  charges  in  the 
libel,  in  order  that  one  of  the  accused  may  be 
adduced  as  a  witness  in  behalf  of  the  other. 
Formerly  the  proposed  exculpatory  witnea 
was  tried  first,  and  was  not  admissible  as  evi- 
dence if  he  were  convicted.    Infamy  being 
now  no  longer  a  ground  of  exclusion  (15  Vict., 
c.  27t  §  1),  he  is  equally  admissible,  whether 
he  be  convicted  or  acquitted.    Where,  in  the 
police  court,  several  parties  bad  been  charged 
with  an  offence,  and,  on  a  motion  made,  their 
trials  had  been   separated,   and  the  party 
whose  trial  had  been  taken  first  had  tendered 
the  others  as  witnesses  in  his  favour,  and  the 
magistrate  had  refused  their  evidence,  on  the 
ground  that  they  were  socii  criminis  in  the 
offence  libelled,  convictions  obtained  against 
two  of  these  parties  were  set  aside,  on  the 
ground  that  the  evidence  so  refused  was  ad- 


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-sriaiible,  and  ought  to  have  been  received. 
The  Lord  Justice-Clerk  observed, — "  Is  there 
any  authority  for  saying  that,  after  a  separa- 
tion of  the  trials  of  different  pannels,  those 
whose  trial  is  postponed  cannot  be  received 
as  witnesses  for  the  other  pannel  V  BeU  v. 
Shaw,  22d  Jan.  1842,  1  Broun,  49.  In  a 
charge  of  assault  against  two  pannels,  after 
evidence  for  the  Crown  and  for  the  pannels 
had  been  led,  the  counsel  for  the  pannels  pro- 
posed to  examine  one  of  them  as  a  witness  for 
the  other,  under  §  3  of  16  Vict.,  o.  20.  The 
Court  held  this  to  be  incompetent,  being  of 
opinion  that  the  proper  course  was  to  have 
moved  for  a  separation  of  the  trials,  and  that 
the  statute  did  not  make  any  alteration  in 
this  respect.  Uogan  (Glasgow  Circuit),  28th 
Dec.  1853,  1  Irvine,  343.  The  testimony  of 
iodi  criminis  must,  to  a  greater  or  less  extent, 
be  corroborated  by  unsuspected  evidence. 
Campbell  or  Brown  (Perth),  4th  Oct.  1855,  2 
Irvine,  232.  See  Hume,  ii.  175,  367,402; 
Alison't  Prac,  241, 452 ;  BeWs  Notes  to  Hume, 
182,  261 ;  Didcson's  Law  of  Evidence,  851 ; 
Ersk.  B.  iv.  tit.  4,  §  10,  et  seq.;  Bank.  vol.  i. 
p.  243,  «i  teq. ;  Swinti  Abridg.  voce  Evidence, 
§  6.    See  Art  and  Part ;  Accessory. 

In  England,  the  term  accomplice  is  usually 
applied,  in  a  limited  sense,  to  the  perpetrator 
of  a  felony,  admitted,  for  the  furtherance  of 
justice,  to  give  evidence  against  his  associates. 
Tomlins,  voce  Accessory. 

Acconntf  Stated.    See  Stated  Account. 

Aocoonto.  Merchants'  accounts  suffer  a 
triennial  prescription  by  the  act  1579,  c.  83. 
This  prescription  begins  to  run  from  the  date 
of  the  last  article.  The  existence  of  the  debt 
(including  the  subsistence  as  well  as  the  con- 
stitution of  it)  may  be  proved  by  the  oath  of 
the  debtor  after  the  expiration  of  the  three 
years.  The  debt  may  also  be  proved  by  a 
writing  signed  by  the  debtor.  By  the  Bank- 
rupt Statute,  54  Geo.  III.,  c.  137,  where  the 
debt  claimed  rests  upon  an  open  account,  the 
creditor  is  required  to  produce  a  certified 
copy  of  the  account,  signed  by  the  party  to 
whom  it  is  due,  along  with  an  affidavit  by 
the  creditor.  The  provisions  of  the  statute 
as  to  this  are  not  very  clear ;  but  it  seems 
now  to  be  settled  that  a  correct  copy  of  the 
whole  account  on  both  sides,  as  it  stands 
in  the  creditor's  books,-  must  be  produced, 
certified  as  authentic,  either  by  the  creditor 
or  his  book-keeper.  The  oath  of  verity  is  a 
certifying  of  the  account.  BeWs  Com.  vol.  ii. 
p.  343,  5th  edit.  The  words  of  the  act  2 
and  3  Vict.,  c.  41,  §  11,  are,  "  That  the  cre- 
ditor shall  produce  with  his  said  oath  such 
accounts  and  vouchers  as- shall  be  necessary 
to  prove  his  debt."  Erdc.  B.  iii.  tit.  2,  §  24 ; 
tit.  7,  §§  17  and  25 ;  BeWs  Princ.  3d  edit., 
§§  629. 635,  586;  BdPs  Illustrations,  §  629 ; 


Shaw's  Diijest,  h.  t.  and  pp.  17,  641 ;  Tail  on 
Evidence,  pp.  122,454-7,3d  edit.;  Jurid.SfyUs, 
vol.  ii.  pp.  23,  31,  279, 382,  422,  2d  edit.  ; 
S.  D.  xi.  pp.  323, 646 ;  xii.  pp.  365, 523, 680  ; 
Dow^s  Appeal  Gases,  ir.  125.  See  Prescription. 
Sequestration. 

Aceoiuitaiit<of  the  Conrt  of  Sewion.  Bj 
the  act  "  for  the  better  protection  of  the  pro- 
perty of  pupils,  absent  persons,  and  persons 
under  mental  incapacity  in  Scotland,"  (12 
and  13  Vict.,  c.  51),  it  is  made  lawful  for  the 
Crown  to  appoint  an  ofRcer,  called  the  Ac- 
countant of  the  Court  of  Session,  whose  duty 
is  to  superintend  generally  the  conduct  of  ail 
judicial  factors  and  tutors  and  curators  com- 
ing under  the  provisions  of  the  act,  and  to 
see  that  they  duly  observe  the  rules  and  re- 
gulations laid  down  therein  for  their  guid- 
ance. The  accountant  audits  the  factors' 
accounts,  and  reports  thereon.  He  must 
make  an  annual  re])ort  to  the  Court  of  all 
judicial  factories.  He  is  also  the  custodier 
of  all  deposit-receipts  and  other  vouchers  for 
sums  of  money  placed  under  the  authority  of 
the  Court,  and  of  ail  bonds  of  caution  and 
judicial  bonds  granted  under  the  same  au- 
thority,— a  duty  which,  previously  to  the  act, 
had  been  discharged  by  the  senior  Principal 
Clerk  of  Session.  The  records  in  the  Ac- 
countant's office  are  open  for  inspection  on 
payment  of  the  fees  fixed  by  Act  of  Sederunt 
1st  Feb.  1850.  See  also  the  Act  of  Sederunt 
framed  in  pursuance  of  the  above  statute, 
11th  Dec.  1849. 

Acoonntant-jQeneral;  an  officer  in  the 
English  Court  of  Chancery  appointed  to  re- 
ceive all  money  lodged  in  Court,  and  to  de- 
posit it  in  bank,  or  draw  it  out  by  judicial 
order.     Tomlin's  Dietj    See  Judicial  Factor. 

Aooretion ;  takes  place  when  a  right,  ori- 
ginally imperfect  or  defective,  is  completed  in 
the  person  of  the  holder  by  some  posterior  act 
on  the  part  of  him  from  whom  the  right  is  de- 
rived. The  term  is  usually  applied  to  the 
titles  of  heritable  property,  and  may  be  best 
illustrated  by  an  example.  Thus,  if  one 
having  a  good  personal  right  to  lands,  but 
not  infeft,  sells  the  lands,  and  grants  the 
purchaser  a  precept  of  sasine  on  which  in- 
feftment  is  taken,  such  infeftment,  as  flowing 
a  non  habtnte  potestatem,  will  vest  the  pur- 
chaser with  BO  feudal  right.  But  if  the 
seller  should  afterwards  perfect  his  own  feu- 
dal right  by  infeftment,  his  posterior  infeft- 
ment, jur^  ai;«re(ton»,  will  validate  the  prior 
precept,  and  the  sasine  following  thereon,  in 
favour  of  the  purchaser,  and  thus  complete 
the  purchaser's  feudal  right  to  the  lands. 
The  maxim  which  applies  to  such  a  case  is 
Jus  superveniens  auctori  accrescit  sueeessori; 
and  the  principle  is  said  to  be  the  principle  of 
warrandice,expre8s  or  implied, — the  law  doing 


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what  the  granter  of  the  right  is  otherwise 
bonod  to  do. 

Vhen  t  party  uninfeft  grants  conveyances 
to  Kveral  parties,  and  he  is  himself  thereafter 
infefl,  his  infeftineiit  accresees  to  the  other 
parties,  in  the  order  of  their  recorded  infefV 
BMts.    Paterson  v.  EeUy,  10th  Dec.  1742, 
M.  7775.     Where  a  party  infeft  a  me  un- 
(Mfiimed  grants  infeftmeuts  to  two  creditors, 
tke  posterior  of  whom  obtains  his  infeftment 
Meinaed,  and  the  prior  creditor  thereafter 
•buiss  his  author  and  himself  confirmed  in 
;  tite  tame  deed,  the  posterior  creditor  will  be 
irefemd.     Campbetl  y.  Henderson,  5th  July 
[  1821, 1  S.  104.    The  case  of  KeiVt  v.  Grant, 
14th  No».  1792,  M.  2933,  rules  the  point 
that  the  infeftment  of  an  heir  does  not  ac- 
trace  to  a  right  granted  by  his  ancestor  who 
died  aninfeft.     In  that  case  it  was  observed 
•0  the  Bench,  "  In  such  a  case  the  jus  super- 
«Mwu  cannot  accresce.    If  an  anthor  after 
j  gi^g  infeftment  is  himself  vested  in  the  feu- 
;  4al  right,  his  title  becomes  complete  both  in 
'  bra  and  sabstance,  and  this  new  acquisition 
i  sf  right  is  commuoicated  to  all  his  former 
dnds.    But  a  sasine  obtained  a  non  habenle  is 
!  altogether  inept,  and  cannot  be  cured  by  any 
npetrening  right  in  his  heir.    In  personal 
rights  the  law  holds  an  obligation  to  convey 
and  a  cooreyantce  to  be  the  same,  and  there- 
fore every  person  liable  in  absolute  warran- 
dice ii  bonnd  to  grant  the  conveyance.     But 
ia  heritage,  although  an  heir  whose  ancestor 
'  cpoieyed,  baring  only  a  personal  right,  is 
lisble  in  warrandice,  and  is  obliged  to  give 
;  aa  iafeftment,  still  that  infeftment  cannot 
!  pseeed  on  the  precept  granted  by  the  ances- 
I  UK,  who  never  acquired  any  right  which  en- 
I  tidedhin  to  g^rant' that  warrant."   According 
i  to  tie  same  principle,  the  infeftment  of  as- 
■■  fxd  (mstees  will  not  accresce  to  and  va- 
'  hdtto  infeflments   following  upon  precepts 
gnatad  by  the  trustees  who  assumed  them, 
h«t  who  tiiemselves  were  never  infefl.    In 
Mtik  r.  Wright,  3d  Feb.  1841,  3  D.  485, 
Lad Fdilkktox  observed, — "  The  question  is 
JHt  liMther  iafeftment  talcen  by  different 
I  ptiMM  after  the  death  of  all  the  original 
I  tn^M*  can  be  held,  on  the  principle  of  ac- 
;  (n(iMi,to  validate  the  precept  of  dare  constat 
I  f«M  l^the  trustees  who  died  uninfeft?   I 
'  *•■((  think  it  cap.    There  is  no  identity  of 
poMH  between  those  who  granted  the  pre- 
i  «ft  ad  those  who  afterwards  vested  them- 
i  MnKvith  a  title  to  g^ant  it.    The  case  is 
"mi  from  a  corporation,  which  is  held  to 
W  MM  peram.     There  it  may  be  said  that 
te  aMBqaeDt  infeftments  ini  favour  of  the 
<*>pintien  is  (ofScient  to  validate  the  acts  of 
^  My  done  before  infeftment,  and  that  al- 
''■^  the  oiBeers  of  the  corporation  who 
'■b  bMfaneat  are  different  from  those  by 


whom  the  act  was  done.  But  there  is  neither 
principle  nor  practice  for  applying  it  to  the 
case  of  trustees.     A  trust  for  purposes  does 
not  create  a  separate  constructive  pei'son  like 
a  corporation.      The   title  of  each   trustee 
stands  on  the  right  made  up  in  his  own  per- 
son, so  that  the  infeftment  of  any  one  trustee, 
or  any  number  of  trustees,  is  not  the  infefil- 
ment  of  any  other  trustee  afterwards  assumed. 
The  persons  are  essentially  different,  and  I 
therefore  see  no  room  for  applying  the  prin- 
ciples of  accretion  to  the  case."    A  convey- 
ance granted  by  a  party  who  has  no  right 
to  the  subject  conveyed,  but  with  consent 
of  the  true  owner,  is  effectual.    Buchan  r. 
Cockbum,    14th  July  1739,  M.  6528.     In 
that  case  Lord  Eilkebrak  observed, — "  All 
agreed  that  a  proprietor  of  land  consenting 
to  a  disposition  granted  a  non  domino,  implies  a 
conveyance  by  the  dominus."     Where,  how- 
ever, the  party  consenting  is  not  the  dominus, 
but  a  creditor  merely,  his  consent  is  held  to 
import  no  more  than  a  non  repugnantia.  This 
was  decided  in  the  same  case  of  Buchan  v.  Cock- 
bum,  in  which  Lord  Akniston  observed, — 
"  In  the  case  of  a  verus  dominus,  or  a  party 
having  or  claiming  the  property  of  the  sub- 
ject, such  a  party  consenting  pau  intend  no- 
thing less  than  to  convey  that  right;   but 
a  creditor  ht/pothecarius,  his  meaning  caa  to 
understood  no  more  than  a  fwn  repugnmtiia, 
for  he  cannot  be  thought  to  convey  his  debt 
without  payment,  and  without  conveyiag  the 
debt  he  cannot  convey  the  security  he  hat  on 
the  lands."  The  position  of  a  party  conseater 
differs  from  that  of  a  party  disponer  in  this, 
that  the  consent  of  the  former  has  reference 
only  to  the  rights  vested  in  him  at  the  time 
of  consenting,  but  does  not  extend  to  other 
rights  which  he  may  subsequently  acquire. 
These  subsequent  rights  he  is  entitled  to  avail 
himself  of,  notwithstanding  hisformer  consent. 
The  rule  of  law,  Jus  supervenims  auctori  ac- 
erescit  successori  does  not  therefore  apply  to  a 
consenter  unless  he  has  expressly  bound  him- 
self  in  warrandice.    Erskine  observes, — "  No 
warrandice  can  be  fixed  by  implication  againsi 
a  consenter  whose  implied  obligation  can  only 
be  understood  to  bar  him  from  objecting  to 
the  disposition  upon  any  right  then  in  his  per- 
son.   Ersk.  B.  ii.  t.  7,  §  4.    In  the  case  of 
Forhetf.  Innes,  8th  January  1668,  reported  by 
Lord  Stair,  the  plea  was  sustained  that  a  con- 
sent cannot  exclude  any  supervenient  right  of 
the  consenter,  but  only  such  rights  as  the  con- 
senter had  at  the  time  of  the  consent ;  and 
that  although  a  right  acquired  by  a  party 
whp  dispones  with  absolute  warrandice  ac- 
cresees to  his  successor,  it  is  not -so  in  the  case 
of  a  consenter  whose  warrandice  is  not  found 
to  be  obligatory  farther  than  as  to  the  rights 
in  the  consenter's  person  at  the  time  of  bis 


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consent."  Were  it  hot  for  the  weight  of  au- 
thority the  other  way,  it  might  be  doubted 
whether  the  consent  of  the  venu  dominus  to 
ft  conveyance  by  a  party  having  no  right 
to  the  subject  conveyed  should  make  the 
conveyance  effectual.  It  would  seem  to  be 
more  in  accordance  with  feudal  principle 
that  the  feu  should  be  held  ineffectual  as 
a  conveyance,  but  effectual  as  importing 
an  obligation  to  convey  against  the  party 
consenting.  The  point  was  again  raised  in 
the  case  of  Mounsey  v.  Maxwdl,  29th  Nov. 
1808  (Hume's  Decimnt,  p.  237),  when  Lord 
President  Blair  observed, — "  As  to  the  point 
raised,  the  authority  of  Lord  Stair  must  rule. 
Two  things  are  requisite,  the  disposition  act 
and  the  form.  The  two  must  concur;  but 
where  both  exist  it  is  not  material  in  which 
of  the  parties  the  right  truly  is.  He  who  has 
not  the  right,  disponing  with  consent  of  the 
other  who  has  the  right,  dispones  effectually. 
•So  Stair  says,  and  such  is  the  law  of  Scot- 
land." In  the  case  of  a  party  who  had  no 
right  conveying,  and  afterwards  acquiring 
a  right,  it  has  been  doubted  whether  the 
maxim  jm  supervenieiu  would  apply,  and  yet 
it  may  be  deemed  to  be  no  greater  stretch  of 
strict  feudal  principle  than  the  one  just  ad- 
verted to.  It  is  not  doubted  that  the  grantor 
of  the  conveyance  would  be  under  an  obliga- 
tion to  grant  a  new  conveyance  of  the  sub- 
ject; but  would  the  acquired  right  of  the 
grantor  aeeresce  to  the  original  grantor  ipso 
jure?  Professor  BeU,  in  his  Principles,  ob- 
serves,— "  If  the  grantor  of  the  precept  have 
at  the  time  no  right  to  the  subject,  but  ac- 
quire a  right  by  a  subsequent  title,  it  may  be 
doubted  whether  accretion,  will  take  place. 
The  ground  of  this  donbt  is  that  there  can  be 
no  proper  conveyance  where  there  is  no  right 
existing;  that  law  m^y,  Jictione,  supply  solem- 
nities, but  not  substantial  right ;  and  that  in 
such  cases  there  is  nothing  but  an  implied 
obligation  to  convey,  which  requires  a  differ- 
ent mode  of  completion."  Mr  BeU  adds  in  a 
note, — "  In  consultation  with  the  late  Mr 
Jamieson,  we  differed  in  opinion,  that  sound 
lawyer  inclining  to  hold  the  maxim  appli- 
cable." BelVs  Principles,  §  882.  In  the  case 
of  Glas^oreTs  Executors  v,  Seott,  9th  March 
1850,  D.  12,  p.  893,  a  bond  of  annualrent 
was  grant«d  by  an  heir  of  entail  next  en-^ 
titled  to  succeed  to  the  estate,  and  infeftment 
followed  on  the  bond.  The  heir  in  possession 
thereafter  conveyed  his  right  to  the  estate  to 
the  grantor  of  the  bond,  and  the  Court  held 
that  the  bond  was  validated  by  accretion. 
Lord  FuLLERTON  observed, — "  The  question 
is,  whether  this  is  a  proper  case  to  which  the 
doctrine  of  accretion  can  apply  ?  I  confess  I 
have  some  difficulty.  This  is  a  bond  granted 
with  absolute  warrandice,  and  there  is  no 


doubt  this  was  done  before  the  granter  sae 
ceeded  to  the  estate.  But  then  the  estaU 
was  afterwards  conveyed  to  him,  and  be  wij 
duly  infeft  in  it.  My  impression  is  that  kij 
infeftment  accresced  to  the  security,  and  thai 
the  bond  must  be  sustained."  There  is  n< 
authority  for  holding  that  the  doctrine  ofaei 
cretion  is  applicable  to  onerous  deeds  onl; 
It  appears  to  be  equally  applicable  to  grej 
tuitous  deeds,  for  in  such  deeds  there  is  ai 
implied  warrandice  that  the  conveyance  mad< 
shall  not  be  prejudiced  by  any  future  act  o| 
the  granter.  The  completion  of  the  granter*! 
title  must  therefore  be  held  to  aeeresce  to  tb< 
gratuitous  conveyance  of  the  title  so  cobi' 
pleted,  and  cannot  be  used  to  the  prejudice  o{ 
that  conveyance.  This  point  was  raised  ill 
the  ease  of  M'Gibbon  v.  M'Gibbon,  5th  Marcl 
1802,  />.  14,  p.  605,  where  a  mother,  whil^ 
possessing  on  apparency,  conveyed  lands  t4 
her  sous  in  fee,  on  which  infeftment  wij 
taken.  The  deed  contained  no  power  of  re- 
vocation ;  but  thereafter  the  granter,  haviej 
completed  her  title,  executed  another  deed,  it 
which  she  gave  her  husband  the  power  ol 
dividing  the  lands  among  the  sons.  A 
grandson  brought  a  reduction  of  this  dee^ 
and  a  subsequent  deed,  by  which  the  husban^ 
had  exercised  the  power  conferred  upon  bin 
by  that  deed.  One  of  the  pleas  in  defence 
was  that  the  doctrine  of  accretion  was  fonndco 
on  warrandice  express  or  implied,  and  did  nol 
apply  to  the  case  of  a  gratuitous  deed  contaiai 
ing  no  obligation  of  warrandice.  The  pursued 
contended  that  it  made  no  difference  to  th^ 
operation  of  accretion  whether  tlve  deed  waj 
gratuitous  or  not.  Lord  Cowaw,  Ordinary! 
considered  the  argument  "  untenable,"  aw 
the  Court  "  adhered."  Lord  Justice-Clerli 
HoFK  observed, — "  At  the  date  «f  the  deed 
the  grantor  had  a  right  of  succession  as  heir 
apparent  of  investiture.  After  its  date  he^ 
title  was  completed,  and  she  became  com' 
pletely  invested.  I  cannot  understand  oii 
what  principle  it  can  he  said  that  accretion 
does  not  apply."  Where  a  trustee  on  a  bank- 
rupt estate  completes  his  title  through  tb^ 
bankrupt  by  completing  the  bankrupt's  own 
title,  the  securiiies  previously  granted  by  th( 
bankrupt  will  thereby  be  validated  by  accre- 
tion. It  is  therefore  an  important  rnattei 
for  the  trustee  so  to  complete  his  title  as  t< 
leave  the  bankrupt  out  of  the  progress. 

$tair,  iii.  t.  2,  §  1 ;  Ersk.,  ii.  t.  7,  §§  2,  3 
Bdrs  Com.  i.  698  ;  Bell's  Prine.  §  881,  and  cm 
thorities  there  cited ;  Mr  More's  ifotes  on  Stair 
p.  ccxciii. ;  Bank.  i.  pp.  588  aod  390 ;  ii.  p 
194 ;  Shaufs  Digest,  pp.  227  and  47  K 

Abonmnlation  of  xnterect    See  Interest. 

Acoumolate  Sum ;  is  the  sum  for  vbici 
decree  of  adjudication  is  pronounced,  comt 
posed,  in  the  general  ac|judication,   of  tb( 


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principal  snm  of  the  debt,  interest,  and  pen- 
altj ;  aod,  in  the  special  adjudication,  a  fifth 
part  more  of  the  principal  sum  is  added,  as  a 
aHspensation  to  the  creditor  on  account  of 
iii<  receiving  land  for  his  debt.  There  is  no 
instsnce,  however,  of  a  special  adjudication 
kJRg  carried  into  effect.  Ersk.  B.  iii.  tit.  3, 
§59;  Bdr$  Com.  vol.  i.  p.  651,  et  seq.,  5th 
tiiL;  BtO^t  Prine.  3d  edit.,  §  32  ;  Bdl's  II- 
Ivintmt,  §  32 ;  Brown's  Synop.  p.  98  ; 
Siac't  Digta,  p.  257,  §  43.    See  Adjudication. 

Adoiowledgment  This  term  is  frequently 
tpplied  to  a  written  admission  or  acknowledg- 
nitat  that  a  certain  sum  of  money  has  been 
psid  to  the  party  granting  the  acknowledg- 
ment Where  the  acknowledgment  is  meant 
IS  ■  nere  Toncher  of  payment,  equivalent  to> 
t  Tiedpt,  it  will  be  effectual,  subject  only  to  a 
penaltj  under  the  Stamp  Laws  if  it  has  not 
been  written  on  a  proper  receipt-stamp.  But 
TJiere  the  acknowledgment  is  given  as  the 
Tootber  of  a  loan,  care  must  be  taken  not  to 
incUute  in  the  acknowledgment  a  promise  to 
p»y,  or  to  repay  the  money  when  required,  or 
afsiiut  any  specified  future  time,  as  such  an 
eopgemeot  converts  the  acknowledgment  into 
ihju  law  holds  equivalent  to  a  promissory-note, 
«hich  is  not  actionalde  unless  written  on  a 
proper  bill-stamp,  the  want  of  which  cannot 
\»  applied  by  getting  the  writing  afterwards 
«»«pe<L  BeWs  Prine.  §  307.  See  BiU  of  Ef- 
dt»fL    Promssory-Nole. 

Ib  the  case  of  AUan  v.  Murray,  13th  June 
1837,  S.  15, 1130,  a  holograph  acknowledg- 
■ent  io  these  terms — "  Received  from  A.  B. 
£186.  (Signed)  C.  D."— was  held  to  import 
tiM  eoaititution  of  a  debt,  and  an  obligation 
tor^y,  Ofilvie,  M.  11,510;  Davidson,  M. 
1511 ;  Rote  v,  Fiddler,  24th  Nov.  1809,  F.  C. 

A  mere  acknowledgment  of  debt  does  not 
ctntitote  a  promissory-note,  and  does  not  re- 
t'*'*  aay  stamp ;  and  unless  the  instrument 
cMtsios  an  order  or  promise  to  pay  a  sum  of 
BCMj,  it  does  not  require  a  bill-stamp.  1 
&iiL.C.  C.  az.  Jones  v.  Simpson,  2  8.* 
C.  318;  Tomkins  v.  Ashley,  6  B.  <t  C.  541 ; 
fjriei.  Smith,  11  S.47S. 

4c||iUal;  siguifies  a  deliverance  from  a 
«kar|e  of  guilt.  Acquittal  by  the  jury  has 
M  force  until  the  Court  has  given  judgment 
^o>  the  verdict ;  but  after  such  judgment 
tlis  jwnon  acquitted  cannot  be  again  tried 
for  thewme  offence.     TomUns"  Bid. 

Acudttuee;   a  release  or  discharge  in 
yiliig  of  a  sum  of  money  or  debt.  The  word 
^    l^ntter  an  English  than  a  Scotch  law  term. 
fnb'Ri,    See  Discharge. 

i't  the  principal  denomination  of  land- 
in  Great  Britain.  The  English 
1  acre,  now  the  imperial  acre  of  Bri- 
W)  is  a  square  raised  from  the  basis  of  the 
«M  of  66  feet,  or  22  yards,  or  l-80th  of  a 


mile.    Ten  of  these  squares  form  the  acre, 
which  thus  contains  4840  square  yards.  This 
is  divided  into  roods,  of  which  there  are  four 
in  the  acre,  and  into  poles  or  perches,  of  which 
there  are  40  in  each  rood.     The  Scotch  acre 
is  considerably  larger  than  the  imperial.    It 
is  raised  from  the  chain  of  24  ells,  and  until 
of  late  years  it  was  the  practice  of  land-sur- 
veyors to  measure  with  a  chain  of  74  feet  and 
4-lOths  of  a  foot  in  length,  the  ell  having 
been  erroneously  estimated  at  37  inches  and 
2-lOths  of  an  inch,  whereby  the  Scotch  acre 
came  to  be  about  6150  square  yards, — t. «.,  a 
Scotch  acre  was  equal  to  5  quarters  aud  a 
fraction  imperial.    By  the  act  5  Geo.  IV., 
c.  74,  the  imperial  acre  is  declared  the  stan- 
dard throughout  the  United  Kingdom  of  Great 
Britain  and  Ireland  from  and  after  1st  May 
1825 ;  afterwards,  by  6  Geo.  IV.,  c.  12,  fixed 
for  1st  January  1826.     See  Encyc.  Brit.  h.  t. 
Acre-Sale,  or  Aiker-Saill;  a  term  some- 
times met  with  in  old  deeds  and  writings,  sig- 
nifying lands  in  the  neighbourhood  of  villages 
or  towns  let  in  small  portions  of  an  acre  or 
so.     Wood^s  Hist,  of  Parish  of  Cramond,  p.  98. 
Act  of  Bankruptcy.    In  the  law  of  Eng- 
land, there  are  certain  ostensible  indications 
of  insolvency  on  the  part  of  a  debtor,  which 
are  called  Acts  of  Bankruptcy,  and  which  are 
sufBcient  to  bring  a  parly  otherwise  subject 
to  the  bankrupt  laws,  within  their  operation. 
These  acts  of  bankruptcy  are,  (1.)  Depart- 
ing the  realm,  or  his  dwelling-house,  with  in- 
tent to  defraud  his  creditors.    (2.)  Beginning 
to  keep  his  house  privately,  to  avoid  his  credi- 
tors.     (3,)  Procuring  or  suffering  himself, 
voluntarily  and  without  just  cause,  to  bo  ar- 
rested or  outlawed.    (4.)  Willingly  or  fraudu- 
lently procuring  his  goods  or  money  to  be 
attache^  or  sequestrated.     (5.)  Making  a 
fraudulept  conveyance  of  lands  or  goods,  to 
disappoitit  his  creditors  of  their  debts.     (6.) 
Lying  in  prison  two  months  after  arrest,  or 
deteption  for  debt,    (7.)  Obtaining  privilege, 
other  than  the  privilege  of  Parliament,  against 
arrest,     (8.)  Escape  from  prison  after  airest 
for  £100  or  more.    (9.)  Preferring  judicially 
any  petition  or  bill  against  any  of  his  credi- 
tors, t(i  epfprce  arx:eptance  of  less  than  their 
just  debt,  or  to  procure  longer  delay  in  pay- 
ment t|)an  was  stipulated  for,    (10.)  Faying 
the  petitioning  creditor  his  debt  will  super- 
sede that  commission,  and   be   ground  for 
another ;  and  for  the  forfeiture  of  the  debt  so 
paid,  for  behoof  of  the  other  creditors.    (11.) 
Neglecting  to  pay  a  debt  of  £100,  or  more, 
within  two  months  after  service  of  legal  pro- 
cess for  such  debt  on  a  trader,  having  privi- 
lege of  Parliament.    Holding  these  several 
special  acts  as  criterions  of  insolvency  or 
fraud,  sufficient  to  found  an  application  for  a 
commission  of  bankruptcy,  the  law  of  Eng- 


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land  admits  no  other  acts,  hj  inference  or 
analogy ;  while,  in  determining  whether  an 
equivocal  act  is  to  be  held  as  falling  within  the 
legal  description  of  any  of  the  acts  above  enu- 
inerated,  the  great  test  seems  to  be,  whether 
or  not  the  supposed  act  was  done  to  defraud 
or  delay  creditors  in  the  recovery  of  their  just 
debts.  The  expression,  act  of  bankrupUy,  is 
unknown  in  Scotch  legal  phraseology;  but  in 
the  definition  of  notour  bankruptcy,  under  the 
act  1696,  c.  5,  and  of  mercantile  bankruptcy, 
under  the  sequestration  statute,  an  enumera- 
tion of  the  indications  of  insolvency,  analogous 
to  the  English  acts  of  bankruptcy,  will  be 
found.    Tomlins,  voce  Bankrupt.    See  Bankrupt. 

Act  and  Commission ;  is  the  judicial  act, 
whereby,  in  the  Court  of  Session,  a  commis- 
sion is  granted  to  a  special  commissioner  for 
taking  a  proof,  or  examining  havers,  in  a  de- 
pending  action.     See  Evidence.    Commission. 

Act  of  Court  ina  Service;  was  anotarial  in- 
strument, stating  the  proceedings  in  the  court 
of  service,  drawn  up  and  signed  by  the  clerk  of 
court;  which  afforded  evidence  of  what  passed 
in  the  court  relative  to  the  service.  See  Ser- 
vice.   This  instrument  is  no  longer  necessary. 

Act  of  Ctod;  in  law  language,  signifies  any 
inevitable  accident  occurring  without  the  in- 
tervention of  man ;  such  as  from  storms,  light- 
ning, tempests,  &c.  Losses  arising  from  these 
and  similar  fatalities  are  not  held  to  be  such 
as  one  party,  under  any  circumstances  (inde- 
pendently of  special  contract),  is  bound  to 
make  good  to  another.  Such  losses,  for  ex- 
ample, are  sufficient  to  liberate  innkeepers 
and  stablers  from  their  obligation  under  the 
edict,  Nautw,  caupones,  stabularii.  BelTs  Com. 
i.  pp.  470,  559,  el  seq.,  5th  edit. 

Act  of  Ghraoe.  The  act  1696,  c.  32,  for 
the  aliment  of  poor  prisoners  incarcerated  for 
non-payment  of  debt,  is  called  the  Act  of 
Grace.  The  original  object  of  this  enactment 
was  to  relieve  royal  burghs  of  this  expense ; 
but  practically,  it  has  mitigated  the  severity 
of  the  law  of  imprisonment  for  debt.  By  the 
statute  6  Geo.  IV.,  c  62,  the  older  statut« 
has  been  amended  and  improved ;  and  the 
following  are  now  the  leading  provisions  of 
the  law  on  the  subject :  No  keeper  of  a  jail 
is  entitled  to  receive  a  prisoner  to  be  confined 
for  civil  debt,  until  the  incarcerating  credi- 
tor, or  some  one  on  his  behalf,  deposits  in 
the  jailor's  hands  ten  shillings  for  aliment  of 
the  prisoner.  Where  aliment  is  afterwards 
awarded  to  the  prisoner  under  the  act  1696, 
c.  32,  the  jailor  is  bound  to  pay  the  aliment 
at  the  rate  allowed,  out  of  the  deposit  of  ten 
shillings,  from  the  date  of  the  imprisonment 
until  the  money  is  exhausted.  Where  the 
prisoner  is  refused  aliment,  the  ten  shillings 
are  to  be  returned  to  the  depositor ;  or  where 
the  prisoner  does  not  apply  for  aliment  for 


thirty  days  after  commitment,  the  ten  shil- 
lings are  also  to  be  returned.  So  also,  where 
aliment  has  been  awarded,  but  the  ten  shil- 
lings are  not  exhausted  at  the  debtor's  libera- 
tion, the  unexhausted  balance  must  be  re- 
turned. And  finally,  where,  before  the  pri- 
soner can  avail  himself  of  the  act  1696,  the 
creditor  consents  to  his  liberation  without 
payment  of  any  part  of  the  debt,  the  ten  shil- 
lings are  to  bo  returned  to  the  depositor, 
under  deduction  of  the  prisoner's  aliment  dur- 
ing his  confinement,  at  the  lowest  rate  usually 
allowed  by  the  magistrates  of  the  particular 
burgh.  Every  prisoner  petitioning  for  the 
benefit  of  the  Act  of  Grace  must,  when  de- 
sired, execute  a  disposition  omnium  bonmrun, 
in  favour  of  the  incarcerating  creditor,  for 
behoof  of  the  other  creditors,  and  at  the  ex- 
pense of  the  creditor  demanding  the  disposi- 
tion. If,  after  being  duly  required,  in  writ- 
ing, to  execute  such  disposition,  the  debtor 
refuses  or  delays,  he  is  entitled  to  no  aliment 
while  so  refusing.  A  prisoner  who  desires 
the  benefit  of  the  Act  of  Grace  must  apply 
by  petition  to  the  magistrates  of  the  burgb, 
and  must  swear  that  he  has  no  means  of  sub- 
sistence. He  must  also  be  actually  in  prison 
at  the  time.  He  cannot  apply  while  at  lar^re, 
on  a  sick  bill ;  and  his  application,  when 
made,  must  be  intimated  to  the  incarcerating 
creditor  or  creditors,  by  service  of  the  peti- 
tion. The  term  allowed  to  the  creditor  either 
to  provide  an  aliment,  or  to  consent  to  libe- 
ration, is  ten  days  from  the  service  of  the 
notice ;  and  if  within  that  time  aliment  be 
not  lodged,  the  debtor  may  be  liberated.  He 
may  be  liberated  on  the  tenth  day ;  and 
where  the  incarcerating  creditor  lodges  a 
sum  with  the  jailor,  to  be  applied  in  payment 
of  the  aliment  awarded,  the  debtor  will  be 
liberated  if  the  creditor  fail  to  lodge  a  further 
sum,  before  the  sura  in  the  hands  of  the  jailor 
is  actually  exhausted.  It  was  at  one  time 
thought,  that  where  the  debt  in  respect  of 
which  the  debtor  had  been  incarcerated  was 
a  debt  arising  ex  ddicto,  he  was  not  entitled 
to  the  benefit  of  the  act.  But  this  is  a  mis- 
take. Whatever  be  the  origin  of  the  debt, 
if  it  be  of  the  nature  of  a  civil  debt  due  to  a 
private  party,  whether  ex  contractu  or  eje  de- 
licto, tbe  debtor  is  entitled  to  the  benefit  of 
the  act.  On  the  other  hand,  where  the  debt 
is  a  fine  imposed  in  modum  pasn(e,  for  the  pub- 
lic interest,  the  debtor  cannot  claim  the  bene- 
fit of  the  Act  of  Grace  against  the  public 
prosecutor,  on  the  plea  of  inability  to  pay 
the  fine  ;  but  must  be  alimented  from  tbe 
public  fund  appropriated  to  the  aliment  of 
prisoners  ex  delicto.  A  prisoner  incarcerated 
for  not  performing  an  act  within  his  own 
power,  or  ad  factum  prcestandum,  is  not  en- 
titled to  the  benefit  of  the  act.    The  quantit* 


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«f  aliment  swarded  varies  in  different  burghs ; 
bat  is  in  general  rery  moderate  ;  and  in  fix- 
ing it,  the  magistrates  act  subject  to  the  re- 
view of  the  Court  of  Session.  Where  the 
debtor  has  an  aliAent  from  any  source,  no 
natter  under  what  restrictions  it  may  have 
been  given,  he  must  either  surrender  that  ali- 
ment to  the  incarcerating  creditor,  or  forego 
the  benefit  of  the  act.  A  debtor  who  has  ob- 
tained the  benefit  of  the  Act  of  Grace,  and 
who  has  been  liberated  in  consequence  of  the 
creditor's  failure  to  lodge  aliment,  may  be 
afterwards  re-incarcerated  under  the  same 
diligence ;  although  this  is  a  power  which  a 
creditor  would  not  be  permitted  to  use  op- 
presively.  According  to  Er&kine,  where  the 
debtor  fails  to  lodge  aliment,  the  magistrates, 
if  tliey  choose,  may  themselves  aliment  the 
debtor,  and  so  protract  his  imprisonment. 
But  the  decision  on  which  this  dictum  rests, 
hat  been  disapproved  of  on  the  Bench,  obiter, 
in  a  recent  case.  Bank.  iii.  p.  20,  §  8 ;  Broum's 
^.  pp.  537,  1231,  1757  ;  Shaw's  Digest, 
i.  t.  and  p.  647  ;  S.D.  vol.  xi.  pp.  144,  372  ; 
lii.  p.  28 ;  xiv.  380  ;  Ersk.  iv.  tit.  3,  §  28, 
itdiy'a  Notes;  BeWs  Com.  ii.  553,  et  seq.; 
friM.  §  2406 ;  6  Geo.  IV.,  c.  62  ;  7  and  8 
Vict,  e.  34,  §  13.    See  Cessio  Bonorum. 

Act  of  Parliameat.  An  Act  of  Parlia- 
aeot  is  a  law  passed  by  all  the  three  branches 
•f  the  Legislature ;  the  King  (or  Queen),  the 
Lords  Spiritual  and  Temporal,  and  the  Com- 
oooa,  in  Parliament  assembled.  This  is  the 
highest  legal  authority  known  in  the  consti- 
tation ;  and  a  statute  so  enacted  cannot  be 
altered,  repealed,  or  suspended,  except  by  the 
■oe  anthority,  or  (in  Scotland)  by  a  long 
coune  of  contrary  usage  or  disuse  ;  for,  by 
the  Uv  of  Scotland,  a  statute  may,  by  disuse, 
ceaw  to  be  obligatory.  The  ancient  acts  of 
the  Scotch  Parliament  were  proclaimed  in  all 
tlie  coootry  towns,  boroughs,  and  even  in  the 
baron  courts.  This  mode  of  promulgation, 
howsrer,  was  gradually  dropped  as  the  use  of 
printing  became  common ;  and,  by  the  act 
15S1,  e.  128,  the  publication  at  the  market- 
CTDii  of  Edinburgh  was  declared  to  be  suffi- 
cisoL  British  statutes  require  no  formal  pro- 
ulgation ;  and,  in  order  to  fix  the  time  from 
vUdi  they  shall  become  binding,  it  was  en- 
Kted  by  33  Geo.  III.,  c  13,  that  every  Act 
of  Parliament  to  be  passed  after  April  8, 
1793^  ahali  commence  from  the  date  of  the 
jwnaiMt  by  the  clerk  of  Parliament,  stat- 
i>9  the  day,  month,  and  year  when  the  act 
vstpiaed  and  received  the  royal  assent,  un- 
Itatke  commencement  shall  in  the  act  itself 
I  ^  aftenrise  provided  for.  By  the  Acts  of 
ft^aaeot  Abbreviation  Act,  13  Vict.,  c. 
I  .Sit  U  ii  provided,  that  Acts  of  Parliament 
\  ■qrlw  altered,  amended,  or  repealed  in  the 
■■•  Miiioii ;  that  all  Acts  shall  be  divided 


into  sections,  without  introductory  words ; 
that  in  referring  to  statutes  it  shall  be  suffi- 
cient to  cite  the  year  of  the  reign,  chapter, 
and  section,  without  the  title  ;  that  repealed 
acts  shall  not  be  revived  in  virtue  of  a  repeal 
of  the  repealing  act ;  that  repealed  provisions 
shall  remain  in  force  till  the  substituted  pro- 
visions come  into  force ;  and  that  acts  shall 
be  deemed  public  unless  the  contrary  be  ex- 
pressly declared.  Section  4  contains  the  in- 
terpretation of  certain  terms  for  future  acts. 
See  Parliament.  Desuetude.  Assent,  Royal. 
Statute. 

Act  of  Warding;  is  a  warrant  issued  by 
the  magistrates  of  royal  burghs,  authorising 
the  imprisonment  of  a  debtor.  This  warrant 
is  contained  either  in  a  judgment  pronounced 
by  the  magistrates,  or  in  a  decree  of  regis- 
tration proceeding  from  the  court  of  the  ma- 
gistrates, upon  a  clause  of  consent,  or  upon  a 
registered  protest  of  a  bill.  The  privilege  of 
granting  such  warrants  is  peculiar  to  the 
magistrates  of  royal  burghs.  It  has  been 
traced  (erroneously  it  is  believed)  to  the  2d 
Stat.  Robert  I.,  c.  19,  Reg.  Mag.  p.  361 ;  and 
was  till  lately  the  only  direct  execution  for 
payment  of  debt  known  in  Scotland ;  impri- 
sonment under  horning  and  caption  being 
founded  on  a  fiction  of  the  law,  by  which  the 
debtor  is  imprisoned  as  a  rebel.  In  strict- 
ness, the  imprisonment  under  an  act  of  ward- 
ing ought  to  proceed  only  after  an  unsuccess- 
ful search  for  the  effects  of  the  debtor ;  and 
it  is  the  practice  of  the  town-officers  in  Edin- 
burgh to  certify  that  such  a  search  has  been 
made ;  after  which,  the  days  of  charge  being 
elapsed,  the  debtor  may  be  imprisoned.  Such 
warrants  can  be  issued  only  against  inhabi- 
tants of  the  burgh  subject  to  the  jurisdiction 
of  the  magistrates,  which  all  persons  are  after 
forty  days'  residence  within  the  royalty. 
In  Ross's  Lectures,  vol.  i.  p.  255,  there  are 
some  interesting  historical  speculations  con- 
nected with  this  subject.  BdVs  Com.  ii.  538 ; 
Stair,  B.  iv.  tit.  47,  §  1 ;  Bank.  iii.  p.  1,  § 
2 ;  Karnes'  Stat.  Law  Abridg.  voce  Personal 
Execution;  Breton's  Stfnop,  p.  1236. 

Acts  of  Sedemnt;  are  ordinances  of  the 
Court  of  Session,  made  originally  under  au- 
thority of  the  act  1540,  c.  93,  whereby  the 
Judges  are  empowered  to  make  such  statutes 
as  may  be  necessary  for  the  ordering  of  pro- 
cesses, and  the  expediting  of  justice.  The 
power  thus  conferred  was  occasionally  ex- 
ceeded ;  and  it  became  necessary,  accordingly, 
to  ratify  several  of  the  Acts  of  Sederunt  in 
the  Scotch  Parliament.  In  so  far,  however, 
as  Acts  of  Sederunt  are  confined  to  declara- 
tions of  the  purpose  of  the  court  to  decide 
in  a  particular  way  on  an  occurrence  of  simi- 
lar circumstances,  they  seem  to  amount  to 
little  more  than  authoritative  announcementa 


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ACT 


of  the  iatention  of  the  court  to  adhere  judi- 
cially to  certain  precedents.  The  Acts  of 
Sederunt  which  partake  most  of  the  legisla- 
tive character  are  the  acts  24th  June  1665, 
as  to  pro-tutors,  28th  Feb.  1662,  as  to  exe- 
cutors-creditors, and  14th  Dec.  1756,  as  to 
the  removing  of  tenants.  But  with  these  ex- 
ceptions, the  Acts  of  Sederunt  of  the  Court 
of  Session  have  been  confined,  for  upwards  of 
a  century  and  a  half,  almost  exclusively  to 
the  regulation  of  judicial  procedure,  and  to 
matters  therewith  connected.  In  recent  sta- 
tutes, express  power  is  given  to  the  Court  of 
Session  to  pass  Acts  of  Sederunt  for  carry- 
ing the  purpose  of  the  Legislature  into  more 
complete  effect;  and  it  is  usually  provided 
that  the  Acts  of  Sederunt  made  in  virtue  of 
Buch  powers  shall  be  laid  before  Parliament 
within  a  limited  time.  The  old  quorum  of 
nine  judges  is  requisite  in  passing  an  Act  of 
Sederunt;  48  Geo. III.,  c.  151,  §  11.  Ersk.i. 
1. 1,§40;  ShantTs Practice,  i. 45;  Stair,B.i. 
tit.  1,  §  16  ;  Bank.  i.  p.  28. 

Acts  of  the  General  Asuemblt/  of  the  Church 
of  Scotland.  The  acts  of  the  General  Assem- 
bly, issued  under  their  legislative  powers,  are 
binding  on  all  the  members  and  judicatories 
of  the  church.  The  form  of  their  proce- 
dure, in  these  enactments,  is  regulated  by  an 
act  of  the  church  (1697,)  termed  the  Bar- 
rier Act,  which  directs  any  proposal  or  over- 
ture for  a  new  act,  or  for  repealing  an  old 
one,  to  be  laid  by  the  member  by  whom  it  is 
proposed  before  the  presbytery  or  synod  to 
which  he  belongs,  who,  if  they  approve  of  it, 
will  transmit  it  to  the  General  Assembly  as 
their  own  overture.  This  overture  may 
either  be  dismissed  or  adopted  by  the  General 
Assembly,  and  it  may  be  adopted  with  such 
changes  or  modifications  as  they  may  think 
proper.  The  overture,  being  adopted  by  the 
General  Assembly,  is,  by  that  body,  trans- 
mitted to  the  several  presbyteries  of  the 
church  for  their  considei-ation,  with  an  in- 
junction to  send  up  their  opinion  on  the  mea- 
sure to  the  next  General  Assembly,  who  may 
pass  it  into  a  standing  law,  if  it  be  the  general 
opinion  of  the  church  that  it  ought  to  be 
enacted ;  but  a  majority  of  presbyteries  must 
have  approved  of  it.  The  delay  which  this 
form  of  proceeding  necessarily  occasions,  is 
remedied  by  a  power  exercised  by  the  General 
Assembly  of  converting  the  overture,  (where 
the  presbyteries  have  neglected  to  communi- 
cate their  opinion  on  the  point,)  into  an  in- 
terim act,  which  is  held  to  be  binding  until 
the  meeting  of  the  next  Assembly,  and  may 
be  continued  until  the  act  be  finally  approved 
of  or  rejected.  No  overture,  however,  van  be 
converted  into  an  interim  act,  which  involves 
an  essential  alteration  of  the  existing  law 
or  practice  of  the  church ;  but  this  does  not 


apply  to  measures  which  may  be  necessarj 
for  carrying  out  more  effectually  subsistini 
regulations  or  forms.  See  Act  of  Assend)}^ 
anent  pasting  Interim  Acts,  1848.  See  HUfi 
View  of  Constitution  of  Church  of  Scotland,  p, 
110 ;  Gillan's  Acts  of  AsseMy,  p.  185; 
Peterkin's  Compendium  of  the  Laws  of  the  Churti 
of  Scotland;  GooVs  Stt/les  of  Procedure  inCkurd 
Courts,  p.  308.    See  General  Assembly. 

Actilia;  armour,  weapons,  harnessing.  ?*{ 
Skene  De  Verborum  Sifnificatione. 

Actio  Oirecta  et  Contraria.  Contracts  ani 
obligations  in  the  Eoman  law  gave  rise  h 
two  actions ;  the  actio  directa,  for  enforcinl 
implement  of  the  essential  obligation ;  aoj 
^e- actio  contraria,  for  enforcing  the  countci 
obligation.  Thus,  in  the  contract  of  comm- 
date,  the  actio  directa  was  competent  to  iIh 
lender  against  the  borrower,  to  compel  liinj 
to  return  the  thing  lent ;  and  the  actio  a» 
traria  to  the  borrower,  to  enforce  his  couDtei 
claims  arising  out  of  the  contract.  So  tlu 
actio  tutelm  directa  was  competent  to  the  minor 
on  the  expiration  of  the  tutory,  against  tix 
tutor,  for  compelling  him  to  account  and  pavj 
The  actio  contraria  to  the  tutor  against  th( 
minor,  for  reimbursement  of  the  expense  oe^ 
cessarily  disbursed  in  the  pupil's  affairs.  And 
generally  speaking,  in  all  contracts,  the  lead 
ing  and  essential  obligation  produced  the  twti 
directa,  the  counter  obligation  the  actio  evntn^ 
ria.  Stair,  iv.  tit.  3,  §  35 ;  Ersk.  iii.  tit.l,  §  24. 

Actio  Qnanti  Minoris.    See  Quanti  Minmi 

Actio  Eedhibitoria ;  was  an  action  in  tb< 
Roman  law  (founded  on  the  implied  tst 
randice  of  the  contract  of  sale),  by  wbicli 
when  the  purchaser  discovered  a  latent  faul 
in  the  commodity  purchased,  such  as  rendered 
it  unfit  for  the  purpose  for  which  it  was  in 
tended,  he  was  entitled,  within  six  months,  h 
return  the  goods,  and  claim  repetition  of  thi 
price.  This  action  seems  to  have  been  com 
potent,  wherever  the  defect  was  such,  that,  i 
the  buyer  had  been  made  acquainted  with  i1 
he  would  not  have  become  a  purchaser,  fi; 
the  law  of  Scotland,  an  action  of  this  kind  i 
admitted,  where  it  is  brought  immediate!; 
that  is,  within  a  few  days  after  the  sale ;  foi 
if  it  be  longer  delayed,  the  presumption  istha 
the  purchaser  is  satisfied.  It  would  appea 
that  the  law  of  England  differs  from  the  Ro 
man  and  Scotch  law  in  this  respect,  and  thai 
by  the  English  law,  express  warrandice  froi 
the  seller  is  necessary,  in  order  to  entitle  th 
purchaser  to  any  remedy.  Brown  on  Sale,  j 
287  ;  Stair,  B.  i.  tit.  9, 5  10  ;  Ersk.  B.  iii.tii 
iii.,  §  10  i'Kame^Princ.  <f  Equity  (1825)  p.  17£ 

Action.  An  action  is  the  judicial  pre 
cess,  whereby  legal  rights  and  obligation! 
whether  personal  or  real,  heritable  or  move 
able,  are  asserted  and  ascertained,  and  vii 
dicated  or  made  effectual  by  the  competei 

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tribnoab  for  determining  the  question  at 
isae,  >nd  warranting  the  appropriate  execu- 
tion. Actions  are  either  civil  or  criminal. 
Ctril  aeiions  properly  so  called,  are  those 
vbiefa,  whether  founded  on  a  civil  right  or 
obligation,  or  on  a  crime  or  delict,  are  prose- 
«ited  merely  ad  eivHem  effectum,  for  enforce- 
■ent  of  the  right  or  reparation  of  the  pri- 
rtit  iojory.  Criminal  actions,  on  the  other 
kind,  are  actions  in  which  the  offender  is 
proMcuted  ad  vindictaiH  publicam  ;  or  for  the 
ycaitoent  or  penalty  of  his  offence  against 
(Im  public.  In  the  practice  of  the  lav  of 
Scotland,  although  these  two  classes  of  ac- 
tions occasionally  present  themselves  in  some- 
thing of  a  mixed  form,  yet,  generally  speak- 
iag,  the  line  of  demarcation  is  sufficiently 
&liaet  for  all  practical  purposes ;  as  is  ex- 
pbioed  under  separate  articles.  In  the  Court 
<f  ScHon,  civil  actions  are  classified  by  insti- 
titional  writers,  as  Actions  or  the  first 
muRCE,  including  Petitory,  Possessory,  De- 
claratory, Rescissory,  and  Accessory  actions, 
•si  Snmmary  actions,  such  as  petitions  or 
petitiont  and  complaints  under  particular  sta- 
Mh,  or  for  contempts  of  court,  or  against 
Bmbere  of  the  College  of  Justice  for  mal- 
venation  or  misconduct,  or  the  like  ;    and 

ActlOIS  OF  THB    SECOND   INSTANCB,  SUch  88 

AdToeations,  Suspensions,  and  Reductions  of 
^Kre«t.  The  nature  of  these  several  actions 
■  explained  under  their  respective  heads.  In 
Scotland,  there  is  no  classification  of  actions 
Meording  to  certain  inflexible/orm«(2a<.  Such 
at  arrangement,  however  captivating  in  theo- 
ly,  is  oot  adapted  to  the  exigencies  of  actual 
Miiiiea,  and  to  the  blended  and  complex  cha- 
acter  which  questions  of  civil  right  frequent- 
ly aanme.  Hence,  there  is  hardly  any  com- 
Ibatioii  of  circumstances,  and  no  involution 
<f  (tmlieting  claims  either  of  right  or  of  sta- 
tu, which  may  not  be  explicated  in  the  Court 
pf  8e«ioo,  by  means  of  an  action  founded  on 
Ae  ipedal  circumstances  of  the  particular 
tM ;  and  coneludlug  for  the  proper  legal  re- 
My  or  redress.  In  the  inferior  courts  this 
b  Mt  always  attainable,  their  jurisdiction 
yog  Ihuted,  not  only  in  territorial  extent, 
ht  alio  with  respect  to  the  description  of  ac- 
Cm  which  may  be  competently  brought  be- 
%•  Aem.  On  the  subject  of  civil  actions, 
■icoBprehending  not  only  the  judicial  pro- 
Iwes,  but  the  ezeeutorid,  or  diliffenees,  as  they 
■•  tnaed  in  the  law  of  Scotland,  whereby 
rivfl  righta  are  made  effectual,  and  enforced 
If  hpl  execotion,  see  Stair,  B.  iv.  tit.  3  ; 
fcfc  B.  iv.  t.  23 ;  Enk.  B.  iv.  tit.  1 ;  BeWt 
'Hat;  SiMB**  Digest,  voce  Process;  Thomson 
•»  M%  p.  590,  et  seq. ;  M'Farkme's  Jury 
J***!,  23, 99, 1 10 ;  Jurid.  Styles ;  and  con- 
*ttte  feltowing  articles  in  this  Dictionary : 
"-fitmt.  iSiMMMM.   Ordinary  Action.    Ad- 


vocation.  Suspension.  Seduction.  Declarator. 
Ranking  and  Sale.  Multiplepoinding.  Seques- 
tration. Diligence.  Adjudication.  Inhibition. 
Arrestment.  Poinding.  MaiUs  and  Duties.  Hy- 
pothec. Poinding  of  tiie  Ground.  Interdict.  Ad- 
herence. Divorce.  Confirmation.  Service.  Act 
of  Warding.  Homing.  Caption.  ActofOrace. 
Gessio  Bonorum.  Appeal.  Crown  Debt.  Ex- 
diequer.  Church  Judicatories.  Presbytery.  She- 
riff. Admiralty.  Burgh.  Dean  ofGuUd.  Ju- 
risdiction. StnaU  Debts.  Justice  of  Peace.  De- 
cree. Decree  of  Registration.  Criminal  Prose- 
cution. Justiciary  Court.  Damages..  Delict; 
and  other  titles  suggested  by  the  preceding  articles 
and  enumeration. 

Actor ;  a  Counsel  or  Advocate.  The  term 
is  still  used  by  the  Clerks  of  the  Court"  of 
Session,  who,  in  prefixing  the  partibus  or  mi- 
nute of  appearance  to  interlocutors,  designate 
the  respective  counsel  for  the  parties  Actor 
and  AUer. 

Actor  SeqnitOT  Fonun  Bei;  a  Roman  law 
maxim,  importing  that  the  pursuer  of  an  ac- 
tion must  follow  the  forum  of  the  defender ; 
i.  «.,  if  the  defender  is  not  amenable  to  the 
courts  of  Scotland,  the  pursuer  must  raise  his 
action  against  him  in  the  country  to  the  laws 
of  which  he  is  subject.     See  Abroad. 

Actomatiis;  according  to  Skene,  is  he  who 
makes  answer  for  another  in  judgment,  spe- 
cially for  the  defender ;  as  Prolocutor  is  he 
who  speaks  for  the  pursuer.  Also  an  attor- 
ney or  procurator  for  another.  See  Skene, 
De  Verb.  Sig. 

Actus ;  one  of  the  Roman  law  rural  servi- 
tudes of  passage  or  way.  The  servitude  iter, 
in  that  law,  signifies  the  dominant  proprie- 
tor's right  to  a  foot  and  horse  passage  for 
himself,  his  family,  and  tenants,  through  the 
servient  proprietor's  lands ;  and  the  servitude 
adus  superadds  to  the  servitus  itineris  the 
right  also  of  using  the  road  for  carriages 
drawn  by  men,  and  for  driving  cattle.  Ersk. 
ii.  t.  9,  §  12  ;  Stair,  B.  xi.  t.  7,  §10  ;  Bank. 
i.  678,  §39.    Seeiiood.    Iter.    Via. 

Adherence,  Action  o£  By  the  act  1573, 
c.  55,  where  either  of  the  spouses  deserts  the 
other  without  a  reasonable  cause,  and  re- 
mains in  his  or  her  "  malicious  obstinacy"  for 
four  years,  the  injured  party  may  raise  an  ac- 
tion of  adherence  before  the  judge  ordinary. 
If  the  pursuer  obtain  decree  of  adherence, 
and  the  defender  disobeys  the  sentence,  letters 
of  homing  may  be  obtained  under  the  signet, 
to  enforce  the  decree.  If  this  fail,  the  church 
is  directed  to  admonish  the  defender  to  adhere, 
on  pain  of  excommunication  ;  and  if  these  se- 
veral steps  prove  unavailing,  the  injured  party 
may  raise  an  action  of  divorce  on  the  ground 
of  desertion.  An  action  of  adherence  cannot 
be  raised  until  after  at  least  one  year's  de- 
sertion ;  and  the  summons  ought  to  be  special 

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u  to  the  date  and  oircumstanees  of  the  de- 
sertion, not  only  to  show  that  it  has  con- 
tinued for  one  year,  but  also,  in  contemplation 
of  a  divorce  following  thereon,  to  leave  no 
doubt  in  reckoning  the  four  years.  When  the 
action  of  adherence  is  at  the  instance  of  the 
wife,  she  may  competently  conclude  in  the 
same  summons  for  aliment;  and  her  hus- 
band's payment  of  the  aliment  decerned  for 
during  the  three  intervening  years  will  not 
bar  the  divorce,  if  the  desertion  continue. 
The  defender  in  an  action  of  adherence  must 
be  subject,  either  actually,  or  Jictione  juris,  to 
the  jurisdiction  of  the  Scotch  courts;  A.  B., 
1st  March  1845,  7  D.  p.  656 ;  Gordon,  19th 
June  1847,  9  D.  1293 ;  although  it  seems  to 
be  considered  no  bar  to  the  action  that  the 
husband  has  left  Scotland,  if  his  absence  be 
for  the  obvious  purpose  of  depriving  his  wife 
of  this  remedy.  See  Desertion.  Where  the 
wife  is  the  defender,  there  can  be  no  difficulty 
as  to  jarisdiction,  since  she,  Jictione  juris,  fol- 
lows the  domicil  of  her  husband ;  and  if  he 
seeks  redress  in  this  form,  he  must  have  his 
real  domicil  in  Scotland.  The  action  of  ad- 
herence ought  to  be  intimated  personally  to 
the  defender,  if  abroad ;  Black,  4th  Febru- 
ary 1842,  4  D.  615.  In  Smith,  11th  Fe- 
bruary 1854, 16  D.  544,  it  was  held  that  the 
action  of  divorce  might  competently  proceed 
upon  edictal  citation  merely,  in  respect  the 
previons  process  of  adherence  had  also  pro- 
ceeded upon  edictal  citation,  the  defender 
having  never  been  heard  of  since  his  deser- 
tion, though  inquiries  had  been  made  after 
him.  In  the  adherence,  evidence  must  be  led 
both  of  the  marriage,  and  that  the  desertion 
was  wilfnl ;  A.  B.,  and  Black,  vi  supra.  If 
the  decree  does  not  mention  the  date  of  the 
desertion,  evidence  thereof  must  be  led  in  the 
subsequent  action  of  divorce  ;  Maxwell,  29th 
Nov.  1851,  14  D.  126.  The  action  of  ad- 
herence, not  being  mentioned  in  11  Geo.  IV. 
and  1  Will.  IV.,  c.  69,  and  6  and  7  Will.  IV., 
c.  41,  could  only  be  instituted  in  the  Sheriff 
Court,  as  coming  in  place  of  the  inferior  com- 
missary, unless  the  defender  was  abroad,  when 
it  might  be  instituted  in  the  Court  of  Ses- 
sion ;  but  by  13  and  14  Vict.,  c.  36,  §  16, 
this  and  all  other  consistorial  actions  can 
competently  be  brought  in  the  Court  of  Ses- 
sion only.  The  recent  statute,  admitting  the 
parties  to  a  cause  as  witnesses,  makes  actions 
of  adherence  one  of  the  exceptions  in  which 
the  parties  still  continue  inadmissible.  The 
procedure  before  the  presbytery  after  decree 
of  adherence  is  given  in  CooWs  Styles  of  Pro- 
eedure  Wore  Church  Courts,  p.  239.  See  also 
Fraser,  Pers.  and  Dom.  Relations,  pp.  447, 677, 
713  ;  Shand's  Pr.  435  ;  Ersk.  i.  tit.  6,  §44  ; 
Lothian'i  Consist.  Prac.  96,  et  scq. ;  Mores 
Notes,  to  Stair,  p.  xivi.  ;    Bank.  i.  p.  139  ; 


Shavfs  Digest,  p.  567 ;  vol.  iii.  p.  207 ;  J* 
rid.  Styles,  vol.  iiL     See  Divorce. 

A^journaL   See  Books  of  Adjournal. 

A^onmment.  To  adjourn  a  court  is,  b; 
a  regular  act,  to  stop  the  proceedings  for  tb 
present,  and  delay  them  to  a  future  timi 
The  proceedings  in  a  service,  or  even  in  i 
criminal  trial,  may  be  adjourned  on  rana 
shown.  But  in  a  criminal  case,  no  adjourn 
ment  can  take  place  after  the  assize  hav 
been  sworn,  excepting  where  the  extraordi 
nary  length  of  the  trial  renders  it  absolntel 
necessary,  and  the  adjournment  must  be  to  i 
day  certain.  Hume,  ii.  263,  414,  417 ;  Erd 
B.  iv.  tit.  4,  §  90,  and  note;  M'Farlanei's  Jw 
Prac.  p.  245.  See  Continuation  of  Diet.  Du 
of  Compearance. 

Abjudication  for  Debt  Adjudication  i 
the  modern  real  diligence  for  attaching  lam 
and  other  heritable  estate  in  satisfaction  « 
debt.  It  was  substituted  for  the  apprising 
which  seems  to  have  been  originally  a  ver 
summary  proceeding,  by  which,  where  th 
debtor  was  not  possessed  of  sufficient  men 
able  property,  the  Sheriff  was  authorise! 
to  give  him  notice  to  sell  his  lands  withij 
fifteen  days,  to  pay  the  debt,  and  failini 
his  doing  so,  to  transfer  the  property  abeo 
lutely,  to  the  creditor  in  satisfaction  of  hi 
debt.  The  act  1469,  c.  37,  as  a  modificatiol 
of  the  hardships  of  the  older  law,  gave  tk 
debtor  a  power  of  redemption  within  sevei 
years,  on  his  repaying  to  the  purchaser  tb 
price,  and  the  expense  of  completing  hi 
titles.  Where  no  purchaser  appeared,  tb 
Sheriff  was  directed  by  that  statute  to  a; 
prise  the  lands  by  thirteen  "  of  the  best  an 
worthiest  of  the  shire,"  and  to  make  it  ove 
to  the  creditor  to  the  extent  of  the  debt ;  tfa 
superior  being  bound  to  receive  the  credik 
or  purchaser  on  payment  of  a  year's  rent,d 
to  take  the  lands  himself  and  pay  the  debl 
Under  this  statute,  apprising  appears  to  ha^ 
been  conducted  for  some  time  with  a  due  n 
gard  to  the  mutual  interests  of  the  parties 
but  the  execution  of  the  act,  in  the  country 
having  fallen  into  the  hands  of  messengen 
at-arms,  abuses  arose,  which  were  attempte 
to  be  remedied  by  conducting  the  apprisin 
in  every  case  at  Edinburgh.  The  expen8( 
however,  with  which  this  was  attended,  in 
troduced  the  practice  of  allowing  the  credit4 
to  enter  into  possession  on  a  general  redeem 
able  title,  and  to  draw  the  rents  and  profil 
during  the  whole  term  of  redemption,  withot 
being  under  any  obligation  to  account  for  th 
surplus  over  the  interest  of  the  debt.  Th! 
practice  gave  facilities  to  the  grossest  abuse; 
and  to  remedy  some  of  the  evils,  the  act  162; 
c.  6,  provided  that  the  rents  and  profits,  i 
so  far  as  they  exceeded  the  interest  of  th 
debt,  should  be  imputed  pro  tanto  to  the  paj 

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Bent  of  the  principal.  The  same  statnte 
enacted,  that  the  legal  reversion  of  seven 
fears  should  not  run  against  minors.  The 
act  1661,  c.  62,  prorogated  the  legal  rever- 
sion of  apprisings  from  seven  to  ten  years, 
aad  provided,  that  all  apprisings,  within  year 
and  day  of  the  first  effectual  one,  should  ranlc 
firi  pattu;  defining  the  first  effectual  ap- 
prising to  be  that  on  which  the  first  feudal 
risfat  baa  been  completed  by  sasine,  or  by 
<tiarge  against  the  superior.  The  expense  of 
tk  first  effectual  apprising  is  also  declared 
kjrthat  statute  to  be  common  to  all  who  shall 
take  benefit  by  it. 

By  the  act  1672,  c  19,  the  form  of  adjudica- 
tin  was  introduced.  That  statute,  after  nar- 
nting  the  various  abuses  of  the  old  system  of 
■pprisings,  enacted,  that,  in  place  of  apprising, 
a  process  should  be  raised  in  the  Court  of 
Session  against  the  debtor,  in  which  the  Court 
liMnId  adjudge  from  him  a  part  of  his  lands,  or 
vtiier  estate  in  use  to  be  npprised,  correspond- 
ia;  to  the  debt,  interest,  and  the  expense  of 
«>try  and  infeftment,  with  a  fifth  part  more 
n  account  of  the  inconvenience  to  which  the 
creditor  is  put  by  being  obliged  to  take  land 
instead  of  money.  The  value  of  the  land  so  to 
h  adjudged  was  to  be  ascertained  by  a  proof  of 
tke  rental,  or  profits,  to  be  led  by  the  debtor 
(if  be  choose)  and  the  creditor  before  the 
Coart  Upon  the  decree  of  adjudication  thus 
•Uained  Uie  creditor  was  entitled  imme- 
'lately  to  enter  into  possession ;  and  as  the 
land  10  set  apart  was  considered  as  of  the  na- 
tare  of  a  nrrogatuvn  for  the  debt,  the  credi- 
tar  Tas  nnder  no  obligation  to  account  for 
tta  (srplas,  if  there  should  be  any,  after  pay- 
^  the  interest.  The  period  of  redemp- 
tiw  under  this  form,  which  was  called  a  tpe- 
titi  »djuduatitm,  was  made  five  yeai-s  after  the 
date  (^  the  decree  ;  and  it  was  declared,  that 
*ft<r  the  creditor  had  attained  possession  un- 
itT  the  decree,  he  should  have  no  farther 
UNntion  against  his  debtor  by  arrestment, 
taptiw,  or  otherwise,  except  in  the  case  of 
nietion  under  the  warrandice.  But  as  these 
■'•tirtory  provisions  proceeded  on  the  suppo- 
i^aa  that  the  debtor  was  to  produce  a  sufB- 
wot  progress  of  titles,  and  to  ratify  the  de- 
BH  (^  adjadication,  and  cede  summary  and 
fiitt  poaseasion  to  the  creditor,  it  was  farther 
■■cted,  that  where  the  debtor  did  not  com- 
1^  with  these  reqaisites,  it  should  be  in  the 
!•»«  rf  the  cre«Utor  to  adjudge,  generally, 
iB  rif^  vested  in  the  debtor,  in  the  same 
■iMM  aa  he  might  have  used  apprising  un- 
*f  4»  act  1661,  c.  62,  and  under  the  re- 
and  with  the  powers  competent  to  the 
'eonferredbytnatact.  This  last  was  the 
'  alfudieation  ;  and  it  concluded  only  for 
^llhciptl  cam,  interest  and  penalty,  but 
"t  Ar  a  tfth  part  more ;  Act  of  Sedemnt, 


26th  Feb.  1684.  In  the  case  of  a  special  ad- 
judication, the  creditor  could  not  also  resort 
to  personal  and  other  diligence  against  the 
debtor,  but  he  was  under  no  such  restriction 
in  the  case  of  the  general  adjudication. 

The  action  of  adjudication  introduced  by 
the  statute  1672,  c.  19,  could  not  proceed 
until  the  dubt  had  been  constituted  either  by 
a  decree  ascertaining  its  precise  amount,  or 
by  a  liquid  ground  of  debt;  and  the  sum- 
mons of  adjudication,  after  stating  the  man- 
ner in  which  the  debt  was  constituted,  narra- 
ted the  statute  1672,  and  formerly  concluded 
alternatively  for  a  special  or  general  a4jndica- 
tion.  This  alternative  conclusion  was  formerly 
necessary,  because,  although  there  wa«  hardly 
an  instance  of  a  special  adjudication,  yet  it  was 
only  on  the  debtor's  refusal  to  avail  himself  of 
the  first  alternative  that  the  Court  was  autho- 
rised by  the  statute  to  pronounce  a  decree  in 
the  general  adjudication.  The  decree  in  the 
action  a^'udges  the  lands,  &e.  to  the  creditor 
redeemably,  and  orders  the  superior  to  re- 
ceive him  as  his  vassal.  In  order  to  give  the 
necessary  publicity  to  such  decrees,  an  ab- 
ridged statement,  called  an  Abbreviate,  con- 
taining the  names  of  the  debtor  and  creditor, 
and  an  enumeration  of  the  subjects  adjudged, 
is  signed  by  the  extractor  who  signs  the  de- 
cree, and  recorded  within  sixty  days,  in  a  re- 
gister appointed  for  the  purpose.  See  Abbre- 
viak. 

The  subjects  which  may  be  adjudged,  are 
heritable  estate  in  its  most  extensive  signifi- 
cation, including  not  only  feudal  rights,  but 
all  rights  or  interests  affecting  or  connected 
with  land,  such  as  heritable  bonds  and  real 
securities,  or  burdens  or  faculties  of  all  kinds, 
as  also  annuities  and  all  rights  having  a  tract 
of  future  time,  liferents,  reversions,  rights  of 
tack  where  assignees  are  not  excluded,  heir- 
ship moveables,  heritable  offices  of  dignity  or 
jurdisdiction,  personal  rights  to  lands,  personal 
bonds  excluding  executors,  rights  of  patron- 
age, stock  of  any  chartered  bank  where  the 
diligence  of  arrestment  is  excluded,  the  hus- 
band's right  to  the  rents  of  his  wife's  estate, 
rights  to  reduce  ex  capite  Iccti,  fair,  harbour 
and  ferry  dues,  entailed  estates  during  the 
life  of  the  heir,  and  the  like.  Jurid.  Styles, 
iii.  329 ;  Shand,  ii.  662.  As  the  adjudica- 
tion is  a  diligence,  the  summons  contains  no 
conclusion  for  expenses  of  process ;  although, 
where  decree  is  unduly  opposed,  it  would 
seem  that  the  Court  may  award  expenses; 
decree  for  which,  in  such  a  case,  ought  to 
be  taken  in  name  of  the  agent  disburser; 
Shand^s  Prae,  ii.  675.  The  debt  on  which  the 
adjudication  proceeds  must  be  liquid,  and  le- 
gally vested  in  the  pursuer's  person,  by  direct 
obligation,  or  by  assignation,  or  by  confir- 
mation ;  and  cannot   be  constituted  in   the 

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process  of  adjudication  itself,  except  in  tbe 
case  of  adjudication  co-ntra  JuBreditatem  jaeentem 
(which  see.)  By  the  mere  citation  of  the 
debtor  the  subject  to  be  adjudged  becomes 
litigious.  When  the  summons  came  into 
Court,  there  was  formerly  a  difference  in  the 
procedure  between  a  first  and  any  subsequent 
adjudication  ;  for  the  debtor  in  a  first  adjudi- 
cation might  hare  appeared  and  taken  a  day 
to  produce  his  titles,  tie.  with  the  view,  if  he 
chose,  of  concurring  in  a  special  adjudication, 
which  could  not  be  done  in  any  subsequent 
adjudication.  It  is  also  provided  by  the  act 
54  Geo.  III.,  c.  137,  §  9,  that  the  Lord  Or- 
dinary, before  whom  the  first  process  of  ad- 
judication is  called,  shall  ordain  intimation 
thereof  to  be  made  in  the  Minute-boolc,  and 
on  the  walls  of  the  Parliament  House,  in  or- 
der that  other  creditors,  who  are  in  a  condi- 
tion to  adjudge,  may  be  conjoined  in  the 
process ;  and  for  that  purpose  twenty  sederunt 
days  are  allowed.  At  the  expiration  of  the 
twenty  days,  those  who  can  produce  instruc- 
tions of  their  debts,  with  summonses  of  adju- 
dication, libelled  and  signeted,  are  conjoined 
in  one  and  the  same  adjudication.  This  pro- 
cedure is  proper  to  the  first  adjudication 
only.  In  the  action  of  constitution  with  a 
view  to  adjudication,  where  delay  might  ex- 
clude the  creditor  from  the  pari  passu  rank- 
ing, the  Lord  Ordinary  will  pronounce  de- 
cree of  constitution  at  once,  reserving  all  ob- 
jections contra  executionem  ;  and  with  the  same 
view,  the  Court,  on  a  special  petition,  will 
dispense  with  the  tndudcB  and  calling  of  the 
summons,  and  with  the  reading  of  the  decree 
in  the  Minute-book.  Bat  this  indulgence 
will  only  be  granted  to  secure  the  pari  passu 
ranking,  within  year  and  day  of  the  first 
effectual  adjudication.  After  the  lapse  of  the 
year  it  becomes  a  race  of  diligence,  as  against 
the  residue,  and  no  such  favour  can  be  shown 
to  any  one  creditor.  As  to  the  form  of  pro- 
cess, so  far  as  effected  by  the  Judicature  Act', 
6  Geo.  lY.,  c.  120,  the  regulation  is,  that  in 
processes  of  adjudication,  it  is  in  the  power  of 
the  Court  and  of  the  Lord  Ordinary  to  re- 
quire the  parties  to  proceed  according  to  the 
forms  applicable  to  ordinary  actions,  in  so  far 
as  it  shall  appear  fit  or  expedient  to  apply 
these;  but  in  so  far  as  compliance  with 
these  rules  is  not  specially  required,  the  forms 
in  use  before  the  passing  of  the  statute  re- 
main in  force ;  except  only  as  to  the  review 
of  interlocutors,  which  is  regulated  by  the 
general  rule  of  the  Judicature  Act,  and  re- 
lative Act  of  Sederunt;  A,  S.  llth  July 
1828,  §  103.  An  ordinary  abjudication  is 
rarely  opposed  to  the  effect  of  rendering  a 
record  necessary.  In  a  work  such  as  the  pre- 
sent, the  miuute  practical  details  connected 
with  this  important  step  of  real  diligence 


would  be  out  of  place ;  but  they  will  be  foaal 
fully  digested  in  Shand's  Practice,  ii.  6a<i, 
5741 ;  Jurid.  Sti/let,  iii.  324,  et  seq. ;  and  Mt 
Styles,  vi.  393,  et  teq. 

The  adjudication  is  made  effectual,  so  u 
to  compete  with  other  heritable  rights,  b| 
charter  of  abjudication  and  sasine  (see  Ep 
fectwU  Adjudication);  and  in  all  question 
with  other  adjudications  it  will  be  compie^ 
by  presenting  a  Note  in  Exchequer,  *liea 
the  holding  is  of  the  Crown,  or  by  exetnt^ 
ing  a  g^eneral  charge  of  horning  against  m^ 
periors  at  the  market-cross  of  EdiDburgh 
and  pier  and  shore  of  Leith,  where  tha 
holding  is  of  a  subject,  and  recordini;  w 
abstract  of  the  charge  in  the  register  of  abr 
breviates  of  adjudication  ;  54  Geo.  III.,  u 
137,  §  11.  The  adjudication,  being  renderdj 
effectual,  may  become  the  foundation  of  a  pre- 
ference ;  but  all  adjudications  led  within  yea^ 
and  day  of  the  first  effectual  adjudication  are, 
by  the  act  1661,  c.  62,  to  be  ranked  pan  pawni 
Adjudications,  after  the  expiration  of  the  year 
and  day,  are  preferred  upon  the  residue  of  tlia 
estate,  according  to  the  dates  of  recording  tbt 
abbreviates;  1661,  c.  31. 

The  right  of  the  adjudger  was  redeemsble 
in  the  special  acyudication  in  five  years,  and 
in  the  general  in  ten,  and  in  the  adjudicatioD 
contra  hoereditatem  jacentem  in  seven.  Them 
demption  may  be  effected  under  the  general 
adjudication  by  the  creditor's  intromiasioo 
with  the  rents  and  profits,  but  in  the  qieciai 
adjudication  the  rent  went  for  the  inter^j 
and  the  debtor,  before  he  can  redeem  the  snV 
ject  adjudged,  must  pay  the  debt  and  a  fif^ 
part  more.  The  adjudication  may  be  niad^ 
the  ground  of  an  action  of  maills  and  dutie) 
(see  Maills  and  Duties),  by  which  the  adjudge 
ing  creditor  will  attain  possession  of  iM 
rents  ;  but  in  that  case  he  must  account  bj  i| 
rental,  and  he  will  be  liable  in  strict  dilii 
gence  in  the  recovery  of  the  rents.  The  wli 
judger's  right  is  rendered  irredeemable  by  t 
decree  of  declarator  of  expiry  of  the  legal] 
which  is  obtained  in  an  action  raised  sfte> 
the  expiration  of  the  period  of  redemption,  i>| 
which  action  the  debtor  is  required  to  r«i 
deem  the  lands,  or  to  be  foreclosed ;  and  ii 
this  action  of  declarator  the  debtor  in  Hi 
general  adjudication  is  entitled  to  insist  thd 
the  creditor  shall  account  for  the  rents  m 
profits  he  has  drawn,  so  as  to  have  thepreciM 
balance  ascertained.  If  the  debt  was  nol 
paid  off  within  the  legal,  the  adjudger's  rigbl 
formerly  became  ipso  facto  irredeemable,  bo* 
ever  small  the  balance  remaining  unpaid  ma] 
have  been.  It  is  now  settled,  however,  thai 
a  declarator  of  expiry  is  necessary,  althoiigi 
it  would  appear  that  some  eminent  lawyen 
have  doubted  how  far  the  rule  is  a  proper  od« 
See  Bell's  Com.  vol.  i.  p.  705, 5th  edit.  A  char 


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torof  uyodication  and  infeftment,  followed  by 
forty  years' possession,  forms  a  good  irredeem- 
able title  without  a  declarator  of  expiry  of 
the  legal.  Robertson  v.  Tke  Dvke  of  Alhok, 
10th  May  1815,  Vote's  Reports,  vol.  iii. 

An  B^JQdie&tion  for  debt,  until  it  becomes 
irredeemable,  is  merely  a  pignus  prcetorium 
«r  judical  security,  and  not  a  sale  under  re- 
renion.  The  true  nature  of  an  adjudication 
for  debt  was  considered  in  the  case  of  Cochrane 
T.  BofU,  2d  March  1849.  The  purauer  held 
aa  estate  under  an  entail  defective  in  re- 
gard to  tbe  prohibition  against  sales,  but  va- 
lid in  regard  to  the  prohibition  against  con- 
tracting debt.  A  personal  creditor  of  the 
former  heir  had  adjudged  the  estate,  and  also 
the  power  to  sell  the  estate,  which  was  alleged 
t«  be  in  the  debtor.  A  charter  of  adjudica- 
tion was  obtained,  and  infeftment  followed. 
The  debtor  immediately  thereafter  die<l,  and 
the  next  heir  brought  a  reduction  of  the  ad- 
judication,  and  tbe  infeftment  following  upon 
it.  The  defender  pleaded  that  an  adjudica- 
tioB  was  a  sale  under  reversion,  and  that 
therefore  it  was  not  struck  at  by  the  entail, 
vhich  was  defective  in  regard  to  sales.  The 
Court  reduced  the  adjudication,  and  the  jadg- 
laeot  wu  affirmed  in  the  House  of  Lor^ 
I*rd  MoKCBsirr  observed, — "  The  question 
Rmaioiog  is.  Is  adjudication  equivalent  to  a 
•ale?  I  am  clear  that  it  is  not.  Whatever 
the  old  apprising  may  have  been  in  theory,  I 
am  clear  that  a  decree  of  general  adjudication 
in  modem  law  is  no  more  than  a  pignus  proe- 
<w»»,— a  step  of  diligence  which  only  creates 
a  Kcority  for  debt.  It  is  not  the  act  of  the 
^btor,  bat  a  security  taken  by  the  act  of  the 
lav.  The  debt  remains  unpaid.  The  secu- 
nlj  Biay  be  abandoned,  and  other  remedies 
taken.  The  debtor  is  still  the  vassal."  The 
tipiry  of  the  leg^  does  not,  ipso  facto,  vest  a 
right  of  property  in  the  adjudger,  but  must 
he  declared ;  and  where  a  decree  of  the  ex- 
piry of  the  legal  is  obtained  in  absence,  it  is 
liable  to  be  opened  up  on  certain  grounds. 
B^*am.  1 70S. 

By  10th  and  11th  Victoria,  cap.  48,  §  17, 
Wb  for  summonses  of  adjudication  are  abo- 
b<M.  By  the  same  act,  §  18,  it  is  declared 
to  he  no  longer  necessary  to  libel  a  conclusion 
^^edal  adjudication,  and  that  it  shall  be 
awfal  tolibel,  ronclude,  and  decern  for,  gene- 
™i  »4Jndieation  without  such  alternative. 
I»  virtue  of  the  same  act,  §  19,  the  Court, 
*•«■  pronouncing  decree  of  adjudication, 
*hetfcer  for  debt  or  in  implement  of  a  decree 
^^,  may  grant  warrant  for  infefting  the 
•V'ger  or  purchaser,  and  his  heirs  and  suc- 
*■*»,  in  the  lands  contained  in  the  decree. 
x«luds  are  to  be  holden  alternatively  by 
jwnveral  infeftments  and  manners  of  bold- 
ly the  one  of  the  party  adjudged  from,  and 


tbe  other  of  the  immediate  superior.  In  vir- 
tue of  such  decree  of  adjudication,  or  decree 
of  sale,  the  adjudger  or  purchaser  is  entitled 
to  complete  his  title  by  obtaining  a  charter 
of  abjudication  or  of  sale  from  the  superior. 
Where,  however,  the  person  adjudged  from  is 
entered  with  his  superior,  or  in  a  situation  to 
charge  his  superior  to  grant  entry  by  confir- 
mation, the  adjudger  or  purchaser  has  the 
option  of  taking  infeftment  in  virtue  of  the 
warrant  contained  in  the  decree.  An  infeft- 
ment so  taken,  along  wi(h  the  decree  of  adju- 
dication or  of  sale,  constitutes  an  effectual  feu- 
dal investiture  in  the  lands  holding  base  of 
the  party  adjudged  from  and  his  heirs,  until 
confirmation  thereof  shall  have  been  granted 
by  the  superior,  in  the  same  manner  and  to  the 
same  effect  as  if  the  party  adjudged  from  had 
granted  a  disposition  of  the  lands  to  the  ad- 
judger or  purchaser  in  terms  of  the  decree  of 
adjudication  or  of  sale,  with  an  obligation  to 
infeft  a  me  vd  de  me,  and  a  precept  of  sasine, 
and  the  adjudger  or  purchaser  had  been  in- 
feft on  such  precept.  The  effect  of  tbe  char- 
ter of  confirmation  of  the  sasine  proceeding 
ou  the  warrant  in  the  decree  is  to  make  the 
lands  hold  immediately  of  the  superior ;  but 
the  right  of  the  superior  to  the  composition 
payable  by  an  adjudger  or  purchaser  under 
the  existing  law  is  reserved  entire,  and  the 
adjudger  or  purchaser,  by  taking  infeftment 
on  the  decree,  becomes  indebted  in  such  com- 
position to  the  superior,  and  is  bound  to  pay 
it  on  the  superior  tendering  a  charter  of  con- 
firmation, whether  the  charter  shall  be  ac- 
cepted or  not,  and  the  superior  is  entitled  to 
recover  payment  of  such  composition.  The 
sasine  on  such  decree,  when  duly  recorded,  is 
of  itself  sufficient  to  make  the  adjudication 
effectual  in  all  questions  of  bankruptcy  or 
diligence.  Where  the  charter  or  other  deed 
by  which  the  vassal's  right  is  constituted  con- 
tains a  prohibition  against  subinfeudation  or 
alternative  holding,  the  decree  and  sasine, 
notwithstanding  such  prohibition,  forms  a 
valid  feudal  investiture  in  favour  of  the  ad- 
judger or  purchaser,  but  without  prejudice  to 
the  right  of  the  superior  to  require  the  ad- 
judger or  purchaser  to  enter  forthwith,  and 
to  deal  with  him  as  with  a  vassal  unentered. 
See  on  the  subject  of  this  article.  Stair,  B. 
iii.  tit.  2,  §  14,  et  seq.,  and  B.  iv.  tit.  51 ;  ifr 
More's  Notes,  p.  ccxciv.  et  seq. ;  Bank.  vol.  ii. 
p.  217,  et  seq. ;  Ersk.  B.  ii.  tit.  12 ;  BeU's  Princ. 
5  823,  et  seq.,  §  2386 ;  Karnes'  Stat.  Law  AMdg. 
h.  t. ;  Hunter's  Landlord  and  Tenant,  pp.  434, 
798, 804 ;  Brovm's  Spiop.  h.  t.  pp.  1 174, 2050, 
2168,  Ac. ;  Shale's  Digest,  k.  t. ;  Sandford  on 
Entails,  pp.  38,  349,  et  seq. ;  Slumd's .Practice, 
ii.  p.  656,  et  seq. ;  Jvrid.  Styles,  vol.  i.  p.  463, 
2d  edit. ;  vol.  ii.  pp.  38,  96,  329,  2d  edit. ; 
vol.  iii.  p.  324,  et  seq.,  2d  edit.;  }Vatson's  Stat. 


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Law,  h.  t.;  S.  D.  xi.  pp.  130,  292,  355,  711, 
713,  896,  949 ;  xii.  pp.  266,  385,  609  ;  xiii. 
509,  1011 ;  xiv.  1117,  1126 ;  Karnes'  Princ. 
ofEquUy  (1825),  244-5,  282,  296-7,  890-9. 
Se«  Legal.  • 

Abjudication  contra  Hsreditatem  Ja- 
centem.  When  the  debtor's  apparent  heir  re- 
nounces the  succession,  the  creditor  obtains  a 
decree  cognitionis  causa.  The  heir,  in  respect 
of  his  renunciation,  is  assoilzied,  but  the  ha;- 
reditas  jacens  of  his  predecessor  is  subjected  to 
the  creditor's  diligence ;  and  the  decree  is 
called  a  decree  cognitionis  causa  iantum,  be- 
cause its  purpose  is  to  ascertain  the  amount 
of  the  debt,  so  that  adjudication  may  proceed 
against  the  heritage  of  the  deceased.  In 
cases  where  it  is  expected  that  the  heir  is  to 
renounce  the  succession,  a  conclusion  for  ad- 
judication is  introduced  into  the  summons  of 
constitution  ;  and,  when  the  heir  renounces, 
decree  of  adjudication  cognitionis  causa  is  pro- 
nounced. If  the  heir  should  not  renounce, 
the  conclusion  for  adjudication  goes  for  no- 
thing. This  adjudication  carries  right  to  the 
rents  due  prior  to  the  date  of  the  decree,  and 
is  redeemable  within  seven  years  by  any  co- 
adjudging  creditor,  either  of  the  deceased 
debtor  or  of  the  heir  who  has  renounced ;  but 
the  heir  himself  can  neither  be  restored 
against  his  renunciation  nor  redeem  unless 
on  the  head  of  minority,  although,  if  it  be  an 
object  to  the  heir  to  redeem,  it  may  be  accom- 
plished indirectly  by  a  simulate  bond  to  a 
confidential  person,  who  will  redeem  as  a  cre- 
ditor of  the  heir.  The  superior  of  the  lands 
thus  adjudged  is  under  the  same  obligation 
to  enter  the  adjudger  as  in  the  case  of  appris- 
ings  by  1669,  c.  18.  The  adjudication  contra 
hcereditatemjacentem  was  in  use  before  1672, 
c.  19 ;  and  hence,  as  the  exclusion  of  inferior 
courts  applicable  to  adjudications  substituted 
by  that  statute  for  apprisings  did  not  apply, 
the  adjudication  contra  hwreditatem  jacentem 
might  have  proceeded  before  the  Sheriff 
court,  provided  that  the  subjects  were  within 
the  sheriff's  jurisdiction.  No  special  or  gene- 
ral special  charge  was  necessary  or  competent 
after  the  heir's  renunciation.  This  adjudica- 
tion not  being  founded  on  the  act  1672,  the 
first  alternative  of  that  statute  could  not  be 
concluded  for,  the  adjudication  contra  hwredi- 
iatem  jacentem  being  always  a  general  adjudi- 
cation. 

By  the  act  10  and  11  Vict.,  cap.  48,  it  is 
no  longer  competent  to  use  letters  of  general 
charge,  or  special  charge,  or  general  special 
charge.  In  an  action  of  constitution  of  an 
ancestor's  debt  or  obligation  against  an  un- 
entered heir,  the  citation  on  and  execution  of 
the  summons  is  equivalent  to  a  general  charge, 
and  infers  the  like  certification  with  a  gene- 
ral charge.     In  an  action  of  adjudication 


against  an  unentered  heir  following  on  such 
decree  of  constitution,  or  in  an  action  of  ad- 
judication against  an  unentered  heir,  founded 
on  his  own  debt  or  obligation,  the  citation  on 
and  execution  of  the  summons  of  adjudicfr- 
tion  is  equivalent  to  a  special  charge  or  gene- 
ral special  charge,  as  the  circumstances  may 
require,  and  infers  the  like  certification  with 
a  special  charge  or  general  special  charge,  as 
the  case  may  be.  Again,  in  an  action  of  con-l 
stitntiou  and  adjudication,  combined  in  the 
same  summons,  against  an  unentered  heir, 
the  same  decree  may  be  pronounced  which 
would  have  been  competent  had  the  summons 
been  preceded  by  letters  of  general  charge, 
and  decree  of  constitution  and  adjudicatioa 
may  be  pronounced  in  the  same  interlocutor, 
and  extracted  on  the  same  extract.  A  com- 
bined action  of  constitution  and  adjudication 
was  only,  under  the  old  law,  competent  in  the 
case  of  an  adjudication  contra  hwreditatemjt-i 
centem  in  case  the  heir  should  renounce ;  for 
if  he  renounced  he  fell  to  be  assoilzied  in  the 
action  of  constitution,  and  decree  was  given, 
not  against  the  heir,  but  cognitionis  coumi 
tantum  and  contra  hcBreditatem  jacentem  of  his 
ancestor.  Where  the  heir  did  not  renounce, 
decree  of  constitution  could  alone  be  obtained, 
and  the  debtor  was  then  obliged  to  drop  the 
adjudication  contra  hasreditatem  jacentem,  and 
to  proceed  against  the  heir  by  a  separate  ad- 
judication, preceded  by  a  special  or  general 
special  charge.  The  act  10  and  11  Vict., 
cap.  48,  has  made  no  change  in  this  respect, 
and  in  a  combined  action  of  constitution  and 
adjudication  contra  hcereditatem  jacentem,  if  the 
heir  does  not  renounce,  the  pursuer  must  drop 
the  adjudication,  and  raise  a  separate  adjudi- 
cation against  him.  ■  The  principle  of  this  is, 
that  where  the  heir  does  not  renounce  he 
must  be  vested  with  his  ancestor's  estate,  and 
the  estate  must  then  be  adjudged  from  him. 
In  order  to  vest  the  estate  in  the  heir  he  re- 
quired to  be  specially  charged  to  enter  heir 
to  his  ancestor  by  letters  either  of  special  or 
of  general  special  charge,  according  to  the 
nature  of  the  right  which  was  the  subject  of 
adjudication.  These  charges,  therefore,  pre- 
ceded the  adjudication.  Where,  however,  the 
heir  renounced,  the  ancestor's  estate  was  not 
vested  in  him,  and,  accordingly,  letters  of 
special  or  of  general  special  charge  were  un- 
necessary. By  the  act  10  and  11  Vict., 
cap.  48,  the  execution  of  the  adjudication  is 
equivalent  to  letters  of  special  or  of  general 
special  charge  in  the  ordinary  case,  but  it 
does  not  state  that  the  execution  of  a  com- 
bined action  of  constitution  and  adjudication 
shall  have  that  effect.  Where,  therefore,  the 
heir  does  not  renounce,  it  is  still  necessary  to 
drop  the  adjudication  contra  hcereditatem  jt- 
centem,  and  bring  a  separate  adjudication 


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against  the  heir.  Accordingly,  in  the  case 
ofBnvn  V.  Wood,  28th  January  1851,  13  D. 
543,  it  was  held  that,  in  a  combined  action  of 
constitution  and  adjudication  against  an  un- 
eatered  heir,  no  decree  of  adjudication  could 
he  proDOunced,  in  respect  that  there  was  no 
renuncintion  by  the  defender  to  be  heir. 
Lord  Msoimr  observed, — "  Such  combined 
actions  can  only  be  used  in  the  case  where  the 
hit  has  already  recorded  a  renunciation,  or 
the  parsner  has  ascertained  that  he  will  re- 
nonnee.  To  combine  the  two  shortens  the 
proces,  and  in  such  a  state  of  matters  with 
wrfett  safety  to  the  heir  who  is  not  to  enter. 
Bat  if  the  heir  does  not  renounce,  whether 
he  appear  or  not,  the  practice  heretofore  has 
beeo,  and  most  correctly  so,  that  the  pursuer 
nasi  proceed  first  by  his  summons  of  consti- 
tition,  and  then,  after  decree  in  it,  call  the 
heir  in  a  separate  process  of  adjudication,  in 
WDatb,that  if,  under  the  impression  that  the 
lieirwas  to  renounce,  he  had  combined  the 
two  actions  together,  he  was  obliged  to  take 
decree  only  in  the  constitution,  and  to  stop 
ihort  there,  and  then  raise  his  adjudication, 
preceding  it  with  a  special  or  general  special 
clia^  to  be  the  foundation  of  the  diligence 
•gainst  the  lands,  as  now  the  heir's  estate  vi 

first,  ii.  tit.  12,  §§  47,  63 ;  Stair,  B.  iii. 
tit-  2, 5  45 ;  Jfr  Mor^s  Notes,  p.  ccxcvii. ;  Bank. 
Td.  ij.  p.  220 ;  Shand't  Practice,  ii.  689.  See 
fioiinKwiwB.  Annul  Deliberandi.  Charge,  Ap- 
pTtut  Heir. 

A^jidieation  on  Sebitnm  Fundi  Where 
tbere  is  a  real  burden,  but  no  personal  obli- 
gation, or  where  the  personal  obligation  is 
tae^tnal,  as  in  the  case  of  an  heritable  bond 
l*y  a  married  woman,  or  where  the  object  is 
to  malie  the  interest  on  interest  equally  pre- 
fetible  with  the  principal  sum,  decree  is,  in 
tb«  first  place,  taken  in  a  process  of  poinding 
tko  gronnd.  And  the  letters  of  poinding  the 
giwffld  having  been  executed,  an  adjudication 
HMTstiDg  the  ground  of  debt,  decree  of  poind- 
ing tiie  ground,  and  execution  of  the  letters  is 
'*i«d.  This  adjudication  can  affect  no  lands 
Mi  these  in  the  security,  whereas  the  adjudi- 
<«tioii,  when  there  is  a  personal  obligation, 
■ajafcct  the  whole  heritable  property  of  the 
debtor.  Adjudications  on  debitafundi,  as  being 
preferable  in  respect  of  a  real  right,  are  not 
iSetM  by  the  pari  passu  ranking  of  the  act 
1661,  e.  62,  which  applies  only  to  adjndica- 
tioia  for  personal  debte.  Bank.  vol.  ii.  p.  238. 
««  BetTs  StyUt,  vi.  445  ;  Shand's  Practice,  ii. 
5^,707.  See  also  i>eW<«m  Fun<i«.    Poinding 

l^idieation  in  Secnrity.  The  adjudica- 
»•■  in  security  is  not  founded  on  the  above- 
•Jtei  itatntes,  but  has  been  introduced  and 
■*tiM»d  by  the  Court  from  eqnitable  con- 


siderations. It  is  the  form  to  be  followed 
where  the  claim  of  debt  is  contingent,  future, 
or  uncertain  in  amount.  To  authorise  such 
an  adjudication,  the  debtor  must  be  vergens 
ad  inopiam,  or  other  creditors  must  be  adjudg- 
ing. If  it  be  a  first  adjudication,  it  mnst  be 
intimated  in  common  form  (54  Geo.  III. 
c.  137,  §  9);  and  under  1661,  c.  62,  may 
compete  pari  passu  with  ordinary  a^judica- 
tions.  The  adjudication  in  security  is  com- 
pleted like  an  adjudication  for  payment ;  but 
it  has  no  legal,  and  may  be  redeemed  at  any 
time.  It  would  seem  that  an  ordinary  ad- 
judger  may  restrict  his  adjudication  to  a  se- 
curity ;  and  with  that  view,  in  one  case,  the 
Lord  Ordinary  was  held  entitled  to  recall  his 
interlocutor  adjudging,  and  to  adjudge  de 
now  in  security  only ;  Ker,  5th  Feb.  1830, 
8  S.  d  D.  462.  See  BeWs  Com.  i.  714; 
Ersk.  ii.  tit.  12,  §  42  ;  Mare's  Stair,  note,- 
p.  ccxcvii. ;  Bell's  Prin.  §  832,  2389 ;  Shand's 
Practice,  ii.709 ;  BelFs  %to,  vi.  488  ;  Jurid. 
Styles,  iii.  403. 

Adjudication  in  Implement.  Where  a 
party  has  granted  a  conveyance  to  heritable 
property  without  a  procuratory  of  resignation 
or  precept  of  sasine,  for  enabling  the  grantee 
to  complete  his  feudal  title;  or  where  the 
grantee's  right  stands  on  a  missive  of  sale,  or 
other  obligation  to  convey  without  procura- 
tory or  precept ;  and  -where  the  grantor  or 
his  heir  refuses,  or  is  unable  voluntarily  to 
supply  the  defect,  an  action  of  adjudication  in 
implement  is  competent.  This  action  is  di- 
rected against  the  granter,  or  the  debtor  in 
the  obligation  to  convey,  or  his  heir.  The 
summons  libels  on  the  deed  or  writing  con- 
taining or  importing  the  obligation  to  convey, 
and  the  defender's  refusal  to  implement  it ; 
and  concludes  that,  in  implement  of  the  obli- 
gation, the  subject  ought  to  be  adjudged  from 
the  defender,  and  declared  to  belong  to  the 
pursuer;  who  should  be  decerned  and  or- 
dained to  be  infeft  in  the  lands,  to  be  holden 
of  the  defender's  superior ;  that  the  defender 
should  clear  the  subject  of  incumbrances, 
burdens,  &c.,  or  make  payment  to  the  pursuer 
of  a  sum  necessary  for  that  purpose  ;  that  he 
should  deliver  to  the  pursuer  the  title-deeds 
of  the  subject ;  and,  finally,  that  he  should 
pay  expenses  of  process.  A  decree  in  this 
action  is  a  warrant  to  the  superior  to  grant 
a  charter  of  adjudication  in  implement,  in- 
feftment  on  which  completes  the  feudal  right 
of  the  pursuer.  In  this  adjudication  there  is 
no  legal  and  no  pari  passu  ranking,  because 
the  action  being  pursued  for  the  purpose  of 
completing  the  pursuer's  right  to  a  special 
subject,  the  subject  necessarily  mnst  be  car- 
ried irredeemably  (if  such  be  the  nature  of 
the  right) ;  and  for  the  same  reason  the  title 
so  completed,  if  otherwise  unobjectionable, 


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necessarily  must  be  exclosive.  But  this 
form  of  action  is  competent  only  when  there 
is  an  obligation  to  convey,  express  or  implied ; 
and  the  obligation  must  be  duly  constituted 
against  the  defender,  as  in  the  case  of  adju- 
dication for  debt.  The  adjudication  in  im- 
plement does  not  require  to  be  intimated 
when  called  in  the  course  of  the  rolls,  since  no 
other  adjudication  can  be  conjoined  with  it ; 
but  an  abbreviate  must  be  recorded.  In 
competitions  of  ac^udications  in  implement, 
the  first  infeftroent  gives  the  preference, 
without  regard  to  the  date  of  the  decree,  or 
diligence  thereon ;  and  the  statutory  prohibi- 
tion of  adjudications,  during  the  dependence 
of  a  process  of  ranking  and  sale,  does  not  ap- 
ply to  adjudications  in  implement ;  54  Qeo. 
III.  c.  137,  §  10.  In  such  cases  judicial  ap- 
plication is  made  to  strike  the  subjects  so  ad- 
judged out  of  the  sale,  or  to  except  them  from 
the  warrant  of  sale.  By  the  bankrupt  sta- 
tute, the  Court  of  Session  is  required  to  ad- 
judj^e  the  lands  and  other  heritiiges  belong- 
ing to  the  bankrupt  to  the  trustee,  absolutely 
and  irredeemably,  for  sale,  for  behoof  of  the 
creditors  ;  which  adjudication  being  of  the 
nature  of  an  adjudication  in  implement,  as 
well  as  for  payment  or  security,  is  subject  to 
DO  reversion  ;  and  the  trustee  is  also  required 
to  record  the  act  or  order  adjudging,  within 
fifteen  days,  in  the  register  of  abbreviates  of 
a4judication ;  54  Goo.  III.  c.  137,  §  29,  30. 
Superiors  are  bound  to  enter  adjudgers 
in  implement,  and  where  two  parties  ad- 
judge in  implement  and  neither  of  them  is 
infeft,  the  party  first  charging  the  superior 
will  be  preferred.  Sinclair  v.  Sinclair,  M.  56. 
An  adjudication  in  implement  is  not  subject 
to  be  ranked  pari  patsu,  or  with  other  adjudi- 
cations of  any  kind.  Campbell  v.  Macvicar, 
M.  277.  In  the  case  of  M'Gregor  v.  Jfac- 
donald,  9th  March  1843,  a  competition  arose 
between  two  adjudications  in  implement. 
Colonel  Macdonald  obtained  his  decree  on 
10th  March  1829,  and  the  trustees  of  General 
M'Gregor  obtained  their  decree  on  12th  No- 
vember 1829.  These  trustees  were  also 
superiors  of  the  lands  in  competition.  Colonel 
Macdonald  charged  them  to  grant  him  a 
charter  of  acyudication,  and  on  their  refusal 
he  denounced  them,  and  then  passing  them 
over  he  obtained  a  charter  from  the  next 
superior  in  March  1830,  on  which  he  was 
infeft.  The  trustees,  on  obtaining  their 
decree,  granted  themselves  a  charter,  and 
were  infeft  upon  it  in  January  1830.  The 
Court  preferred  Colonel  Macdonald.  Lord 
MoNCREirF  observed :  "  The  case  is  that 
the  trustees  knew  that  Colonel  Macdonald 
held  the  first  adjudication.  They  inten- 
tionally delayed  to  give  him  his  charter,  and 
as    soon    as    their    own    adjudication    was 


ready,  they  granted  a  charter  to  themaeivei 
for  the  avowed  purpose   of   defeating'   hit 
right.     No  superior  is  entitled  to  deal  with 
the  rights  of  third  parties  demanding  that 
which  he  is  bound  to  grant,  and  therefore 
the  trustees  are  not  entitled  to  found  on  tht 
priority  of  the  infeftment  obtained  by  them 
by  means  of  what  must  be  regarded   a£  a 
tortuous  act  in  law."    By  the  act  10  and  11 
Vict.,  cap.  48,  §  19,  the  Court,  when  pro- 
nouncing decree  of  adjudication  in  imple- 
ment, may  grant  warrant  for  infefting  the 
adjudger  and  his  heirs  and  successors  in  the 
lands  adjudged.     See  Adjudication  for  DAL 
In    Hutchieson  v.  Cameron's   Trusteet,    26th 
June  1830,  it  was  held  that    neither  the 
creditor  who  brought  a  ranking  and  sale,  nor 
the  common  agent  in  the  process,  were  en- 
titled to  compear  in  a  process  of  adjudication 
in  implement  of  missives  of  sale,  and  state 
grounds  against  decree  being  pronounced.  In 
Wood  V.  ScoU,  Ist  July  1830,  a  party  hold- 
ing a  missive  of  sale,  and  who  was  in  the 
course  of  leading  an  adjudication  in  imple- 
ment,  applied  to   the   Court  to  hare    the 
property  which  formed  the  subject  of  the 
adjudication  struck  out  of  a  ranking  and  sale, 
and  the  common  agent  prevented  from   pro- 
ceeding with  the  sale.    The  Court  granted 
the  application,  and  excepted  the  subject  to 
which  the  missive  related  from  the  ranking 
and  sale.     The  holder  of  the  missive  of  sale 
then  effected  the  completion  of  a  feudal  title 
by  decree  of  adjudication  in  implement,  upon 
which  he  obtained  a  charter  of  adjudication 
from  the  superior,  and  having  taken  infeft- 
ment he  produced  the  charter  and  sasine  in 
the  process  of  ranking.     The  question  then 
arose,  what  effect  was  to  be  given  to  the 
completed  title  in  the  competition  between  the 
adjudger  and  the  common  agent,  as  repre- 
senting the  general  body  of  creditors.     The 
Court  found  "  That  the  adjudication  in  im- 
plement was  not  rendered  incomplete  under 
the  provisions  of  the  Bankrupt  Act  by  the 
process  of  ranking  and  sale,  and  if  duly 
deduced  the  subject  must  fall  to  be  struck 
out  of  the  sale."    By  the  bankrupt  statute 
2  and  3  Vict.,  cap.  41,  §  79,  it  is  enacted 
that  the  whole  heritable  estates  belonging  to 
the  bankrupt  in  Scotland  shall,  by  virtue  of 
the  act  and  warrant  of  confirmation  in  favour 
of  the  trustee,  be  transferred  to  and  vested  iu 
him  for  behoof  of  the  creditors  absolutely 
and  irredeemably,  as  at  the  date  of  the 
sequestration,  with  all  right,  title,  and  in- 
terest, to  the  same  effect  as  if  a  decree  of 
adjudication  in  implement  of  sale,  as  well  as 
a  decree  of  adjudication  for  payment,  and  in 
security  of  debt,  subject  to  the  legal  rever- 
sion, had  been  pronounced  in  favour  of  tha 
trustee,  and  recorded  at  the  date  of  t!ia 


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seqaestntion,  and  as  if  a  poinding  of  the 
gronnd  had  then  been  executed,  subject  al- 
ways to  such  preferable  securities  as  existed 
at  the  date  of  the  sequestration,  and  were 
not  null  and  reducible. 

See  on  the  subject  of  this  article,  Stair,  ir. 
tit.  51,  §9 ;  Move's  Notes,  cccv. ;  Bank.  vol. 
ii.  233  ;  Ersk.  ii.  tit.  12,  §  50,  et  seq.;  Bell's 
PriH.  §  835  ;  Shaw's  Digest,  7,  564 ;  Jurid. 
Sltiles,  iii.  333,  421,  et  seq. ;  Karnes'  Equity, 
286;  Shand's  Practice,  ii.  721;  Maclaurin's 
Forms  of  Process,  25.   See  Abbreviate. 

Adyndicatum  on  Tnut-Bond.  The  expe- 
dient of  adjudging  on  a  trust-bond,  is  a  mode 
of  making  up  titles  to  heritage,  where  an 
heir  is  apprehensive  about  incurring  a  repre- 
eentation  of  his  predecessor;  or  when  he 
vishes  to  ehalleage  adverse  deeds,  which,  if 
he  incurred  a  formal  representation  of  his 
predecessor,  he  might  be  bound  to  implement. 
According  to  Professor  Bell,  this  expedient 
vu  invented  by  Sir  Thomas  Hope,  and  ever 
since  his  time  the  device  has  bad  the  sanction 
of  tiie  Court  and  of  the  profession.  The 
form  is  for  the  apparent  heir  to  grant  a  bond 
to  a  confidential  person,  for  a  sum  exceeding 
the  value  of  the  estate ;  the  fiduciary  nature 
of  the  transaction  being  explained  by  a  back- 
bond, containing  an  obligation  by  the  simu- 
late creditor,  to  denude  of  the  property  when 
the  adjudication  is  completed.  The  creditor 
in  this  bond  then  charges  the  heir  to  enter  to 
his  predecessor  in  common  form  ;  the  heir  re- 
nounces the  succession,  and  adjudication,  in 
favour  of  the  fictitious  creditor,  follows  in  the 
nnul  way.  The  simulate  creditor  is  then  in 
a  c«ndition  to  set  aside  any  deeds  granted  by 
the  predecessor  of  the  grantor  of  the  bond,  on 
all  the  grounds  which  a  creditor  or  singular 
nccessor  may  plead,  although  the  heir  him- 
celf,  had  he  entered,  might  have  been  barred 
from  availing  himself  of  these  pleas ;  and  if 
by  this  expedient  the  trustee  succeeds  in  ac- 
quiring the  property  as  nominal  creditor  of 
the  apparent  heir,  he  fulfils  his  back-bond, 
by  conveying  it,  free  of  these  adverse  deeds 
or  claims,  to  the  heir,  as  disponee  of  the  cre- 
ditor. See  on  this  subject,  Ersk.  iii.  tit.  8, 
§72 ;  BdPs  Prin.  §  834,  and  authorities  there 
alii;  Shand's  Practice,  ii.  725. 

An  heir  who  grants  a  trust-bond  on  which 
his  ancestor's  estate  is  adjudged,  and  the  ad- 
judication assigned  to  him,  cannot  thereafter 
renounce  to  be  heir.  In  the  case  of  Glendin- 
ning  v.  Tke  Earl  of  Fithsdale,  22d  January, 
1662,  reported  by  Lord  Staib,  the  heir 
offered  to  renounce  and  to  purge  the  adjudi- 
cation, and  to  declare  that  it  should  not  pre- 
jodge  the  pursuer,  and  that  he  should  be 
aeooontable  for  the  price  of  any  lands  he 
had  sold,  or  any  rents  he  had  uplifted.  The 
Court, "  after  long  consideration  and  debate," 


sustained  the  offer,  but  "  resolved  to  make 
and  publish  an  Act  of  Sederunt  against  any 
such  courses  in  time  coming,  and  declared 
that  it  should  be  gestio  pro  kcerede  to  in- 
tromit upon  such  simulate  titles."  An  Act  of 
Sederunt  was  accordingly  passed  February 
28, 1662,  entituled  "  Act  against  the  Grant- 
ing of  Bonds  of  Appearand  Heirs  where- 
upon apprising  or  adjudication  may  follow 
in  prejudice  of  the  defunct's  debts."  This 
act  declares  that  such  apparent  heirs  "  shall 
be  liable  as  behaving  themselves  as  heirs  to 
their  predecessors,  by  intromission  with  the 
rents  of  the  estate  so  adjudged  or  apprised, 
nor  shall  it  be  lawful  to  them  to  renounce  to 
be  heirs  after  such  intromission."  The  mode 
of  entering  to  an  ancestor's  estate  by  means 
of  an  adjudication  or  a  trust-bond,  is  recog- 
nised by  the  act  1695,  c.  24,  entituled  "  Act 
for  obviating  frauds  of  Appearand  Heirs." 
An  apparent  heir  may  make  up  a  title  to  his 
ancestor's  estate  by  means  of  a  trust-adjudi- 
cation, although  his  right  to  be  heir  is  dis- 
puted, and  although  the  estate  sought  to  be 
adjudged  is  held  under  the  fetters  of  an 
entail.  Craigie  v.  Ker,  19th  Jan.  1808.  In 
that  case  one  of  the  competitors  for  the  Rox- 
burgh estates  granted  to  trustees  a  bond  for 
a  million  and  a  half,  upon  which  they  ad- 
judged. The  Court  decerned  in  the  a^udica- 
tion.  The  President  Campbell's  manuscript 
note  on  the  case  is  "  Adjudication  upon 
Trust-Bond.  This  mode  of  making  up  titles 
recognised  by  various  statutes  ;  act  1621, 
c.  27  ;  act  1695,  c.  34,  &c.  It  confers 
a  safe,  active,  or  tentative  title,  but  till 
followed  by  possession  or  by  ascertaining  the 
right,  is  not  a  passive  title.  It  cannot  be 
stopped  by  any  competing  parties,  but  must 
proceed  valeat  quantum,  reserving  all  objec- 
tions contra  executionem."  An  adjudication 
on  a  trust-bond  is  also  competent  where  a 
disponee  of  the  ancestor  is  infeft.  In  the 
case  of  Beveridge  v.  Goutts,  10th  July  1793, 
an  heir  proposed  to  bring  a  reduction  of  a 
deed  granted  by  his  ancestor  on  death-bed, 
and  on  which  deed  the  disponee  had  taken 
iufeftment.  As  a  preparatory  step  to  the 
reduction  he  granted  a  trust-bond,  upon 
which  the  trustee  brought  an  adjudication. 
The  disponee  under  the  death-bed  deed  ap- 
peared, and  pleaded  that  the  lands  were  not 
iM  hmreditate  jacente  of  the  ancestor,  and  that 
therefore  the  heir-at-law  could  not  be  served 
to  him,  nor  could  he  bring  an  adjudication 
against  the  lands.  The  heir  pleaded  that 
any  settlement  which  he  might  make  in  the 
meantime  would  be  of  no  avail  if  he  should 
die  before  completing  his  title  by  service  or 
by  the  mode  now  attempted.  The  Court  ad- 
judged, and  it  was  observed  on  the  Bench  : — 
"  As  the  pursuer  is  entitled  to  serve  heir  to 


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his  predecessor,  the  adjudication  mnst  he 
equally  competent,  and  he  ought  to  be  at 
liberty  to  vest  such  a  title  in  his  person  as 
may  enable  him  to  make  a  settlement." 

Adjudication  on  Tnut-Dispositioii.  This, 
like  the  adjudication  on  a  trust-bond,  is  an- 
other simulate  device  for  completing  a  title  to 
heritage.  It  is  effected  by  the  apparent  heir 
granting  a  disposition  of  his  predecessor's  he- 
ritage, ex  facie  absolute,  with  a  back-bond  de- 
claring a  trust,  or  granting  at  once  a  trust- 
disposition  of  the  subjects.  The  heir  is  then 
charged  by  the  trust-disponee  to  enter,  and 
on  his  failure,  a  decree  of  adjudication  in  im- 
plement is  taken  against  him,  which  forms 
the  tentative  title.  But  this  mode  of  making 
up  a  title  was  held  to  be  incompetent  in  the 
case  of  Dunlop,  4th  July  1820,  F.  C,  affirmed 
on  appeal  Slst  March  1824 ;  2  Shaw's  Ap- 
peak,  115.  This  case  is  very  ill  reported  in 
the  Faculty  Reports ;  but  see  the  House  of 
Lords'  Reports.  It  will  probably  have  the 
effect  of  discountenancing  this  expedient.  In 
this  case  another  party  was  in  possession  of 
the  estate  on  an  ex  facie  good  personal  title. 
See  Bank.  vol.  ii.  354 ;  see  also  Shand's  Prac- 
tice, ii.  729,  and  cases  there  cited, 

Acyadication,  Declaratory.  A  declara- 
tory adjudication  is  a  very  useful  form  of  ac- 
tion, appropriately  classed  with  adjudications. 
"Where,  for  example,  the  radical  right  under 
a  trust,  or  under  an  heritable  security,  is  in  a 
part  indicated  by  the  deed,  but  not  feudally 
vested,  the  Court,  nearly  a  century  ago,  sug- 
gested the  expedient  of  a  declaratory  adjudi- 
cation. In  the  case  in  which  the  suggestion 
was  made,  the  right  of  the  trustee  was  in  the 
first  place  declared  to  have  been  merely  fidu- 
ciary :  it  was  further  declared  that  the  radi- 
cal right  of  property  was  in  the  party  bene- 
ficially interested  ;  and  this  was  followed  by 
a  decree '  declaring  the  trust  at  an  end,  and 
ordaining  the  superior  to  grant  charters  with 
precepts,  for  infefting  the  party  to  whom  the 
property  had  been  adjudged.  At  the  same 
time  the  Court  declared  that  they  would  fol- 
low the  like  course  in  all  time  coming ;  and 
the  precedent  thus  established  has  been  ac- 
cordingly followed  since,  and  received  as  a 
rule  of  great  practical  utility  in  analogous 
cases.  See  Dalzell,  11th  March  1756,  M. 
16,204  ;  Drummond,  30th  June  1758,  M. 
16,206 ;  BeWs  Prin.  §  1995,  and  cases  there 
cited. 

Acyunction ;  is  one  of  the  modes  of  indus- 
trial accession  borrowed  from  the  Roman 
law.  It  takes  place  where  the  property  of 
one  man  is  added  to  that  of  another ;  as,  for 
example,  where  a  man  builds  on  the  ground 
of  another.  In  such  a  case  it  is  held  that 
the  proprietor  of  the  grounds  is  entitled  to 
the  building ;  but,  as  the  presumption  is 


that  it  was  erected  in  the  bonajide  belief 
that  the  ground  was  the  property  of  the 
builder,  he  is  entitled  in  equity  to  be  indem- 
nified to  the  extent  at  least  of  the  benefit 
which  he  has  conferred.  Stair,  B.  i.  tit.  8,  § 
6  ;  Ersk.  B.  ii.  tit.  1,  §  15.    See  Accession. 

AcynmatOB ;  an  obsolete  French  word, 
adopted  in  the  older  Scotch  law,  signifying 
summoned,  or  called  to  a  certain  day.  See 
Skene,  De  Verb.  Sig. 

A^jnstment ;  in  the  law  of  insurance,  is  the 
settling  and  ascertaining  the  exact  amount 
of  the  indemnity  to  which,  under  the  policy, 
the  insured  is  entitled,  after  all  proper  ^- 
lowances  and  deductions  have  been  made; 
and  fixing  the  proportions  to  be  borne  by  the 
underwriters  respectively.  Before  any  ad- 
justment is  made,  the  underwriters  require 
to  be  satisfied  that  a  loss  within  the  terms  of 
the  policy  has  occurred ;  and  in  the  ordinary 
case  the  duty  of  making  the  requisite  in- 
quiries is  devolved  on  the  underwriter  who 
has  first  subscribed  the  policy.  In  compli- 
cated cases  of  average  loss  the  papers  are 
usually  submitted  to  a  professional  referee, 
to  calculate  and  adjust  the  percentage  rate 
of  loss.  After  an  ad^justment  has  been  once 
made  and  signed,  it  is  not  usual  for  the 
underwriters  to  require  further  proof,  but  at 
once  to  pay  the  loss.  It  is  not,  however,  con- 
clusive and  binding  on  the  underwriters ;  for 
where  the  extent  of  the  loss  is  disputed,  the 
adjustment  operates  merely  as  a  transfer  of 
the  onus  probandi  from  the  insured  to  the  un- 
derwriters. BeWs  Com.  i.  613,  et  seq. ;  Princ. 
§  503,  et  seq.    See  Insurance. 

Adminicle ;  is  a  term  used  in  the  action 
of  proving  the  tenor  of  a  lost  deed ;  and  sig- 
nifies any  writing,  draft,  or  scroll,  tending 
to  establish  the  existence  or  terms  of  the 
deed  in  question.  Stair,  B.  iv.  tit.  32,  §  6 ; 
Mr  Morels  Notes,  p.  ccclxxvi. ;  Ersk.  B.  iv. 
tit.  1,  §  65;  Bank.  ii.  p.  642,  §  3.  See 
Proving  of  Tenor. 

Administrator-in-Law.  By  the  law  of 
Scotland  the  father  is  what  is  called  admini- 
strator-in-law  for  his  children.  As  such,  he 
is  ipso  jure  their  tutor  while  they  are  pupils, 
and  their  curator  during  their  minority. 
The  father's  power  extends  over  whatever 
estate  may  descend  to  his  children,  unless 
where  that  estate  has  been  placed  by  the 
donor  or  grantor  under  the  charge  of  special 
trustees  or  managers.  This  power  in  the 
father  ceases  by  the  child's  discontinntng  to 
reside  with  him,  unless  he  continues  to  live 
at  the  father's  expense  ;  and,  with  regard  to 
daughters,  it  ceases  on  their  marriage,  the 
husband  being  the  legal  curator  of  his  wife. 
Stair,  i.  t.  5,  |  12  ;  Bank.  vol.  i.  p.  153,  §  2  ; 
BelPs  Princ.  §  2068  ;  Dow's  Appeal  Gases,  i. 
107  ;  ii.  204,  214. 


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Adadaistntor ;  in  English  law,  ia  the 
peraon  to  whom,  in  default  of  an  executor 
nominate,  the  Ordinary  commits  the  admi- 
Bistration  of  the  goods  of  a  person  dying 
intestate.  The  administrator  is  accountable 
far  his  intromissions  when  required.  Tom- 
liu,  k.  t.    See  Ejeeutor. 

AdminL  By  the  act  1681,  c.  16,  the  act 
1609,  c  15,  was  ratified,  and  the  High  Court 
of  Admiralty  declared  to  be  a  sovereign 
jodieatnre  in  itself,  and  in  its  own  nature  to 
import  summary  jurisdiction.  The  act  far- 
tlier  declared  the  High  Admiral  to  be  the 
King's  Justice-General  upon  the  seas,  and 
in  til  ports,  harbours,  or  creeks,  and  upon 
nsTigable  rivers  below  the  first  bridges,  or 
Tithin  flood-mark,  and  that  he  bad  the  sole 
pri?ilege  and  jurisdiction  in  all  maritime 
and  seafaring  causes,  foreign  and  domestic, 
whether  civil  or  criminal,  within  the  realm  ; 
and  over  all  persons  concerned  in  the  same ; 
and  all  other  judges  were  prohibited  from 
interfering  with  the  decision  of  such  causes 
in  the  first  instance.  The  act  also  subjected 
tht  decrees  and  acts  of  all  inferior  courts  of 
Admiralty  to  the  review  of  the  High  Court 
of  Admiralty ;  it  gave  power  to  the  High 
Court  of  Admiralty  to  review  its  own  de- 
ems ;  prohibited  advocations  of  its  judg- 
xents;  and  prescribed  the  form  in  which 
thej  might  be  suspended.  The  Judge- 
Admiral  required  to  have  been  an  advocate, 
*ho,  for  three  years  immediately  preceding 
bit  appointment,  should  have  bona  fide  at- 
tended practice  in  the  Court;  26  Geo.  III., 
«•  47,  §  5.    See  next  article. 

Admiralty,  Court  o£  The  jurisdiction 
and  powers  of  the  ancient  Court  of  Admiralty 
in  Scotland,  were  fixed  by  the  statutes  re- 
ined to  in  the  preceding  article.  Its 
jnriidietion  was  both  civil  and  criminal.  In 
(iril  matters  the  Judge-Admiral  was  judge 
in  th«  first  instance  in  all  maritime  causes ; 
as  in  questions  on  charter-parties,  freights, 
salvages,  wrecks,  bottomries,  policies  of  in- 
nnuKe,  and  all  questions  relating  to  the 
ladiag  and  unlading  of  ships,  or  to  any  act 
|o  Im  performed  within  the  bounds  of  his 
jnriidietion ;  he  had  jurisdiction  also  in  all 
aetioos  for  recovery  of  goods,  or  their  value, 
*^  the  goods  had  been  sent  by  sea  from 
MO  port  to  another.  In  criminal  matters 
^  ud  exelnsive  cognizance  in  the  crimes  of 
piracy  and  mutiny  on  ship-board  ;  but  in  the 
(*»  of  murder,  and  in  general  in  all  cases 
when  the  crime  did  not  offend  against  the 
law  of  navigation,  this  jurisdiction  was  not 
exdasire,  even  although  the  crime  had  been 
Quitted  on  ship-board.  The  Admiralty 
fniietion  in  Scotland  was  ratified  and 
"■fcmed  by  the  statute  5  Anne,  c.  7,  §  19 ; 
spitted  1^  the  stotute  1  and  2  Geo.  lY.,  c. 


39  ;  and  finally  abolished  by  the  statute  1 
Will.  IV.,  c.  69.  By  this  last  statute,  §  21, 
the  civil  jurisdiction  of  the  Admiralty  Court 
was  transferred  to  the  Court  of  Session, 
except  in  cases  not  exceeding  £25  in  value, 
which  are  made  competent  in  the  first  in- 
stance in  an  inferior  court,  in  the  manner 
directed,  and  with  the  exceptions  specified,  in 
the  act  1672,  c.  16 ;  and  all  applications  of  a 
summary  nature,  connected  with  such  causes, 
may  now  be  made  to  the  Lord  Ordinary  on 
the  Bills.  Maritime  causes  include  all  ques- 
tions as  to  policies  of  insurance  on  ships,  and 
on  goods  sent  by  sea,  freights,  salvages, 
wrecks,  and  bonds  of  bottomry  ;  all  contracts 
as  to  the  lading  and  unlading  of  ships,  and 
with  seamen  as  to  their  wages  or  employ- 
ment on  ship-board ;  as  to  the  delivery  of 
goods  sent  by  sea,  or  for  recovery  of  their 
value ;  actions  for  payment  of  the  repairs  on 
ships,  or  for  provisions  furnished  for  the 
crew  ;  claims  of  ships'-husbands  for  such 
repairs  or  furnishings ;  actions  for  the  sale  of 
ships ;  against  brokers  for  delaying  to  effect 
insurances  on  ships,  or  goods  therein ;  and 
sundry  other  actions  of  a  seafaring  nature, 
requiring  knowledge  of  maritime  laws  and 
practice — some  of  which  actions  are  now 
made  specially  appropriate  for  trial  by  jury. 
(See  Jiirif  Trial.)  Formerly  in  maritime 
causes  the  defender  was  bound  to  find  caution 
dejudicio  sisti  et  judicatum  tolvi;  the  pursuer 
was  also  bound,  if  required  by  the  defender, 
to  find  caution  for  damages  and  expenses. 
But  the  statute  1  and  2  Vict.,  c.  119,  §  22, 
provides,  that  in  maritime  causes  or  proceed- 
ings before  the  Sheriff  Courts  caution  jvdi- 
catum  solvi  or  de  damnis  et  impensis  shall  not 
be  required  from  any  party  domiciled  in  Scot- 
land, unless  the  judge  shall  require  it  on 
special  grounds ;  and  13  and  14  Vic,  c.  36,  § 
24,  abolished  the  granting  of  bonds  de  damnis 
et  impensis  by  the  pursuer,  and  de  judicio 
sisti  et  judicatum  solvi  by  the  defender,  in 
maritime  causes  before  the  Court  of  Session. 
In  maritime  actions  for  sailors'  wages,  there 
is  an  exception  to  the  common  law  rule  as 
to  the  rights  of  unconnected  parties  to  sue  in 
the  same  summons,  inasmuch  as  all  the  mari- 
ners of  the  vessel  may  sue  in  one  action ;  and  in 
such  actions  the  master  and  owners  are  bound 
to  produce  the  ship's  articles.  The  criminal 
jurisdiction  of  the  High  Court  of  Admiralty 
is,  by  the  same  statute,  merged  in  that  of  the 
Court  of  Justiciary  and  Sheriff-courts ;  11 
Geo.  IV.  and  1  Will.  IV.,  c.  69,  §  21,  22. 
A  Circuit  Court  of  Justiciary  has  jurisdiction 
to  try  a  crime  charged  as  committed  on  the 
seas  within  the  jurisdiction  of  that  circuit ; 
Bell's  Supp.  to  Hume,  pp.  146,  147.  By  the 
Judicature  Act,  the  jurisdiction  in  questions 
of  prizes  and  captures,  and  in  the  condemna- 


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tion  of  vessels,  at  one  time  exercised  by  the 
High  Court  of  Admiralty  in  Scotland,  is 
entirely  taken  away,  and  rested  exclusirely 
in  the  High  Court  of  Admiralty  in  England ; 
(see  6  Geo.  IV.,  c.  120,  §  57.)  The  Court  of 
Session  summonses  in  admiralty  or  maritime 
causes  are  not  different  from  ordinary  sum- 
monses. Formerly,  however,  they  were  signed 
by  a  principal  or  depute  clerk  of  Session,  and 
did  not  pass  the  Signet.  But  by  §  29  of  1  and 
2  Vict.,  c.  118,  it  is  declared  that  they  may 
be  raised  and  pass  under  the  Signet,  in  like 
manner  as  other  summonses  before  the  Court 
of  Session.  Such  actions  are  also  exempted 
from  the  fee-fund  of  the  Court  of  Session, 
and  the  other  Court  of  Session  exactions; 
and  the  agents  conducting  them  are  bound 
to  charge  according  to  the  rate  of  charges 
in  the  High  Court  of  Admiralty ;  11  Geo. 
IV.  and  1  Will.  IV.,  c.  69,  §  40 ;  see  also 
note  at  end  of  Schedule  of  Fees  appended  to 
1  and  2  Vict.,  c.  118.  In  Morrison,  11th 
July  1837,  15  S.  1293,  the  question  was 
raised,  whether,  under  §  21  (see  supra)  and 
§  22  of  1  Will.  IV.,  c.  69,  a  maritime  debt 
under  £25,  contracted  to  a  merchant  in 
Leith  by  a  party  domiciled  in  England,  could 
be  sued  for  in  the  Court  of  Session  upon 
an  arrestment  juris,  fund,  eautd,  or  whether 
the  action  should  not  have  been  raised,  in 
the  first  instance,  before  the  Sheriff.  The 
latter  section  of  the  statute  enacts,  that  the 
Sheriffs  shall,  within  their  respective  Sheriff- 
doms, hold  and  exercise  original  jurisdiction 
in  all  maritime  causes  and  proceedings,  civil 
and  criminal,  including  such  as  may  apply 
to  persons  residing  furth  of  Scotland,  of  the 
same  nature  as  that  previously  exercised  by 
the  High  Court  of  Admiralty.  To  remove 
any  doubts  as  to  the  meaning  of  this  provi- 
sion, it  is  enacted  byl  and  2  Vict.,  c.  119,  §  21, 
that  the  act  1  Will.  IV.,  c.  69,  shall  be 
construed  and  held  to  mean,  that  the  powers 
and  jurisdictions  formerly  competent  to  the 
High  Court  of  Admiralty  in  Scotland,  in  all 
maritime  causes  civil  and  criminal,  shall  be 
competent  to  Sheriff,  provided  the  defender 
shall,  upon  any  legal  ground  of  jurisdiction, 
be  amenable  to  the  jurisdiction  of  the  Sheriff 
hefore  whom  such  cause  may  be  tried ;  and 
provided  also,  that  it  shall  not  be  competent 
to  the  Sheriff  to  try  any  crime  committed  on 
the  seas,  which  it  would  not  be  competent 
for  him  to  try  if  committed  on  land.  See  on 
the  subject  of  this  article,  in  so  far  as  his- 
torically interesting,  SUtir,  ii.  tit.  2,  §  5  ; 
and  iv.  tit.  1,  §  37;  Ersk.  i.  tit.  3,  §  33; 
Bank.  vol.  ii.  p.  538,  §  1,  et  seq. ;  BeWs  Com. 
i.  497,  et  seq.  540,  596  ;  Kame*"  Stat.  Law,  h. 
t.,  and  voce  Jurisdiction  ;  Swinl.  Ahridg.  h. 
t. ;  Brown's  Synop.  p.  1139 ;  Shanes  Prac. 
Tol.  i.  p.  14,  413,  et  seq. ;  Marfarlant^s  Jury 


Prac.  p.  18 ;  Smith's  Maritime  Prac.  pp.  12,  rf 
seq.;  Boyd's  Admiralty  Proceedings ;  Watson's 
Stat.  Law,  h.  t. ;  Barclay's  M'Gkskan's  Sheriff 
Court  Prac.  p.  60.     See  also  Sett.    Ship. 

Admiralty  Courts  in  England;  are  courts 
having  jurisdiction  in  maritime  causes, 
whether  civil  or  criminal.  In  England,  the 
Court  of  Admiralty  is  held  before  the  Lord 
High  Admiral,  or  his  deputy,  who  is  called 
the  Judge  of  the  Court.  When  there  was  a 
Lord  High  Admiral,  the  Judge  of  the  Admi- 
ralty usually  held  his  place  by  patent  from 
him  ;  but,  when  the  office  is  executed  by  com- 
missioners, the  Judge  holds  his  place  by  direct 
commission  from  the  Crown  under  the  Great 
Seal.  The  Court  of  Admiralty  is  twofold : 
1st,  The  Instance  Court,  which  has  civil  juris- 
diction generally  in  marine  contracts,  and 
other  questions  of  maritime  right,  such  as  dis- 
putes amongst  part-owners  of  vessels,  and  ques- 
tions relating  to  salvage,  collision  of  ships, 
and  the  like.  In  criminal  matters,  this  court, 
partly  by  common  law,  and  partly  under  se- 
veral statutes,  takes  cognisance  of  piracy,  and 
other  offences  on  the  sea,  or  on  the  coasts  be- 
yond the  limits  of  any  county ;  and  conenr- 
rently  with  the  common  law  courts,  as  to 
certain  felonies  committed  in  the  main  stream 
of  great  rivers  below  the  bridges.  2dly,  The 
Priee  Court,  which  has  exclusive  jurisidiction 
in  all  matters,  civil  and  criminal,  relating  to 
prize  of  war ;  i.e.  all  acquisitions  made,  whe- 
ther at  sea  or  on  land,  by  a  naval  force. 

The  trial  of  offences  committed  within  the 
Admiralty  jurisdiction  has  been  further  regu- 
lated by  4  and  5  Will.  IV.,  c.  36,  and  7  and  8 
Vict.,  c.  2.  By  the  former  statute  the  Judge 
of  the  Admiralty  is  made  one  of  the  Judges  of 
the  Central  Criminal  Court,  and  that  court  is 
authorized  to  try  offences  committed  within 
the  jurisdiction  of  the  Admiralty ;  and  by  the 
latter  any  courts  of  assize,  oyer  and  terminer, 
or  gaol-delivery,  may  inquire  of  and  deter- 
mine such  offences,  without  any  special  com- 
mission. The  civil  jurisdiction  of  the  Admi- 
ralty Courts  was  greatly  extended,  and  their 
practice  improved,  by  the  statute  3  and  4Vict., 
c.  65,  which  effected  almost  an  entire  recon- 
struction of  these  courts.  Additional  regula- 
tions were  made  by  13  and  14  Vict.,  c.  26. 
An  appeal  lies  in  the  last  resort  from  the  Ad- 
miralty Courts  to  the  Judicial  Committee  of 
the  Privy  Council.  See  Stephen's  Commen- 
taries, iv.  p.  20, 367 ;  Comyn's  Dig.,  voce  Ad- 
miralty. 

Admission  to  a  Chnrdi ;  is  an  act  of  the 
presbytery  of  the  bonnds,  admitting  a  minister 
to  his  church ;  or,  as  the  law  expresses  it,  col- 
lating him  to  his  benefice.  This  act  proceeds 
upon  the  presentation  of  the  patron ;  or,  should 
he  delay  to  present  beyond  six  months  after  a 
vacancy,  the  title  to  present  belongs  to  the 


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presbjtery,  in  virtue  of  the  jus  devolutum 
vhieh  they  enjoy.     See  Minister.    Gall. 

kHmimnn^  In  the  practice  of  jury  trial, 
the  admissions  in  point  of  fact,  made  by  the 
parties  respectively,  are  subject  to  the  follow- 
ing regulations:  1.  The  parties  may,  after  the 
record  has  been  completed,  by  mutual  admis- 
sions put  upon  record  and  subscribed  by  coun- 
sel, render  any  trial  of  facts  unnecessary, 
learing  the  law  for  the  court ;  6  Geo.  IV.,  c. 
120,  §  33.  2.  The  admissions  prefixed  to  the 
itsaet  are  useful  in  narrowing  and  simplifying 
the  questions  for  trial ;  but,  although  the 
Court  expressed  an  opinion  that  this  practice 
vas  expedient,  they  did  not  absolutely  decide 
in  the  ease  in  which  the  question  was  raised, 
that  a  party  could  he  compelled  to  allow  the 
fatts  admitted  by  him  on  the  record  to  be  set 
down  as  prefatory  admissions  to  the  issues ; 
Maifariane's  Jury  Prac.  7} .  In  practice,  how- 
ever, prefixed  admissions  are  never  inserted 
except  with  consent  of  both  parties ;  Macfar- 
hn^s  Notes  on  Issues,  p.  23.  3.  When  par- 
ties are  disposed  to  make  admissions  in  regard 
to  matters  of  fact,  or  to  admit  the  authenticity 
of  writings,  a  note  of  the  admissions  is  made 
in  writing,  signed  by  the  counsel  or  agent, 
asd  lodged  in  process.  Such  admissions  are 
certified  by  the  clerk,  and  may  be  used  and  read 
in  evidence  at  the  trial,  if  otherwise  compe- 
tent. This  is  usually  matter  of  arrangement 
before  the  trial ;  and,  in  practice,  is  very  use- 
ful, by  saving  the  expense  and  trouble  of  ad- 
ducing witnesses  to  prove  facts,  as  to  which 
there  can  be  no  serious  doubt ;  A.S.  16th  Feb. 
1841,  §  22;  Macfarlane.  p.  86.  And  4.  The 
jadieial  admissions  of  a  party,  made  in  the 
closed  record,  may  le  put  in,  and  founded  on 
ts  oonelnsive  evidence  at  the  trial ;  although 
loose  argumentative  pleadings  are  in  this  re- 
tpeet  viewed  differently,  and  are  not  held 
admissible  as  conclusive  evidence  of  fact. 
Where  admissions  have  been  retracted,  or 
merely  dropped  out,  in  making  up  the  record, 
they  are  not  conclusive  ;  but  the  fact  of  their 
having  onco  been  made  is  an  element  of  proof 
in  the  case,  to  be  taken  into  consideration 
along  with  the  other  facts ;  Bathgate,  7th  March 
1840,  2  D.  811 ;  Lotoe,  24rt  June  1843,  5  D. 
1261.  Equally  conclusive  with  an  express 
admission  upon  record  is  an  implied  admis- 
sion, as  where  the  averment  of  a  fact  falling 
within  a  party's  knowledge  has  not  been  de- 
nied by  him.  Marfarlane,  p.  213 ;  Stair,  B.  iv. 
tit.  45,  §  6 ;  Shaw's  Digest,  p.  1064 ;  vol.  iii. 
p.  370 ;  ShandPs  Prac.  p.  288 ;  Dickson  on 
Etidaee,  p.  701 ;  M'Olashan's  Sheriff  CouH 
Pme.  p.  227. 

Adoption.  By  the  Roman  law,  one  who 
lad  no  children  of  his  own  might  adopt  the 
tbild  or  children  of  another,  whether  related 
to  him  or  not.    The  ceremony  by  which  this 


was  accomplished  was  called  adoption;  and  its 
legal  effect  was,  that  the  adopted  child,  after 
having  been  emancipated,  or  taken  from  under 
the  patria  potestas  of  his  natural  father,  was 
received  under  the  patria  potestas  of  the  adop- 
ter. When  the  adopted  person  was  already 
under  the  patria  potestas,  it  was  proper  adop- 
tion. If  he  was  sui  juris,  it  was  termed  arro- 
gation;  but  adoption,  as  a  generic  term,  ap- 
plies to  both.  The  adopted  son  possessed  the 
same  right  of  succession  to  his  adopter,  which 
a  child  born  in  wedlock  would  have  enjoyed. 
Adoption  is  not  recognised  in  the  law  of  Scot- 
land, although,  where  one  wishes  to  confer  on 
another  the  patrimonial  advantages  of  inher- 
itance, he  may  attain  his  object  by  conveying 
his  property,  whether  heritable  or  moveable, 
to  the  party  favoured ;  and  that,  either  mor- 
tis causa,  or  by  a  deed  inter  vivos,  reserving  his 
own  liferent ;  and  subject,  of  course,  to  the 
legal  rights  of  the  grantor's  heirs-at-law, 
which  are  to  a  certain  extent  indefeasible. 
Stair,  iii.  tit.  4,  5  34  ;  Bank.  vol.  i.  p.  19,  §  42. 
See  also  Deathbed.  Legitim.  Patria  Potestas. 
Emancipation. 

Adpromiflson,  or  Cautioners.  In  the  Ro- 
man law,  the  cautionary  engagement  was  un- 
dertaken by  a  separate  act  from  that  by  Avhich 
the  principal  obligant  was  taken  bound  ;  he 
was  therefore  termed  adpromissor.  Ersk.  B. 
iii.  tit.  3,  §  61 ;  Bell's  Princ.  3d  edit.  §  240. 

Ad  Quod  Damniini ;  in  English  law,  is  a 
writ  directed  to  the  Sheriff,  to  inquire  whether 
a  grant  intended  to  be  made  by  the  King 
will  be  to  his  damage  or  that  of  others.  It 
ought  to  be  issued  before  the  King  grants  cer- 
tain liberties,  as  a  fair,  market,  &c.  Tomlins* 
Diet.  h.  t. 

Adscripti,  vel  Adscriptitii  OlebsB,  among 
the  Romans ;  were  a  kind  of  slaves  perpetu- 
ally attached  to,  and  transferred  along  with 
the  land  which  they  cultivated.  Their  situa- 
tion was  very  similar  to  that  of  the  workmen 
employed  in  collieries  and  salt-works  in  Scot- 
land, before  the  passing  of  the  stat.  15  Geo. 
III.  c.  28.  Ivory's  Ersk.  p.  208 ;  Stair,  i.  2, 
11.   See  Colliers  and  S(dters. 

Adultery ;  is  the  sin  of  incontinence  in  a 
married  person.  The  older  law  of  Scotland 
made  a  distinction  between  simple  and  notour 
adultery;  notour  being  where  issue  is  pro- 
created between  the  adulterers;  or  where  they 
live  openly  together  at  bed  and  board ;  or 
where  they  give  scandal  to  the  church,  and 
have  been  excommunicated — simple,  being  the 
act  unaccompanied  by  any  of  those  aggrava- 
tions. By  1551 ,  c.  20,  notour  adultery  is  pun- 
ishable by  escheat  of  moveables;  and  by  1563, 
c.  74,  it  is  made  a  capital  offence.  Both  of 
these  statutes  are  now  in  desuetude,  although 
the  records  of  the  Court  of  Justiciary  show 
that  capital  punishment  was,  iu  former  times, 

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frequently  inflicted  for  this  crime.  Tbe  pun- 
ishment of  simple  adultery  was,  in  those  times, 
arbitrary.  Now,  the  offence  is  not  prosecuted 
as  a  crime,  hut  may  be  the  ground  of  an  ac- 
tion 'of  divorce,  and  also  of  a  civil  action  of 
damages,  although  that  species  of  reparation 
for  this  injury  seems  to  have  been  unknown 
in  the  law  of  Scotland,  until  a  comparatively 
recent  period.  By  1600,  c.  20,  a  marriage 
between  a  person  divorced  on  the  ground  of 
adultery,  and  tbe  person  with  whom  the  adul- 
tery is  judicially  declared  to  have  been  com- 
mitted, is  declared  null  and  unlawful,  and  the 
issue  of  such  marriage  incapacitated  to  suc- 
ceed to  their  parents.  But  this  statute  ap- 
pears to  be  also  now  in  desuetude,  and,  ex- 
cept in  one  instance,  was  never  enforced.  It 
has  been  maintained,  however,  that  th  is  statute 
is  not  in  desuetude  ;  Fraser's  Domestic  Rela- 
tions, i.  p.  84.  See  on  the  subjectof  this  article. 
Stair,  B.  i.  tit.  4,  §§  7  and  18  ;  Mor^s  Notes, 
pp.  xxvii.  sxxix. ;  Bank.  vol.  i.p.  132,  et  seq. ; 
Ersk.  B.  i.  tit.  6,  §  43  ;  Hume,  i.  449,  et  geq. ; 
Bell's  Prt».§§  1526, 1531, 1621 ;  Watson's  Sta- 
tute Law,  h.  t. ;  Brown's  Synop.  h.  t.  and  p. 
2132;  SAaic'« /)»>«»<,  pp.  588,  1170,  and  vol. 
iii.  p.  214  ;  Karnes'  Equity  (1825),  312.  See 
Divorce. 

Advent;  a  time  embracing  about  four 
weeks  preceding  Christmas,  or  the  nativity 
of  our  Saviour.  It  begins  on  the  Sunday 
falling  on  St  Andrew's  day  (30th  November), 
or  next  to  it.  In  former  times,  this  was  held 
as  a  season  of  great  sanctity,  and  many  secu- 
lar duties  were  laid  aside.  It  was  also  one 
of  the  periods  during  which,  in  England,  the 
solemnization  of  marriage,  except  by  special 
license,  was  prohibited.     Tomlins,  h.  t. 

Adventare.    See  Joint  Adventure. 

Advertuement ;  generally  applied  to  a  no- 
tice published  in  the  newspapers,  or  by  hand- 
bills or  placards.  Advertisements  may  have  im- 
portant legal  effects  in  many  different  ways ; 
either  as  notifying  the  terms  on  which  parties 
are  willing  to  treat ;  or  describing  the  sub- 
ject of  sale,  location,  &c. ;  or,  as  of  the  nature 
of  offers  to  be  completed  hy  acceptance  on  the 
part  of  those  who  choose  to  avail  themselves 
of  the  terms.  Public  notifications  of  this  kind 
are  also  necessary  under  various  statutes,  as 
preliminary  to  the  exercise  of  statutory  rights, 
or  as  qualifications  for  statutory  privileges  or 
immunities  ;  e.  g.  under  road  and  bridge  acts, 
the  bankrupt  statutes,  and  many  others.  In 
tbe  case  of  public  carriers,  advertisements  are 
distinctly  of  the  nature  of  offers,  which  will 
bind  the  carrier  to  those  who  send  goods,  in 
terms  of  the  advertisement.  In  like  manner, 
an  advertisement  of  a  general  skip  for  a  par- 
ticular voyage  places  the  master  on  the  foot- 
ing of  a  public  carrier,  ready  to  receive  goods 
for  the  port  to  which  the  vessel  is  advertised 


to  sail.  Such  an  advertisement  entitles  a 
merchant  to  bring  his  goods  to  the  vessel,  and 
to  insist  on  their  being  received,  nnleas  the 
ship  be  already  full,  or  the  entire  freight  en- 
gaged. In  this  case  also,  the  advertisement, 
and  the  shipping  of  the  goods  in  reference 
thereto,  completes  the  contract  of  affreight- 
ment between  the  owners  and  the  shippers. 
Bell's  Com.  i.  p.  541,  5th  edit  See  Charter- 
Party.    Carrier.    Private  Bill. 

Ad  Vitam  aut  Cnlpam.  An  office  is  said 
to  be  held  ad  vitam  aut  culpam,  whea  the  ten- 
ure of  the  possessor  is  determinable  only  by 
his  death  or  delinquency  ;  or,  in  other  words, 
which  is  held  quamdiu  se  bene  gesserit.  See 
28  Geo.  II.,  c.  7,  on  Scotch  Jurisdiction. 

Advocate ;  the  patron  of  a  cause,  who  assists 
his  client  with  advice,  and  who  pleads  for  hira. 
In  Scotland,  the  barristers  practising  before 
the  Supreme  Court  are  called  Advocates ;  and 
the  same  description  is  taken  by  the  procura- 
tors or  solicitors  before  the  inferior  courts  in 
Aberdeen.  The  Faculty  or  Society  of  Advo- 
cates in  Edinburgh  is  coeval  with  the  institu- 
tion of  the  College  of  Justice  (a.d.  1532); 
and  the  profession  of  an  advocate  was  known 
much  earlier,  provision  being  made,  in  the 
Stat.  1424,  c.  45,  for  securing  the  assistance 
of  advocates  for  the  poor.  At  the  institntion 
of  the  College  of  Justice  the  number  of  advo- 
cates was  limited  to  ten ;  but  there  is  now  no 
limit;  the  number  on  the  rolls  of  the  Faculty 
being  about425,  although  the  number  of  prac- 
tising lawyers  does  not  exceed  120.  Before 
being  admitted  a  member  of  the  Faculty,  it 
is  necessary  to  undergo  certain  probationary 
trials.  AVith  that  view  the  applicant  for  ad- 
mission presents  a  petition  to  the  Court,  stat- 
ing his  wish  to  become  an  advocate,  and  inti- 
mating his  readiness  to  undergo  a  trial  of  his 
skill.  This  application  is  remitted  by  the 
Court  to  the  Dean  of  the  Faculty,  who  dis- 
poses thereof  by  remitting  the  applicant  to  the 
private  examinators,  being  six  members  of 
Faculty,  nominated  by  him  to  discharge  that 
duty,  to  make  trial  of  his  fitness.  The  can- 
didate, having  produced  evidence  that  he  is 
20  years  of  age,  and  that  he  has  paid  the 
usual  fees,  is  taken  on  trial,  and  examined,  in 
the  first  place,  upon  general  scholarship.  This 
examination  is  conducted  by  three  or  more 
persons  of  learning,  as  assessors  to  the  exami- 
nators, who  report  upon  the  candidate's  qua- 
lifications. The  subjects  of  examination  are — 
1.  Latin  ;  2.  Greek,  or  (in  the  intrant's  op- 
tion) any  two  of  the  following  languages,  xir.., 
French,  German,  Italian,  Spanish  ;  3.  Ethi- 
cal and  Metaphysical  Philosophy ;  4.  Logic, 
or  (in  the  intrant's  option)  Mathematics. — 
A  list  of  the  books  on  which  the  examination 
is  made,  is  published  by  the  examinators. 
Every  intrant,  however,  is,  without  examina- 


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tion,  deemed  dnly  qnalified  in  general  scholar- 
ship, if  he  produce  evidence  that  he  is  a  Mas- 
ter of  Arts  of  any  of  the  Scottish  universities, 
or  a  Bachelor  of  Arte  or  of  Civil  Law  of  Ox- 
ford, or  a  Bachelor  of  Arts  of  Cambridge, 
DaUin,  or  Durham,  or  a  Master  of  Arts  of 
the  XTniversity  of  London,  or  of  the  Queen's 
UniverBity  of  Lreland,  or  a  Bachelor  of  Laws 
of  tho  University  of  London,  or  that  he  has 
attained  such  degree  of  a  foreign  university, 
as,  in  the  opinion  of  the  Dean  and  his  council, 
affords  evidence  of  the  same  amount  of  scholar- 
ship as  that  afforded  by  the  degree  of  Master 
of  Arts  of  a  Scottish  university.  If  the  in- 
trant haa  been  found  qualified  in  general 
scholarship,  it  is  competent  for  him,  after  the 
expiry  of  a  year,  to  eo  in  for  his  private  ex- 
amination on  law.  The  examinators,  how- 
ever, eaanot  take  him  on  trial  if,  during  the 
year  before  such  examination,  he  have  been 
engaged  (without  the  sanction  of  the  Dean 
and  his  council)  in  any  trade,  business,  or  pro- 
fession, either  on  his  own  account,  or  as  assist- 
ant to,  or  in  the  employment  of,  another. 
It  is  also  a  necessary  preliminary  to  this  ex- 
amination that  the  intrant  produce  evidence 
of — 1.  Attendance  during  at  least  one  session 
at  a  daas  of  Civil  Law  in  a  Scottish  or  other 
miiversity  ;  2.  Attendance  in  a  different  year, 
and  during  at  least  one  session,  at  a  class  of 
Scots  Law  in  a  Scottish  university ;  3.  At- 
tendance during  either  of  these  two  years,  or 
daring  another  year,  at  the  class  of  Convey- 
ancing in  a  Scottish  university ;  or  a  second 
sesion's  attendance  at  a  class  of  Civil  Law,  or 
the  class  of  Scote  Law ;  4.  Attendance  at  any 
time  on  a  course  of  lectures  on  Medical  Ju- 
riqimdence.  In  conducting  the  law  examina- 
tion the  examinators  are  assisted  by  one  or 
■ore  of  the  Law  Professors  of  the  University 
of  Edinburgh.  The  examination  is  upon  the 
Institutes  of  Justinian,  with  such  commentary 
as  has  been  appointed  by  the  examinators  for 
this  pnrpose  ;  and  upon  the  title  of  the  Pan- 
dects, De  diversit  regvlit  juris  antiqvi,  also 
with  a  commentary.  If  the  Civil  Law  trials 
are  approved  of,  the  intrant  is  forthwith  ex- 
amined in  the  Law  of  Scotland  upon  such 
books  as  have  been  previously  fixed  and  an- 
■oaneed  by  the  examinators.  The  private 
examinations  may  take  place  in  vacation. 
Ob  reeeiving  the  certificates  of  the  private 
examinators,  the  Dean  assigns  a  title  of  the 
Pandeete  to  the  Intrant  for  the  subject  of  his 
thesis,  which  he  is  appointed  to  lodge  on  a 
partienlar  day,  the  Saturday  following  that 
day  bebg  named  for  the  diet  of  his  public 
examination.  The  thesis,  if  approved  of,  re- 
ceives the  Impugnetur  of  two  of  the  examina- 
ton,  and  is,  thereafter,  publicly  defended  by 
the  intrant  before  the  Faculty.  If  the  de- 
inee  be  satisfactory,  the  question  of  the  in- 

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trant's  admission  is  decided  by  the  Faculty, 
voting  by  ballot.  The  Dean  then  reports 
him  qualified,  and  the  Court  admite  him  to 
the  privileges,  on  his  taking  the  usual  oaths. 

An  advocate  thus  admitted  is  entitled  to 
plead  in  every  court  in  Scotland,  civil,  ecclesi- 
astical, or  criminal,  superior  or  inferior,  unless 
when  debarred  by  special  statute  (as  in  the 
small-debt  acts) ;  and  also  before  the  House 
of  Lords.  Advocates  are  answerable  for  their 
official  conduct  to  the  Court  of  Session. 
Though  a  party  may  manage  his  own  cause 
in  the  Court  of  Session,  so  far  as  oral  plead- 
ing is  concerned,  yet  every  paper  in  process 
must  be  signed  by  an  advocate,  A.  S.  5th  March 
1789.  There  is  an  exception,  however,  to  this 
rule  in  the  case  of  defences ;  Davidson,  29th 
June  1848, 10  D.  1457,  and  11  D.  703.  The 
mere  appearance  of  an  advocate  in  Court  pre- 
sumes a  mandate,  where  the  party  is  within 
Scotland.  An  advocate  is  entitled,  without 
special  mandate,  to  refer  the  matter  in  dispute 
to  oath ;  to  submit  the  case  to  a  referee,  11 
S.  548 ;  to  throw  up  the  case  at  the  trial, 
even  against  his  client's  wish ;  9  D.  308. 
See  abo  12  S.  401 ;  and  Gowan,  4th  March 
1836,  14  S.  634,  as  to  the  presumption  of 
mandate  employed  in  the  appearance  of  coun- 
sel. A  party  represented  by  counsel  is  liable 
for  expenses,  though  he  never  authorized  the 
suit ;  but  he  has  relief  against  those  who  used 
his  name  without  authority ;  Thomson,  25th 
May  1866,  17  D.  114^. 

The  library  of  the  Faculty  of  Advocates, 
founded  in  the  year  1682  by  Sir  George 
Mackenzie,  is  the  most  valuable  library  in 
Scotland,  consisting  of  about  160,000  vol- 
umes, besides  manuscripts.  It  is  one  of  the 
libraries  entitled  to  a  copy  of  every  pub- 
lished book,  5  &  6  Vict.,  c.  45,  §  8.  There 
is  also  a  statutory  widows'  fund  belonging  to 
this  body.  The  Supreme  Judges  in  Scotland 
are  now  invariably  selected  from  the  Facul- 
ty, as  well  as  the  Sheriffs-Depute  of  the  seve- 
rtJ  counties.  The  fees  of  admission,  stamp 
for  commission,  &c.,  amount  to  about  £336. 
The  Faculty  of  Advocates  has  been,  firom  time 
immemorial,  considered  as  an  incorporation, 
although  no  chart«r  of  incorporation  now 
existe.  The  Faculty  of  Advocates  are  also 
members  of  the  College  of  Justice,  and  as  such 
entitled  to  its  privileges.  See  as  to  the  pro- 
bationary trials  of  advocates,  A.  S,  28<ft  Feb. 
1750,  and  the  regulations  of  %ih  Dec.  1854 ; 
see  also  Ivory's  Form  of  Process,  vol.  i.  p.  58, 
et  seq. ;  Bewridge's  Form  of  Process,  vol.  i.  p. 
38,  el  seq. ;  Shand's  Practice,  vol.  i.  p.  73,  et 
seq. ;  Stair,  B.  i.  tit.  12,  §  12,  and  iv.  43,  9  ; 
Mare's  Notes,  p.  cxxvi.  ccccxv.  and  ccclxxiii ; 
Ersk.  B.  iii.  tit.  3,  §  33,  and  note  by  Ivory,  B. 
iv.  tit.  2,  §  25 ;  Bank.  vol.  ii.  p.  484,  §  1,  «< 
seq. ;  Karnes'  Stat.  Law  ahridg,  h.  t. ;  Bro>m's 


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Synop.  h.  t.  and  pp.  576,  867,  947 ;  Shaw't 
Digest,  h.  t. ;  Watson's  Statute  Law,  h.  t.  See 
Honorariwm.  Mandate,  College  of  Justice.  Con- 
fidentiality. 

Advooates'  First  Clerks.  The  members 
of  the  Faculty  of  Advocates  had  formerly  the 
pririlege  of  nominating  their  first  clerks  to 
act  as  agents  of  Court.  This  privilege  was 
abolished  by  A.  S.  4<A  December  1860.  See 
Solicitors  before  the  Supreme  Court. 

AdTocate,  Lord,  or  King's  (Queen's)  Ad- 
vocate, The  Lord  Advocate  is  the  principal 
Grown  lawyer  in  Scotland,  and  one  of  the 
great  OflScers  of  State  of  Scotland.  Prior  to 
the  Union  he  sat  in  Parliament  ex  officio,  with- 
out election.  He  is  appointed  by  the  Crown, 
and  his  duty  is  to  act  as  public  prosecutor, 
and  to  plead  in  all  causes  in  which  the  Crown 
is  interested,  particularly  in  criminal  cases. 
Originally  it  would  seem  that  the  Lord  Ad- 
vocate had  no  power  to  institute  criminal  pro- 
ceedings, except  at  the  instance  of  the  injured 
party ;  but  for  the  last  three  hundred  years 
the  Lord  Advocate  has  been  vested  with  a 
discretionary  power  in  the  prosecution  for 
crimes,  so  far  as  regards  the  public  interest. 
At  the  same  time,  when  a  private  party  has 
been  injured,  and  when  the  Lord  Advocate 
declines  to  prosecute,  the  private  party,  with 
the  Lord  Advocate's  concourse  (which  is  es- 
sential and  is  granted  as  a  matter  of  course), 
may  prosecute,  not  only  for  reparation  of  the 
individual  injury,  but  ad  vindictam  publicam. 
The  Lord  Advocate's  powers  are  very  exten- 
sive. He  may  issue  warrants  for  arrestment 
and  imprisonment  in  any  part  of  Scotland;  and 
he  possesses  other  powers,  which  are  purely 
discretionary,  and  not  very  well  defined.  In 
the  law  courts,  he  is  entitled  to  plead  within 
the  bar,  and,  if  so  inclined,  to  plead  with  his 
hat  on  ;  although  that  is  an  exhibition  now 
in  desuetude.  The  Lord  Advocate  and  the 
Solioitor-G-eneral  are  the  only  members  of  the 
Scotch  bar  who  have  seats  within  the  bar,  and 
the  distinction  of  silk  gowns;  and  both  of  these 
oflScers,  in  addition  to  their  official  duties, 
accept  of  ordinary  bar  practice.  In  the  dis- 
charge of  his  duties  as  public  prosecutor  the 
Lord  Advocate  has  the  aid  of  the  Solicitor- 
General,  and  of  four  junior  bari'isters  appoint- 
ed by  the  Lord  Advocate,  and  called  Advo- 
cates-Depute. Since  the  Union  the  Lord 
Advocate  has  usually  been  returned  to  Parlia- 
ment, generally  by  one  of  the  Scotch  consti- 
tnencies ;  and  in  Parliament,  as  first  law  officer 
of  the  Crown  for  Scotland,  he  is  presumed  to 
be  able  to  answer  inquiries  concerning  Scotch 
matters,  and  expected  to  take  the  superinten- 
dence of  the  legislation  for  that  portion  of  the 
kingdom.  The  Lord  Advocate  cannot  be  con- 
strained to  pursue.  He  is  master  of  his  in- 
stance also  to  this  effect,  that,  after  he  has 


brought  his  libel  into  Court,  he  may  pass  firom, 
or  restrict,  the  charge,  or  restrict  the  pains  to 
an  arbitrary  punishment  even  after  a  verdict 
has  been  returned.  He  cannot,  like  a  pri- 
vate prosecutor,  be  called  upon  to  find  caa- 
tion  for  insisting  in  the  prosecution,  or  to 
give  the  oath  of  calumny.  In  the  case  of  s 
verdict  of  acquittal,  costs  cannot  be  awarded 
against  him,  as  they  may  against  a  procura- 
tor fiscal  who  has  been  guilty  of  gross  irre- 
fularity ;  see  Prentice  v,  Newhigging,  19th 
une  1843,  1  Broun,  561.  Prosecutions  at 
the  instance  of  the  Lord  Advocate  do  not  fall 
by  his  death  or  removal  from  office.  Ertk.  6. 
iv.  tit.  4,  §  2  ;  Hume,  i.  9,  ii.  118  ;  and  BeO's 
Notes,  164, 134  ;  Karnes'  Stat.  Law,  voce  King's 
Advocate.  See  Concourse.  Criminal  Prosecu- 
tion.    Commitment  for  Trial.     Bail. 

Advocates  -  Depute  are  four  advocates 
appointed  by  the  Lord  Advocate  to  aid  him 
in  the  discharge  of  his  duties  as  public  prose- 
cutor. Their  duty  is  to  consider  precogni- 
tions sent  to  them  by  the  Crown  agent ;  to 
determine  whether  there  is  sufficient  matter 
for  an  indictment ;  and  if  so,  to  prepare  the 
indictment  or  criminal  letters.  The  advo- 
cates-depute attend  and  assist,  generally  as 
juniors,  at  trials  before  the  High  Court  of 
Justiciary  at  Edinburgh ;  the  Lord  Advocate, 
or  the  Solicitor-General,  leading.  One  of 
the  depute  advocates  attends  as  sole  public 
prosecutor  at  each  of  the  circuits  of  the  Coort 
of  Justiciary ;  and  at  these  circuits  the  de- 
pute exercises  all  the  discretionary  powers  of 
the  Lord  Advocate  as  to  bringing  oa  the 
trial,  a1)andoning  or  restricting  the  libel,  and 
so  forth.  It  is  generally  understood  that  the 
senior  depute  advocate  attends  to  the  trials 
before  the  High  Court,  and  that  the  otber 
three  attend  at  the  Circuit  Courts  of  Jnsti- 
ciaiT.  There  is  an  advocate-depute  also  for 
conducting  prosecutions  of  importance  before 
the  Sheriff  Courts ;  and,  since  two  separate 
court-rooms  have  been  authorized  at  the  Glas- 
gow Circuit  (11  and  12  Yict.,  c.  79),  he  has 
officiated  as  supernumerary-depute  in  one  of 
these  courts.  The  salary  of  each  of  the  foar 
depute  advocates  is  about  £500  per  annom. 
This  appointment  is  not  incompatible  with 
ordinary  bar  practice.  See  Criminal  Prosecu- 
tion.    Circuit.    Advocate,  Lord. 

Advocation  is  a  form  of  process,  the  object 
of  which  is  to  remove  a  cause  from  an  Inferior 
to  the  Supreme  Court,  in  order  that  a  judg- 
ment pronounced  in  the  inferior  court  may 
be  reviewed,  or  that  the  future  procedure  in 
the  cause  may  be  conducted  in  the  Court  of 
Session.  Before  the  statute  of  1838,  all  ad- 
vocations originated  by  presenting  in  the 
Bill-Chamber  a  bill  of  advocation,  which,  on 
being  passed,  became  the  warrant  for  letters 
of  advocation.    Now,  advocations,  with  the 


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«i«eplioa  of  Uiose  of  final  jadgmenia  and  of 
Mtitions  for  aerrice,  still  originate  in  the 
Bill-Chunber ;  but  letters  of  advocation  are 
tbolisfaed,  and  written  notes  of  advocation, 
prepared  in  terms  of  1  .and  2  Vict.,  o.  86, 
and  relative  A.  S.  24th  Dee.  1838,  have  come 
in  plaee  of  the  former  bills  and  letters. 

Aittcatum  <^  final  judgments. — A  "  final 
jtlgaeat"  is  one  whereby  the  whole  merits 
of  the  cause  are  disposed  of,  although  no  de- 
ciaioii  or  deceraitnre  has  been  pronounced  as 
to  expenses;  A.  S.  Uih  JtJy  1827,  §  1 ;  16 
tad  17  Viet.,  c.  80,  §  24.  But  a  mere  find- 
ing that  damages  are  due,  or  laying  the 
fomdation  for  a  final  decree,  or  ascertaining 
onaia  principles  without  applying  them,  is 
lot  enough  ;  Cameron,  29th  June  1837  ;  15 
S.  1220.  If  a  judgment  is  extractable,  it  is 
competent  to  advocate ;  but  the  whole  merits 
of  the  cause,  as  against  all  the  parties  called, 
mast  be  exhausted,  whatever  be  the  grounds 
npoo  which  the  final  judgment  may  have  pro- 
ceeded ;  and  if  the  action  has  been  conjoined 
*itb  sBother  which  is  not  exhausted,  the  con- 
joiaed  action  must  be  either  exhausted  also, 
or  diqoined,  before  advocation  is  competent. 
U«reover,  it  must  appear  ex  facie  of  the  in- 
Moeotor,  that  the  conclusions  of  the  sum- 
Mat  have  been  exhausted,  and  that  no  con- 
dntioB  has  been  left  undisposed  of;  so, 
vbere  there  are  several  conclusions,  and  de- 
cree has  been  pronounced  relative  to  some  of 
tkem,  there  must  be  absolvitor  or  other  jndg- 
■Mt  pronouneed  as  to  the  rest,  before  the 
sdroettioo  be  presented.  See  ShantPs  Prac., 
L  453 ;  Sanity's  Sher.  Court  Prae.,  4i9-  See 
she  Maefie,  15th  June  1850, 12  B.  1033,  in 
*Udi  the  judgment  of  a  sheriff  was  held  to 
K  as  to  one  matter,  final  and  capable  of  be- 
■g  advocated,  and  interlocutory  as  to  an- 
ithCT  Matter. 

A  party  about  to  advocate  must  intimate 
In  iatention  in  writing  to  the  clerk  of  the 
iafaier  court,  and  lodge,  at  the  same  time, 
a  Wid  of  eantion  for  the  expenses  already 
iaaired,  and  which  may  be  incurred,  in  the 
Cevt  of  Session.  Where  a  party  is  unable 
te  fad  a  soffieient  cautioner,  he  may  advocate 
<B  jvatoty  caution.  (See  JunUory  Caution.) 
fatiHtioB  must  be  made,  and  caution  fonnd, 
Man  extract ;  and  fifteen  days  in  the  ordi- 
■aty  CMe,aDd  tiiirty  days  in  causes  before  the 
Mriief  Orkney  and  Shetland,  are  allowed, 
aftviaal  judgment,  for  preeenting  a  note  of 
a^WMliuB.  Extract  is  incompetent  after 
Mh  Mmaiion,  nntil  the  lapse  of  these  pe- 
lUi  Thereafter,  extract  may  be  given  out, 
■ha  a  aiat,  or  a  note  of  advocation,  has  been 
MiHiad,  advocation  being  eompetent  at  any 
ttaaMbre  decree  has  actually  been  extract- 
ed ttaaation  being  fonnd  in  common  form  ; 
i.t  lOtt  Jm/y  1839,  §§  114,  119.      The 


first  section  of  1  and  2  Vict.,  c.  86,  enacts, 
that  final  judgments  of  inferior  courts  may  be 
brought  under  review  of  the  Court  of  Session 
by  lodging  a  written  note  of  advocation  with 
one  of  the  depute-clerks  of  session,  or  his  as- 
sistant. The  note  must  be  signed  by  an 
agent  in  the  Court  of  Session,  and  have  pre- 
fixed the  interlocutors  complained  of,  and 
judge's  notes,  and  it  must  set  forth  in  a 
prayer  the  remedy  craved.  Forms  of  notes 
of  advocation  are  subjoined  to  the  A.  S.  24(& 
Dec.  1638,  which  also  contains  minute  regu- 
lations for  canning  out  the  enactments  of  the 
statute.  The  note  is  received  and  marked  by 
the  clerk,  on  caution  being  certified  by  the 
clerk  of  the  inferior  court  to  have  been 
found.  Certified  notice  of  the  receipt  of  the 
note  being  transmitted  to  the  clerk  of  the 
inferior  court  puts  a  stop  to  all  further  pro- 
ceedings in  the  original  cause,  and  the  pro- 
oes  must  be  forthwith  transmitted  to  the 
Court  of  Session.  The  regulations  as  to 
the  transmission  of  the  process  from  the  infe- 
rior to  the  Supreme  Courts  are  contained  in 
A.  S.  17th  January  1797.  When  advoca- 
tions are  called,  the  inferior  court  process  must 
be  produced  along  with  the  note.  The  note 
of  advocation  and  certified  notice  must  be  in- 
timated to  the  opposite  party,  and  within 
fifteen  days  after  the  date  of  such  intimation 
it  is  competent  to  call,  and  thereafter  to  enrol, 
the  cause ;  1  and  2  Vict.,  c.  86,  §  1 ;  A.  S. 
24th  Dec.  1838,  §  11 ;  .4.  S.  10th  July  1839, 
§§  127, 128. 

As  a  general  rule,  advocation  is  competent 
unless  it  be  debarred  either  by  statute  or  by 
confirmed  practice.  It  is  not  competent  (l!) 
in  actions  for  payment  of  ministers'  stipend, 
or  the  rents  of  their  benefices ;  1695,  c.  27  ; 
or  (2.)  in  actions  founded  on  the  statutes 
against  profanity  and  immorality;  1696,  c. 
31.  (3.)  By  16  and  17  Vict.,  c.  80,  §  22,  it 
is  incompetent  to  advocate,  or  bring  under 
review  in  any  other  manner  of  way,  any 
cause  not  exceeding  the  value  of  £25.  For- 
merly, this  prohibition  was  directed  against 
the  advocation  of  actions  for  sums  under  £12 
only.  Where  the  sum  origbally  concluded 
for  is  under  £25,  but  the  amount  of  that 
sum  with  the  interest  accruing  during  the 
litigation  exceeds  £25  at  the  date  of  the 
judgment  sought  to  be  advocated,  advocation 
is  competent ;  Mitchdl,  10th  March  1855, 17 
D.  682.  The  expenses,  however,  decerned 
for  in  the  inferior  court  do  not  enter  into 
consideration  in  estimating  the  value  of  the 
cause,  of  which  they  do  not,  in  any  correct 
sense,  form  part  of  the  subject-matter ;  Bop- 
kirk,  21st  Dec.  1865,  18  D.  300.  If  the  libel 
in  the  inferior  court  concludes  for  more  than 
£25,  advocation  is  competent,  though  decree 
has  been  pronounced  for  a  less  sum.    It  is 


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also  competent,  where  the  value  of  the  sabject 
in  dispute  is  uncertain,  e.g.,  where  it  is  a 
moreable,  or  where  a  right  or  principle  is  in- 
volved. (4.)  The  judgment  of  an  inferior 
court  ordaining  a  tenant  to  remove  cannot 
be  advocated,  suspension  being  the  remedy ; 
6  Geo.  IV.,  c.  120,  §  44 ;  although,  where 
the  tenant  has  been  assoilzied  from  the  re- 
moving, advocation  is  competent ;  Beveridge 
on  BH^Chamber,  57.  The  judgments  and  or- 
ders pronounced  by  sheriffs  in  summary  re- 
movings,  brought  in  terms  of  1  and  2  Vict., 
c.  119,  are  also  final,  and  not  subject  to  ap- 
peal or  advocation.  (5.)  Advocation  is  made 
incompetent  in  a  va^iety  of  actions  limited 
to  particular  courts  by  express  statute,  e.g., 
the  small  debt  acts,  road  acts,  &c.  (6.)  Un- 
der the  former  poor-law,  the  mode  of  bringing 
the  determinations  of  kirk-sessions  under  re- 
view of  the  Court  of  Session  was  by  advoca- 
tion. But,  by  8  and  9  Vict.,  c.  83,  §  74,  any 
poor  person  who  receives  a  certificate  from 
the  board  of  supervision  to  the  effect  that  he 
has  just  ground  of  complaint  that  his  allow- 
ance is  inadequate,  is  entitled  to  sue  his  parish 
or  combination  in  the  Court  of  Session  \nformd 
pauperis.  (7.)  Advocations  of  interlocutory 
judgments  were,  until  lately,  regulated  by 
50  Geo.  III.,  c.  112,  before  which  it  had  been 
competent  to  present  bills  of  advocation  at 
any  stage  of  an  inferior  court  process.  By 
that  statute,  bills  of  advocation  could  not  be 
competently  presented  against  interlocutory 
judgments,  except  on  the  grounds,  \it,  of  in- 
competency, including  defect  of  jurisdiction, 
personal  objection  to  the  judge,  and  privilege 
of  party  ;  2d,  of  contingency  ;  and,  3a,  of  legal 
objection  with  respect  to  the  mode  of  proof, 
or  with  respect  to  some  change  of  possession, 
or  to  an  interim  decree  for  partial  payment, 
provided  that,  in  the  cases  specified  under  the 
third  head,  leave  was  given  by  the  inferior 
judge ;  S§  36,  37.  Bills  or  notes  of  advoca- 
tion unaer  the  first  and  second  heads  were 
passed  without  caution ;  in  those  under  the 
third  head  caution  was  required.  Advoca- 
tions of  interlocutoryjudgments  are  now  regu- 
lated by  16  and  17  Vict.,  c.  80. 

AdnoeatUm  <^  Interlocutory  Judgments. — 
The  last-mentioned  statute  enacts,  in  §  24, 
that  it  shall  be  incompetent  to  take  to  re- 
view any  interlocutor,  judgment,  or  decree  of 
a  sheriff,  not  being  an  interlocutor  sisting 
process,  or  giving  interim  decree  for  payment 
of  money,  or  disposing  of  the  whole  merits  of 
the  cause.  The  former  statute,  60  Geo.  III., 
c.  112,  is  repealed  in  so  far  as  inconsistent 
with  the  latter  enactment.  This  statute  does 
not,  however,  strike  at  advocations  under 
§  40  of  the  Judicature  Act  (see  infra),  or  at 
those  under  50  Geo.  III.,  in  which  the  ob- 
ject of  the  advocation  is,  not  the  review  of  a 


judgment,  but  the  general  removal  of&e  cemte, 
e.g.,  on  the  ground  of  contingency  ;  Harring- 
ton, 20th  Jan.  1854, 16  D.  368.  The  same 
section  of  the  statute  (§  24)  provides,  that, 
when  any  interlocutor  is  brought  under  re- 
view of  the  Court  of  Session,  it  is  competent 
for  that  court  also  to  review  all  the  prerions 
interlocutors  pronounced  in  the  cause. 

An  advocation  of  an  interlocutory  judg- 
ment is  brought  by  lodging  in  the  Bill- 
Chamber  a  written  note  of  advocation,  with 
an  articulate  statement  of  the  reasons  of  ad- 
vocation, and  a  note  of  pleas  in  law,  annexed. 
On  caution  being  certified  to  have  been  found 
in  the  inferior  court,  the  note  is  received 
and  marked  by  the  Bill-Chamber  clerk,  and 
forthwith  laid  before  the  Lord  Ordinary  on 
the  Bills,  who    pronounces    the    requisite 
order.    If  answers  are  ordered,  they  must 
be  in  similar  form  to  the  reasons  of  advoca- 
tion.   If  the  note  is  passed,  the  cause  may, 
after  the  expiry  of  fifteen  days  from  the 
passing  of  the  note,  be  called  and  thereafter 
enrolled;  A.  S.  24tt  Dec.  1838,  §  13.     The 
interlocutor  of  the  Lord  Ordinary  passing  or 
refusing  the  note  is  final ;  6  Geo.  IV.,  c.  120, 
§  45.    If  the  procedure,  however,  have  been 
irregular,  the  interlocutor  may  be  brought 
under  review ;  Walker,  5th  July  1832, 10  S. 
766.    The  presentment  of  the  note  in  the 
Bill-Chamber  must  be  certified  in  manner 
prescribed   in  A.  S.    2Hh  Dec.  1838,  §  1. 
When  the  note  is  passed  deplane,  or  without 
answers,  intimation  of  the  interlocutor  pass- 
ing it  must  be  made  both  to  the  clerk  of  the 
inferior  court  and  to  the  opposite  party  or 
his  agent,  and  a  certificate  thereof  returned 
to  the   Bill-Chamber,    before   the  cause  is 
transmitted  to  the  Court  of  Session ;  ib.  §  2. 
The  caution  for  expenses  in  advocations  of 
interlocutory  judgments  was  formerly  fonnd 
in  the  Bill-Chamber  ;  but  now,  in  all  advoca- 
tions, whether  of  final  or  interlocutory  judg- 
ments, it  must  be  found  in  the  inferior  conrt; 
ibid.     When  the  cautioner  has  become  bank- 
rupt during  the  dependence  of  the  process, 
new  caution  cannot,  as  a  matter  of  right,  be 
insisted  for;  Brom,  14th  July   1849;  21 
Jurist,  539. 

Advocation  with  a  view  to  Jury  trial. — ^In  all 
cases  originating  in  an  inferior  court,  where 
the  claim  exceeds  £40,  as  soon  as  an  interlo- 
cutor or  order  has  been  pronounced  allow- 
ing a  proof,  (unless  where  it  is  to  lie  in 
retentis,  or  is  a  mere  diligence  for  the  re- 
covery of  writings),  either  party,  who  may 
conceive  that  the  case  ought  to  be  tried  by 
jury,  may  remove  the  process  into  the  Court 
of  Session  by  note  of  advocation,  which  is 
passed  at  once  without  discussion  and  with- 
out caution.  If  the  parties,  however,  pro- 
ceed to  proof  in  the  inferior  court,  they  are 


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held  to  hare  vaived  their  right  of  appeal  to 
the  House  of  Lords  against  any  judgment  of 
the  Conrt  of  Session  finding  or  declaring  the 
aereral  facts  established  by  the  proof;  6 
Geo.  IV.,  c.  120,  §  40.  Where  the  proof  is 
taken  in  the  inferior  court,  the  Conrt  of 
Sadm  most,  in  reviewing  the  decision,  and 
whether  affirming  or  reversing  it,  specify  dis- 
tinetlj  in  their  judgment  the  facts  material 
to  the  cause  which  they  mean  to  decide, 
inch  judgment,  in  so  far  as  relates  to  the 
ftcts,  having  the  effect  of  the  special  verdict 
of  a  jnrj  conclusively  fixing  the  facts  so 
fpedfied;  ib.;  and  see  17  D.  63,  6  Bell's 
Afpvi*,  394.  The  Court,  however,  notwith- 
Audiog  the  proof  has  been  taken  in  the 
inferior  court,  have  the  power  to  send  the 
case  to  a  jury,  either  for  the  determination  of 
the  whole  cause  or  of  certain  facts  which 
they  may  consider  not  to  have  been  satisfac- 
torily proved  ;  or  they  may  remit  the  case 
with  instroetions  bacli  to  the  court  below. 

The  note  of  advocation  of  an  interlocutory 
jnigment  ordering  a  proof,  where  the  claim 
exceed  £40,  is  similar  to  that  in  the  case  of 
a  Isd  judgment,  although  uo  caution  is  re- 
quired. It  contains  no  statement,  and  refers 
timply  to  the  section  of  the  statute  ;  A.  S. 
llw  July  1828,  §  6 ;  see  form  in  schedule 
2  to  i.  S.,  24th  Dec.  1838.  But  it  must 
put  through  the  Bill-Chamber;  Cony,  12th 
Jnlj,  1842,  4  D.  1614,  the  provision  in  §  10 
of  i.  S.,  1838,  ordering  the  procedure  in  this 
das  of  eases  to  be  the  same  as  in  advo- 
cations of  final  judgments,  not  being  suffi- 
ciegt  to  dispense  with  the  statutory  direction 
<^  the  Judicature  Act.  If  the  claim  is  not 
BJnply  pecuniary,  so  as  to  show  that  it  is  in 
valne  above  £40,  the  party  wishing  to  advo- 
ote  most  apply  by  petition  (daly  intimated 
to  Ae  opposite  party)  to  the  inferior  judge 
for  leave,  and,  if  required  by  the  judge,  he 
oast  make  a  solemn  judicial  declaration  that 
the  claim  is  of  the  true  value  of  £40  and 
upwards;  and  leave  being  granted  and  proved 
«J  a  certificate  to  that  effect  from  the  clerk 
•f  Court,  the  note  of  advocation  may  be  pre- 
Mnted;  A.  S.  Uth  July  1828,  §  5.  After 
tie  date  of  the  interlocutor  allowing  a  proof, 
seither  party  can  proceed  to  proof  before  the 
expiry  of  fifteen  free  days  (thirty  for  Ork- 
ney od  Shetland),  in  order  to  give  time  for 
u  advocation  ;  but,  unless  the  passing  of  the 
■»te  he  intimated  within  said  periods,  the 
pnrf  will  proceed,  and  advocation  become 
■••■petent.  Of  consent  it  may  be  taken 
Jitfcoot  any  delay;  A.  S.  lOtt  July  1839, 
)  126. 

Ai  order  upon  a  party  to  undergo  a  judi- 
ciil  examination  is  not  a  proof  within  the 
■""Mig  of  the  8tatut«;  Turner,  11th  Feb. 
1B98,  4  8.  4-19.    So  also,  an  interlocutor 


before  answer,  allowing  a  proof  scripto  vd  ju- 
ramento,  has  not  been  held  sufficient  to  war- 
rant an  advocation  under  this  section,  the 
Court  holding  that  the  proof  contemplated  bv 
the  statute  was  a  proof  at  large,  or  prout  de 
jure;  EamUton,  10th  June  1837, 15  S.  1106. 
On  the  other  hand,  where  such  an  advocation 
has  been  competently  brought,  the  Court 
have  not  held  it  imperative  upon  them  to 
remit  the  case  to  a  jury ;  Sandi,  20th  Jan. 
1829,  7  S.  290;  Baird,  9th  June  1830,  8  S. 
893.  In  the  latter  case,  it  was  laid  down 
from  the  Bench,  that  the  Court  might,  if 
they  saw  cause,  allow  a  proof  without  a  jury, 
but  that,  unless  they  named  the  sheriff  as 
a  commissioner  to  lead  the  proof,  they  could 
not  remit  to  him.  Where,  in  a  case  before  a 
Dean  of  Guild  Conrt,  a  remit  had  been  made 
to  tradesmen,  and  was  followed  by  their  re- 
port and  judicial  examination,  and  subse- 
quently a  proof  at  large  had  been  allowed, 
advocation  under  §  40  of  the  statute  was  held 
incompetent,  on  the  ground  that  a  party, 
after  allowing  a  fraction  of  proof  to  be  taken, 
is  not  entitled  to  come  forward  and  insist  for  a 
jury  trial ;  Tulloch,  10th  March  1838, 16  S. 
983.  See  Macfarlan^s  Jury  Practiee,  pp. 
20,  36. 

By  the  Service  of  Heirs  Act,  10  and  11 
Vict.,  c.  47,  §  17,  it  is  made  competent,  in 
cases  in  which  there  are  competing  petitions 
conjoined,  or  in  which  any  person  has  ap- 
peared to  oppose  a  petition,  for  any  of  the 
parties,  at  any  time  before  the  proof  is  begun 
to  be  taken,  to  present  a  note  of  advocation, 
praying  the  Court  to  advocate  the  proceed- 
ings, in  order  that  the  case  may  be  tried  by 
jury.  This  note  is  to  be  proceeded  with  in 
like  manner  as  notes  of  advocation  under 
§  40  of  the  Judicature  Act.  If  it  appear 
proper  that  the  case  be  tried  by  jury,  the  pro- 
ceedings are  to  be  in  the  usual  form.  A 
record  may  be  ordered  to  be  made  up  in  the 
Court  of  Session,  at  least  where  there  has 
been  no  closed  record  in  the  Sheriff  Court ; 
Livingstone,  25th  Nov.  1853,  16  D.  104. 
Where  a  verdict  has  been  found  in  favour  of 
a  petitioner,  the  Court  must,  at  the  same 
time  with  applying  such  verdict,  remit  to  the 
Sheriff  with  instructions  to  pronounce  decree 
of  service. 

Advocation  of  Brieves  and  Petitions  for  Ser- 
vice  of  Heirs. — All  questions  originating  in 
brieves  for  services  must  be  brought  in  the 
first  instance  before  the  inferior  judge,  to 
whom  the  brieve  is  directed.  Where  any 
difSculty  occurred,  or  injustice  had  been  done, 
in  the  course  of  the  proceedings,  it  was,  under 
the  old  practice,  by  an  advocation  of  brieves 
to  the  macers  that  the  remedy  was  sought. 
In  the  service  of  an  heir,  in  certain  cases,  the 
Lord  Ordinary  on  the  Bills  was  in  use  also  to 


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authorize  commiasion  to  be  granted  to  the 
maceni  in  the  first  instance,  and  the  brieves 
to  be  directed  to  them  as  sherifEs  in  that 
part.      This  was   also    sometimes  done  in 
brieves  of  cognition  ;  Beveridge  on  Bill-Cham' 
ber,  59.  By  1  &  2  Geo.  IV.,  c.  38,  the  macer's 
jurisdiction  vas  abolished ;  and  such  special 
commissions  were  subsequently  granted,  and 
brieves  issued,  to  the  Sheriff  of  Edinburgh. 
That  act  provided,  that  in  all  cases  of  compe- 
tition of  brieves,  or  where  a  party  claimed 
right  to  oppose  a  service,  either  party  might 
apply  for  and  obtain  advocation  of  the  brieves 
to  the  Court  of  Session,  either  from  an  in- 
ferior judge,  or  from  the  Sheriff  of  Edin- 
burgh acting  under  special  commission.    The 
provisions  of  50  Geo.  III.,  c  112  (see  supra), 
have  been  held  not  to  apply  to  these  advoca- 
tions, a  brieve  being  competently  advocated 
before  any  procedure  under  it.  By  1  &  2  Vict,, 
c.  86,  §  2,  it  was  enacted,  that,  in  competi- 
tions of  brieves,  as  well  as  where  a  party 
claiming  right  to  appear  and  oppose  a  service 
had  made  appearance,  it  should  be  lawful 
to  any  party  to  remove   the  cause  to   the 
Court  of  Session  by  written  note  of  advoca- 
tion, to  be  laid  before  a  Lord  Ordinary  named 
therein,  who  should  advocate  the  brieve,  aud 
be  judge  in  the  service.    By  10  and  11  Vict., 
e.  47,  the  old  mode  of  procedure  in  the  ser- 
vice of  heirs  was  entirely  altered.    That  sta- 
tute abolished  the  use  of  brieves  in  such  cases, 
instituting  in  their  stead  the  petition  for  ser- 
vice, directed  either  to  a  new  ofScer,  called  the 
Sheriff  of  Chancery,  or  to  the  Sheriff  of  the 
county  within  which  thedeceased  had  hisdomi- 
cile,  or  the  lands  are  situated.  It  enacts  in  §  18, 
that,  where  the  Sheriff  has  refused  to  serve 
a  petitioner,  or  dismissed  his  petition,  or  re- 
pelled the  objection  of  an  opposing  party,  it 
shall  be  lawful  to  bringthe  judgment  under  re- 
view by  note  of  advocation.    It  must  be  pre- 
sented fifteen,  or,  in  the  case  of  Orkney  and 
Shetland,  thirty,  days  from  the  date  of  the 
judgment;  and  if  the  judgment  was  pro- 
nounced after  opposition  duly  entered,  or  in 
competition,  the  note  must  be  intimated  to  the 
opposite  party,  and  a  bond  of  caution  lodged 
with  the    Sheriff  Clerk;  ibid.     The  pro- 
cedure is  the  same  as  in  advocations  of  final 
judgments.     The  Court  may  order  additional 
evidence,  or  remit  to  the  Sheriff  to  take  it, 
or  appoint  the  case  to  be  tried  by  jury. 
When  the  petitioner  succeeds  in  his  advo- 
cation, the  Court  is  required  to  remit  back  to 
the  Sheriff  to  pronounce  a  decree  of  service. 
Where  no  appearance  has  been  made  before 
the  Sheriff,  a  decree  of  service  can  only  be 
challenged  by  reduction ;  ibid.      See  Jurid. 
Stylet,  i.  298.      See  also  lupra,  Advocation 
with  a  view  to  Jury  Trial,  in  fine ;  Shand't 
Prae.  480 ;   Barclay's  Sheriff  Court  Practice, 


461;  Ersk.  vii.  tit.  8,  §  60,  etteq.;  More't 
Notes  on  Stair,  ecclzxvi. 

All  notes  of  advocations  not  specially  pro- 
vided for  in  1  and  2  Vict.,  c.  86,  must  be 
presented  in  the  Bill-Chamber,  and  have  a 
statement  of  facts  annexed.  The  procedure 
therein,  after  passing  the  note,  is  the  same 
as  in  advocations  of  interloontory  judgments ; 
§6. 

At  to  deprocedure  m  Advocations  after  call- 
ing and  enrolment  in  the  weekly  printed  rolL — 
In    advocation   of  final   judgments,    where 
the  record  has  been  made  up  in  the  inferior 
court,  and  is  not  objected  to,  it  is  held  to  be 
in  point  of  fact  the  record  in  the  Court  of 
Session,  and  as  such,  along  with  additional 
pleas  in  law,  which  it  is  competent  for  the 
parties  to  lodge,  is  declared  to  be  closed.    If 
it  be  alleged  that  the  record  has  been  im- 
properly completed  in  the  court  below,  this 
must  be  distinctly  pleaded,  and  the  Lord 
Ordinary  may  order  a  new  record  to  be  made 
up ;  see  A.  S.  llth  My  1828,  §§  25,  49. 
After  the  record  has  been  closed,  the  Lord 
Ordinary,  if  it  appear  that  it  has  been  im- 
properly made  np  in  the  inferior  court,  may 
open   it  up,  and  order  a  new  record,  or 
remit  to  the  inferior  judge,  with  instmetioia 
to  that  effect ;  ibid.,  §  52.    In  advocations 
other  than  those  of  final  judgments,  the  rea- 
sons of  advocation  and  answers  are  ordered 
to  be  revised,  if  the  advocator  is  not  ready 
to  close,  or  condescendence  and  answers  may 
be  ordered,  and  the  cause  thereafter  proceeds 
as  in  ordinary  actions,  in  terms  of  the  provi- 
sions of  the  Court  of  Session  Act,  1  and  2 
Viet.,  c.  86,  §§  3, 4, 6 ;  13  and  14  Vict.,  c  36, 
§  9.    Such  is  the  earlier  and  the  general 
mode  of  procedure ;   but,  by  recent  enact- 
ments, advocations  may,  after  enrolment,  take 
a  different  course: — (1.)  In  an  advocation 
where  the  record  has  been  closed  and  proof 
led  in  the  inferior  court,  the  Lord  Ordinary 
before  whom  it  is  enrolled  may,  at  the  first 
calling,  if  moved  to  that  effect,  report  the 
case  to  the  Inner  House,  13  and  14  Vict.,  c. 
36,  §  32.    An  oath  on  reference  is  not  "  a 
proof'  within  the  meaning  of  this  section ; 
Sid^,  28th  January  1851, 13  D.  543.     If  the 
case  be  not  so  removed,  the  advocation  mnst 
run  its  course  before  the  Lord  Ordinary,  his 
decision  being  reviewable  in  the  Inner  House. 
The  same  statute  gives  in  all  advocations, 
except  in  the  case  of  counter  conjoined  pro- 
cesses, or  of  competitions,  or  advocations  of 
brieves,  to  the  pursuer  or  petitioner  in  the 
inferior    court  the  privilege  of  fixing  the 
Lord  Ordinary  and  Division  of  the  Court  to 
whom  the  process  shall  belong.     This  must 
be  done  not  later  than  the  twelfth  day  from 
the  date  of  the  intimation  of  the  note,  and 
notice  of  its  receipt  by  a  clerk  of  the  Court 


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of  Session,  to  the  respondent,  or  not  later 
than  the  twelfth  day  from  the  date  of  the 
pusing  of  the  note,  §  33.  (2.)  The  privilege 
conferred  npon  advocations  aJFter  concluded 
proof  has  been  extended  to  all  advocations, 
M  that  either  party  may,  at  the  first  calling, 
more  for  the  removal  of  the  case  to  the  Inner 
Honae  by  report,  16  and  17  Vict.,  c.  86,  §  25, 
M  explained  in  Ba^our,  27th  Jannary  1854, 
IGD.  413.  (3.)  Upon  any  advocation  being 
broaght  before  a  Lord  Ordinary,  the  parties 
have  it  in  their  power  to  enter  into  a  judicial 
Motraet,  whereby  they  consent  to  his  jndg- 
aeot  being  final,  and  not  subject  to  review. 
But  the  express  consent  of  both  parties  is  ne- 
eesnry  for  this,  otherwise  the  cose  proceeds 
in  eoamon  form,  16  and  17  Vict.,  o.  86,  §  25, 
at  expUined  in  Balfour  supra. 

Where  the  judgment  of  the  inferior  court 
ii  affirmed,  the  form  of  the  ultimate  interlo- 
cutor ii  to  "  remit  simpliciUr"  to  the  inferior 
judge,  with  a  finding  and  decemiture  for  ex- 
penses. Where  the  judgment  is  altered,  an 
iatarloeotor  is  pronounced,  advocating  the 
caase,  and  altering  or  varying  the  judgment, 
ti  the  jnatice  of  the  case  may  require  ;  or  a 
ramit  nay  be  made  with  instructions  without 
advocating  the  cause.  It  is  always  compe- 
tent to  fii^  the  advocator  entitled  to  the  ex- 
pcDies  incurred,  not  only  in  the  Supreme, 
bat  abo  in  the  inferior  court. 

In  advocations  of  interlocutors  pronounced 
\ij  therifb,  it  is  competent  to  the  inferior 
jiidge,  on  the  application  of  either  party,  and 
having  due  regard  to  the  eventual  issue  of 
the  cause,  to  pronounce  an  order  regulating 
the  tMterim  possession.  This  order  is  not  sub- 
ject to  review,  except  by  the  Lord  Ordinary 
w  tte  Court,  in  the  course  of  discussing  the 
rivwation ;  6  Geo.  IV.,  c.  120,  §  42 ;  -4.  S. 
lUhJnly  1839,  §130. 

la  Mutrie  y.  lom,  23d  May  1844,  6  D. 
1045,  the  question  was  discussed,  whether  an 
xlneation  brings  up  the  whole  cause  to  the 
effBct  of  allowing  a  respondent,  without  any 
coaster  advocation,  to  renew  pleas  which  had 
been  uoBoccessful  in  the  court  below.  In 
that  case,  a  party  who  had  gained  his  cause, 
hot  without  expenses,  presented,  with  the 
*i«v  of  obtaining  his  expenses,  a  note  of  ad- 
Toeation,  having  prefixed  the  whole  interlo- 
wton  in  the  cause.  No  counter  note  of  ad- 
vocation was  presented  by  the  unsuccessful 
FvtTi  *ho,  however,  in  a  reclaiming  note 
•ffMat  the  judgment  of  the  Lord  Ordinary 
(*luch  had  advocated  the  cause),  craved  that 
ftaanqrer  of  his  original  petition  in  the  She- 
nf  Cosrt  should  be  granted.  The  opinions 
jftte  whole  Judges  were  taken,  and  it  was 
mU  that,  to  enable  a  respondent  to  obtain  a 
'^inr  (^  pleas  nnsnccessfully  maintained  by 
»i»  ia  the  inferior  court,  a  counter  advoca- 


tion at  his  instance  was  necesary.  This  rule, 
however,  was  held  to  apply  only  where  a  sub- 
stantive review  was  brought,  and  not  in  the 
matter  merely  of  expenses.  Accordingly, 
after  consulting  all  the  Judges,  it  was  de- 
cided in  MnrcM  v.  Brown,  8th  Ukrch  1832, 
10  S.  445,  that,  though  a  sheriff  had  found 
no  expenses  due,  and  the  party  unsuccessful 
on  the  merits  had  brought  an  advocation, 
but  there  was  no  counter  advocation  as  to 
expenses,  it  was  nevertheless  competent  to 
award  the  expenses  in  the  Sheriff  Court  in 
favour  of  the  respondents.  It  is  enacted  by 
16  and  17  Vict.,  c.  80,  §  24,  that  when  any 
interlocutor  of  an  inferior  judge  is  broaght 
under  review  of  the  Court  of  Session,  it  is 
competent  for  that  Court  abo  to  review  all 
the  previous  interlocutors  pronounced  in  the 
cause.  See,  on  the  subject  of  this  article  ge- 
nerally, SkaruPs  Practice,  i,  440  ;  Shand's  Di- 
gest of  Court  of  Session  Act ;  Barclat/'s  Sheriff 
Court  Practice,  447 ;    Stair,  B.  iv.  tit.  i.  §  31, 


.  i.  § : 

i'«  Not 


et  seq.,  and  tit.  37,  §  6,  et  seq.;  More's  Notes, 
cccxciii. ;  Erskine,  iv.  2,  §  40,  d  seq. ;  Bankton, 
vol.  ii.  p.  671,  et  seq.;  Smntan's  Abridgment, 
h.  t. ;  Karnes'  Stat.  k.  t. ;  Watson's  Statute  Law, 
h.  t. ;  Brown's  St/n.  h.  t.,  and  p.  454 ;  Bev&- 
ridge  on  the  Bill  Chamber,  53,  et  seq.;  Mac- 
farlane's  Jury  Prac. ;  Jurid.  Styles.  See  also 
Suspension.  CalUng  of  Advocation.  Reasons  nf 
Advocaiion. 

Advocation  and  Interdict    See  Interdict. 

Advocation  of  Brieves.    See  Advocaiion. 

Advocation  in  Justiciary.  See  BOl  of  Ad- 
vocation in  Justiciary. 

Advocatio  Ecclesis;  an  old  law  term, 
signifying  the  right  of  patronage,  or  the  title 
and  right  to  present  to  a  vacant  church. 
Skene,  h,  t, 

Advowson;  an  English  law  term,  signi- 
fying the  right  of  presentation  to  a  church 
or  benefice.     Tomlins,  h.  t. 

iEdificatnm  solo  cedit;  a  Roman  law 
maxim,  usually  applied  to  the  case  where  one 
has  built  a  house  on  the  property  of  another; 
and  importing  that  the  building  belongs  to 
the  proprietor  of  the  ground  on  which  it  is 
built    See  Adjunction.    Accession. 

Affiance ;  the  plighting  of  troth  between  a 
man  and  a  woman  upon  an  agreement  of  mar- 
riage.    Tomlins,  h.  t. 

Affidatio ;  used  in  the  Regiam  Majestatem 
to  signify  mutual  faith  and  obligation  to 
fidelity,  as  between  husband  and  wife,  supe- 
rior and  vassal,  and  the  like.    Skme,  h.  t. 

Affidavit;  an  oath  in  writing,  or  a  de- 
claration to  the  truth  of  which  an  oath  is 
sworn  before  a  person  legally  authorized  to 
administer  an  oath.  In  England,  affidavits 
are  necessary  in  a  variety  of  cases,  in  order 
to  bring  facto  under  the  cognizance  of  courts 
of  justice.     Where  evidence  in  England  is  to 


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be  acted  on  by  juries,  it  is  given  by  oral  testi- 
mony; where  it  is  to  inform  a  court  or  jndee, 
it  is  usually  reduced  to  the  form  of  an  affida- 
vit. In  point  of  form,  an  English  affidavit, 
if  in  a  depending  suit,  sets  out  with  the 
names  of  the  parties.  The  name  and  descrip- 
tion of  the  party  making  the  affidavit  are 
then  written  at  length,  and  he  signs  it  at  the 
foot ;  and  the  paper  being  shown  to  hinf,  be 
is  requested  to  swear  to  his  name  and  hand- 
writing, and  that  the  contents  of  the  paper 
are  true.  The  affidavit  closes  with  the  Jurat, 
specifying  the  officer  before  whom,  and  where, 
and  when,  the  affidavit  was  sworn.  This  is 
signed  by  the  officer  or  magistrate.  If  the 
affidavit  be  sworn  in  open  court,  that  circum- 
stance is  mentioned  in  the  jurat,  and  no  offi- 
cer is  named.  In  Scotland,  voluntary  affida- 
vits are  not,  generally  speaking,  admissible  as 
evidence,  or  at  all  countenanced,  because  they 
are  emitted  ex  parte,  and  there  is  no  opportu- 
nity for  cross-examination ;  but  to  this  rule 
there  are  exceptions;  e.^.,the  Bankrupt  Sta- 
tute requires  claimants  to  lodge  their  claims 
with  affidavits,  or  oaths  of  verity.  Such 
affidavit,  when  not  framed  according  to  sta- 
tute, may  be  rectified,  but  the  amendment 
must  have  the  sanction  of  an  oath ;  Gib- 
ton,  17th  Dec.  1853 ;  16  D.  233.  So  also, 
according  to  the  form  of  process  in  jury 
trial,  certain  motions  for  delaying  the  trial, 
examining  old  or  absent  witnesses,  and  the 
like,  can  only  be  made  on  affidavit  by  the 
agent  for  the  party  as  to  the  truth  of  the 
facts  on  which  the  application  rests ;  A.  S. 
10th  Feb.  1841,  §§  17,  25.  In  applications 
also  under  the  Entail  Amendment  Act,  11 
and  12  Yict.,  c.  36,  §  6,  a  petitioner  must 
lodge  an  affidavit  as  to  the  debts  affecting  the 
estate,  technical  objections  to  which  affidavit 
are  obviated  by  16  and  17  Vict.,  c.  94,  §  1. 
In  like  manner,  at  common  law,  an  affidavit 
is  required  in  applications  for  meditatio  fagce 
warrants.  Many  other  instances  might  be 
given,  such,  for  example,  as  the  affidavits 
required  from  half-pay  naval  and  military 
officers :  as  to  all  which  it  may  be  observed 
generally,  that  such  affidavits  are  what 
are  called  matters  of  voluntary  jurisdic- 
tion, and  consequently  the  magistrate  admi- 
nistering the  oath  may  do  so  beyond  the 
limits  of  his  territorial  jurisdiction.  Nay,  it 
has  been  held  that  a  Scotch  justice  may  take 
an  affidavit  under  the  Entail  Amendment  Act 
in  England,  or  in  any  part  of  Her  Majesty's 
dominions  within  the  jurisdiction  of  the  Great 
Seal ;  Kerr,  12th  June  1852, 1  Macqutm,  736. 
The  statute,  5  and  6  Will.  IV.,  c.  62,  was 
passed  to  check  the  unnecessary  use  of  oaths 
and  affidavits.  Among  other  cases  to  which 
this  act  does  not  apply,  are  oaths  or  affidavits 
in  judicial  proceedings ;  and,  by  a  subsequent 


statute,  6  and  7  Will.  IV.,  c.  43,  it  was  fur- 
ther declared  not  to  extend  to  ratifications  by 
married  women.  By  6  and  7  Vict.,  c.  82,  the 
Lord  Chancellor  of  England  is  empowered 
to  grant  commissions  for  taking  affidavits, 
affirmations,  and  declarations,  in  Scotland, 
and  persons  wilfully  swearing  falsely  in  any 
affidavit,  &c.,  so  taken,  are  liable  in  the  pe- 
nalties of  perjury.  See  BarclM/'s  Juttiee  0/ 
Peace,  h.  t. ;  Hume  on  Grimes,  p.  370  ;  BeW* 
Notes,  pp.  95,  97 ;  Dick$on  on  Evidence,  p.  54 ; 
Tomlins,  h.  t.,  dte.  See  Bank.  ii.  650  ;  BdP$ 
Com.  ii.  48, 336 ;  ^Mitt's  Digest ;  Jurid.  Stjfk*. 
See  also  Oath  of  Veritt/.  English  Debt.  GUUm. 
Affirmation.     Oaths.     Ratification. 

Affinity ;  is  the  relationship  arising  from 
marriage  between  the  husband  and  the  blood 
relations  of  the  wife,  and  between  the  wife 
and  the  blood  relations  of  the  husband. 
Thus,  the  relations  of  the  husband  stand  in 
the  same  degree  of  affinity  to  the  wife  in 
which  they  are  related  to  the  husband  by 
consanguinity.  But  there  is  no  affinity  be- 
tween the  kinsmen  themselves.  Thus,  the 
husband's  brother  and  the  wife's  sister  have 
no  affinity.  That  species  of  connection  has 
received  the  name  of  affinitas  cfffinitatis,  a  term 
borrowed  from  the  Roman  law ;  and  is  not  by 
our  law  an  impediment  to  marriage  in  any 
circumstances,  although  it  was  so  by  the  lUh- 
man  law,  when  the  parties  were  in  the  direct 
line.  Stair,  B.  i.  tit.  9,  §  15 ;  Mr  More't 
Notes,  p.  XV.  and  ccclxvii. ;  Ersk.  B.  i.  tit.  4, 
§§  8  and  9  ;  Bank.  vol.  i.  pp.  118  and  133 ; 
vol.  ii.  p.  646 ;  B^s  Prine.  §  1527 ;  HuUk. 
Justice  of  Peace,  vol.  ii.  pp.  207,  266  ;  Tait  on 
Evidence,  pp.  364,  374,  3d  edit. ;  Ersk.  Prine, 
11th  edit,  p.  69. 

AflBrmanti  Ltcnmbit  Frobatio ;  a  Latin 
maxim,  inferring  that  the  negative  of  an  as- 
sertion is  presumed  to  be  true,  and  that  the 
onus  probandi  lies  on  the  party  making  the 
averment.  This  abstract  proposition,  how- 
ever, is  necessarily  controlled  by  the  operation 
of  various  legal  principles  and  presumptions. 
Hence,  nothing  is  more  common  than  for  a 
party  to  rest  his  case  on  an  averment  which 
it  is  not  legally  incumbent  on  him  to  prove, 
but  which,  on  the  contrary,  it  lies  on  his  an- 
tagonist to  redargue.  Stair,  B.  iv.  tit.  39, 
§  4 ;  Dickson  on  Evidence,  p.  3.  See  Presump- 
tions. 

Affirmation.  By  the  statutes  3  and  4 
Will.  IV.,  c.  49;  3  and  4  Will.  IV.,  c.  82; 
and  1  and  2  Vict.,  c  77,  Quakers  and  Mora- 
vians, and  persons  who  had  been  of  either  of 
these  persuasions,  as  also  persons  belonging 
to  the  sect  called  Separatists,  wlio,  from  con- 
scientious scruples,  refuse  to  take  an  oath  in 
courts  of  justice,  and  on  otiier  occasions,  are 
permitted,  in  lieu  of  an  oath,  both  in  civil 
and  criminal  cases,  to  make  a  solemn  affinna- 


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tion  according  to  a  statutory  formnla.  The 
formnla  ii,  "I  do  solemnly,  sincerely,  and 
truly  declure  and  affirm ;"  and  in  the  case  of 
Sqiaratut*,  the  statutory  affirmation  farther 
bears  to  he  made,  "  In  the  presence  of  Al- 
mighty God."  These  affirmations  are  de- 
clared to  hare  the  effect  of  an  oath,  "  in  all 
places,  and  for  all  purposes  whatsoever,  where 
an  oath  is  or  shall  he  required,"  either  at 
tommon  law  or  hy  statute.  The  penalty  of 
affirming  or  declaring  falsely  is  the  same  as 
in  the  case  of  peijury.  There  is  also  a  sta- 
tatory  form  of  affirmation  in  lieu  of  the  oath 
of  abjuration.  The  priTilege  of  substituting 
a  solemn  affirmation  or  declaration  instead  of 
so  oath  has,  by  18  Vict.,  c.  25,  been  extended 
to  the  case  of  all  persons  called  as  witnesses 
ia  any  court  of  civil  judicature,  or  requiring 
or  desiring  to  make  an  affidavit  or  deposition, 
who  shall  refuse  or  be  unwilling,  from  alleged 
eoosdentious  motives,  to  be  sworn.  The  judge 
mast,  however,  he  satisfied  of  the  sincerity  of 
the  refusal.  The  statute  prescribes  the  for- 
iBola  of  the  affirmation,  and  a  false  affirma- 
tion is  declared  to  infer  the  pains  of  per- 
jory.  Diduon  on  Evidence,  p.  979  ;  Hume  on 
Crimet,  i.  p.  370  ;  ii.  p.  376  ;  Erdc.  B.  iv.  tit. 
2, 5  28,  ofM*  note;  Bank.  vol.  ii.  p.  659,  §  15 ; 
Bars  Com.  vol.  ii.  pp.  337,  389 ;  Barclay's 
Juitke  of  Peace,  For  the  cases  in  which  affir- 
mations are  substituted  for  oaths  or  affidavits, 
see  (ktks.    Ratification.    See  also  Qvaier. 

AJfrcightment    See  Charter-ParU/. 

Age.  A  person  is  said  to  be  of  lawful  age 
when  be  or  she  attains  majority,  or  the  age 
of  tven^-one  years  complete.  The  earlier 
period  of  life  is  described  generally  as  mino- 
rity, but  is  sub-divided  into  pvpilarity,  which 
extends  in  males  to  fourteen  years,  and  in  fe- 
males to  twelve  years ;  and  puberty,  which  ex- 
tends from  the  termination  of  pupilarity  un- 
til the  attainment  of  majority.  A  minor  who 
has  attained  puberty  may  make  oath  and 
give  evidence  as  a  witness.  No  one  under 
the  age  of  twenty-one  years  can  vote  at  an 
election  for  member  of  Parliament,  or  be 
elected  a  member ;  but  a  man  is  of  age  on 
the  day  preceding  his  twenty-first  birthday. 
Chamber's  Election  Law,  h.  t. ;  Stair,  B.  i.  tit. 
5,  §  2,  and  B.  iv.  tit.  43,  §  7  ;  Mr  Mare's 
>'«*«,  p.  ccccxi. ;  Ersk.  B.  i.  tit.  7,  §  36 ; 
ftiai.  vol.  i.  pp.  45  and  113  ;  vol.  ii.  p.  645; 
voL  iiL  p.  47  ;  Macfarlaiu^s  Jury  Practice,  p. 
226.  See  Miwtr.  Pupil.  Tutor.  Curatory. 
Factor.    Evidence. 

Agent.  An  agent  may  be  defined  gene- 
rally as  one  whom  another  puts  in  his  place, 
and  anthoriEos  or  delegates  to  transact  busi- 
ness for  him,  and,  within  the  limits  of  the 
particular  business  to  which  the  agency  or 
mandate  extends,  to  bind  his  constituent.  The 
rights  and  powers  of  mercantile  agents  will 


be  found  explained  voce  Factor.    See  also  Man- 
date.   Princtpal  and  Agent. 

Agent  and  Client  Under  this  title,  in  our 
dictionaries  and  digests,  are  classed  a  very 
comprehensive  series  of  cases,  embracing  all 
those  questions  which  have  arisen  as  to  the 
responsibilities,  duties,  and  privileges  of  law 
agents  in  the  conduct  of  the  business  of  their 
clients.  Generally  speaking,  a  law  agent 
is  presumed  to  have  competent  professional 
knowledge,  and  will  be  responsible  to  his  client 
for  the  consequences  of  professional  ignorance 
or  negligence  in  the  conduct  of  the  business 
entrusted  to  him.  And,  on  the  other  hand, 
in  addition  to  his  claim  against  his  client  for 
payment  of  his  account  of  expenses,  a  law  agent 
has  a  preference,  of  the  nature  of  hypothec, 
over  the  expenses  of  process,  where  awarded 
or  likely  to  be  awarded  against  the  opposite 
party  in  the  suit,  of  which  right  the  agent 
cannot  be  deprived  by  any  arrangement  be- 
tween the  parties  to  the  cause.  The  agent 
has  also  a  preference  by  retention  over  the 
papers  and  title-deeds  of  his  client,  which 
have  come  lawfully  into  his  custody,  until 
satisfied  for  the  account  of  his  business,  or 
professional  account.  A  law  agent  is  not 
liable  for  damages  on  account  of  an  error 
committed  by  him,  unless  the  error  amount 
to  gross  ignorance  or  negligence,  and  the  state 
of  this  law  at  the  time  that  the  error  was 
committed  will  be  an  element  in  the  consider- 
ation. In  order  to  recover  damages,  it  is  not 
enough  to  show  that  something  which  the 
agent  was  employed  to  do  has  not  had  the 
effect  which  was  expected  from  it.  It  is  in- 
cumbent on  the  employer  to  show  an  act  of 
gross  ignorance,  such  as  could  not  have  been 
committed  by  any  other  ordinarily  informed 
member  of  the  profession.  In  Purves\.Landell, 
it  was  observed  in  the  House  of  Lords,  that  it 
was  of  the  very  essence  of  an  action  against  a 
professional  person  by  his  employer,  that  there 
should  be  gross  ignorance ;  that  the  man  who 
had  undertoken  to  perform  a  duty  of  an  at- 
torney, or  of  a  surgeon,  or  apothecary,  as 
the  case  might  be,  should  have  undertaken  to 
discharge  a  duty  professionally  for  which  he 
was  ill  qualified,  or,  if  not  ill  qualified  to  dis- 
charge it,  which  he  had  so  negligently  dis- 
obeyed, as  to  damnify  his  employer,  or  de- 
prive him  of  the  benefit  which  he  had  a  right 
to  expect  from  employing  him ;  Landell  v. 
Purves,  4  D.  1300;  reversed,  4  BeU,  46; 
Cook  V.  Falconer's  Representatives,  6  D.  149. 
In  Thompson  v.  Davidson,  \2D.  179,  the  agent 
of  a  trust,  who  was  himself  a  trustee,  sold  a 
subject  held  by  the  trustees  in  security  of  a 
debt,  in  virtue  of  the  powers  contained  in  the 
bond  and  disposition  in  security  in  their 
favour.  The  articles  of  roup  stipulated  that 
the  purchaser  should  find  security  for  the 


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price  within  tbree  veeks,  failing  which  the 
exposers  were  entitled  to  bring  the  subject  to 
a  second  sale.  The  subject  was  bought  by 
the  debtor  himself,  and  the  agent  failed  to 
demand  security,  or  to  expose  the  subjects  a 
second  time.  Several  years  after  the  agent's 
death,  and  before  the  debt  was  paid,  the  debtor 
became  bankrupt,  and  the  subject  having 
proved  insufficient  for  payment  of  the  debt, 
the  agent's  representative  was  found  liable  to 
make  up  the  deficiency.  On  appeal,  the  judg- 
ment was  affirmed,  but  in  the  House  of  Lords 
the  judgment  appears  to  have  been  rested  on 
the  circumstance  of  the  agent  being  a  trustee 
rather  than  on  the  ground  of  agency.  Lord 
St  Leonards,  G. — "  No  man  can  be  permitted 
to  sell  an  estate  as  a  trustee,  and  then  leave 
it  optional  whether  that  sale  shall  or  shall 
not  be  coDipleted  by  payment  of  the  purchase- 
money.  He  is  bound,  from  the  very  necessity 
of  the  transaction,  if  he  does  not  himself  find 
the  money,  to  pursue  the  matter  until  he  has 
brought  it  to  a  satisfactory  conclusion.  The 
act  of  Mr  Thompson,  therefore,  was  an  intro- 
mission which  bound  him  to  answer  for  his 
neglect ;  and  I  am  clearly  of  opinion,  that  this 
was  a  manifest  and  gross  breach  of  trust." 
1  Macqueen,  236.  See  on  the  subject  of  this 
article  generally,  Ersk.  B.  iii.  tit.  3,  §  33, 
§  37 ;  B.  iv.  tit.  2,  §  25,  and  Notes  by  Mr 
ivory ;  Bank.  vol.  ii.  pp.  491  and  602 ;  BeWs 
Com.  vol.  i.  p.  460 ;  vol.  ii.  p.  325,  111,  5th 
edit. ;  BeU's  Princ.  §§  1388, 1437 ;  Bdl's  lUust. 
ib. ;  Earned  Stat.  Law  abridg.  h.  t. ;  Shaw's 
Digest,  h.  t.;  Shand's  Practice;  Maefarlane's 
Jury  Practice,  pp.  65, 143,  166,  291 ;  Tait  on 
Evidence,  pp.  180,  367,  384,  487  ;  Dickson  on 
Evidence;  Hume,  ii.  338.  See  also  Hypothec. 
Retention.    Clerk  to  the  Signet.    Solicitor. 

Agent  and  FrinoipaL  See  Principal  and 
Agent. 

Agiitment;  in  the  law  of  England,  is  where 
other  men's  cattle  are  taken  into  any  ground 
to  pasture  at  so  much  per  week.  Tomlins,  h.  t. 
See  6rass-maiU. 

Agnate.  Agnates,  in  the  law  of  Scotland, 
are  those  related  through  the  father,  as  cog- 
nates are  those  related  through  the  mother. 
Stair,  B.  iii.  t.  4,  §  8 ;  Ersk.  B.  i.  t.  7,  §  4 ; 
Ersk.  Princ.  11th  edit.  87 ;  BdPs  Princ.  §§ 
2078,  2118. 

Agreement ;  a  mutual  bargain  or  contract. 
In  a  legal  sense,  this  term  may  be  applied 
generally  to  all  thcne  contracts  in  which  two 
or  more  parties  mutually  consent  to  perform 
any  lawful  act,  or  to  implement  towards  each 
other  such  engagements  as  the  law  will  en- 
force.   See  Consent.     Contract.     Obligation. 

Aid,  Extent  in.     See  Extent. 

Alba  Firma.  In  the  language  of  the  feu- 
dal law,  aOmJirma  is  money-rent,  in  contradis- 
tinction to  rent  in  victual.    In  blanch  char- 


ters, where  the  duty  consists  of  some  trifling 
payment  in  acknowledgment  of  the  right  of 
superiority,  it  is  usually  expressed  to  be  no- 
mine  dibcefirmai,  and  it  is  also  usual  to  add 
the  words,  si  p^atwr  tantam ;  by  which,  if  the 
duty  be  not  demanded  within  the  year,  the 
right  to  demand  it  is  lost.  ErsL'B.  ii.  tit.  4,  §7. 

Alderman ;  an  associate  to  the  civil  magis- 
trates of  an  English  city  or  town  corporate. 
He  ought  to  be  resident  in  the  place.  The 
aldermen  of  London  are  exempt  firom  serving 
in  inferior  offices,  or  on  juries  or  assizes.  AU 
derman  was  a  degree  of  nobility  amongst  the 
Saxons  :  literally,  it  imports  no  more  than  a 
senior  or  dder,     Tomlins,  h.  t. 

Ale ;  anciently  could  not  be  imported  and 
sold  within  a  barony  without  the  consent  of 
the  baron.    Ersk.  B.  ii.  t.  6,  §  8. 

Alehouses;  are  not  allowed  to  be  kept 
without  a  license  obtained  from  justices  of  the 
peace,  or  other  magistrates  empowered  to 
grant  them  ;  act  44  Geo.  III.,  c.  55,  §  5,  Ac. ; 
48  Geo.  III.,  c.  143,  &c.  Persons  engaged  in 
collecting  the  ale-duties  are  not  eligible  as 
members  of  Parliament ;  Chamber's  Diet.  h.  t 
See  also  Swint.  Abridg.  h.  t. ;  Hunter's  Land- 
lord and  Tenant,  p.  757  ;  Bdl  on  Leases,  voL  i. 
p.  342, 4th  edit. ;  Suteheson's  Justice  of  Peace, 
vol.  i.  p.  364,  ii.  p.  330,  iii.  p.  301 ;  Tait's 
Justice  of  Peace,  h.  t. ;  Blair's  Justice  of  Peace, 
h.  t. ;  9  Qeo.  IV.  c.  58. 

Alias.  Alias  dictus.  Where  a  party, 
either  in  a  civil  or  criminal  process,  is  known 
by  several  names,  he  is,  as  it  is  technically 
expressed,  described  by  an  alias  dictus;  e.  g. 
"  John  White,  alias  (otherwise  caUed)  Huffy 
White."     Tomlins,  h.  t. 

Alibi;  elsewhere.  In  criminal  prosecu- 
tions, this  term  is  used  to  express  the  panel's 
defence  of  having  been  in  a  different  place, 
at  the  time  libelled,  from  that  in  which  the 
crime  was  committed.  Of  course,  when  true, 
this  defence  is  the  best  proof  of  innocence ; 
but  there  are  several  reasons  for  regarding  it 
with  suspicion.  1.  The  alibi  offers  the  readiest 
and  most  obvious  opportunity  for  false  evi- 
dence. 2.  When  the  prosecutor's  evidence  is 
direct,  there  is  a  necessary  discrepancy  be- 
tween it  and  that  which  is  brought  to  establish 
the  <dibi.  3.  Time  is  not  very  apparent,  and 
is  seldom  regarded,  except  when  the  witness's 
attention  has  been  called  to  it  by  some  cir- 
cumstance. Hence,  the  witness's  having  par- 
ticularly noted  it  is  in  general  not  very  pro- 
bable. When,  therefore,  a  witness  speaks 
pointedly  as  to  time,  it  is  of  importance  to 
ascertain  his  reasons  for  having  observed  and 
remembered  it  so  exactly.  In  cases  where 
the  prosecutor  is  allowed  a  certain  degree  of 
latitude  in  charging  the  place  of  the  crime, 
if  the  panel  offer  a  proof  of  <dibi,  the  prose- 
cutor must  bring  evidence  of  the  precise  place 


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wlwra  tiie  act  waa  committed,  that  the  jury 
ma;  know  whether  the  proof  of  alibi  meets 
On  depositions  on  the  other  side ;  conse- 
qnently,  a  broad  or  alternative  charge  has  no 
effect  in  exelading  an  alibi,  where  such  a  proof 
is  naturally  applicable.  The  charge  of  time 
is,  by  oniform  practice,  extended  to  three 
monUis ;  but  this  must,  in  like  manner,  be 
pvaaely  fixed,  when  an  aiibi  is  pleaded  for 
part  of  the  time.  In  regard  to  those  crimes, 
the  place  of  committing  which  is  immaterial, 
a  proof  of  alibi  will  be  of  no  avail,  as  «.  g.  the 
act  of  fabricating  the  plates,  or  of  throwing 
offtiie  spurious  notes  in  a  case  of  forgery. 
The  plea  of  alibi  is  a  special  defence,  of  which 
iotioiation  must  be  given  at  latest  on  the  day 
prenons  to  that  of  the  trial ;  and,  in  order  to 
enable  the  public  prosecutor  to  meet  such  a 
defence,  it  must  be  minute  in  its  specification 
of  the  place  where  the  panel  alleges  he  actu- 
ally was  at  the  time  libelled.  Hume,  ii.  206- 
224, 410-413 ;  Ersk.  B.  iy.  tit.  4.  §  71 ;  Ersk. 
Pme.  11th  edit  530 ;  Taifs  Jtutict  of  Peace ; 
A}im't  Prae.  ii.  369,  624. 

ilioi;  one  bom  in  a  foreign  country  out 
of  allegiance  to  the  British  Crown.  By  4  Geo. 
II.,c.21,  §  1,  all  children  bom  out  of  the  al- 
legiance of  the  Crown  of  Great  Britain,  whose 
hthen  are  natural-bom  subjects  of  Britain 
at  the  time  of  the  birth  of  such  children,  shall 
be  held  to  be  natural-bom  subjects,  unless  such 
fathers  have  been  attainted  of  high  treason, 
or  are  liable  to  the  penalties  of  high  treason 
orfekmy  in  case  of  their  returning  to  Britain, 
or  are  in  the  actual  service  of  any  foreign 
wince  or  state  at  war  with  Great  Britain. 
Bythe  act  13  Geo.  III.,  c.  21,  §  1,  the  same 
privilege  is  extended  to  all  persons  born  out 
of  all^ianee,  whose  fathers,  in  virtue  of  the 
former  act,  are  to  be  deemed  natural  subjects, 
although  their  mothers  are  aliens.  By  the 
act  7  and  8  Yict.,  c.  66,  §  16,  to  be  afterwards 
Bore  fiilly  referred  to,  women  married  to 
nataral-bora  subjects  are  to  be  deemed  natu- 
ralised. To  be  considered  a  natural-bora 
nbjeet  under  the  first  of  these  statutes,  a 
penon  must  have  been  legitimate  from  his 
birth,  and  not  legitimated  per  subsequent  ma- 
kimtmm  merely ;  for,  to  be  within  the  act, 
the  child  most  be  born  to  a  British  father, 
*hile  a  bastard  is  Jilius  nuUiut ;  Skedden  v. 
PttriA,  6  July  1854  ;  1  Macqueen,  635.  The 
consideration  of  the  whole  Court  was  given 
to  the  construction  of  the  statutes  in  regard  to 
aliew,  in  Dundas  v.  Dundas,  15th  Nov.  1839, 
2  D.  31,  where  it  was  held,  that  a  domiciled 
American,  bora  in  America  after  the  decla- 
ration of  independence,  and  whose  father  and 
grandfather,  though  British  subjects,  had  ad- 
hered to  the  United  States,  was  incapable, 
ImB  alienage,  of  succeeding  to  a  Scotch  estate. 
The  children  of  aliens,  if  bom  in  Britain,  are, 


generally  speaking,  natural-bora  subjects. 
Aliens  residing  in  any  place  surrendered  to 
Great  Britain  may  act  as  merchants,  &c.  on 
taking  the  oath  of  allegiance  ;  37  Geo.  III., 
c.  63,  §  5.  This  statute  saves  the  rights  of 
the  East  India  Company.  An  alien  enemy 
coming  into  this  kingdom,  and  taken  in  war, 
shall  suffer  death  by  the  martial  law.  No 
alien  can  be  returned  on  any  jury  in  a  trial 
between  subject  and  subject.  Aliens  are  sub- 
ject to  the  laws,  and,  in  the  greater  crimes, 
are  liable  to  the  ordinary  course  of  justice, 
although  it  seems  doubtful  whether  they  will 
be  punished  on  local  statutes. 

The  influx  of  foreigners  to  Great  Britain  in 
1792  and  1793,  caused  by  the  French  revo- 
lution, led  to  the  passing  of  various  acts  of 
Parliament,  known  by  the  name  of  the  Alien 
Acts,  by  which  masters  of  ships  arriving  from 
foreign  countries  are  required  to  give  an  ac- 
count to  the  custom-house  officers  of  the 
number  and  names  of  the  foreigners  on  board. 
The  present  Peace  Alien  Act,  as  it  is  termed, 
which  has  superseded  all  the  former  enact- 
ments, is  6  Will.  IV.,  c  11  (1836).  Under 
its  provisions,  masters  of  vessels  arriving  from 
abroad  must,  under  a  penalty,  immediately 
declare  what  aliens  are  on  board,  or  have 
landed  from  their  vessels — except  foreign 
mariners  employed  in  the  navigation  (§  2). 
Every  alien  must,  under  a  penalty,  immedi- 
ately on  his  arrival,  produce  his  passport  to 
the  chief  officer  of  cnstoms,  and  declare  his 
name,  description,  &c.  (§  3).  The  officer  must 
register  this  declaration,  deliver  a  certificate 
to  the  alien,  and  within  two  days  transmit  a 
copy  of  the  shipmaster's  declaration  and  of 
the  alien's  certificate  to  one  of  the  Secretaries 
of  state  in  Great  Britain,  or  to  the  secretary 
for  Ireland,  if  the  arrival  was  there  (§S  4, 5). 
When  an  alien  departs  from  the  realm,  he 
delivers  up  his  certificate,  which  must  be 
forthwith  transmitted  by  the  officer  of  cus- 
toms to  a  secretary  of  state  (§  6).  The  sta- 
tute farther  provides  for  the  punishment  of 
offences  against  its  enactments  before  justices 
of  the  peace ;  and  it  exempts  from  its  operar 
tion  foreign  ministers  and  their  domestic  ser- 
vants, registered  as  such  according  to  law — 
aliens  resident  three  years  in  the  realm,  and 
obtaining  a  secretary  of  state's  certificate  to 
that  effect — and  aliens  who  are  below  four- 
teen years  of  age  at  the  time  of  any  act  done 
or  omitted  to  be  done  by  them.  The  proof 
of  not  being  an  alien  lies  on  the  party  alleged 
to  be  such. 

The  eeneral  rule  has  been  that  aliens  (not 
enemies)  may  acquire  right  to  moveables,  ex- 
cept in  the  case  of  British  ships.  But  an  alien 
is  not  entitled  either  to  acquire  or  to  succeed 
to  heritage  in  Scotland.  These  disabilities 
may  be  removed  by  an  Act  of  Naturalization, 


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or  by  letters  of  deniz&tioD,  or  by  natnraliza- 
tion  in  virtue  of  a  certificate  of  a  secretary  of 
state,  in  terms  of  the  act  7  and  8  Vict.,  c. 
66  (1844).  Within  the  British  colonies  or 
possessions,  aliens  may,  by  10  and  11  Vict.,  c. 
83,  be  naturalized  by  act  or  ordinance  of  such 
colony  or  possession. 

An  act  of  naturalization  is  an  act  of  par- 
4iament,  conferring  on  the  individual  the  pri- 
vileges of  a  natural-bom  subject.  No  bill 
for  naturalization  can  be  received  without  a 
clause  in  it  disabling  the  person  so  natural- 
ized from  obtaining  thereby  any  immunity  in 
trade  in  any  foreign  country,  unless  he  shall 
have  resided  in  Q-reat  Britain  for  seven  years 
after  the  commencement  of  the  session  in  which 
he  is  naturalized  ;  14  Geo.  III.,  c.  84. 

Letters  of  denization  are  letters-patent 
issued  by  the  Crown,  conferring  on  the  per- 
son in  whose  favour  they  are  granted  the  pri- 
vileges of  a  British  subject.  A  denizen  is  in 
a  sort  of  middle  state,  between  a  natural- 
born  subject  and  an  alien.  He  may  purchase 
and  transmit  lands,  but  cannot  succeed  to 
them.  The  issue  of  a  denizen  born  out  of 
the  kingdom  before  denization  cannot  sue* 
ceed  to  him.  But  all  persons,  natural-bom 
subjects  of  this  kingdom,  may  inherit  as  heirs 
to  their  ancestors,  although  their  ancestors 
were  aliens ;  16  Geo.  III.,  c.  52.  No  denizen 
can  be  a  member  of  the  privy  council  or  of 
parliament,  or  have  any  office  of  trust,  civil 
or  military,  or  be  capable  of  any  grant  of 
lands,  &c.  from  the  Crown. 

Naturalization  by  certificate  was  introduced 
by  the  act  7  and  8  Vict.,  c.  66,  of  which  the 
following  are  the  chief  provisions : — Every 
person,  wherever  bora  of  a  mother  being  a 
natural-born  British  subject,  can  take  any 
estate,  real  or  personal,  by  devise,  purchase, 
or  succession  (§  3).  Every  alien  (friend)  may 
hold  every  species  of  personal  property  to  the 
same  effect  as  if  he  were  a  natural-born  sub- 
ject (§  4).  Such  alien,  residing  in  the  United 
Kingdom,  may  hold  lands  and  houses  for 
the  purpose  of  residence  or  business,  for  any 
term  not  exceeding  twenty-one  years,  to  the 
same  effect  and  with  the  same  rights  as  a 
natural-born  subject,  except  the  right  of  vo- 
ting (§  5).  Every  alien,  residing  in  the 
United  Kingdom,  with  intent  to  settle  therein, 
upon  obtaining  the  certificate,  and  taking  the 
oath  of  allegiance,  prescribed  by  the  statute, 
is  entitled  to  all  the  rights  and  capacities  of  a 
natural-bora  subject,  except  those  of  being  a 
member  of  parliament  or  privy  council,  or  those 
which  may  be  specially  excepted  in  his  certi- 
ficate (§  6).  An  alien,  when  desirous  of  ob- 
t-aining  a  certificate  of  naturalization,  must 
present  a  memorial  to  that  effect  to  one  of 
the  secretaries  of  state,  who,  after  consider- 
ation, may  issue  the  certificate,  which  must 


be  enrolled  for  preservation  in  chancery. 
Within  sixty  days  of  the  date  of  the  certi- 
ficate, he  must  take  the  oath  of  allegiance, 
and  obtain  a  second  certificate  to  that  effect 
(§§  7.  8,  9). 

Every  foreign  seaman,  who,  in  time  of 
war,  serves  two  years  on  board  a  British 
ship,  by  virtue  of  the  royal  proclamation  is, 
by  statute  13  Geo.  II.,  c.  3,  ipso  facto  natu- 
ralized, under  the  like  restrictions,  however, 
as  to  grants  of  lands  and  offices,  as  in  the  case 
of  denizens.  And  all  foreign  Protestants  and 
Jews,  upon  residing  seven  years  in  any  of  the 
American  colonies,  without  being  absent 
above  two  months  at  a  time,  and  all  foreign 
Protestants  serving  two  years  in  a  military 
capacity  there,  or  being  three  years  em- 
ployed in  the  whale  fishery,  without  ever  ab- 
senting themselves  from  the  Queen's  domi- 
nions for  more  than  one  year,  and  none  of 
them  falling  within  certain  incapacities,  shall, 
on  taking  the  oaths  of  allegiance  and  abju- 
ration, be  naturalized,  except  as  to  sitting  in 
parliament  or  the  privy  council,  and  holding 
offices  and  grants  under  the  Crown  in  Great 
Britain  or  Ireland.  See  13  Geo.  II.,  c.  7 ; 
20  Geo.  II.,  c.  44 ;  2  Geo.  III.,  c.  25 ;  13 
Geo.  III.,  c.  25 ;  20  Geo.  III.,  c.  20 ;  68  Geo. 
III.,  c.  97. 

The  act  of  the  Scotch  parliament,  17th 
July  1695,  instituting  the  Bank  of  Scotland, 
provides,  that  all  foreigners  who  shall  become 
partners  in  the  bank  shall  thereby  be  and 
become  naturalized  Scotsmen  to  all  intents 
and  purposes  whatsoever  ;  and,  as  all  Scotch- 
men became  British  subjects  at  the  Union  in 
1707,  it  was  thought,  for  upwards  of  a  cen- 
tury thereafter,  that  an  alien  who  had  pur- 
chased Bank  of  Scotland  stock  thereby  be- 
came a  naturalized  British  subject;  This 
notion,  however,  and  the  practice  following  on 
it,  was  brought  into  question,  and  after  a 
solemn  trial,  it  was  decided,  first  in  the  Court 
of  Session,  and  afterwards  in  the  House  of 
Lords,  that  the  privilege  was  limited  to  the 
original  partners  of  that  bank ;  Macao  v. 
Qfficm  of  State,  14th  Nov.  1820,  P.  C;  1 
/^w'«  App.  Oases,  138. 

See  upon  the  subject  of  this  article,  Ste- 
phen's Com.  vol.  ii.  p.  396 ;  Jfwe's  Notes  to 
Stair,  p.  X. ;  Ersk.  iii.  10, 10,  Ivory's  Edition  ; 
Banh  vol.  i.  p.  80,  §  37 ;  Bd^s  Com.  5th 
ed.,  pp.  151,  306  ;  BeWs  Frinc.  §§43,  1644, 
2130,  et  seq.  Swint.  Abridy.  v.  JTirfuroKxa- 
tion;  Karnes'  Stat.  Law  Abridg.  v.  Foreigner; 
Stmter's  Land,  and  Tenant;  Brown  on  Sale, 
pp.  173-4-8 ;  Brown's  Syn.  p.  723 ;  TKom~ 
son  onBiUs;  Skand's  Frac.  p.  152;  Waif  a 
Stat.  Law,  k.  t. ;  Hume,  i.  535,  et  stq.,  ii.  41, 
54,  et  seq. ;  Kames'  Frinc.  of  Equity  (1825), 
p.  3511.  See  also  12  S.j>.  293. 
Alienation ;  is  the  act  of  transferring  pro- 


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pertj;  and,  in  the  Scotch  law,  it  signifies 
the  transference  of  heritable  property.  The 
teller  says,  "  I  hereby  seU,  dienate,  and  dis- 
foM,"  aa  expressive  of  a  complete  onerous 
conreyance  to  the  purchaser;  or,  when  the 
deed  is  given  gratuitously  or  without  a  price, 
the  terms  of  conveyanco  are,  give,  grant  and 
dufine.  See  Mr  Mortfs  Notes  to  Stair,  p. 
duiv.;  ErsL  B.  ii.  tit.  3,  §  13,  et  seq.;  B. 
iii.  tit  8,  §  29,  and  notet  h)  Mr  Ivory;  Bank. 
Tol.  ii.  p.  189 ;  Belts  Com.  vol.  ii.  p.  183,  et 
«j.,  5th  edit. ;  BelFe  Princ.  S 1749,  et  seq.,  3d 
edit. ;  Htmter's  Landlord  and  Tenant,  pp.  67, 
74,79 ;  Brown  on  Sale,  p.  3 ;  Sandford  on  En- 
1*3*,  pp.  35,  et  seq.  175,  et  seq.;  Jurid.  Styles, 
ToLL  BUgh'sApp.  Gases,  i.  450, 458;  ii.  196; 
Matiet' Lectures  on  Conveyancing.  See  Dis- 
fMtMM.  For  prohibitions  against  alienation, 
seiBntaH. 

Aliment ;  maintenance,  food  and  clothing. 
By  the  law  of  Scotland,  persons  who,  by  rea- 
ion  of  nonage,  or  from  other  causes,  are  un- 
able to  support  themselves,  are  entitled,  in 
certain  circumstances,  and  in  respect  of  cer- 
Uin  relationships,  judicially  to  enforce  a 
daim  for  aliment. 

(1.)  Parents  are  bound  to  aliment  their 
IsTfnl  children  until  they  are  of  an  age  and 
in  a  eondition  to  aliment  themselves.  This 
obligation  must  be  construed,  so  far,  with 
reference  to  the  rank  and  circumstances  of 
tbe  parties,  although  anything  more  than  a 
bare  solsistence  and  necessary  wearing  ap- 
parel is  discretionary  on  the  part  of  the 
parent,  and  cannot  be  enforced.  The  obli- 
gstioD  ceases  with  forisfam  illation ;  but  it 
eoDtinnes  in  all  ranks  until  the  child  is  phy- 
ncally  able  to  earn  a  livelihood  ;  and,  in  the 
iqtper  ranks  still  longer,  if  the  child  be  desti- 
tute, especially  in  the  case  of  daughters.  If 
a  child,  after  forisfamUiation,  fall  into  indi- 
irenee,  the  obligation  revives;  and,  as  the 
oblig^ion  is  of  the  nature  of  a  debt,  it 
^vumits  against  the  representatives  of  the 
&ther.  Failing  the  father,  the  mother  is 
liaUe  if  she  have  the  means ;  and  failing 
father  and  mother,  the  grandfather  is  liable 
There  the  means  of  the  father  and  mother 
are  exhausted.  The  name  of  a  profession  is 
not  enough  to  liberate  the  father :  it  must 
lie  neh  oeenpation  in  a  profession,  or  other- 
wise, as  enables  the  child  to  support  himself 
or  herself.  The  father  will  also  be  dis- 
charged, if  the  child  be  otherwise  provided 
with  the  means  of  aliment,  or  of  raising 
>Moey  requisite  for  that  purpose.  The  obli- 
gation also  includes  the  son's  wife  in  the 
■l^er  ranks,  during  her  husband's  life,  and 
after  his  death  also,  it  would  seem,  if  she  be 
the  mother  of  an  heir  of  entail.  In  two  cases 
of  KRDparatively  recent  date,  the  law  on  this 
whjeet  has  been  fully  considered,  both  in  the 


Court  of  Session  and  in  the  House  of  Lords. 
See  Mai^ent,  25th  May  1815,  F.  C,  and  6 
Doio,  267  ;  and  Maule,  9th  July  1823,  F.  C, 
and  1  Wilson  d  Shaw,  266.  ^e  also  Mor^s 
Stair,  p.  29,  et  seq.;  BeWs  Princ.  §  1630,  et 
seq.  md  eases  there  cited. 

(2.)  Parents,  when  in  indigence,  have  a 
claim  of  aliment  against  their  children  for 
separate  aliment,  where  the  children  are  in 
circumstances  to  afford  it.  BeWs  Princ.  § 
1634,  and  authorities  there  cited;  Mortfs  Stair, 
p.  31. 

(3.)  The  father  of  an  illegitimate  child  is 
bound  to  aliment  the  child  until  it  can  sup- 
port itself.  Generally  speaking,  the  obliga- 
tion continues  until  the  child  attains  the  age 
of  puberty  ;  although,  if  from  disease  or  any 
other  cause,  the  bastard  is  unable  to  earn  a 
livelihood,  the  obligation  may  last  for  life. 
Bell's  Prine.  §  2062,  and  cases  there  cited.  See 
Bastard. 

(4.)  A  husband  is  bound  to  aliment  his 
wife  in  family  with  himself.  But  if,  ft>om  ill 
usage  on  his  part,  or  from  any  other  cause, 
the  spouses  live  apart,  this  obligation  to  ali- 
ment will  be  enforced.  So  also,  during  the 
dependence  of  an  action  of  divorce  or  of  ad- 
herence, the  husband,  whether  he  be  pursuer 
or  defender,  must  not  only  aliment  his  wife, 
but  must  also  provide  the  means  of  defraying 
her  expenses  in  the  action.  BeU's  Princ.  § 
1538,  et  seq.,  and  eases  there  cited, 

(5.)  It  is  laid  down  in  our  law  books,  that 
the  liferenter  of  a  landed  estate  is  bound  to 
aliment  the  fiar  or  heir  when  he  has  no  other 
means  of  subsistence.  This  obligation  seems 
to  have  originated  in  an  extended  construc- 
tion of  the  statute  1491,  c.  25,  under  which 
the  superior  in  a  ward  estate  was  bound, 
while  the  estate  was  in  ward,  to  aliment  the 
heir.  But  in  whatever  way  this  rule  may 
have  originated,  it  is  probable,  after  the  de- 
cision of  the  House  of  Lords  in  Maidmenfs 
case,  and  the  dicta  in  that  of  Matde,  that,  in 
the  abstract,  this  doctrine  would  not  now  be 
enforced ;  since,  in  every  case  of  fee  and  life- 
rent, it  m^  be  said,  as  was  observed  in  the 
House  of  Lords  in  Maidment's  case,  that  the 
fiar  has  a  marketable  commodity,  on  which 
he  may  raise  money  by  sale  or  otherwise 
for  his  maintenance.  And  although  it  may 
be  inexpedient  to  countenance  that  species  of 
improvidence,  yet  there  appear  to  be  no  con- 
siderations, either  of  equity  or  of  expediency, 
sufficient  to  warrant  a  court  of  law  in  impos- 
ing on  a  liferenter  the  burden  of  supporting, 
it  may  be,  a  strange  fiar.  See  BeWs  Prine.  § 
1065,  and  authorities  there  cited ;  Moris  Stair, 
cccxx. 

(6.)  Under  the  Act  of  Grace  (1696,  c.  32), 
creditors  who  choose  to  detain  their  debtors 
in  prison  after  a  surrender  of  their  property 


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and  effects  in  terms  of  tbat  statate,  and  of 
the  statate  6  Qeo.  lY.,  c.  62,  are  bound  to 
aliment  them.  See  A^  of  Qraee.  As  to  the 
aliment  of  the  poor,  see  Poor. 

On  the  subject  of  this  article  generally,  the 
following  authorities  may  be  consulted :  Ersic 
B.  i.  tit.  6,  §§  16, 19,  30,  and  patMim  in  thit 
title,  with  notet  by  Mr  Ivory ;  Bank.  vol.  i.  p. 
126,  dseq.,  156,  et  seq. ;  voL  iii.  p.  20 ;  BeW$ 
Com.  Tol.  i.  pp.  635,  643 ;  vol.  ii.  p.  653,  a 
$eq.,  596,  6th  edit, ;  BeU's  Princ.  §§  1064, 
1538, 1545, 1620,  1634,  2062 ;  Kama'  Stat. 
Law  Abridg.  k.  t. ;  Brown' t  Synop.  h.  t.  and 
pp.  1696,  1770,  2666;  Shaw's  Digest  h.  t.; 
&indford  on  Entails,  p.  243;  band's  Prac. 
pp.  266,  461,  et  seq.;  HutA.  Justice  of  Peace, 
vol.  ii.  pp.  233,  252,  259,  279  ;  Tait  on 
Evidence,  p.  277,  455 ;  Dickson  on  Evidence ; 
DmUop's  Parish  Law,  p.  192,  et  seq.,  217, 
270,  et  seq.;  Watson's  Stat.  Law,  k.  t.;  Jurid. 
Styles,  vols.  ii.  and  iii. ;  Ersk.  Princ. ;  Hume, 
ii.  58,  362 ;  Doufs  Appeal  Gases,  vi.  257. 

Alimoatary  Fnnd ;  is  a  fund  set  apart  by 
the  destination  of  the  giver,  for  an  aliment 
to  the  receiver.  A  fund  so  vested  at  least 
to  the  extent  of  a  moderate  aliment,  is  not 
arrestable,  or  otherwise  attachable  by  the 
direct  diligence  of  creditors.  But  although 
the  bestower  of  the  fnnd  has,  in  this  manner, 
a  right  to  fix  its  destination,  no  one  can 
exempt  his  own  funds  from  the  diligence  of 
his  creditors,  by  setting  apart  the  whole  or 
any  portion  of  them  as  an  alimentary  fund 
for  himself.  Pensions  from  the  King  are 
held  to  be  alimentary,  although  they  do  not 
bear  an  express  clause  to  that  effect ;  and  in 
the  statutes  authorising  the  establishment  of 
widows'  funds  it  is  usual  to  declare  the 
widow's  annuity  to  be  alimentary.  In  one 
case,  a  party  left  to  his  nephew,  a  peer,  a 
liferent  annuity  of  £1500,  declaring  that  it 
should  be  considered  as  purely  alimentary, 
and  not  attachable  by  creditors.  The  credi- 
tors of  the  liferenter  having  arrested  the 
fund,  it  was  held  that  the  liferent  provision 
was  not  exorbitant,  reference  being  made  to 
the  rank  and  circumstances  of  the  annui- 
tant, and  that,  therefore,  no  part  of  the 
annuity  was  attachable  by  creditors  for  debts 
contracted  before  the  annuity  took  effect, 
whether  those  debtswerefor  aliment  furnished 
to  the  annuitant  or  otherwise ;  but  that  the 
annuity  was  subject  to  arrestment  for  debts 
purely  alimentary,  contracted  posterior  to 
the  annuity  taking  effect.  It  was  farther 
held  that  the  furnishers  of  each  year  had  a 
preference  on  the  annuity  of  that  year  over 
the  furnishers  of  preceding  years ;  but  that 
such  purely  alimentary  creditors  were  prefer- 
able inter  se  according  to  the  priority  of  the 
diligences  used  hj  them  for  attaching  the 
annoity.   Earl  o/Buchan  r.  his  Creditors,  13  S. 


1112.  See  Ersk.  B.  iii.  tit.  6,  §  7 ;  Bank. 
vol.  i.  p.  159 ;  BeWs  Com.  vol.  i.  p.  128,  et 
seq.,  6th  edit ;  BeWs  Princ.  §  2360 ;  Brown's 
Synop.  p.  1563  ;  Shaw's  Digest;  Memies* Lec- 
tures;  S.  D.  XV.  151. 

Alimony ;  seems  to  be  used  by  Erskine  as 
synonymous  with  Aliment;  but  in  Bnglish 
legal  phraseology  the  term  is  confined  to  the 
allowance  which  a  married  woman  eaes  for, 
and  is  entitled  to,  on  separation  firom  her 
husband.  ToniUns,  h.  t  See  Ersk.  i.  6,  66, 
and  B.  iv.  t.  3,  §  28.    See  Aliment. 

Allay,  or  AUuiy ;  is  a  mixture  of  several 
metals  with  silver  or  gold.  It  is  naed  to 
defray  the  expense  of  coini^,  and  render  the 
gold  or  silver  more  fusible.  The  alloy  in 
gold  coin  is  silver  and  copper ;  in  silver  coin, 
copper  alone.  The  standard  of  gold  is  22 
carats  of  fine  gold,  and  2  carats  of  alloy  in 
the  pound  Troy ;  the  standard  for  silver  is 
11  ounces  2  pennyweights,  and  18  penny- 
weights alloy  of  copper.  In  the  Mint,  a 
pound  of  standard  gold  is  coined  into  44 
guineas  and  a  half ;  and  a  pound-weight  of 
standard  silver  is  Coined  into  62  shillings. 
Tomlins,  h.  t 

Allfigianoe;  is  the  fidelity  doe  by  every 
natural-bom  subject  to  the  Crown.  It  is  abo 
due  by  every  person  who  has  been  natura- 
lized; and  a  temporary  allegiance  is  due, 
daring  the  period  of  his  residence,  by  every 
foreigner  who  resides  in  the  kingdom,  and 
has  the  protection  of  our  laws.  Since  the 
period  of  the  Revolution,  allegiance  has  been 
enforced  by  an  oath,  termed  the  Oath  of  AUe- 
giance;  1693,  e.  6.  The  person  taking  it 
"  sincerely  promises  and  swears  that  he  will 
be  faithful  and  bear  true  allegiance  to  the 
Sovereign."  This  oath  must  be  taken  by  all 
those  bound  to  take  the  oath  of  abjnration. 
See  Abjuration.  Ersk.  B.  i.  t.  2,  §  33 ;  B^s 
Princ.  3d  edit.  §  2133 ;  Butch.  Justice  of  Peace, 
i.  44  ;  Hume,  i.  526-7.  See  ahra  Oa&s.  Affir- 
mation.   Alien. 

Allwnarly ;  only,  merely.  This  is  a  tech- 
nical word  of  some  importance  in  Scotch  con- 
veyancing. Thus,  where  lands  are  conveyed 
to  a  father  "  for  his  liferent  use  oilsnor^," 
the  effect  of  that  form  of  expression  will  be 
to  restrict  the  father's  right  to  a  mere  life- 
rent, or,  at  best,  to  a  fiduciary  fee,  even  in 
circumstances  where,  but  for  the  word  "  td- 
lenarly,"  the  father  would  have  been  unlimited 
fiar.     See  Conjunct  Rights. 

Allodial ;  is  used  in  contradistinction  to 
feudal ;  in  which  sense  all  moveable  property 
is  allodial.  But  in  a  more  limited  sense,  the 
term  is  applied,  1.  To  the  property  belong- 
ing to  the  Crown  ;  2.  To  the  superiorities  re- 
served by  the  Sovereign;  and,  3.  Tochnrehes, 
churchyards,  manses,  and  glebes,  the  right 
of  which  does  not  flow  from  the  Crown.    To 


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these  ma;  be  added  the  ndal  lands  of  Orkney, 
vhich  are  held  by  natural  posseesion,  prov- 
able by  witnesses,  without  any  title  in  writ- 
ing. This  form  of  holding  remains  to  this 
day,  in  every  eaae  where  the  property  has  not 
beea  feudalised,  by  the  vassal's  accepting  of 
a  (barter  from  the  Crown.  In  practice,  it  is 
coanaon  to  obtain  a  Crown  charter  of  lands, 
fomerly  udal  lands,  by  an  adjudication  in 
implement,  proceeding  on  a  trust-disposition, 
without  procuratory  or  precept ;  though,  ac- 
cording to  principle,  it  might  proceed  at  once 
en  a  redgnation  by  the  udal  proprietor  in  the 
hands  of  the  Crown.  There  is  ijso  a  holding 
not  pn^rly  feudal,  peculiar  to  a  small  pro- 
pertj  called  the  four  towns  of  Lochmaben, 
whidi  is  held  by  a  tenure  somewhat  like  the 
c«p;hold  right  of  England.  The  proprietors 
ve  enrolled  as  kindly  tenants  in  the  rental- 
book  of  the  proprietor  of  the  estate,  which 
coutitates  their  title.  This  title  has  been 
judicially  recognised  ;  see  M.  p.  15195.  See 
on  the  subject  of  this  article,  Stair,  B.  ii.  t.  3, 
5  4 ;  ¥r  Morels  Notes,  p.  dvii. ;  Ersk.  B.  ii. 
t.3,  S§  8  and  18;  Bank.  i.  p.  84,  529;  if«n- 
ntt*  CtMOfoneing. 

AUowanoe  of  an  Appriamg.  The  allow- 
uce  was  a  decree  in  confirmation  of  an  ap- 
priang,  written  on  the  back  of  it  by  the  clerk 
to  the  bills,  stating  the  amount  of  the  debt, 
the  lands  apprised,  and  the  names  of  the  ap- 
priwr,  debtor,  superior  and  messenger,  and 
the  dates  of  the  executions,  and  authorising 
leiten  of  homing,  &c.,  against  the  superior. 
On  the  change  of  form  from  the  apprising  to 
th«  adjodicaticm,  the  allowance  'gave  rise  to 
the  abbreviate.  Stair,  B.  ii.  tit.  3,  §  22  ;  and 
B.  ui.  tit.  2,  §  24  ;  Ersk.  B.  ii.  tit.  12,  §26  ; 
Bunt  voL  ii.  pp.  217  and  222  ;  Ersk.  Prine. 
11th  edit.  268.    See  Abbreviate.    Adjudication. 

Albvio ;  is  that  addition  which  a  river, 
numing  between  the  grounds  of  different 
herUort,  may  insensibly  make  to  one  of  the 
properties,  and  which  accresces  to  the  owner 
of  the  ground  to  which  the  addition  is  made. 
Brt  if^  in  place  of  a  gradual  increase,  the 
(wne  of  the  river  should  be  altered  by  a 
i'^4nt  flood,  or  by  any  convulsion  of  nature, 
the  grmmd  which  may  thus  be  added  to  one 
<if  the  properties  does  not  belong  to  the  owner 
(f  that  property,  but  remains  the  property  of 
tkat  pwson  to  whom  it  originally  belonged. 
Simr,  K  ii.  tit.  1,  §  35  ;  Ersk.  B.  ii.  tit.  1, 
{14 ;  Ba»L  voL  i.  p.  506 ;  BeWs  Prine.  §  935 ; 
^nk.  Prime.  11th  edit.  124.    See  Acceition. 


^  ,  the  person  appointed  to  distri- 
^  tte  king's  alms.  A  clergyman  is  usually 
^fiated  to  the  office. 

AIm  ;  relief  bestowed  on  the  poor.  A 
yHimntary  voter,  whether  in  England  or 
^otbad,  who  has  received  alms  or  parochial 


relief  during  the  preceding  twelve  months,  is 
disqualified  to  vote ;  and  by  the  English  and 
Scotch  Beform  Acts  such  a  person  is  not  en- 
titled to  be  registered  as  a  voter  in  any  city, 
burgh,  or  town.  The  disqualification  in  Scot- 
land is  the  receipt  of  parochial  relief  within 
twelve  calendar  months  next  previous  to  the 
last  of  July ;  2  and  3  WiU.  IV.,  c.  65,  §  11. 
See  Chamben^  Diet.  h.  t. 

Altarages.  Altarages  were  donations 
granted  for  the  singing  of  masses  for  the  souls 
of  deceased  friends,  &c  at  particular  altars  : 
and  when,  at  the  Reformation,  these  came  to 
be  suppressed,  the  founders  were  allowed  to 
convert  the  endowments  to  the  maintenance 
of  bursars  in  any  of  the  universities  ;  1567, 
c.  12  ;  Stair,  B.  ii.  tit.  8,  §  35  ;  Ersk.  B.  i. 
tit.  5,  §  3  ;  Bank.  vol.  i.  p.  558. 

AltematiTes.  If  there  be  an  alternative 
in  the  manner  of  performing  an  obligation, 
the  debtor  has  the  choice,  on  the  maxim,  lu 
altemativis  electio  est  debitoris ;  but  Bankton 
says,  that  after  commencing  a  suit  for  the  per- 
formance, the  creditor  has  the  right  to  choose. 
A  conventional  penalty  for  non-performance 
is  not  an  alternative.  The  party  entitled  to 
the  option  retains  his  right,  until  he  has 
declared  under  which  alternative  he  has  been 
acting.  Thus,  it  was  decided,  that  a  tenant 
who  was  granted  a  lease  for  nineteen  years, 
or  for  two  lives,  and  who  had  held  the  farm 
for  fourteen  years  without  declaring  his  eleo- 
tion,  might  insist  on  choosing  to  have  the 
lease  for  two  lives.  But  acting  upon  one  of 
the  alternatives  for  a  time  fixes  the  choice, 
and  bars  a  recurrence  to  the  other.  In  an 
obligation  to  do  one  of  two  things  for  a  cer- 
tain period  annually,  it  is  doubtful  whether 
the  first  choice  fixes  the  alternative,  or  the 
debtor  continues  to  have  an  annual  option. 
It  is  thought,  however,  that  a  tenant  or  other 
party,  bound  to  pay  either  a  money  or  a  grain 
rent,  may  avail  himself  of  the  choice  each 
year.  In  alternative  legacies  the  right  of 
election  seems  to  depend  on  the  intention  of 
the  testator,  as  implied  in  the  form  of  expres- 
sion which  he  makes  use  of :  thus,  when  he 
bequeathes  one  of  two  things  to  the  legatee, 
the  legatee  would  appear  to  have  the  option ; 
when  he  enjoins  his  executors  to  pay  one  of 
two  things,  the  choice  seems  to  be  left  to 
them.  Stair,  B.  1.  tit  17,  §  20 ;  Mr  More's 
Notes,  pp.  cxxi.  cccxiv. ;  Baiuc.  vol.  i.  p.  474, 
§§  80-83 ;  iii.  89  ;  Brown's  Synop.  A.  t.  and 
p.  1430;  Hume,  i.  501,  ii.  169,  194-2-8, 
203-223. 

Altiiu  non  Tollendi ;  was  a  Roman  law 
servitude,  whereby  the  servient  proprietor  was 
restricted  from  raising  a  building  within  his 
own  ground  to  a  height  prejudicial  to  the 
dominant  tenement.  There  was  also,  it  is 
said,  in  the  Roman  law  a  servitude  AIHhs  toj- 


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lendi,  which,  according  to  some  commentators, 
imported  a  right  in  the  dominant  proprietor 
to  raise  his  house  higher  than  was  permitted 
by  the  regulations  for  the  height  of  buildings 
in  Rome.  But  this  is  a  very  doubtful  inter- 
pretation ;  and  in  Scotland,  at  least,  would 
receive  no  countenance,  as  applicable  to  those 
towns  (such  as  Edinburgh)  where  there  is  a 
statutory  limitation  in  the  height  of  the 
houses.  It  would  rather  appear,  indeed,  that, 
properly  speaking,  there  was  no  servitude 
altius  toUendi,  and  that  the  term  merely  sig- 
nifies an  immunity  from  the  servitude  cdtitis 
non  toUendi.  Ersk.  B.  ii.  tit.  9,  §  10 ;  BelPs 
Princ.^  1007,  and  auihoritiet  there  ciUd;  Stair, 
B.  ii.  tit.  7,  §  9  ;  ifr  More's  Notes,  p.  cczxi. ; 
Brown't  Sm.  p.  2256,  2362.  See  Edinburgh. 
See  also  Light. 

Amand  ;  is  synonymoos  with  a  fine  or 
penalty.  In  our  older  practice,  a  defender 
who  proponed  improbation  was  required  to 
consign  a  certain  sum  to  be  forfeited  as  an 
amand,  in  case  it  should  turn  out  that  he  had 
proponed  the  plea  animo  differendi  litem.  Prior 
to  the  peremptoiy  statutory  regulations  in- 
troduced by  the  Judicature  Act,  6  Geo.  lY., 
c.  120,  it  was  usual  for  the  Court,  or  for  the 
Lords  Ordinary,  to  pronounce  orders  for  the 
lodging  of  pleadings  or  other  papers  in  the 
course  of  a  process,  '^  under  an  amand"  (as  it 
was  expressed)  "  of  40s.,"  or  some  such  sum ; 
although,  as  these  amands  were  seldom  en- 
forced, the  compulsitor  was  practically  in- 
effective, and  is  now  in  desuetude.  Stair,  B. 
iv.  tit.  40,  §§  12  and  39 ;  tit.  1,  §  63 ;  Bank. 
i.  p.  297. 

Ambassador  ;  a  person  sent  by  one  sove- 
reign power  to  another,  vested  with  authority 
to  transact  state  affairs,  and  to  act  as  repre- 
sentative of  his  constituent.  The  persons  of 
ambassadors  are  protected  under  the  law  of 
nations.  An  ambassador  will  lose  his  privi- 
lege if  he  commit  an  offence  against  the  state 
to  which  he  is  sent ;  and  for  treason  against 
the  sovereign's  life  he  may  be  condemned  and 
executed ;  bnt,  were  he  guilty  of  crimes  of  a 
less  serious  character,  he  would,  in  courtesy, 
be  sent  back  to  his  sovereign,  to  be  punished 
by  him.  By  the  civil  law,  the  person  of  an 
ambassador  cannot  be  arreted,  or  his  move- 
ables taken  in  satisfaction  of  debt.  The  law 
of  nations  regarding  the  privileges  of  ambas- 
sadors is  part  of  the  law.ofQreat  Britain; 
and,  by  express  statute  (7  Anne,  c.  12),  am- 
bassadors and  their  domestic  servants  are  ex- 
empted from  arrest.  A  resident  merchant  in 
this  country,  who  acts  as  consul  to  a  foreign 
power,  is  not  thereby  exempted  from  arrest. 
Stair,  B.  i.  tit.  1,  §  11,  and  tit  12,  S  13; 
Bank.  vol.  i.  pp.  35  and  521 ;  Swint,  Mridg. 
h.  t. ;  Hume,  i.  536.  See  Towiins'  Law  Diet. ; 
Wharton' t  Lexicon. 


Ambidexter ;  one  who  plays  on  both  sides. 
In  English  legal  phraseology  it  signifies  a 
juror  who  takes  money  for  his  verdict.  7W 
lins,  h.  t. 

Amenable  to  a  certain  court,  signifies  to 
be  subject  to  the  jurisdiction  of  that  court. 

Amendment  or  the  Libel ;  is  an  addition 
to,  or  alteration  on,  the  averments  or  conclo- 
sions  of  the  action,  made  by  judicial  authoritj 
after  the  summons  has  beien  signeted  and 
brought  into  Court.  The  amendment  most 
be  made  in  a  writing  separate  from  the  snin- 
mons,  and  can  only  be  lodged  by  permission 
of  the  judge,  on  a  motion  from  the  bar. 
After  it  has  been  allowed  to  be  seen  by  the 
opposite  party,  an  interlocutor  is  pronounced, 
admitting  it  as  part  of  the  summons,  if  no 
objections  are  made.  But  no  such  amend- 
ment can  be  competently  made  after  the  re- 
cord is  closed,  except  in  the  case  of  res  noviitr 
veniens  ad  noUtiam  (6  Geo.  IV.,  c.  120,  §§  6, 
10 ;  HiU,  19th  June  1855,  17  D.  958) ;  al- 
though  amendments  have  been  allowed  after 
the  record  was  prepared,  under  a  reservation 
of  the  defender's  claim  for  expenses.  So  also, 
in  a  process  of  reduction,  it  is  competent  to 
the  pursuer,  before  the  record  is  made  up,  to 
state  additional  reasons  of  reduction  in  the 
form  of  an  amendment  of  the  libel,  on  his 
furnishing  the  defender  with  a  copy  of  the 
amendment  forty-eight  hours  before  it  is 
given  in,  and  paying  such  expenses  as  the 
Lo>d  Ordinary  shall  think  reasonable  ;  and 
the  defender  shall  give  in  defences  appli- 
cable to  such  amendment;  A.  S.  11(&  Jubf 
1828,  §  51 ;  Miller.  2d  Feb.  1850, 12  D.  653. 
The  alterations  on,  and  additions  to,  a  sum- 
mons which  may  be  made  by  amendment  of 
the  libel  are  very  considerable ;  but  any  fun- 
damental change  on  the  nature  or  grounds  of 
the  action  is  not  admissible  in  this  form ;  and 
the  specialties  of  each  case  must  be  considered 
in  dealing  with  questions  as  to  the  compe- 
tency of  an  amendment.  New  pursuers  can- 
not be  so  sisted ;  nor  can  a  party  who  has 
raised  an  action  in  his  own  individual  name 
be  allowed  to  libel  in  an  amendment,  that  he 
sues  in  the  character  of  executor ;  Smith,  5th 
July  1850, 12  P.  1185.  Neither  is  it  com- 
petent to  amend  the  libel  in  cases  where  the 
defender  has  not  appeared.  In  such  a  ease 
the  pursuer  may  put  in  a  minute  restricting 
the  conclusions  of  the  libel  (which  may  he 
done  at  any  stage  of  the  process),  but  he  can- 
not add  to  or  alter  these  conclusions;  the 
presumption  being,  that  the  defender  having 
had  due  notice  and  certification  of  what  will 
ensue  if  he  make  no  appearance,  is  prepared 
for  decree  in  terms  of  the  libel,  although  it 
is  impossible  to  assume,  in  his  absence,  that 
he  would  also  have  acquiesced  in  the  sum- 
mons as  altered.     The  remedy  in  such  cases 


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»  bj  iapplementary  action.  An  amendmpiit 
of  the  libiBl,  where  otherwise  competent,  can- 
not be  made  in  the  form  of  a  minute  ;  see 
Blair,  1st  June  1848,  10  D.  1095. 

Amendments  of  the  libel  are  regarded  with 
great  jealoosj  in  criminal  proceedings  before 
tli«  Court  of  Session,  as  in  cases  of  forgery 
aad  fraodnlent  bankruptcy ;  and  it  is  also  a 
general  rule,  that  no  amendment  of  a  sum- 
narj  petition  is  competent  after  procedure 
bu  taken  place  therein.  In  Hutton,  Ist  March 
1851, 13  D.  804,  no  fewer  than  three  sepa- 
rate amendments  of  a  libel  were  allowed,  re- 
Hning  all  qnestions  of  expenses.  In  DaUas 
T.  JToaa,  14th  June  1853,  15  D.  746,  the 
I*rd  Justiok-Clebk  said, — "  We  have  con- 
nlted  the  whole  Judges,  and  are  prepared  to 
lay  down  a  general  rule  in  regard  to  the 
question  which  arises  in.  this  case.  That  rule 
ii,  that  in  everything  vhich  is  of  the  essence 
of  the  action,  whether  in  the  averment  of 
what  is  an  essential  quality,  or  of  what  is  a 
proper  ground  of  action,  the  summons  and 
eoodeseendence  must  be  perfect  and  complete 
fimtw,  and  that  no  change  can  be  intro- 
duced into  the  revised  condescendence  which 
alters  the  summons  or  the  annexed  conde- 
Keodenee,  which  is  a  part  of  the  summons, 
>a  sieh  matters.  Such  change  can  only  he 
nsdt  by  an  amendment  of  the  summons  on 
leare  obtained.  This  rule  we  are  prepared 
to  enforce  in  regard  to  the  pleadings  in  this 
Court  as  well  as  in  the  Sheriff  Court.  Such 
Wng  the  general  rule  which  the  Court  is  to 
enforce,  then,  we  in  this  Division  hold,  that,  in 
this  esse,  want  of  probable  cause  was  of  the 
««ea«  of  the  action,  and,  therefore,  as  the 
Ratement  of  it  was  omitted  in  the  conde- 
Mndenee  annexed  to  and  forming  part  of  the 
Kunmons,  it  was  not  competent  to  insert  it  l)y 
»»y  of  revisal  merely,  but  that  it  could  only 
he  added  as  an  amendment  on  leave  granted." 
A  panuer  of  an  action  of  damages  for  slan- 
itiMu,  however,  allowed,  on  payment  of  the 
eipeme  of  revisal,  to  state  in  his  revised  con- 
de«e«idenee  two  new  instances  of  alleged 
»l*»der,  ottered  at  different  times  and  places, 
ud  before  different  parties,  from  those  stated 
»  tke  iummons ;  Hewatton,  15  D.  519.  At 
t^  adjustment  of  the  record  at  chambers 
'itk  a  view  to  closing,  the  Lord  Ordinary 
Mj  allow  or  require  such  alterations  and 
•■swlments  to  be  made  on  the  record  as  may 
««•  proper ;  13  and  14  Vict.,  c.  36,  §  2. 
Similw  regulations  as  to  amendments  and 
'••tnetioaa  of  the  libel  are  in  observance  in 
ttejiferior  courts,  though,  under  the  short 
WW  recently  introduced  by  the  Sheriff 
Cowt  Act,  there  is  less  room  for  error,  and 
■•*•  t»  amend  is  more  scrupulously  granted 
«»  formerly.  The  Sheriff,  when  a  case 
before  him  in  appeal,  may  ex  proprio 


motu  open  up  the  record  for  the  purpose  of 
allowing  an  amendment ;  16  and  17  Vict.,  c. 
80,  §  16.  See  also  A.  S.  (Sheriff  Courts), 
lOtt  July  1839,  §§  11,  13,  41,  99.  Notes  of 
suspension  may  be  amended  to  tiie  effect  of 
offering  caution  or  consignation,  by  lodging 
a  minute  to  that  effect,  in  terms  of  A.  S. 
24th  December  1838,  §  4. 

On  the  subject  of  this  article,  see  Shand't 
Prae.  493.  628  ;  M'OlaOi,  Sher.  Court  Prae. 
310 ;  M'Parl  Jury  Prae.  31 ;  Jurid.  Stylet, 
vol. iii. ;  Brown's  Synop.  1787  ;  Skaw't  Digest; 
xiv.  S.  845  ;  xv.  S.  226.  See  also  Ahandm- 
ment  of  Action.    Supplementary  Summons. 

Amendment  of  the  Libel  (in  criminal  pro- 
secutions). It  is  a  general  rule,  that  the 
prosecutor  cannot  alter  or  amend  the  libel  at 
the  bar  without  the  pannel's  permission  ;  but 
in  some  cases  retrenchments  upon  it  have  been 
allowed  without  his  consent,  provided  there 
remains  thereafter  a  relevant  charge  against 
him.  Retrenchment,  however,  is  never  al- 
lowed where  its  effect  is  the  production  of  a 
substantial  variation  in  the  libel,  and  the 
consequent  injustice  of  obliging  the  pannel 
to  go  to  trial  on  a  charge  for  which  he  was 
not  prepared  ;  Speirs,  25th  March  1836 ; 
1  Sainton,  171 ;  McGregor,  28th  April  1842  ; 
1  Broun,  331.  An  instance  of  permissible 
retrenchment  is  afforded  by  the  case  of 
M'Caffer  (Glasgow,  Sept.  1823),  where  it  was 
allowed,  on  the  motion  of  the  prosecutor,  be- 
fore the  pannel  pleaded  to  the  indictment, 
that  the  words,  "  Parish  of  Gorbals  and,"  in 
the  description  of  the  place  where  the  crime 
was  committed,  should  be  struck  out..  Where 
there  are  several  charges,  or  several  pannels, 
the  prosecutor  may  depart  from  one  or  more 
of  the  charges  against  one  or  more  of  the 
pannels,  and  proceed  with  his  proof  as  to  the 
rest.  In  some  cases,  also,  the  prosecutor  is 
allowed  to  restrict  the  charge  to  a  lower 
crime,  but  of  the  same  kind,  as,  for  instance,  to 
homicide  instead  of  murder.  The  prosecutor 
is  likewise  entitled  at  the  bar  to  restrict  the 
pains  of  law.  Hume,  ii.  280 ;  BeWs  Notes, 
180,  232  ;  Steele,  195  ;  Alison's  Princ.  365. 

Amen^ent  In  parliamentary  proceed- 
ings, an  amendment  is  an  alteration  proposed 
in  the  draught  of  any  bill,  or  in  the  terms  of 
any  motion.  No  member,  except  when  the 
House  is  in  committee,  is  allowed  to  speak 
more  than  once  on  the  same  question ;  but 
he  may  speak  again  on  an  amendment,  which 
is  considered  to  be  a  new  question.  When  a 
motion  for  the  adjournment  of  the  House  is 
made,  it  is  in  the  words,  "  That  the  House 
do  now  adjourn ;"  and  if  it  be  carried,  the 
House  will  adjourn  to  the  next  sitting  day  ; 
unless,  at  a  previous  part  of  the  evening,  a 
resolution  has  been  come  to,  that,  at  its  rising, 
the  House  shall  adjourn  to  some  particular 


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day.  It  is  not  competent,  tberefore,  on  a 
motion  for  adjournment,  to  more  an  amend- 
ment, specifying  any  particular  day  to  which 
the  House  shall  adjourn.  An  amendment 
may  be  proposed  on  an  amendment.  The 
parliamentai7  rule  as  to  putting  motions  and 
amendments  to  the  vote  differs  from  that 
usually  observed  at  public  meetings.  In 
Parliament,  the  motion  which  has  been  first 
made  and  seconded  ia  always  put  first  from 
the  chair ;  and  hence,  when  an  amendment 
has  been  proposed,  instead  of  the  question 
that  it  shall  be  adopted  being  directly  put,  a 
vote  is  taken  on  the  question,  "  That  the 
words  proposed  to  be  left  out  stand  part  of 
the  question  ,"  and  if  this  motion  is  carried, 
the  main  question,  which  is  really  the  same 
thing,  is  next  put,  and  of  course  agreed  to. 
But  if  the  question,  "  That  the  words  stand 
part  of  the  question,"  be  negatived,  the  main 
question  is  put  with  the  omission  of  these 
words  ;  so  that  the  amendment  separately  is 
never  put  at  all.  Hatsell, ii.  Ill, etteq.;  May's 
Practwd  Treatite  on  the  Law,  Prtvikget,  <tc.,  of 
Pariitmeitt,  p.  236. 

Amerdammt,  or  Ameroemait ;  is  pro- 
perly an  English  law  term,  where  an  oflender 
is  at  the  mercy  of  the  King  in  regard  to  the 
qwmtum  of  a  fine :  when  it  is  us^  at  all,  it 
means  a  fine  imposed  on  an  offender.  TonUitu, 
h.  t, ;  WharUnCt  Lata  Lexicon. 

AmercuanentiDn,  or  Foruf actum  Curue; 
used  in  the  Regiam  Majettatem  to  signify  the 
unlaw,  or  fine  for  absence.    Skene,  V  t. 

Andeable  S«ntenoe ;  is  applied  to  a  de- 
cree-arbitral.   See  ArhUration. 

AmioTU  onruB ;  a  bystander  who,  not  being 
interested  in  the  cause,  of  his  own  knowledge, 
and  tanquam  omtetts,  makes  a  suggestion  in 
point  of  fact  or  in  point  of  law,  for  the  infor- 
mation of  the  Court,  or  to  correct  a  mistake. 
See  Tomlins,  h.  t. 

Aametty ;  an  act  of  pardon  or  of  oblivion. 

Anmstor ;  in  Scots  law,  is  one  from  whom 
a  landed  estate  is  derived,  and  who  is  repre- 
sented by  the  person  in  possession.  In  this 
respect  an  ancestor  differs  from  one  to  whom 
the  estate  has  previously  belonged,  and  irom 
whom  it  has  passed  to  the  present  proprietor 
by  purchase,  or  what  is  called  a  singular  title ; 
such  a  person  being  termed  the  awiW.  Stair, 
B.  iv.  tit.  35,  §  16 ;  Mr  More's  Note*,  pp. 
cccxxxvi.  and  ccclviii ;  Ertk.  B.  iii.  tit.  8,  § 
101,  et  seq. ;  BeU't  Com.  vol.  i.  p.  727,  «t  teq. 
5th  edit. ;  BeWs  Princ.  §  1931,  e<  seq.  3d  edit. 

AnidUHrage ;  is  a  duty  payable  by  a  vessel 
on  its  entering  a  port. 

Aiifiii«.l« ;  injwy  done  by.    See  Damnum. 

Ann,  or  Annat ;  is  the  half-year's  stipend 
payable  for  the  vacant  half-year  after  the 
death  of  a  clergyman,  to  which  his  family  or 
nearest  of  kin  have  right  under  the  act  1672, 


c  13.  Thus,  if  a  clergyman  die  after  yihii- 
Sunday,  his  executors  have  right  to  the  first 
half  of  that  year's  stipend,  uid  his  widow  aod 
nearest  of  kin  have  right  to  the  other  half, 
as  ann.  If  he  survives  Michaelmas,  he  hat 
right  to  the  whole  of  the  year's  stipend,  and 
his  nearest  of  kin  draw  the  first  of  the  next 
half-year's  stipend,  as  the  ann.  The  right  to 
the  aan  is  not  vested  in  the  clergyman,  but 
in  his  next  of  kin,  and  therefore  can  neither 
be  assigned  by  him  even  in  a  mortis  am* 
deed,  nor  attached  for  his  debts.  The  ml« 
for  dividing  the  ann  between  the  widow  and 
children  does  not  seem  to  be  very  dearly 
fixed ;  but  Erskine  inclines  to  adopt  the  tuae 
rule  of  division  which  would  be  followed  in 
regard  to  execatry ;  that  is,  to  give  one-third 
to  the  widow  and  two-thirds  to  the  children 
per  capita.  Where  there  are  no  children,  one- 
half  goes  to  the  widow,  and  the  other  to  tbe 
nearest  of  kin  :  where  there  are  childrea, 
but  no  widow,  it  goes  wholly  to  the  children; 
and  where  there  are  neither  children  nors 
widow,  it  goes  to  the  nearest  of  kin.  Confir- 
mation is  not  required  to  vest  a  right  to  the 
ann  in  those  by  law  entitled  to  it.  By  tbe 
act  50  Qeo.  III.,  c.  84,  whereby  provision  » 
made  for  augmenting  small  stipends  to  L.150, 
it  is  enacted,  that  the  executors  or  personal 
representatives  of  the  minister  whose  stipend 
shall  be  augmented  under  this  act,  shall  be 
entitled  to  one  half-yearly  moiety  of  the  ang- 
mentation  to  be  so  granted,  in  name  of  mi, 
over  and  above  the  stipend  due  to  the  de- 
ceased minister  in  the  same  manner  as  in  or- 
dinary stipends,  and  the  Barons  of  Exchequer 
are  empowered  to  grant  precepts  for  payment 
of  this  ann  to  those  having  right  thereto,  on 
their  receipt,  without  confirmation  or  making 
up  any  other  titles ;  50  Geo.  III.,  c.  84,  §  16. 
See  tiao  5  Geo.  IV.,  c.  72.  See  on  the  sub- 
ject of  this  article,  Ersk.  B.  ii.  tit.  10,  K  67, 
68 ;  Stair,  ii.  tit.  8,  §  34,  and  Jfr  JToro's  iv«(et, 
ccxlr. ;  Bank.  vol.  ii.  p.  77  ;  Karnes'  Stat.  Lm 
Abridg.  k.  t. ;  Brown's  Synop.  k.  t. ;  HuUiMM't 
Justice  of  Peace,  vol.  ii.  p.  464 ;  CmhmU  m 
Tithes,  ii.  p.  453  ;  Watson's  StatuU  Law,  k.  U : 
Jwrid.  Styles,  vol.  ii.,  p.  285,  3d  edit. 

Annexation;  as  used  in  the  Regiam  Mays- 
totem,  signifies  "  a  fast-knitting  uid  binding." 
Skene,  h.  t.  ■ 

AmMHiatnnw ;  is  the  act  of  uniting  lands  to 
the  Crown,  and  declaring  them  unalienable. 
It  also  signifies  the  appropriating  of  Church 
lands  to  the  Crown  ;  and  the  union  of  lands 
lying  at  a  distance  from  the  parish  church  to 
which  they  belong,  to  the  church  of  a  parish 
to  which  they  are  more  contiguous. 

1.  Annexed  Proper^  of  the  Crown. — The  li- 
berality of  our  sovereigns  during  the  fifteenth 
century  had  reduced  the  Crown  to  great  po- 
!  verty,  and  it  was  the  object  of  ParlianwDt  to 


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pat  an  end  to  saeh  alienations.  But  this  de- 
teminstion  was  not  long  acted  on ;  the  an- 
cient Sjrstem  haring  been  resnmed,  under  the 
gpeeioos  p'retence  of  improving  the  countiy, 
by  firing  out  the  property  of  the  Crown  in 
fen  for  payment  of  a  rent.  By  the  act  1455, 
e,  41,  the  annexed  property  of  the  Crown  is 
described,  tuid  declared  unalienable,  unless  the 
gift  receive  the  approbation  of  parliament. 
Bat  that  enactment  seems  not  to  have  checked 
the  eril ;  and  it  was  followed  by  other  sta- 
tates,  and  particularly  by  the  acts  1457,  o. 
71 ;  1540,  c.  15  and  16 ;  1584,  c.  6  ;  1597, 
c  233  and  234 ;  some  of  which,  by  sanction- 
ing sabinfeudation  in  Crown  lands,  had  the 
effect  of  dissipating,  or  greatly  depreciating, 
the  ralne  of  the  annexed  property,  in  so 
maeh,  that  now,  with  the  exception  of  the 
CasOes  of  Edinburgh,  Stirling,  and  Dumbar- 
ton, the  palace  of  Holyroodhouse,  and  the 
feo-dotieB  of  the  ancient  domains  feued  out 
onder  the  above  statutes,  little  remains  of  the 
once  extensive  territories  of  the  Crown. 
EtA,  ii.  tit.  3,  §  14. 

2.  Annexation  of  Temporality  of  Benefices. — 
This  annexation  was  made  by  the  act  1587, 
e.  29,  on  a  narrative  of  the  poverty  of  the 
Crown,  and  his  Majesty's  desire  to  support 
the  royal  dignity  without  taxing  his  subjects, 
and,  for  that  purpose,  what  had  formerly 
been  given  by  the  Crown  to  religious  houses 
is  resumed,  the  cause  of  the  disposition  (that 
is,  the  support  of  the  Popish  religion),  now 
eeasing,  as  the  act  expresses  it.  On  these 
grounds,  the  whole  estates,  profits,  and  emo- 
Inmenti,  belonging  to  the  church  and  to  ec- 
elesiastieal  persons  of  every  description,  are, 
from  and  after  July  29,  1587,  declared  to 
be  tiie  annexed  property  of  the  Crown  under 
certain  exceptions,  and  reserving  a  power  to 
his  Majesty  of  snbfening.  Ersk.  ii.  tit.  10, 
§  19 ;  Stat.  1587,  c.  29  ;  MackmMt  Obtena- 
tint,  p.  226.     See  Teinds. 

3.  Annexation  quoad  sacra  tantum ;  is  the  an- 
nexation of  lands  lying  at  a  distance  from  the 
ebnrch  to  which  they  belong,  to  another  church 
to  which  they  are  more  contiguous,  in  so  far 
as  relates  to  the  pastoral  charge.  Such  lands 
rtill  eontinne  part  of  the  parish  firom  which, 
jtwrf  snera,  they  are  separated,  and  remain 
subject  to  parochial  burdens  in  it,  such  as  the 
expense  of  building  or  repairing  the  manse, 
supporting  the  poor,  paying  stipend  and  the 
like,  idtbough  it  has  been  decided  (contrary 
to  the  dictum  of  Erskine),  that  lands  annexed 
fwod  msra  tantvm,  are  liable  in  the  expense 
of  nphcMing  the  (Aureft  of  the  parish  to  which 
they  am  so  annexed.  Ersk.  B.  ii.  tit.  10,  § 
64,  tod  Ivory's  Notes ;  Stair,  ii.  tit.  iii.  §  36  ; 
Awi.  vol.  i.  p.  538,  and  659  ;  vol.  ii.  pp.  13 
snd  16 ;  BeWs  Princ.  §  673,  3d  edit. ;  Brown's 
Sjnwp.  ».  1179,  1181.  1496.  2317 ;  Hittch. 


Justice  of  Peace,  vol.  ii.  pp.  409,  427 ;  Jurid. 
Styles,  vol.  iii.  491,  et  seq.  2d  edit.  See  Dis- 
junction. 

Anne  Domini ;  the  computation  of  time 
from  the  incarnation  of  our  Saviour.  Tom- 
lins,  h.  t. 

Annnalrent;  interest  of  money.  Before 
the  Reformation,  it  was  not  lawful  to  lend 
money  at  interest,  and,  to  evade  this  law,  per- 
sons lending  money  received  a  yearly  rent 
out  of  land.  The  profit  of  the  money  so  lent 
was  denominated  annualrent,  and  thus  the 
term  annualrent  came  to  be  synonymous  with 
interest.  Stair,  B.  i.  tit.  15,  §  7  ;  Bank.  vol. 
i.  p.  436;  Karnes"  Stat.  Law  Ahridg.  h.t.; 
Brown's  Synop.  h.  t. ;  Watson's  Statute  Law, 
h.  t. ;  Menzies'  Conveyancing.    See  Interest. 

Aunoalrent  £ight  was  a  deed,  by  which, 
in  consideration  of  a  certain  price  paid  to  him, 
a  proprietor  of  lands  granted  a  yearly  rent  out 
of  his  property,  redeemable  by  him  on  repay- 
ment of  the  purchase-money.  This  was  a  de- 
vice to  evade  the  laws  in  force  previous  to  the 
Reformation  against  the  taking  of  interest. 
But,  after  the  Reformation,  when  it  was 
made  lawful  to  take  interest,  a  bond  was 
given  by  the  borrower  to  the  lender,  by  which 
he  gave  an  heritable  security  for  the  whole 
debt,  principal  and  interest.  Hence,  when 
these  two  securities  came  into  competition, 
the  annualrent  right,  though  preferable  to 
the  heritable  bond,  extended  merely  to  the 
annualrent,  while  the  surplus  was  carried  by 
the  heritable  bond.  This  form  of  security  is 
now  in  desuetude.  Stair,  B.  ii.  tit.  6 ;  Mr 
More's  Notes,  p.  ccix. ;  Ersk.  B.  ii.  tit.  8,  §  31, 
etseq. ;  tit.  2,  §  5 ;  Bank.  vol.  i.  pp.  487, 648, 
et  seq. ;  Bell's  Com.  vol.  i.  p.  671,  5th  edit. ; 
BeU's  Princ.  §  909,  3d  edit. ;  Hunter's  Land- 
lord and  Tenant;  Brown's  Synop.  h,  t.;  Memies' 
Conveyancing,   See  Burdens. 

Aiuiiiel ;  a  word  used  in  the  older  law  of 
Scotland,  to  signify  a  yearly  revenue  or  duty 
payable  at  certain  terms,  either  legal  or  con- 
ventional.    Skene,  h.  t. 

Annuity  of  Teinds ;  was  an  allowance  to 
the  King  by  the  Commission  of  Teinds,  at  6 
per  cent.,  from  the  teind  of  erected  benefices, 
ratified  by  the  act  1633,  c.  15.  They  were 
disponed  by  the  Crown  in  security  of  a  debt, 
but  the  drawing  of  them  was  put  a  stop  to  in 
1674,  and  the  right  has  since  that  time  lain 
dormant.  Stair,  B.  ii.  tit.  8,  §  13,  and  B.  iv. 
tit.  24,  §  3 ;  Ersk.  B.  ii.  tit.  10,  §  39 ;  Bank. 
vol.  ii.  p.  68 ;  Kames'  Stat.  Law  Abridg.  h.  t. 
See  Teinds. 

Annuities,  Public.    See  Public  Funds. 

Annuity  Tax;  a  local  tax  levied  within 
the  royalty  of  Edinburgh  for  the  support  of 
the  eighteen  endowed  clergymen  of  the  fif- 
teen city  churches.  The  annuity  is  an  assess- 
ment of  4^  per  cent .  on  the  rents  of  houses  and 


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shops  vithin  tbe  royalty,  which  was  first  au- 
thorized about  the  year  1634.  It  originated 
in  suggestions  which  had  been  made  by  James 
VI.,  and  repeated  by  Charles  I.,  to  the  ma- 
gistrates of  Edinburgh  as  to  the  best  means 
of  supporting  the  Established  clergy  of  the 
city.  Acting  on  these  suggestions,  the  ma- 
gistrates applied  to  the  Scotch  Parliament  for 
authority  to  levy  tbe  assessment.  Parliament 
remitted  the  matter  to  the  Privy  Council, 
with  power  to  act  as  they  saw  just ;  and  in 
March  1634  the  Privy  Council  ordained  the 
levy,  and  in  January  1636  the  King  approved 
of  it.  When  first  imposed  the  aggregate  sum 
to  be  levied  was  limited  to  a  maximum ;  but 
afterwards  a  general  assessment  of  6  per  cent, 
on  the  rental  was  authorized,  by  a  statute 
passed  6th  June  1661,  which  is  now  the  lead- 
ing authority  for  the  assessment.  The  more 
recent  statutes  in  which  this  assessment  is  re- 
cognised are  7  Geo.  III.,  c.  27,  25  Geo.  III., 
c.  28,  26  Geo.  III.,  c.  113,  and  49  Geo.  III., 
c.  21,  by  which  last  statute  the  assessment  is 
made  applicable  to  the  support  not  only  of 
the  ministers  of  the  then  existing  churches, 
but  of  those  of  such  churches  as,  in  virtue  of 
that  statute,  might  be  erected  in  the  extended 
royalty.  The  other  sources  of  emolument  to 
the  endowed  clergy  of  Edinburgh  are  the  in- 
terest of  a  sum  of  £2000  in  lieu  of  the  duty 
of  a  merk  per  ton  and  pack  formerly  levied 
upon  goods  brought  into  Leith  and  Edin- 
burgh, and  applied  to  the  payment  of  the 
ministers  of  the  city  of  Edinburgh,  but  which 
duty  was  abolished  by  1  and  2  Vict.,  c.  55, 
§  16, — and,  also,  the  interest  of  5000  merks 
mortified  by  Lady  Tester.  The  annuity-tax 
is  by  far  the  most  important  of  these  sources 
of  income,  and  the  produce  of  the  whole 
yields  the  very  moderate  stipend  of  about 
£500  per  annum  to  each  minister.  Members 
of  the  College  of  Justice  are  exempted  from 
the  annuity-tax.  Montrose,  it  is  believed,  is 
the  only  other  town  in  Scotland  in  which  a 
similar  provision  is  made  for  the  support  of 
the  clergy.  See  Paterson,  11th  March  1829, 
7  5.  573.  See  on  the  subject  of  this  article 
First  Report  of  Commissioners  of  Religious  In- 
struction, 1 837. 

Annuities,  An  annuity  is  the  right  to  a 
yearly  payment  in  money.  When  secured  on 
land  it  becomes  a  conventional  liferent,  and  a 
deMtun  fundi,  diflFering  from  annualrent  rights 
chiefly  in  this,  that  it  has  no  relation  to  a  ca- 
pital sum  or  stock.  Annuities  are  either  set- 
tled as  a  permanent  aliment  on  the  annuitant 
for  family  purposes,  or  from  favour ;  or  they 
are  constituted  by  bond  of  annuity,  whereby 
the  obligor  engages  to  make  t«  the  obligee  a 
certain  yearly  payment,  in  consideration  of  a 
price  deemed  adequate  at  the  time.  Such  as 
are  for  a  fixed  term  of  years  are  called  An- 


nuities Certain ;  such  as  depend  on  the  dursr 
tion  of  human  life  are  called  .innttttiet  m 
Lives.  The  creditor  in  an  annuity  may  ad- 
judge heritable  property  sufficient  to  answer 
his  claim,  and  it  has  also  been  held  that  h( 
may  arrest  a  fund  of  lying  money  sufficient  t« 
cover  his  annuity.  An  annuitant,  in  bring- 
ing his  action  for  recovery  of  his  annuity, 
claims  a  capital  sum  sufficient  to  produce  sn 
annual  interest  equal  to  the  annuity.  If  be 
succeed,  the  requisite  sum  is  recovered  and 
invested  or  secured,  and  the  interest  of  it  is 
paid  to  him  until  the  expiration  of  the  an- 
nuity, when  the  capital  is  restored  to  the 
debtor  in  the  annuity ;  or  the  same  object  may 
be  attained  under  an  arrangement  for  the  pur- 
chase of  an  annuity  from  an  insurance  com- 
pany. In  bankruptcy  a  dividend  correspond- 
ing to  this  capital  was  in  like  manner  taken, 
which  capital,  on  the  expiration  of  the  an- 
nuity, became  the  property  of  the  creditors. 
In  ranking  annuities  and  contingent  debts, 
however,  a  more  convenient  custom  hasof  Ut« 
been  introduced  of  putting  a  value  upon  them 
as  at  the  period  of  division,  taking  into  ac- 
count the  interest  of  money,  tbe  chances  of 
life,  and  other  circumstances ;  and  the  credi- 
tor is  ranked  for  this  value  in  full  of  bis 
claim,  and  entitled  to  draw  a  corresponding 
dividend.  There  was  often  necessarily  much 
doubt  and  difficulty  in  fixing  this  value ;  for  a 
full  exposition  of  which  see  BeWs  Corn.  vol.  L 
p.  339,  5th  edit. 

By  the  Bankruptcy  Statute  19  and  20  VicJ., 
c.  79,  it  is  enacted,  that  no  creditor,  in  respect 
of  an  annuity  granted  by  the  bankrupt,  diall 
be  entitled  to  vote  and  draw  a  dividend  until 
such  annuity  shall  be  valued.  The  Sheriff, 
before  the  election  of  a  trustee,  nnd  the  trus- 
tee thereafter,  is  directed  to  put  a  value  on 
the  annuity,  regard  being  had  to  the  original 
price  given  for  the  annuity,  deducting  there- 
from such  diminution  in  the  value  of  the  an- 
nuity as  shall  have  been  caused  by  the  lapse 
of  time  since  the  grant  thereof  to  the  date  of 
the  sequestration,  and  the  creditor  is  entitled 
to  vote  and  draw  dividends  in  respect  of  snrh 
value  and  no  more,  but  it  is  provided  that  the 
judgment  of  the  Sheriff  or  trustee  shall  lie 
subject  to  review  ;  and  any  creditor 'Who  has 
claims  on  the  estate  may  appeal  or  apjiear  and 
be  heard  on  any  appeal. 

Redeemable  Bonds  of  Annuitt/  are,  generally 
speaking,  mere  expedients  for  Eccuiing  the 
lender  of  a  sum  of  money  in  high  interest,  and 
in  repayment  of  the  capital  on  the  expiration 
of  the  life.  They  are  contracts  I  y  which  the 
borrower  becomes  bound  to  pay  to  the  lender, 
while  the  selected  life  endures,  an  annuity  o( 
sufficient  amount  to  cover  not  only  »  high  in- 
terest, but  also  a  premium  of  insurance  upon 
the  life  selected.     Caution  is  given,  or  lands 


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are  eonreyed,  in  security  of  tbe  payment,  and 
the  borrower  has  it  in  his  option  to  redeem 
tbe  right  on  repayment  of  the  sum  advanced. 
Annuities,  as  having  tracttim  futuri  temporis, 
are  heritable,  and  an  obligation  to  pay  them 
hits,  like  other  similar  burdens,  upon  tbe  heir 
of  the  deceased.  They  do  not  vest  d«  die  in 
Jim,  bnt  at  the  specified  terms  of  payniont, 
which  are  usually  Whitsunday  and  Martin- 
mss.  Arrestment  of  an  annuity  before  tbe 
term  when  it  fell  due  has  been  sustained  to 
carry  the  annuity,  when  the  annuitant  actu- 
allj  survived  that  term.  Certain  annuities,  as 
tbtt  of  a  minister's  widow  or  of  the  widow  of  a 
writer  to  the  signet,  are,  under  special  statutes, 
not  arrestable,  the  principle  of  such  enactments 
being  that  these  are  truly  alimentary  annui- 
ties. On  tbe  subject  of  this  article  see  BeU'i 
Cm.  vol.  i.  p.  336,  et  seq.,  356, 360  ;  Mr  Move's 
N«la  im  Stair,  p.  cxii. ;  Ertk.  B.  ii.  tit.  9,  § 
43 ;  B.  iii.  tit.  6,  §  9 ;  BelPt  Princ.  §§  1484, 
1498;  Smnt.  ahridg.  A.  t.;  Brown's  Syiwp. 
pp.  135,  1555;  ShantFt  Practice;  Menzies' 
Cottefancing,  204,  310  ;  Jurid.  Styles,  vol.  i., 
4th  edit. ;  vol.  ii.,  3d  edit. ;  vol.  iii.,  2d  edit. ; 
13  5.  pp.  199, 1112. 

Aiutna  deliberandi;  is  tbe  year  allowed 
by  law  to  tbe  heir  to  deliberate  whether  he 
will  enter  and  represent  his  ancestor.  The 
entry  of  an  heir  infers  serious  responsibilities, 
and  therefore  tbe  year  is  allowed  for  consi- 
deration. The  annus  deliberandi  commences  on 
the  death  of  the  ancestor,  unless  in  the  case 
of  a  posthumous  heir,  in  which  case  the  year 
mns  from  the  heir's  birth.  But  the  period 
for  deliberating  will  not  be  extended  on  ac- 
eoant  of  the  heir's  ignorance  of  the  ancestor's 
d«ath,  aa,  for  example,  where  the  ancestor  has 
died  abroad.  A  poinding  of  tbe  ground,  how- 
ever, at  the  instance  of  tbe  predecessor's  wi- 
dow for  her  jointure  may  proceed  against  tbe 
lands  within  the  annus  deliberandi,  to  which 
process  the  heir  may  be  competently  made  a 
party;  M.  6876.  The  heir  may  also  be 
charged  to  enter ;  but  no  procedure  can  fol- 
low on  the  charge  within  the  year.  And  he 
may  be  cited  in  an  action,  provided  the  diet 
of  compearance  falls  beyond  the  year ;  for 
within  the  year  he  is  not  bound  to  answer  in 
any  action  in  which  he  must  appear  as  heir. 
If  the  apparent  heir  die  within  the  year,  the 
next  heir  has  his  own  entire  year,  from  the 
death  of  the  apparent  heir.  The  privilege  of 
deliberating  is  terminated  not  only  by  the 
lapse  of  the  year,  but  by  the  apparent  heir's 
intermediate  service  to  his  predecessor,  or  by 
his  incurring  a  passive  representation ;  and 
the  annus  deliberandi  will  not  intermpt  the 
progress  of  an  action  of  ranking  and  sale 
Thieh  has  been  raised  against  the  predeces- 
«w.  See  on  the  subject  of  this  article,  Ersk. 
B.  iu.  tit  8,  §  54 ;  Stair,  B.  iii.  tit.  5,  §  32, 


and  tit.  5,  §  1,  and  B.  iv.  tit.  8,  §  6 ;  Bank. 
vol.  ii.  p.  310 ;  BeU's  Com.  vol.  i.  p.  710,  6th 
edit. ;  BeWs  Princ.  §  1685,  et  seq.,  and  autho- 
rities there  cited,  714,  3d  edit. ;  Broum's  St/nop. 
pp.  811,  1036,  1559,  1675;  Shato's  Digest; 
Sandford  on  Heritable  Succession,  vol.  ii.  pp. 
95,  193 ;  Shand's  Prac.  pp.  206,  et  seq.,  688, 
et  seq.  See  Apparent  Heir.  Charges  to  Enter. 
Ranking  and  Sale.    Beneficium  Inventarii. 

Answer;  the  titleof  a  written  pleadinggiven 
in  to  a  court  of  justice  by  a  party,  either  as  a 
replication  to  the  claim  of  the  pursuer,  or  to 
a  statement  ordered  by  the  judge,  or  in  sup- 
port of  a  judgment  which  has  been  brought  un- 
der review  by  a  representation  or  petition. 

Antenuptial  Contracts  of  Marriage.  See 
Contract  of  Marriage. 

Antichresis.  In  the  Roman  law,  pactum 
antichreseos  was  an  agreement,  by  wbich  tbe 
creditor  in  a  voluntary  pledge  had  the  use  and 
profits  of  the  thing  pledged,  in  lieu  of  the  in- 
terest of  the  debt.  It  might  also  be  agreed 
that  the  surplus  should  go  to  the  extinction 
of  the  debt.  This  pactum  bore  some  analogy 
to  our  wadset.  Stair,  B.  i.  tit.  13,  §  11 ; 
Bank.  vol.  i.  p.  384.    See  Wadset.    Pledge. 

Anticipation  of  Bent  See  Lease.  Oras- 
sum.     Tailzie. 

Apooha  Trinm  Annomm.  In  the  Eoman 
law,  three  annual  receipts,  and,  in  the  law  of 
Scotland,  three  consecutive  receipta  for  term- 
ly  payments,  raise  a  presumption  that  all 
prior  arrears  are  discharged,  Stair,  B.  iv. 
tit.  40,  §  35 ;  Mr  More's  Notes,  p.  cxxiii. ; 
Ersk.  B.  iii.  tit.  4,  §  10  ;  Menzies'  Conveyancing. 
See  Discharge. 

Apparent  Heir;  in  common  language,  is 
applied  to  tbe  eldest  son,  as  the  person  to 
whom  the  succession  will  probably  open.  But, 
in  Scotch  legal  phraseology,  an  apparent  heir 
is  tbe  person  to  whom  the  succession  has  ao- 
ttuMy  opened,  but  who  has  not  completed  his 
title  to  bis  predecessor's  estate,  or  taken  up 
tbe  succession  by  service,  or  by  infeftment  on 
a  precept  of  clare  constat.  An  apparent  heir 
is  entitled  to  the  annus  deliberandi,  within 
which  time  he  may  consider  the  consequences 
of  bis  entry,  and  resolve  to  take  up  or  to  re- 
nounce tbe  succession.  (See  Annus  deliber- 
andi.) With  that  view,  the  apparent  heir  is 
entitled  to  pursue  an  action  of  exhibition  ad 
deliberandum;  that  is,  he  may  compel  those 
who  are  possessed  of  his  ancestor's  title-deeds 
to  produce  them  for  his  inspection  and  infor- 
mation. He  may  also  defend  the  titles  of  his 
ancestor  when  challenged.  He  may  draw 
and  discharge  tbe  rents,  or  even  pursue  for 
them.  His  executor  seems  to  be  entitled  to 
draw  what  may  have  fallen  during  the  heir's 
apparency,  and  which  remained  undrawn  at 
the  time  of  his  death.  An  apparent  heir, 
however,  cannot  remove  his  predecessot's  ten- 


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ants.  To  enable  him  to  do  bo,  he  must  have 
completed  his  title.  But  in  the  case  where 
the  tenant  has  taken  his  lease  from  the  appa- 
rent heir  himself,  during  his  apparency,  the 
tenant  cannot  defend  himself  against  a  re- 
moving, by  disputing  the  title  of  the  person 
with  whom  he  has  thus  contracted.  An  ap- 
parent heir  may  pursue  a  judicial  ranking 
and  sale  of  his  ancestor's  estate,  whether  it 
be  bankrupt  or  not ;  1695,  c.  24.  The  ex- 
pense of  the  action  is  paid  from  the  estate, 
when  there  is  no  surplus  after  paying  the  cre- 
ditors ;  but,  when  there  is  a  surplus,  the  ex- 
pense must  be  taken  from  it.  An  apparent 
heir  is,  in  certain  circumstances,  entitled  to 
an  aliment  from  a  liferenter  in  possession  of 
the  estate;  see  AUment.  He  may  also,  in 
virtue  of  his  apparency,  reduce  deathbed 
deeds.  The  creditors  of  an  apparent  heir 
are  postponed  to  those  of  his  immediate  an- 
cestor, as  to  the  defunct's  heritable  estate, 
provided  the  ancestor's  creditors  do  diligence 
against  the  apparent  heir,  and  the  real  estate 
belonging  to  the  deceased,  within  three  years 
after  bis  death  ;  1661,  c.  24.  The  same  sta- 
tute declares  that  no  right  or  disposition  af- 
£Bcting  the  heritage  of  the  defunct,  made  by 
an  apparent  heir,  even  after  his  entry  and 
infeftment,  shall  be  valid  to  the  prejudice  of 
the  predecessor's  creditors,  unless  such  right 
or  disposition  be  made  and  granted  a  full  year 
after  the  defunct's  death.  By  the  act  1695, 
c.  24,  the  onerous  acts  of  an  apparent  heir, 
three  years  in  possession,  are  rendered  effec- 
tual against  the  estate  which  he  possessed 
under  his  right  of  apparency ;  it  being  there- 
by declared,  that  an  heir  passing  by  his  im- 
mediate ancestor,  and  entering  to  one  more 
remote,  or  succeeding  by  adjudication  on  his 
own  bond  to  one  more  remote,  shall  be  liable 
for  the  debts  and  deeds  of  the  interjected  per- 
son (who  has  been  three  years  in  possession) 
to  the  value  of  the  estate ;  but  when  the  heir 
obtains  possession  without  having  completed 
his  title,  he  is  not  held  to  represent  the  appa- 
rent heir.  This  is  an  omission  in  the  statute. 
Titles  of  honour,  leases  held  by  his  predeces- 
sor, and  rights  not  feudal  having  a  tract  of 
future  time,  vest  in  the  apparent  heir  ipto 
jure,  and  without  service.  See  Ersk.  B.  ii. 
tit  12,  §  61,  and  B.  iii.  tit.  8,  §§  54, 77  ;  BeU's 
Com.  i.  99,  664;  Stair,  B.  iii.  tit.  5,  §  1,  «< 
seq.,  and  §  60 ;  B.  iv.  tit.  26,  §  8 ;  Mr  More's 
NoUg,  cccxxx.  cccxxxvi.  ccclviii. ;  Bank,  vol.  ii. 
pp.  310,  322,  ««  seq. ;  Bell's  Princ.  §  1677,  et 
seq.,  §  1929,  et  seq.,  and  authorities  there  cited; 
Hunter's  Landlord  and  Tenant;  Sandford  on 
Entails,  76,  et  seq.,  96,  et  seq. ;  Bell  on  Pur- 
chaser's Title,  p.  81,  e(  seq.,  2d  edit. ;  Watson's 
Stat.  Law,  h.  t. ;  Jurid.  Sti/les,  vol.  ii.  p.  101, 
3d  edit. ;  Meniies'  Conveyancing.  See  Annus 
deliberandi.    BeMJicium  Inventarii. 


A^eal  to  the  Hoqm  of  Lord*.  Appe&ls 
are  competent  from  final  judgments  of  the 
Court  of  Session,  Court  of  Exchequer,  wid 
Commission  of  Teinds,  but  not  from  the  Court 
of  Justiciary,  or  from  the  verdict  of  a  jury, 
or  from  the  judgment  of  the  Court  of  Ses- 
sion, reviewing  a  judgment  of  an  inferior 
court  proceeding  upon  a  proof,  in  so  far  as  it 
finds  certain  facts  to  be  established  by  saeh 
proof;  6  Geo.  IV.,  c  120,  §  40.  And  wken 
the  Court  of  Session  pronounces  a  judgment 
out  of  the  ordinary  course  of  its  public  juris- 
diction, as  when  the  parties  have  by  agree- 
ment substituted  the  Court  for  a  jury,  no 
appeal  lies;  Dudgeon,  dx.,  Ist  Aug.  1854, 
1  Macqueen,  714;  Craig,  22d  Feb.  1849, 
6  Bell,  308.  Appeals  are  also  competent 
from  interlocutory  judgments  of  the  Court  of 
Session,  if  with  the  leave  of  the  Division  pro- 
nouncing such  interlocutory  judgment,  or,  in 
cases  where  there  is  a  difference  of  opinion 
among  the  Judges,  such  leave,  or  difference  of 
opinion,  being  certified  by  two  of  the  counsel  in 
the  cause ;  48  Oeo.  IIL,  c.  151,  and  Standing 
Order  of  the  House  of  Lords,  9th  April  1812. 
As  to  jury  causes,  the  result  of  some  ratherper- 

?lexing  statutory  enactments  seems  to  be,  1st, 
'hat  the  determination  of  questions  of  law 
or  relevancy,  previous  to  trial,  is  not  open 
to  appeal  without  the  express  leave  of  the 
Court,  -reserving  the  effect  of  the  objection 
in  any  appeal  to  be  finally  taken ;  6  Geo.  JV., 
c  120,  §  33.  2d,  In  all  cases  of  general  ver- 
dicts, the  order  of  the  Court,  granting  or  re- 
fusing a  new  trial,  is  not  subject  to  appeal ; 
59  Geo.  III.,  c.  35,  §  16.  Sd,  But  if  a  bill 
of  exceptions  have  been  tendered,  or  a  motion 
made  for  setting  aside  the  verdict,  on  the 
ground  of  misdirection  by  the  judge  at  the 
trial  in  matter  of  law,  or  of  the  undue  rejec- 
tion or  admission  of  evidence,  the  party 
against  whom  judgment  is  given  may  ap- 
peal ;  59  Geo.  III.,  e.  35,  §  17 ;  55  Geo.  III., 
0. 42,  §  7 .  The  appeal  must  be  presented  to  the 
House  of  Lords  within  fourteen  days  after 
the  interlocutor  has  been  pronounced,  and  if 
Parliament  be  not  sitting,  within  eight  days 
after  the  commencement  of  the  next  sesaioo. 
The  case  of  Melrose  A  Co.,  28th  Feb.  1854, 
1  Maeq.  698,  shows  how  imperative  this  re- 
gulation is,  and  that  it  supersedes,  in  so  far  as 
regards  the  particular  appcak  to  which  it  re- 
fers, the  15th  section  of  48  Geo.  III.,c.  161, 
which  makes  it  competent,  when  a  judgment 
or  decree  is  appealed  from,  to  either  party  to 
appeal  from  aU  or  any  of  the  interlocutors  that 
may  have  been  pronounced  in  the  cause,  so 
that  the  whole,  so  far  as  it  is  necessary,  may 
be  brought  under  review  of  the  House  of 
Lords.  It  is  competent  too  to  appeal  against 
a  judgment  pronounced  upon  a  question  as 
to  the  admissibility  of  evidence,  reserved 


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ai  a  JH17  trial  for  the  opinion  of  the  Court ; 
Ma&tton  A  Son,  27Ui  March  1849,  6  BeU, 
374.  4(i,  Unleu  in  the  case  of  bills  of  ex- 
oijtiaoi,  or  of  motions  for  new  trial  on 
th«  ground  of  misdirection,  or  of  the  undue 
sdninoB  or  rejection  of  evidence,  appeal 
against  the  judgment  refusing  a  motion  for  a 
MV  trial  on  any  other  ground  is  not  compe- 
tnt;  MmfarlMMe'*  Prac.  258.  5th,  Such  ap- 
peals, when  otherwise  competent,  hare  the 
prinlMe  of  a  summary  hearing ;  55  Geo.  III., 
(.42,  $7.  6ti,  The  House  of  Lords  cannot 
ofdsr  a  new  trial,  unless  they  allow  the  bill 
<f  exceptions ;  and,  in  all  cases  where  they 
an  of  opinion  that  the  law  directed  at  the 
trial,  or  the  determination  to  receive  or  re- 
ject endence,  was  correct,  they  are  to  make 
SB  «rder  that  the  exception  be  disallowed, 
and  the  verdict  carried  into  effect  by  a  judg- 
B«at  tiiereon  for  the  party  in  whose  favour 
it  vas  fbond;  7  WilL  17.,  c.  14.  See  also 
1  VOL  IV.,  c  69,  incorporatug  the  Jury 
Court  with  the  Conrt  of  Session :  and  Mae- 
fmimfi  Prac.  pp.  63,  258, 279.  An  appeal 
ii  etnpetent  ag^nst  a  judgment  applying  a 
ferdict,  where  it  involves  a  question  of  law 
arisBf  ont  of  the  verdict ;  Morgan,  dkc,  26th 
July  1855, 2  Maeq.  342 ;  66  Gto.  III.,  c.  42, 
$  9.  An  appeal  to  the  Honae  of  Lords  on 
tbe  BMre  question  of  expenses  is  incompetent ; 
Sieutt  Prac.  1029.  It  is  also  incompetent 
to  a^Mal  directly  from  an  interlocutor  of  the 
liori  Ordinary  unreviewed  by  the  Conrt. 
48  dm.  III.,  c.  151. 

A  party  intending  to  appeal  must,  by  his 
>grat  in  the  Court  of  Session,  give  written 
Mtitttothe  agent  of  his  adversary  that  a 
p«titi«n  of  appeal  against  the  judgment  will 
be  ptaented  on  a  stated  day,  or  as  soon  there- 
*rar  as  conveniently  may  be ;  "  and  the  day 
«  vkich  snch  notice  was  given  shall  be  in- 
imA  by  Uie  agent  or  agents  of  the  peti- 
ttaotr  on  the  back  of  the  said  appeal;" 
Stmdhg  Order,  9^  AprU  1812.  The  petition 
of  appnl  fsee  Juridical  Stylet,  vol.  iii.  p.  877) 
uintea  the  grounds  of  action  without  en- 
(*riag  into  discussion  of  the  merits,  and  the 
fraetdnre  in  it  down  to  the  date  of  the  last 
■■■Meentor  appealed  from ;  and  in  cases  of 
^vocation  of  an  inferior  court  process,  the 
otsriocBtors  of  that  court,  if  adverse,  ought 
*1»  to  be  included  in  the  appeal.  It  prays 
'Ixt  the  judgments  or  parts  of  judgments  ad- 
»«» to  the  interests  of  the  appellant  may  be 
•Waed,  varied,  or  altered.  It  must  be 
■MSMd  by  two  counsel,  who  must  also  certify 
^^in  their  opinion,  there  are  reasonable 
fVMdi  of  appeal ;  and  it  mnst  be  presented 
'*  A*  House  of  Lords  within  two  years  from 
^•xtraeting  of  the  decree,  or  at  least  within 
'"'•"•a  days  after  the  first  day  of  the  session 
WMitiBg  of  Parliament  next  ensuing  the 


expiration  of  the  said  two  years.  When  an 
appeal  is  taken  against  a  judgment  pronounced 
during  the  sitting  of  Parliament,  the  petition 
must  be  presented  within  twenty  days  after 
the  date  of  the  judgment,  otherwise  it  can- 
not be  received  that  session.  Where,  how- 
ever, the  party  entitled  to  appeal  is  under 
age,  or  covert,  turn  compos  mentit,  imprisoned, 
or  out  of  Qreat  Britain  or  Ireland,  the  period 
for  appealing  is  extended  to  "  two  years  after 
his  full  age,  discoverture,  coming  of  sound 
mind,enlargementoutof  prison, or  coming  into 
Great  Britain  or  Ireland,  and  fourteen  days 
to  be  counted  from  and  after  the  first  days  of 
the  session  or  meeting  of  Parliament  next  ensu- 
ing the  said  two  years,  but  not  afterwards  or 
otherwise ;  and  it  is  further  ordered,  that  in 
no  case  shall  any  person  or  persons  be  allowed 
a  longer  time,  on  account  of  mere  absence,  to 
lodge  an  appeal,  than  five  years  from  the 
date  of  the  last  decree  or  interlocutor  appealed 
against ;  6  Geo.  IV.,  c.  120,  §  25,  and  Stand- 
ing Order,  24lh  March  1725,  amended  22d  June 
1829.  A  petition  for  leave  to  appeal  against  an 
interlocutory  judgment  more  than  two  years 
after  its  date  is  incompetent;  11  D.  1193. 

When  a  petition  of  appeal  is  presented,  an 
order  of  service  is'  granted  as  a  matter  of 
course,  and  the  respondent  is  ordered  to  put 
in  his  answer  in  four  weeks.  The  order  is 
served  on  the  agent  or  counsel  of  the  other 
party,  by  delivering  him  a  copy,  and  showing 
him  at  the  same  time  the  original ;  and  the 
service  is  proved  by  an  affidavit,  which  may 
be  written  on  the  back  of  tiie  order,  sworn 
by  the  person  who  has  served  the  warrant  in 
presence  of  a  judge  or  justice  of  peace.  With- 
in fourteen  days  from  the  presenting  of  the 
appeal,  the  appellant  (with  the  exception  of 
the  Lord  Advocate),  or  some  responsible  per- 
son for  him,  must  enter  into  a  recognisance 
to  the  extent  of  £400,  to  answer  the  expense 
which  may  be  awarded  to  the  respondent  in 
case  of  an  affirmance ;  and  without  this  re- 
cognisance, the  appeal  falls.  A  pro  forma 
answer  is  lodged  by  the  respondent,  and  cases 
are  prepared  for  both  parties.  That  of  the 
appellant  must  be  lodged  within  four  weeks 
after  the  time  appointed  for  the  respondent 
to  put  in  his  answers  to  the  petition  of  appeal, 
under  penalty  of  dismissal  of  the  appeal.  But 
the  appellant  may  present  a  petition,  within 
the  prescribed  time,  craving  a  prorogation, 
which  petition  is  referred  to  the  Appeal  Com- 
mittee. The  case  of  the  respondent  must  be 
lodged  within  the  same  period ;  but  non-com- 
pliance on  the  respondent's  part  only  subjects 
him  to  the  danger  of  having  the  cause  set  down 
for  hearing  ex  parte,  which  he  can  remove  by 
stating  a  satisfactory  reason  for  his  delay,  and 
paying  the  expenses  thereby  occasioned  to  the 
appellant.    It  is  ordered,  that  "  the  appellant 


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alone,  in  bis  printed  case,  shall  lay  before  this 
House  a  printed  copy  of  the  record  as  au- 
thenticated by  the  Lord  Ordinary,  together 
with  a  supplement  containing  an  account, 
without  argument  or  statement  of  other  facts, 
of  the  further  steps  which  have  been  taken  in 
the  cause  since  the  record  was  completed; 
and  containing  also  copies  of  the  interlocu- 
tors or  parts  of  interlocutors  complained  of ; 
and  each  party  shall,  in  their  cases,  lay  be- 
fore the  House  a  copy  of  the  case  presented 
by  them  respectively  to  the  Court  of  Session, 
if  any  such  case  was  presented  there,  with  a 
short  summary  of  any  additional  reasons  upon 
which  he  means  to  insist ;  and  if  there  shall 
have  been  no  case  presented  to  the  Court  of 
Session,  then  each  party  shall  set  forth  in  his 
case  the  reasons  upon  which  he  founds  his  ar- 
gument, as  shortly  and  succinctly  as  possible  ;" 
Standing  Order,  I2th  July  1811,  amended  bii 
Ord.  22d  June  1829,  and  6  Geo.  IV.,  e.  120, 
§  26.  The  case  must  also  contain  a  copy  of  such 
proofs  taken  in  the  Courts  below  as  the  parties 
intend  respectively  to  rely  on  at  the  hearing, 
together  with  references  to  the  documents ; 
Standing  Orders,  24th  Feb.  and  8ih  Dec.  1813. 

The  cases  are  exchanged  by  the  agents  in 
London,  and  counsel  are  heard  at  the  bar 
when  the  cause  is  on  the  list  of  the  day  for 
hearing,  it  being  the  duty  of  the  appellant 
within  a  certain  time  to  move  that  the  cause 
be  set  down  for  hearing,  under  penalty  of  dis- 
missal of  his  appeal;  Standing  Order,  29th 
March  1720,  amended  5th  April  1734.  Judg- 
ment is  usually  pronounced  soon  after  the 
hearing,  affirming  or  reversing  the  judgments 
appealed  from,  or  remitting  the  cause  to  the 
Court  of  Session  for  reconsideration.  The 
execution  of  the  judgment  is  obtained  by  pre- 
senting an  authentic  copy  of  it,  with  a  peti- 
tion, to  the  Court  of  Session,  praying  that  it 
may  be  applied  ;  and  the  procedure  after  ap- 
peal is  regulated  by  the  forms  of  the  Court  of 
•Session  and  of  the  statute. 

A  successful  pursuer  may  apply  by  sum- 
mary petition  to  the  Court  for  interim  execu- 
tion, pending  an  appeal  to  the  House  of  Lords ; 
48  Geo.  III.,  c.  151,  §  17.  This  statute  em- 
powers the  Court  to  regulate  all  matters  re- 
lative to  interim  poissession  or  execution,  and 
payment  of  costs  and  expenses  already  incur- 
red, according  to  their  sound  discretion,  hav- 
ing a  due  regard  to  the  interests  of  the  par- 
ties, as  they  may  be  affected  by  the  affirmance 
or  reversal  of  the  judgment.  The  applicant 
must  find  caution  to  refund  in  the  event  of  a 
reversal.  An  order  for  interim  payment  does 
not  found  a  riglit  of  action  in  England ;  Pa- 
trick V.  Shedden,  22  Law  Journal,  N.  S.  283. 
The  respondent  may  also  apply  by  petition  to 
the  House  of  Lords  to  have  an  appeal,  of 
which  he  has  received  notice,  dismissed  as 


incompetent  and  irregular.  Parties  are  he&rd 
before  the  Appeal  Committee,  who  report  to 
the  House  their  opinion,  which  is  invariably 
adopted ;  or  the  question  may  be  ordered  to 
be  argued  at  the  bar  of  the  House  ;  and  if 
the  appeal  be  dismissed,  a  certificate  to  that 
effect  is  furnished  to  the  respondent,  and  the 
interlocutor  or  decree  appealed  from  is  re- 
vived, to  the  same  effect  as  if  no  appeal  bad 
been  entered.  Provision  is  made  for  appeals 
"  dismissed  for  want  of  prosecution,"  by  48 
Geo.  III.,  c.  151,  §  20.  Where  a  respondent 
desires  to  present  a  cross-appeal,  this  must  be 
done  within  a  fortnight  after  his  answer  is 
given  in  to  the  original  appeal.  It  is  pre- 
sented, and  an  order  made  as  upon  the  ap- 
pellant's petition.  Recognisance  is  not  ne- 
cessary, nor  is  au  additional  case  from  either 
party  required. 

An  appeal  to  the  House  of  Lords  does  not 
remove  the  process  from  the  Court  of  Session 
as  regards  any  point  not  necessarily  depen- 
dent upon  the  interlocutor  submitted  to  re- 
view ;  13  and  14  Vict.,  c.  36,  §  13.  The  in- 
terlocutor of  the  Inner-House,  pronounced 
on  review  of  the  interlocutor  of  the  Lord 
Ordinary  closing  the  record,  is  not  appeal- 
able as  an  interlocutory  judgment ;  Ibid.  §  5. 
In  processesof  cessio,  a  petition  of  appeal  must 
be  lodged  within  ten  days  from  the  date  of 
the  judgment  during  the  sitting  of  Parlia- 
ment, if  it  sit  for  so  many  days,  otherwise 
within  six  days  after  the  next  session  shall 
have  met ;  6  and  7  Will  IV.  c  56,  §  19. 

See  on  the  subject  of  this  article.  Smithes 
Form*  of  Procedure  in  the  Home  of  Lord*  mpon 
Appeals  from  Scotland,  which  contains  a  con- 
cise view  of  the  whole  practice  of  the  House 
upon  appeals,  the  Standing  Orders,  and  a 
table  of  fees.  See  also  Shaw's  Forms  of  Pro- 
cess, pp.  433-442,  where  the  statutes.  Standing 
Orders,  and  decisions  of  the  Court,  are  di- 
gested ;  and  Macqueen's  Practical  Treatise  on 
the  Appellate  Jurisdiction  vfthe  Bouse  of  Lords 
and  Privy  Council,    See  Expenses, 

Appeal  to  Circuit  Court  The  Jnriadie- 
tion  Act  (20  Geo.  II.,  c.  4H)  allows  an  appeal 
to  be  taken  to  the  Circuit  Court  of  Justiciary; 
1st,  In  criminal  cases  against  the  judgment 
of  an  inferior  court,  inferring  neither  death 
nor  demembration  ;  and,  2d,  In  civil  causes, 
where  the  sum  in  dispute  does  not  exceed  £12 
sterling  (extended  to  £25  sterling  by  54  Geo. 
III.,  67,  §  5).  These  appeals  must  be  lodged 
with  the  clerk  of  the  inferior  court,  within 
ten  days  after  the  judgment  has  been  pro- 
nounced; and  the  adverse  party,  or  his  agent, 
and  the  inferior  judge  himself  (where  the  ap- 
peal contains  any  conclusion  against  him), 
must  be  served  with  a  copy  of  the  appeal 
fifteen  days  at  least  before  the  sitting  of  the 
circuit  court.     No  such  appeal  is  competent 


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«ic«pt  against  a  final  judgment  of  the  inferior 
court;  i.  «.,  a  judgment  by  which  the  merits 
of  the  eanse,  as  well  as  the  expenses,  are  dis- 
posed of;  bat  it  is  not  necessary  that  ex- 
lientes,  where  found  due,  be  taxed  and  de- 
cerned for ;  Dundee  Whale  Fishing  Company, 
\i\k  Oct.  1848,  Shmc's  Just.  Rep.  15.  By 
tlie  Acts  of  Sederunt  regulating  inferior 
eoorta,  these  appeals  in  civil  causes  may  be 
Uken  and  minuted  in  open  Court,  at  the  time 
of  proDOODcing  the  judgment ;  or  they  may 
be  taken  by  lodging  a  written  appeal  in  the 
hudi  of  the  clerk  of  Court,  and  serving  a  du- 
plicate of  it  upon  the  opposite  party  or  his 
prgenrator,  personally,  or  at  his  dwelling- 
house,  and  in  either  case  within  ten  days 
afier  tiie  date  of  the  sentence,  and  fifteen 
(U;i  at  least  before  the  sitting  of  the  Circuit 
ConrL  Along  with  his  appeal  the  appellant 
nust  lodge  a  bond  of  caution  for  answer- 
ing and  abiding  by  the  judgment  of  the  Cir- 
esit  Court,  and  for  costs,  should  they  be 
iwarded,  the  circuit  judges  being  empowered 
t«  award  the  opposite  party's  expenses  against 
tlie  appellant.  In  point  of  form  these  ap- 
peals are  variously  framed ;  but  in  general 
tley  are  short  and  articulate,  containing  a 
Kfies  of  reasons  of  appeal,  and  a  prayer  for 
ncal  or  alteration  of  the  judgment.  The 
circnit  judges  must  proceed  with  such  cases 
iBBinaril; ;  and  their  decision  is  final,  and 
not  subject  to  review  of  any  kind.  But  in 
OKI  of  difficulty,  the  case,  where  a  criminal 
OM,  may  be  certified  to  the  High  Court  of 
Justiciary;  and  where  civil,  to  the  Division 
of  die  Court  of  Session  to  which  the  judge 
vlu)  hears  the  appeal  belongs ;  the  judgment 
of  the  Court  on  the  point  so  certified  being 
aJMinaL  Where  the  sentence  of  the  infe- 
rior court  is  recalled,  and  the  case  does  not 
tppear  to  the  circuit  judge  to  he  matured,  he 
Bay  recal  the  judgment  ^pealed  from,  and 
remit  to  the  inferior  court  with  instructions ; 
uid  imder  such  a  remit,  if  the  question  of  ex- 
penes  be  reserved,  the  inferior  judge  has 
pwer  to  decern  for  the  expenses  incurred  in 
(Im  Circuit  Court :  but  in  that  case,  as  the 
UDtenee  appealed  from  is  recalled,  the  can- 
tiooer  in  the  appeal  will  not  be  liable  for  the 
etpeuns.  Here,  as  in  advocations,  it  is  to 
tl>e  eooclnsions  of  the  summons  or  original 
petition  in  the  cause  that  regard  must  be  had 
in  cAiinating  the  £25.  If  the  sum  concluded 
^  (exelnsive  of  the  conclusion  for  expenses 
•f  process)  exceed  £25,  or  where  no  particu- 
IvRn  is  concluded  for,  if  the  subject-matter 
*f  the  action  truly  exceeds  £25  in  value,  the 
•fftal  is  incompetent.  The  act  20  Geo.  II., 
<•  43,  has  been  held  not  to  warrant  appeals 
hm  the  sentences  of  justices  of  the  peace  to 
ihe  Circuit  Court ;  nor  from  the  seutence  of 
^  vatsr-bailie  of  Glasgow,  nor,  so  far  as 


appears,  from  a  judgment  of  the  dean  of  guild; 
per  curiam,  in  Donaldson,  21st  Nov.  1828  7  S. 
41.  Neither  is  it  competent  to  appeal  a  case 
of  nuisance ;  or  an  action  of  removing  or 
ejection.  The  entry  of  an  appeal  to  the  Cir- 
cuit Court,  which  has  not  been  insisted  in,  or 
which  has  been  dismissed  as  incompetent,  is 
no  bar  to  an  advocation,  where  that  mode  of 
review  is  otherwise  competent. 

By  16  and  17  Vict.,  c.  80,  §  22,  it  is 
declared  not  to  be  competent  to  remove  from 
a  sheriff  court,  or  to  bring  under  review  of 
the  Court  of  Session,  or  of  the  Circuit  Court 
of  Justiciary,  or  of  any  other  court  or  tri- 
bunal whatever,  by  advocation,  appeal,  sus- 
pension, or  reduction,  or  in  any  other  manner 
or  way,  any  cause  not  exceeding  the  value  of 
£25  sterling,  or  any  interlocutor,  judgment, 
or  decree,  pronounced  in  such  cause  by  the 
sheriff.  This  prohibition  excludes  all  appeals 
to  the  circuit  from  the  sheriff,  but  not  from 
magistrates  of  burghs ;  and  it  does  not  ex- 
cluae  appeals  from  the  sheriff's  judgment  in  the 
Small  Debt  Court,  japon  the  limited  ground 
of  review  stated  in  1  Vict.,  c.  41 ;  2  Irvine's 
Rep.  166.  See  20  Geo.  II.,  c.  43 ;  31  Geo. 
II.,  c.  42 ;  54  Geo.  III.,  c.  67,  §  3  ;  A.  S.  I2th 
Nov.  1825  ;  A.  S.  10th  July  1839  ;  Ersk.  B. 
i.  tit.  3,  §  28,  and  Ivory's  Notes ;  Hume,  ii. 
616  ;  BeU't  Notes,  808 ;  Alison's  Prac.  82, 34 ; 
Barclay's  Notes  on  A.  S.  p.  70 ;  M'Glashan's 
Sheriff  Court  Prae.  pp.  443,  447.  See  also 
Advocation.    Final  Judgment.     Circuit  Court. 

Appeal.  Appeals  in  Sheriff  Courts  are 
now  regulated  by  16  and  17  Vict.,  c.  80.  It 
is  competent  to  appeal  to  the  Sheriff  any  in- 
terlocutor disposing  in  whole  or  in  part  of 
the  merits  of  the  cause.  But  by  §  19,  it  is 
enacted  that,  until  such  an  interlocutor  has 
been  pronounced,  it  shall  not  be  competent  to 
appeal  against  any  interlocutor,  not  being 
one — (1.)  Disposing  of  a  dilatory  defence  ;  or 
(2.)  Sisting  process  ;  or  (3.)  Allowing  a  proof; 
or  against  any  interlocutor  on,the  admissibility 
of  evidence  pronounced  during  the  leading  of 
a  proof,  except  as  provided  for  in  §§  17  and 
18 ;  but  that  it  shall  be  competent,  in  every 
case  in  which  an  appeal  against  an  interlocu- 
tor is  taken,  also  to  appeal  against  all  or  any 
of  the  interlocutors  previously  pronounced. 
By  §  17,  it  is  not  competent,  prior  to  the 
closing  of  the  proof,  to  appeal  to  the  Sheriff 
against  any  interlocutor  on  the  admissibility 
of  evidence  pronounced  during  the  leading  of 
the  proof;  but  it  is  competent  to  appeal  on  the 
proof  being  declared  closed,  or  within  seven 
days  thereafter.  §  18  provides  that  nothing 
in  the  act  shall  preclude  any  person  pleading 
confidentiality,  or  objecting  to  produce  writ- 
ings on  pleas  of  hypothec,  or  otherwise,  from 
taking  to  review  any  judgment  of  the  Sheriff- 
substitute  or  Sheriff  disposiug  of  such  pleas ; 


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bat  such  judgment  of  the  Sheriff-aabstitute  u 
only  reviewable  by  appeal  taken  at  the  time 
in  open  Court,  and  minuted.  By  §  16  it  is 
enacted,  that  an  appeal  to  the  Sheriff  must  be 
entered  within  seven  days  from  the  date  of  the 
interlocutor.  Within  eight  days  thereafter, 
the  appellant  may  either  lodge  a  reclaiming 
petition,  or  intimate  his  desire  to  be  heard 
orally,  and  the  Sheriff  disposes  of  the  case 
on  reclaiming  petition,  or  reclaiming  petition 
and  answers,  or  on  the  oral  debate.  If  there 
is  no  reclaiming  petition,  and  no  intimation 
from  either  party  of  a  desire  to  be  heard 
orally,  the  Sheriff  may  dispose  of  the  case 
without  farther  argument.  For  the  mode  of 
review  of  decrees  of  the  Sheriff-substitute 

f ranting  cessio,  see  6  and  7  Will.  IV.,  c.  7. 
To  appeal  to  the  Sheriff  is  competent  against 
judgments  of  the  Sheriff-substitnte  in  sum- 
mary removings  from  premises  let  for  less 
than  a  year  under  1  and  2  Vict.,  c.  119,  ex- 
cept when  such  actions  have  beeu'  remitted  to 
the  ordinary  roll ;  A.  S,  1839,  §  149.  See 
M'Glathan's  Skerif  Court  Prac.  p.  301.  See 
also  Reclaming  Petition.   Cetsio.   Sequestration. 

Appeal ;  in  the  old  criminal  law  of  Eng- 
land, was  a  vindictive  action  at  the  suit  of  the 
party  injured  by  some  heinous  offence,  in 
which  the  appellant,  instead  of  merely  seek- 
ing pecuniary  compensation,  as  in  civil  ac- 
tions, demanded  the  punishment  of  the  cri- 
minal.    Tondins,  h.  t. 

Appearanoe ;  in  legal  phraseology,  means 
the  stating  of  a  defence  in  a  cause.  Where 
a  defender  states  a  defence,  he  is  said  to  have 
appeared;  and,  in  consequence  of  that  ap- 
pearance, the  judgment  pronounced  becomes 
a  decree  in  foro,  and  cannot  be  opened  up 
when  allowed  to  become  final,  unless  where 
new  facts  have  come  to  the  knowledge  of  the 
party.  An  exception  to  this  rule  is  also  ad- 
mitted, where  decree  has  been  pronounced 
against  a  party  in  consequence  of  his  inabi- 
lity through  poverty  to  carry  on  his  case. 
See  BaUenden  v.  Duke  of  Argyle,  6th  July 
1792  ;  M.  p.  7252 ;  Shand's  Prac.  284,  311, 
314 ;  M'Olathan'i  Sheriff  Court  Prac.  198, 
305 ;  16  and  17  Viet.,  e.  80. 

Appellant ;  is  the  party  by  whom  an  ap- 
peal is  made :  the  other  party  in  the  proceed- 
ings in  the  House  of  Lords  is  termed  the  re- 
spondent 

Appenage ;  a  child's  part  or  portion,  and 
properly  the  portion  of  the  King's  younger 
children  in  France.     Tomlins,  h.  t. 

Appendant;  in  English  law,  signifies  a 
pertinent  or  accessary  to  another  inheritance 
of  greater  value,  as  a  seat  in  a  church  to 
a  house,  &c.  Tomans'  Diet.  See  Part  and 
Pertinent. 

Apportionment  Act  See  Heir  and  Exe- 
cutor. 


Apprauement ;  see  Appreiiation. 

Appraisen;  are  the  persons  appointed  to 
value  poinded  goods.  They  must  be  lioensed 
and  sworn  deJideU  administraticne.  54  Ga>. 
III.,  c.  184. 

Apprehending  of  a  Debtor ;  is  the  act  of 
arresting  adebtor  under  a  legal  warrant,  on  ae- 
conntofhisfailuretopaythedebt  Thiamaybe 
done  in  certain  cases  under  an  act  of  warding 
(see  Act  of  Warding),  but  formerly  the  <Hdi- 
nary  warrant  for  apprehending  a  debtor  was 
a  caption  issued  in  the  sovereign's  name,  and 
under  the  signet,  charging  messengers-at-arais 
to  apprehend  and  imprison  the  debtor,  and  to 
call  npon  magistrates  for  assistance  in  doing 
80.  Letters  of  caption  are  still  competent; 
bat  nnder  the  Personal  Diligence  Act  (1  and 
2d  Vict,  c.  114),  within  year  and  day  of  the 
expiration  of  a  charge  to  the  debtor  upon  the 
extracts  set  forth  in  the  act,  the  extract  and 
execution  of  charge  may  be  recorded  in  the 
Register  of  Hornings ;  and  on  presenting  the 
extract,  execution,  and  certificate  of  registra- 
tion in  the  Bill-Chamber,  with  a  minnte  en- 
dorsed in  the  terms  of  schedule  4  annexed  to 
the  act,  the  Clerk  of  the  Bill-Chamber  writes 
his  "Jiaf"  on  the  extract,  which  is  now  the 
usual  warrant  for  imprisonment.  A  aimilar 
course  is  competent  in  sheriff  Courts  in  regard 
to  the  extracts  of  Sheriff  Court  decrees,  or 
extracts  from  Sheriff  Court  books ;  and  also 
with  regard  to  the  imprisonment  of  Crown 
debtors  by  19  and  20  Vict,  c.  56  (Cktnrt  of 
Exchequer  Act).  All  magistrates  and  she- 
riffs are  bound,  when  required,  to  assist  in 
executing  a  caption,  under  pain,  on  refusal, 
of  being  made  responsible  for  the  debt.  The 
messenger-at-arms  who  is  entrusted  with  the 
caption  or  warrant,  and  his  cautioner,  are 
liable  to  pay  the  debt,  if  the  messenger  dielays 
to  execute  the  warrant  after  having  received 
instructions  to  do  so;  BdPt  Com.  vol.  ii., 
p.  543,  5th  edit.  Imprisonment  for  debt 
being  one  of  the  proo&  of  notour  bankruptcy 
under  the  act  1696,  c.  5,  and  the  law  having 
recognised  a  species  of  contlructive  imprison- 
ment, it  is  of  importance  to  attend  to  the 
manner  of  apprehending  the  debtor.  Accord- 
ing to  the  most  regular  form,  there  are  three 
successive  steps  in  apprehension — Ist,  The 
display  of  the  blazon  ;  2d,  Showing  the  war- 
rant ;  3d,  Touching  the  debtor  with  the  wand 
of  peace,  after  which  he  is  held  in  law  to  be 
in  custody;  and  should  he  thereafter  escape 
and  take  refuge  in  the  sanctuary,  the  mes- 
senger may  follow  and  seize  him  there,  and 
take  him  to  prison.  A  sist  on  a  bill  of  sus- 
pension, obtained  by  the  debtor  posterior  to 
such  apprehension,  will  not  prevent  his  incar- 
ceration, a  bill  of  suspension  and  liberation, 
where  there  are  grounds  for  it,  being  then 
the  remedy.    Either  the  regular  apprehend- 


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iug,  or  the  Mtoal  incarceration,  has  been  held 
Mffieieot  to  render  the  debtor  notour  bank- 
rupt The  apprehension,  howerer,  requires 
to  be  in  all  respects  formal.  BelPs  Com.  ii.  p. 
169, 5th  edit. ;  Erak.  B.  iv.  1. 1,  §  42,  and  Notes 
\f  Mr  Ivory.  In  the  case,  however,  of  ScoU, 
ISth  Jan.  1855, 17  D.  292,  it  was  held  that  it 
is  not  esMBtial  to  the  validity  of  snch  a  con- 
(traetiTe  imprisonment  that  the  messenger-at- 
snu  in  executing  the  diligence  make  use  of  his 
nsd  of  peace.  By  the  Bankruptcy  Act,  19 
sod  20  Vict.,  e.  79,  it  is  now  enacted,  that,  on 
tad  after  1st  Nov.  1856,  notour  bankruptcy 
ibsll  be  constituted,  mkr  alia,  by  insolvency 
(WKorriDg  with  a  duly  executed  charge  for 
psTiant,  followed  by  imprisooment  or  formal 
sod  regular  apprehension  of  the  debtor,  §  7. 
Peen  and  married  women  are  secured  against 
f«raoaal  execution  on  civil  debts — also  pupils 
jV^edalstatate,  1696,  c.  41.  A  warrant  to 
iapriaon  for  civil  debt  cannot  legally  be  exe- 
rted on  Sunday.  2  BeWt  dm.  569,  5th  edit 
For  an  exception  to    this,  see   MeditaHone 

fiifct.    See  also  Bankrupt.    ImpritonmetU. 

Ajiprentiiee,  An  apprentice  is  one  who 
engsges  by  indontore  to  serve  a  master  for  a 
ccrtaia  number  of  years,  in  order  to  be  in- 
nneted  in  some  profession,  art,  or  manufac- 
taie,  which  the  master  becomes  bound  to 
ieich  him.  The  terms  of  such  an  engage- 
neat,  ss  to  its  endurance,  apprentice-fee,  the 
rMompense  given  to  the  apprentice,  &c.,  must 
dtpend  on  the  nature  of  the  employment,  and 
tlw  particular  agreement  of  the  parties. 
Thoi^  a  pnpU  (that  is,  a  boy  under  fourteen, 
«r  s  girl  under  twelve,  years  of  age)  may  en- 
ter iato  an  indenture,  yet  he  must  have  the 
OKBrrence  of  a  parent  or  tutor,  who  alone 
«u  be  liable  in  the  penalty  for  the  non^per- 
bnuQce  of  the  engagements  on  the  part  of 
tbs  apprentice.  After  pupilarity,  when  the 
niaor  has  no  curators,  he  may  effectually 
<Bt«f  iato  an  indenture,  the  conditions  of 
vhieh  will  bind  him.  Where  the  apprentice 
^Mftt  his  service,  the  master  is  entitled  to 
ibe  a^reatice-fee,  without  deduction.  In 
Ea^aad,  it  would  appear,  that,  by  a  general 
Isw,  aa  apprentice  serves  during  seven  years 
ftr  s  privilege  which  extends  over  all  Eng- 
Ind;  whereas  in  Scotland,  an  apprentice  by 
Ui  larvka  acquires  merely  the  privilege  of 
UiwtUr's  incorporation  in  the  particular 

:  W|^  where  he  has  served,  and  in  which  his 
Mittr  carries  oo  his  business.  At  common 
wraa  apprattiee  cannot  enlist,  or  enter  the 

'  nplMvy;  and  by  9  Geo,  IV.,  c.  4,  §  103, 
•fpirtiuuB  who  enlist  are  liable  to  be  pun- 
"■■i  net  only  as  having  obtained  money 
Wte  fahe  pretences,  but  also  with  imprison- 
■jt  Wid  hard  labour  for  two  years,  besides 
*<>^|Ule  to  serve  as  soldiers  when  their 
'fl'WiiMihip  expires,  and  seizable  as  de- 


sorters,  if  they  do  not  then  deliver  themselves 
up  to  an  officer  authorized  to  receive  recruits. 
Temlins,  h.  t. ;  Erik.  B.  i.  tit.  7,  §  62 ;  B.  iiu 
tit.  3,  §  16 ;  B<Mk.  vol.  i.  p.  58  ;  BeWs  Prine. 
§  2188,  3d  edit. ;  Swint.  Abridg.  h.  t. ;  Broum'a 
Synop.  h.  t.  and  pp.  1510, 2342 ;  Shaw's  Digest ; 
Shand's  Prae.  pp.  86,  96 ;  Hutch.  JutUee  of 
Peace,  vol.  Hi.  p.  315  ;  Taits  Justice  of  Peace, 
h.  t. ;  Blair's  Justice  of  Peace,  h.  t. ;  xi.  S.  p. 
180 ;  xiii.  S.  778 ;  Huvm,  i.  174,  68,  75 ; 
Mernies'  Gonvej/ancing  ;  Eraser's  Pers.  and  Do- 
mestic Relations.  For  the  determination  of 
complaints  by  masters  against  apprentices, 
and  apprentices  against  masters,  see  Work- 
man. 

Appretiation ;  the  valuing  of  poinded 
goods.     See  Poinding. 

Apprinn^.     See  Adjudication. 

Approbate  aad  Reprobate.  A  person  is 
said  to  approbate  and  reprobate,  where  he 
takes  the  advantage  of  one  part  of  a  deed, 
but  rejects  the  rest.  A  deed  must  be  taken 
altogether,  or  rejected  altogether.  To  this 
doctrine  there  is  an  apparent  exception  in  the 
case  of  an  heir  founding  upon  a  deathbed 
deed  in  so  far  as  it  revokes  a  prior  deed 
which  is  to  his  prejudice,  but  reducing  it  in 
so  far  as  he  is  also  prejudiced  by  it.  In  such 
a  case  it  is  held  that  the  ancestor  having 
himself  revoked  the  prior  deed,  it  is  in  the 
same  position  as  if  it  had  been  cancelled  by 
him,  or  had  never  existed.  The  revocation 
is  the  act  of  the  ancestor  himself,  and  the 
prior  deed  being  thus  out  of  the  way,  the 
heir  is  entitled  to  reduce  the  deathbed  deed  as, 
1  L.  0.  617,  being  to  his  prejudice,  although 
the  prior  deed  was  equally  prejudicial  to  him. 
This  apparent  exception  to  the  rule  of  appro- 
bate and  reprobate  was  established  by  the 
House  of  Lords  in  the  case  of  Crawfurd  v. 
Coutts. 

In  that  case  the  heir  pleaded  that  the  doc- 
trine of  approbate  and  reprobate  could  not 
apply,  because  he  did  not  claim  the  estate 
under  either  of  the  deeds  executed  by  his 
ancestor,  but  in  virtue  of  his  right  as  heir- 
at-law.  The  disponee  of  the  ancestor  pleaded, 
on  the  other  hand,  that  the  revocation  of  the 
prior  deed  and  the  conveyance  by  the  new 
deed  were  "partes  ejusdem  negotii,"  and  could 
not  be  separated, — that  the  revocation  was 
made  for  the  sole  purpose  of  giving  effect  to 
the  new  conveyance, — and  that,  if  the  latter 
was  ineffectual,  so  also  must  the  former  be 
held  to  be.  The  Court  decided  in  favour  of 
the  disponee  under  the  deathbed  deed.  The 
heir  having  appealed  to  the  House  of  Lords, 
the  case  was  remitted  for  the  purpose  of  par- 
ties being  reheard.  In  moving  the  remit 
Lord  KossLTN,  C,  delivered  an  opinion  ad- 
verse to  the  judgment,  and  observed  : — "  The 
respondent  founded  part  of  his  argument  upon 


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what  is  termed  in  Scots  law  the  maxim  of  ap- 
probate and  reprobate.  Says  Mr  Coutts,  'If 
you  approbate  the  revocation  of  the  deed  to 
Sir  Hugh,  contained  in  the  posterior  deed  in 
my  favour,  then  you  cannot  reprobate  the 
other  clauses  of  that  deed.'  But  this  is  false 
reasoning.  The  Court  cannot  say  to  the  heir- 
at-law — Under  what  deed  do  you  claim  ?  It 
is  enough  for  him  to  say — Qod  and  nature 
have  made  me  heir-at-law,  show  me  by  what 
deed  my  right  is  cut  oS.  The  title  of  an  heir- 
at-law  is  always  complete,  insomuch  that  a 
conveyance  or  devise  to  such  heir  in  fee  is 
held  null,  and  of  no  avail.  The  law  of  Eng- 
land in  such  a  case  says,  the  heir  is  in  by 
descent,  and  not  by  purchase."  On  the  case 
returning  to  the  Court  below  parties  were  re- 
heard, when  the  Court  adhered  to  their  former 
judgment ;  and  the  heir  having  again  appealed, 
the  judgment  was  reversed.  Lord  Eldon,  C, 
observed  : — "  I  think  that  this  is  not  a  case 
where  the  doctrine  of  approbate  and  reprobate 
will  apply.  The  heir  does  not  claim  under  the 
deathbed  deed.  He  says, '  Your  deed  does  dot 
give  you  a  title  unless  you  can  show  me  a  deed 
executed  in  liege  poustie  existing  at  the  death 
of  the  granter.  If  there  be  no  such  deed,  the 
deed  executed  on  deathbed  is  gone."  See 
2/.  C.  vol.  i.  p.  617.  The  doctrine  established 
in  the  case  of  Grawfurd  v.  GouUs  was  applied 
in  the  subsequent  case  of  Balky  v.  Sm<M,  Feb. 
1, 1815,  and  again  in  Mvdie  v.  Moir,  March 
1,  1824,  2  <S.  Ap.  9.  In  this  last  case  the 
conveyance  in  the  deathbed  deed  was  in  fa- 
vour of  the  same  party  as  in  the  prior  bat 
revoked  deed,  but  making  certain  alterations 
on  some  of  the  other  interests  provided  in  that 
deed.  The  disponee  pleaded  that  the  second 
deed  being  substantially  the  same  with  the 
prior  one,  the  heir's  right  of  challenge  was 
excluded.  The  Lord  Ordinary  decided  in 
favour  of  the  heir,  but  the  Second  Division  of 
the  Court  was  equally  divided  in  opinion, 
and  one  of  the  Lords  Ordinary  having  been 
called  in,  he  concurred  in  the  judgment  of  the 
Lord  Ordinary  in  the  cause.  On  appeal  this 
judgment  was  confirmed.  Lord  Eloon,  C, 
observed  : — "  There  is  this  peculiarity  in  the 
law  of  Scotland,  that  though  a  deed  is  bad  as 
a  deathbed  deed,  it  may  be  good  for  one  pur- 
pose, that  is  to  say,  that  the  heir-at-law  can 
insist  that  it  is  a  good  deed,  provided  the 
effect  of  it  be  to  revoke  a  former  settlement, 
though  in  itself  it  would  be  bad.  In  this  case 
it  has  been  strongly  contended  that  it  ought 
not  to  operate  as  a  revocation,  although  there 
are  express  words  of  revocation  in  it,  because 
there  had  been  a  former  deed,  and  that  it  was 
an  affirmance  of  that  former  deed.  Now,  in 
truth,  in  respect  of  that,  there  is  hardly  a 
single  interest  which  is  given  in  the  former 
deed,  which  is  not  somehow  in  its  nature  and 


quality  altered  by  this.  It  does  therefore 
appear  to  me,  that  whatever  might  be  the 
case — in  respect  of  which  I  beg  to  be  under- 
stood to  give  no  opinion  whatever — if  the  dis- 
positions had  been  exactly  the  same, — I  give 
no  opinion  whatever  upon  the  principles  which 
might  or  might  not  apply  to  such  a  case, — they 
do  not  apply  to  this  case  ;  and,  therefore,  how- 
ever much  I  may  regret  the  hardship  of  the 
case,  it  appears  to  me  your  Lordships  can  give 
no  other  judgment  but  that  of  affirmance  of 
this  judgment." 

In  Anderson  v.  Fleming,  May  17, 1833,  the 
deathbed  deed  was  almost  identical  with  the 
one  executed  t'n  liege  poustie.  It,  however, 
contained  a  revocation  of  all  former  deeds  of 
settlement.  Lord  Mokorkifv,  Ordinary, 
ordered  cases  to  the  Court  on  the  question, 
"  Whether  the  prior  deed  was  to  be  considered 
as  so  effectually  revoked  by  the  clause  of  re- 
vocation in  the  deathbed  deed  as  to  entitle  the 
pursuer,  as  the  heir-at-law,  to  reduce  the  last 
deed  as  an  independent  deed  to  his  preju- 
dice, executed  on  deathbed?"  The  Court  de- 
cided in  favour  of  the  heir-at-law.  Lord 
Justice-Clerk  Botle  observed  : — "  I  have 
paid  every  attention  to  the  argument  that 
there  is  a  distinction  between  the  principle 
in  the  case  of  Jfoir  and  Mudie  aud  this, 
but  I  can  see  no  ground  for  it  whatever.  It 
is  settled  law  that  the  plea  of  approbate  and 
reprobate  does  not  apply,  aud  the  decisions 
in  the  cases  of  BatUy,  and  of  Moir  and 
Mudie,  though  in  the  latter  there  was  a  va- 
riation in  the  deeds,  go  to  the  same  principle, 
as  stated  by  the  Lord  Ordinary,  viz.,  That 
in  all  the  cases  the  Court  never  entered  into 
the  view  of  the  supposed  intention  of  the  ie&- 
tator.  Then  that  being  decided,  all  that  is 
said  on  the  other  side  is,  that  Lord  Chan- 
cellor Eldun,  according  to  his  uniform 
practice  of  not  deciding  any  cause  not  actu- 
ally before  him,  refrained  from  giving  an 
opinion  as  not  necessary  to  the  decision.  And 
I  have  not  seen  any  authority  for  departing 
in  this  case  from  the  principle  in  the  cases 
of  Bailey,  and  Moir  and  Mudie,  that  the 
revocation  being  absolute,  effect  must  be  given 
to  it." 

In  the  eases  just  cited,  the  prior  deed  was 
revoked  by  an  express  clause  of  revocation  m 
the  deathbed  deed;  but  a  different  rale  is 
applied  where  the  revocation  is  not  express, 
but  implied  merely  from  the  execution  of  a 
subsequent  deed.  In  such  a  case  the  right  of 
the  heir  is  not  restored,  and  he  is  not  en- 
titled to  reduce  the  subsequent  deed  on  the 
head  of  deathbed.  This  rule  was  estab- 
lished in  the  case  of  Rowan  v.  Alexander, 
Nov.  12,  1775.  The  defence  was,  that  as 
the  first  deed  was  not  expr^ly  revoked  by 
the  last,  the  first  should  still  subsist,  although 


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tb«  aeeond  aboald  be  taken  out  of  thn  way, 
a  Tiiinal  revocation  not  being  sufficient  The 
defence  was  sostained  on  the  ground,  that, 
lioce  the  deathbed  deed  contained  no  revo- 
cation of  the  former  one,  it  could  not  subsist 
u  a  revocation  after  it  was  cut  down  on  the 
head  of  deathbed.  This  judgment  was  disap- 
proved of  bj  Lord  Kossltk,  C,  who,  in  the 
cue  of  CroKfurd  v.  Coutts,  observed: — "  The 
Court  of  S^sion  here  made  a  distinction  be- 
tween ao  express  revocation  and  an  implied 
one,  which  I  confess  I  do  not  feel.  If  a  per- 
loa  makes  a  disposition  of  his  estate  and  locks 
it  np  in  his  repositories,  and  at  the  distance 
of  ten  years  makes  another  disposition  of  the 
saoe  estate,  I  should  be  of  opinion  that  the 
former  deed  was  revoked,  and  that  the  pos- 
terior one  must  take  effect."  Lord  Eldok, 
C  alio  disapproved  of  the  judgment  in  Rotvan 
V.  AUtaiukr ;  and  in  the  subsequent  stage  of 
Cmeftrd  v.  Ccutls,  observed : — '*  It  was  said  in 
tliat  case  that  there  was  no  express  revoca- 
tion; but  it  is  diflScult  to  perceive  what  could 
be  a  more  express  revocation  than  giving  the 
•state  wholly  to  another.  That  case  must 
now  be  held  to  stand  upon  the  principle  that 
the  testator  did  not  mean  the  former  deed  to 
be  revoked,  unless  the  second  deed  was  found 
to  be  good ;  and  expressing  nothing  as  to  a 
revocation  of  the  former  deed  must  be  held 
to  have  meant  in  effect  that  both  should  stand 
to  accomplish  the  purpose  he  wanted  of  giving 
tJK  estate  to  the  disponee  in  the  last  deed. 
Tbii  would  apply  also  to  the  case  of  the  dis- 
ponee under  the  second  deed  being  unwilling 
to  take,  or  incapable  of  taking.  But  the  same 
principle  will  not  apply  to  a  case  of  express 
rerccation."  In  the  same  case  his  Lordship 
ako  mtimated,  that  though  he  disapproved 
of  Qa  judgment  in  Rowan  v.  Alexander,  he 
*9ald  hold  the  point  determined  by  it  to  be  the 
lav.aodobsenred : — "  There  is  a  manifest  dif- 
fcrenee  between  what  might  have  been  fit  and 
proper  to  be  done  when  that  case  was  recent, 
and  what  may  be  so  at  this  day.  No  man 
cai  say  that  many  titles  may  not  rest  on  the 
Vrineiple  of  that  case  of  Rowan  v.  Alexander." 
See  L.  G.  vol.  i.  p.  636.  Accordingly,  the 
principle  of  that  ease  was  applied  in  the  case 
of  RoOur^  v.  Wauchope,  May  25,  1820, 
vkere  the  judgment  of  the  Court  in  favour  of 
the  di^nee  was  affirmed  in  the  House  of 
liords.  In  moving  the  affirmance.  Lord 
EuMnr,  C,  observed : — "As  to  the  question  of 
inplied  revocation,  if  we  are  to  act  on  the 
tttxin  of  Store  dedsit,  the  judgment  cannot  be 
diitarbed.  The  deed  «n  liepe  poustie  reserves 
•  pewer  of  revocation.  By  making  another 
digestion  under  the  authority  of  the  power, 
it  nut  be  supposed  that  the  disponee  in- 
tnded  to  do  something  effectual,  and  it  can- 
Mt  be  implied  that,  by  the  exercise  of  the 


power,  he  meant  to  revoke  it.    L.  G.  vol.  i. 
p.  665." 

The  doctrine  of  election  in  England  is  simi- 
lar to  that  of  approbate  and  reprobate  in  Scot- 
land, but  a  difference  occurs  in  the  application 
of  it  in  certain  cases.  Thus,  where  a  deed  is 
inoperative  to  carry  real  property,  the  heir  is 
not  put  to  bis  election  unless  there  is  an  ex- 
press condition  attached  to  the  bequest  in  his 
favour,  to  the  effect  that  he  shall  convey  the 
real  property  according  to  the  wish  of  the  tes- 
tator. The  ground  for  limiting  the  doctrine 
of  election  in  such  a  case  is,  that  the  will, 
being  improbative,  is  so  completely  void  as  to 
the  real  estate,  that  it  cannot  be  read  so  as  to 
raise  the  implied  condition  arising  from  the 
disposal  of  it,  and  that  the  deed  is  therefore 
to  be  dealt  with  as  if  it  had  contained  no  dis- 
posal of  the  real  estate,  and  only  a  personal  be- 
quest in  favour  of  the  heir.  This  limitation  of 
the  doctrine  was  first  applied  by  Lord  Habd- 
wicKE,  in  Hearle  v.  Greenbank,  3  Aik,  695.  In 
that  case  an  infanthad  made  a  disposition  of  her 
inheritance,  which  in  law  is  null.  Lord  Hard- 
wicKB  decided  that  the  heir  was  not  obliged 
to  elect,  and  observed : — "  Where  a  man  exe- 
cutes a  will  in  the  presence  of  two  witnesses 
only,  and  devises  his  real  estate  from  his  heir- 
at-law,  and  the  personal  estate  to  the  heir-at- 
law,  this  is  a  good  will  as  to  personal  estate, 
yet,  for  want  of  being  executed  according  to 
the  Statute  of  Frauds,  is  bad  as  to  the  real 
estate  ;  and  I  should,  in  that  case,  be  of  opi- 
nion that  the  devisee  of  the  real  estate  could 
not  compel  the  heir-at-law  to  make  good  the 
devise  of  the  real  estate  before  he  could  be 
entitled  to  his  personal  legacy,  because  there 
is  no  will  of  the  real  estate,  for  want  of  the 
proper  forms  and  ceremonies  required  by  the 
statute.  In  the  present  case  there  is  no  in- 
strument which  could  pass  the  real  estate." 
Where,  however,  there  is  an  express  condi- 
tion annexed  to  a  bequest  to  the  heir-at-law, 
he  cannot  take  the  bequest  without  complying 
with  the  condition  ;  and  therefore  if  the  con- 
dition is  to  the  effect  that  the  heir  shall  con- 
vey the  real  estate  to  the  party  named  by  the 
testator,  he  must  execute  such  conveyance 
before  being  entitled  to  the  bequest.  This 
distinction  was  established  in  the  case  of 
BoughUm  v.  BoughUm,  2  Vesey,  12.  In  that 
case  the  will  purported  to  give  the  real  estate 
to  the  testator,  but  was  not  executed  agree- 
able to  the  Statute  of  Frauds.  It,  however, 
expressly  directed  that  if  any  who  received 
benefit  by  the  will  should  dispute  any  part  of 
it,  they  should  forfeit  all  claim  under  it.  It 
was  held  that,  there  being  an  express  condi- 
tion in  this  case  attached  to  the  bequest  to 
the  heir,  he  was  bound  to  elect.  Lord  Habd- 
wiOKB  observed : — "  In  the  case  of  Hearle  v. 
Qreenhani,  my  opinion  was  grounded  upon 


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there  being  no  instrument  exeented  safBcient 
to  pass  land,  and  there  were  none  of  the  cases 
in  which  it  was  determined  that  there  should 
be  such  an  election,  but  where  there  was  a  will 
concerning  land,  but  that  there  was  no  ground 
for  the  Court  to  imply  a  condition  to  abide 
by  a  will  of  land  when  there  was  none ;  but 
that  it  would  be  dangerous  to  break  in  on 
the  Statute  of  Frauds  to  make  an  estate  pass 
by  instrument  not  sufficient  to  pass  real  estate 
— not  by  the  words  of  the  testator,  but  by  a 
condition  implied  by  the  construction  of  the 
Court.  Therefore  it  could  not  be,  nor  was  it, 
warranted  by  any  proceeding ;  for  it  was  only 
guessing  at  the  intent  of  the  testator,  who 
might  leave  it  for  that,  Tory  reason.  Bat  the 
question  is,  Whether  this  case  did  not  differ 
from  that  from  the  express  clause  in  the  will  ? 
In  the  case  of  HearU  v.  Orteabank,  where  the 
Court  were  to  make  such  a  construction  by 
implication  from  the  face  of  the  instrument 
itself,  the  Court  must  see  the  will,  and  could 
not  know  or  take  notice  of  a  will  of  real 
estate.  But  here,  if  there  is  such  a  condition 
annexed  to  a  personal  legacy,  the  Court  must 
consider  every  part  of  that,  whether  it  is  a 
matter  relating  to  real  estate  or  not.  You 
must  read  the  whole  will  relating  to  the  per- 
sonal legacy,  let  it  relate  to  what  it  will; 
which  is  a  substantial  difference,  and  will 
prevent  going  too  far  to  break  in  upon  the 
statute  of  Frauds,  and  at  the  same  time 
will  allow  natural  justice,  which  requires, 
as  far  as  may  be,  such  a  construction  to  be 
made,  otherwise  the  intent  of  the  statute  may 
be  overturned." 

The  soundness  of  this  distinction  in  the 
doctrine  of  election  in  England  has  been  fre- 
quently doubted ;  but,  being  once  established, 
it  has  been  thought  advisable  that  it  should 
be  retained.  In  Carey  v.  Askew,  1  Cox,  Lord 
Ebntoit,  Master  of  the  Rolls,  observed : — 
"  As  to  the  question  of  election,  the  cases 
which  have  been  decided  are  certainly  great 
authorities ;  but  I  must  confess  I  should  have 
had  great  difficnlty  in  making  the  same  dis- 
tinction if  they  had  come  before  me.  They 
have  said,  You  shall  not  look  into  a  will  un- 
attested 80  as  to  raise  the  condition  which 
would  be  implied  from  the  devise,  if  it  had 
appeared ;  but  if  yon  give  a  legacy  on  condition 
that  the  legatee  shall  give  the  lands,  the  heir 
must  elect.  However,  I  am  bound,  by  the 
force  of  those  authorities,  to  take  no  notice 
whatever  of  the  unattested  will,  as  far  as  it 
relates  to  the  freehold  estates,  and  therefore 
the  plaintiff  cannot  be  put  to  his  election." 
In  lirodie  v.  Barry,  2  Yes.  A  Ben.  127,  Sir 
WiLLiAK  Gbakt  observed : — "  I  do  not  un- 
derstand why  a  will,  though  not  executed  so 
as  to  pass  real  estate,  should  not  be  read,  for 
the  purpose  of  discovering  in  it  an  implied 


condition  concerning  real  estate  annexed  t« 
a  gift  of  personal  estate,  as  it  is  admitted  it 
must  when  such  condition  is  expressed  to  such 
gift.     For  if  by  sound  construction  such  con- 
dition is  rightly  inferred,  the  effect  seems  te 
be  the  same  as  if  it  were  expressed  in  words." 
The  case  of  Kerrs  v.  Waudwpe,  affirmed  in 
the  House  of  Lords,  1  Bligh,  1,  was  the  case  of 
two  heirs-portioners,  who,  having  reduced  a 
deathbed  deed  in  so  far  as  it  affected  the  heri- 
tage of  the  testator,  still  claimed  an  interest 
under  the  deed.    It  was  held  that  they  conld 
not  approbate  and  reprobate  the  dfuUbbed 
deed.    Lord  £li>05,  C.,  observed : — "  It  is 
equally  settled  in  the  law  of  Scotland  and  of 
Bngland  that  no  person  can  accept  and  reject 
the  same  instrument.     If  a  testator  j^ves  his 
estate  to  A,  and  gives  A's  estate  to  B,  eonrts 
of  equity  hold  it  to  be  against  eonscienee  that 
be  should  take  the  estate  bequeathed  to  faim, 
and  at  the  same  time  refuse  to  give  effect  to 
the  implied  conditions  contained  in  the  will 
of  the  testator.     The  Court  therefore  will  not 
permit  him  to  take  that  which  cannot  be  his 
but  by  virtue  of  the  disposition  of  the  will, 
and  at  the  same  time  to  seize  what  by  the 
same  will  is  given,  or  intended  to  be  given, 
to  another ;  it  being  contrary  to  the   esta- 
blished principles  of  equity  that  he  should 
enjoy  the  benefit,  while  he  rejects  the  condi- 
tions of  the  gift.    As  to  the  difficulty  raised 
from  the  invalidity  of  the  deed  to  carry  land, 
iVom  which  it  is  inferred  that  that  part  of  the 
deed  is  to  be  held  pro  non  tcripto,  the  dis- 
tinctions are  undoubtedly  thin  and  nnsab- 
stantial,  it  having  been  held  that,  althoagfa  a 
will  be  not  dnly  executed  according  to  the 
statute  to  affect  land,  yet  if  by  the  same  will 
personality  is  given  upon  condition  that  the 
legatee  shall  convey  land,  in  such  case,  inas- 
much as  the  condition  of  personality  c&nnot 
be  read  without  reading  at  the  same  time  the 
condition  on  which  it  is  given  ;  the  giving  of 
the  condition  is  inseparable ;  and  such  was  the 
feeling  of  Sir  William  Grant  in  Barry's  case." 
The  case  of  Kerrs  v.  Wawhope,  however,  was  not 
the  case  of  heritage  conveyed  by  an  informal 
or  improbative  deed,  but  the  case  of  a  death- 
bed deed  which  is  not  null  in  law,  but  only  re- 
ducible at  the  instance  of  the  heir  of  the  in- 
vestiture to  whose  prejudice  it  is  granted. 
Accordingly  Lord  Eldojt  observed : — "  There 
is  besides  a  ground  on  which  this  caae  may 
be  consistently  determined,  namely,  that   a 
deathbed  deed  is  not  null,  but  only  voidable, 
and  in  many  cases  will  regulate  the  suooes- 
sion,  and  the  doctrine  is  directly  applicable 
to  prevent  the  Ladies  Kerr  from  claiming 
under  this  deed  while  they  have  repudiated 
any  part  of  the  succession,  and  while  they 
have  made  this  election  to  reject." 
The  importance  of  this  difference  between 


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tha  Bng^  doetrine  of  election  and  the  Scots 
doctrine  of  tpprobate  and  reprobate  arises, 
•heo  Uie  testator,  whose  vill  is  under  consider- 
stioD  of  the  courts  in  Scotland,  has  died  domi- 
ciled in  England.    In  snch  a  case  the  will  is 
(OMtmed  according  to  the  law  of  England,  and 
it  is  left  to  English  lawyers  to  say  whether,  by 
th«  English  law,  the  Iveir  would  be  put  to  his 
(lection  or  not.    Accordingly,  in  the  case  of 
Tntttri.  Trotter,  Dec.  6, 1826,  5  S.  72,  which 
Its  the  case  of  the  will  of  a  party  who  had 
died  domiciled  in  India,  and  which  was  in- 
rfedual  to  eonrey  heritable  bonds  in  Scot- 
lud,  the  opinion  of  English   counsel  was 
taken,  whether,  according  to  the  law  of  Eng- 
lud,  the  heir  would  have  been  obliged  to 
tket  between  the  heritable  bonds  and  his  in- 
tMwt  Bnder  the  will.     The  opinion  returned 
vu  in  favour  of  the  heir,  and  judgment  was 
pronoooced.  accordingly.      Lord  Allowat 
diaeoted,  and  observed : — "  I  perfectly  agree 
•ith  tlie  opinion  of  the  English  counsel  con- 
nlted  here,  that  the  heir  is  entitled  to  take 
Didsr  the  settlement,  and  also  as  heir-at-law, 
if  it  was  not  the  intention  of  the  testator  to 
dispose  of  the   heritable  property  by  that 
wtttemtot,  and  so  far  I  tnink   it  right  to 
Mlo*  the  English  law,  which,  however,  agrees 
witk  our  own.     Bat  when  we  come  to  ascer- 
tain what  was  the  intention  of  the  deceased, 
1  eoBceive  that  we  are  entitled  to  throw  out 
of  view  the  technicalities  of  the  English  law, 
wkicii  leem  in  a  great  measure  to  depend  on 
*bether  the  property  be  freehold  or  copyhold, 
ud  whether  there  be  two  or  three  witnesses, 
ud  to  jadge  of  the  intention  for  ourselvra. 
The  wiU  here  is  a  military  testament  made 
in  a  reawte  colony,  and  no  technical  language 
i<  and  in  it.    I  know  it  cannot  carry  the 
ml  siUte,  bat  the  intention  to  do  so  is  clear. 
AllI  ask  is  to  construe  the  will  according  to 
tk*  bit  eolloqaial  meaning  of  the  language  ; 
ud  ia  this  view  the  intention  to  settle  his 
•Me  estate  in  Scotland,  as  well  as  elsewhere, 
ii  endeat"    On  appeal,  the  judgment  of  the 
C«vt  was  afibmed.    Lord  Eldok,  C,  ob- 
SKved: — "  The  question  is  simply  a  qnestion 
•f  eaMtroetion — Does  it  appear  upon  the  face 
«f  the  will  that  it  was  the  intention  of  the 
Mator  to  dispose  of  these  heritable  bonds  ? 
Ksv.theruleof  lawin  England,  with  respect 
W  nlgeets  of  thia  kind,  is  well  ascertained  and 
*dl  debied,  and  it  is  this — That  yon  are  not 
to  freceed  by  probability  or  conjecture,  but 
tkat  there  most  be  a  clear  and  manifest  ex- 
fnaien  of  the  intention  on  the  face  of  the 
viOte  iadode  that  property  which  is  not  pro- 
foif  devised  before  the  heir  can  be  put  to  his 
dtftiea."    The  ground,  however,  on  which  it 
■Mt  he  held  diat  the  intention  to  include  the 
WritaMe  bonds  was  not  clearly  expressed  was 
ft  this,  that  tlwy  had  not  "  been  properly 


devised"  in  respect  that  the  will  was  inopera- 
tive to  carry  heritable  property  in  Scotland. 
This  is  clear  from  the  opinion  of  English 
counsel  on  which  the  judgment  proceeded,  and 
which  is  in  these  terms : — "  Considering  heri- 
table bonds  in  Scotland  as  real  estate  to 
which  the  heir-at-law  is  entitled,  unless  they 
are  conveyed  away  by  his  ancestor  with  due 
solemnities,  we  think  the  heir-at-law  would 
be  entitled  in  this  case  to  claim  them  without 
being  put  to  his  election,  if  the  question  had 
occurred  in  a  court  of  justice  in  England." 

The  case  of  Dundai  v.  Jhmdas,  7  S.  241, 
was  the  case  of  a  party  domiciled  in  Scotland 
conveying  by  his  settlement  real  property  in 
England,  but  which  was  inefTectual  to  do  so, 
not  being  attested  by  three  witnesses,  accord- 
ing to  the  law  of  England.    In  this  case,  the 
Court  decided  without  taking  the  opinion  of 
English  counsel,  on  the  ground,  that  the  tes- 
tator being  a  domiciled  Scotsinan,  his  will 
fell  to  be  construed  according  to  the  law  of 
Scotland ;  and  applying  the  doctrine  of  ap- 
probate and  reprobate,  they  decided  against 
the  heir.  Lord  J.  C.  Botle  observed : — "  This 
is  a  Scotch  deed,  and  we  must  determine  as 
to  the  intention  expressed  in  it,  according  to 
the  principles  of  the  law  of  Scotland  alone  ; 
and  it  is  clear  that  the  intention  of  General 
Dundas  was  to  pass  all  his  estates,  and  he 
attempts  to  convey  a  landed  estate  in  Eng- 
land, which  he  does  ineffectnally,  but  the  in- 
tention is  clear.    Then  the  qnestion  comes  to 
be.  Is  the  heir  entitled  to  take  the  English 
property  in  face  of  his  father's  intention  ex- 
pressed in  the  trust-deed,  and  also  to  claim  a 
share  of  the  other  funds  under  that  deed  ?    I 
am  decidedly  of  opinion  that  this  would  be  to 
approbate  and  reprobato  the  same  deed,  and 
that  he  must  therefore  collate  the  English 
estate,  or  give  up  his  claim  for  a  share  of  the 
trust-funds."    Lord  Pitmillt  observed  :— 
"  The  case  of  Trotter  is  just  the  converse  of  this; 
and  the  same  principle  which  led  us  to  decide 
by  the  English  law  there  leads  here  to  a  de- 
cision according  to  the  Scotch  law.    Then,  if 
it  be  a  question  of  Scotch  law,  there  cannot 
be  the  slightest  doubt."    In  the  House  of 
Lords,  it  was  contended  for  the  herr-at-law, 
that,  as  the  case  related  to  real  estate  in 
England,  it  must  be  dealt  with  according  to 
the  law  of  England,  and  that  according  to 
that  law,  as  the  trust-deed  was  improbative 
to  the  effect  of  transferring  the  estate  in 
England,  it  could  not  be  dealt  with  as  proba- 
tive to  the  effect  of  establishing  that  it  was 
the  intention  of  the  testator  to  convey  that 
estate  to  his  trustees,  but  that  the  deed  being 
improbative  as  to  the  alleged  act  of  transfer, 
it  must  be  read  as  if  that  property  had  not  been 
mentioned  in  it.    In  affirming  the  judgment 
of  the  Court  below,  Lord  LTKOHimsf ,  C,  ob- 


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served :  — "  If  tbis  decision  should  stand,  it  will 
not  by  any  means  tend  to  show  that  the  Court 
of  Session  has  a  right  to  set  aside  in  any 
manner  the  Statute  of  Frauds  as  to  a  will  with 
respect  to  an  English  freehold  estate.  The 
decision  does  not  infringe  on  the  English  law, 
it  only  operates  on  Scotch  persoaalities  and 
Scotch  reality,  over  which  the  Scotch  Court* 
have  an  undoubted  right,  and  they  say, '  We, 
according  to  your  principle,  take  the  whole  of 
this  deed  together.  We  do  not  say  the  deed 
hsks  any  effect  on  landed  estates  any  more 
than  Lord  Kenyon  said  in  the  case  of  Oarey 
T.  Atkew,  that  the  will  would  affect  an  Eng- 
lish estate.  We  do  not  say  that  this  would 
take,  in  an  English  Court,  from  the  heir-at- 
law  his  landed  estates ;  but  we  are  called  upon 
to  construe,  according  to  the  principles  of  our 
law,  the  Scotch  deed ;  and  knowing  it  to  be  a 
Scotch  deed,  we  say,  by  the  principles  of 
Scotch  law,  not  that  you  shall  not  have  your 
estate  in  England,  but  that  you  shall  not 
have  your  Scotch  share  unless  you  bind  your- 
self to  fulfil  what  we  call  and  construe  to  be 
the  plain  intent  of  the  party.'  It  is  taking 
up  the  matter  upon  the  condition  :  the  per- 
sonal and  real  estate  in  Scotland  the  Court 
of  Session  can  deal  with,  but  not  this  English 
landed  estate,  except  so  far  as  the  Court 
makes  the  vesting  of  the  estate,  real  and  per- 
sonal estate,  or  the  share  of  it,  to  depend  upon 
the  voluntary  act  of  relinquishing  the  Eng- 
lish right.  Now,  as  I  am  not  prepared  to 
say  that  the  Scotch  Court  has  not  that  power, 
and  as  I  am  prepared  to  say  that  they  can 
exercise  that  power  without  violating  the 
English  law  upon  the  ground  stated,  I  should 
incline  humbly  to  advise  your  Lordships  to 
afBrm  the  judgment." 

Where  an  heir  repudiates  his  ancestor's 
settlement,  and  takes  the  heritage  which  was 
intended  for  another  party,  the  question 
arises — What  is  to  become  of  the  portion  of 
the  succession  intended  for  the  heir  but  for- 
feited by  him  by  his  repudiation  of  the  settle- 
ment ?  By  the  repudiation  of  the  heir  the 
scope  of  the  settlement  is  deranged,  and  the 
intentions  of  the  testator  are  frustrated. 
Does  the  portion  of  the  succession  forfeited 
by  the  heir  lapse,  and  is  it  to  be  dealt  with 
as  if  forming  part  of  an  intestate  succession  ; 
or  is  it  to  be  given  to  the  party  who  is  preju- 
diced by  the  heir's  repudiation  as  a  surroga- 
tion  or  compensation  for  what  he  has  lost  ? 
E'luity  determines  in  favour  of  the  latter 
view,  on  the  principle,  that  to  do  so  would  be 
to  follow  out,  as  nearly  as  possible,  the  pre- 
sumable intention  of  the  testator.  The  ob- 
jection to  doing  so  is,  that  the  Court  would 
be  making  a  will  for  the  testator,  and  not 
giving  effect  to  the  will  left  by  him.  But 
effect  cannot  be  given  to  the  will  left  by  the 


testator,  in  consequence  of  the  derangement 
of  the  settlement  produced  by  the  heir's  re- 
pudiation of  it.    As,  therefore,  the  state  of 
matters  is  different  from  what  was  contem- 
plated by  the  testator,  the  heir's  repodiation 
not  having  been  anticipated  by  him,  it  comes 
to  be  a  question    in  equity.   Whether  the 
derangement  produced  by  that  repudiation 
ought  not  to  be  lessened  by  transferring  to 
the  party  prejudiced  by  the  repudiation  the 
share  forfeited  by  the  heir  repudiating.   This 
course  has  been  adopted  in  the  law  of  £ng- 
land,  and  is  called  the  doctrine  of  compensa- 
tion— a  doctrine  engrafted  on  the  primary 
one  of  election.     In   Kent  v.  Wau^ope,   1 
Bltgh,!, Lord  Eldon observed: — "A  question 
then  arises.  What  is  to  become  of  the  life- 
interest,  which   the  appellants  cannot   take 
either  as  legatees  or  as  nest  of  kin  ?     In  our 
Courts  we  have   engrailed  on  the  primary 
doctrine  of  election  the  equity,  as  it  may  be 
termed,  of  compensation.    Suppose  a  tetttator 
gives  his  estate  to  A,  and  directs  that  A's 
estate  should  be  given  to  B.     If  the  devisee 
will  not  comply   with  the  provision  of  the 
will,  another  condition  is  implied  ax  arising 
out  of  the  will,  that,  inasmuch  as  the  tes- 
tator meant  that  his  heir-at-law  should  not 
take  his  estate,  which  he  gives  to  A  in  con- 
sideration of  A  giving  his  estate  to  B,   if  A 
refuse  to  comply  with  the  will,  B  shall  be 
compensated  by  taking  the  property,  or  the 
value  of  the  property,  which   the   testator 
meant   for  him,  out  <^  the  estate    devised, 
though  he  cannot  have  it  out  of  the  estate 
intended  for  him.    The  Court  hss  not  yet 
determined  whether  the  respondents  are  or 
are  not  entitled  to  take  a  compensation  nntil 
the  death  of  the  survivor  of  the  appellants. 
The  Court  below  having  given  no  opinion,  it 
is  impossible  we  can  give  an  opinion  on  that 
point.     It  is  for  their  determination  in  the 
first  instance.     The  cause  must,  in  point  of 
form,  be  remitted,  with  a  view  to  hare  that 
question  decided.     It  appears  to   me    very 
easy  of  solution."     The  question,   however, 
was  not  decided  on  the  remit.     The    term 
"  compensation"  has  not  been  adopted  by  the 
law  of  Scotland,  but  the  equitable  principle 
implied  in  that  term  exists,  and  is  founded 
on  the  presumable  intention  of  the  testator  in 
the  unprovided-for  event  of  his  settlement 
being  repudiated  by  his  heir.    Accordingly, 
in  the  case  of  M'Innes  v.  Maeallisters,  June 
29,  1827,  5  S.  801,  the  liferent  of  a  sum  of 
money  which   had  been  bequeathed  to  the 
heir-at-law,  but  which  was  forfeited  in  con- 
sequence of  his  taking  as  heir  an  estate  which 
had  been  left  to  another  party,  was  trans- 
ferred to  that  party  as  a  partial  compensation 
for  what  she  had  lost.     The  same  principle 
was  applied  in  the  case  of  Peat  v.  Peat,  Feb. 


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]i,  1839,  D.  I*.  508,  where  a  widow  having 
repudiated  her  husband's  settlement,  and 
thereby  forfeited  her  interest  under  it,  which 
cuosisted  of  the  liferent  of  a  sum  of  money,  it 
WM  held  that  the  interest  so  forfeited  did  not 
aceroe  tothe  legatees  to  whom  the  principal 
Mm  had  been  bequeatjied,  but  that  it  accrued 
t4)  the  residuary  legatees,  who  were  the 
parties  whose  interest  under  the  settlement 
bad  been  impaired  by  the  reprobatory  act  of 
tbe widow.  Lord G-illies observed: — "There 
\i  DO  ground,  either  in  law  or  equity,  for  hold- 
ing that  the  parties  to  whom  the  principal 
of  the  earn  affording  those  life-interests  was 
provided  by  the  settlement,  are  entitled  to 
benefit  by  the  widow's  exercise  of  her  right. 
The  reprobatory  ai-t  occasioned  great  loss  to 
tk  reddoary  legatees.  It  occa8ion«d  no  loss 
vhatever  to  the  special  legatees  ;  and  I  can 
tee  ao  ground  for  holding  that  it  should  in 
inj  way  redound  to  their  benefit.  Their 
whole  right  under  the  settlement  in  the 
li.2000  was  to  obtain  payment  of  it  after  the 
death  of  the  widow.  It  is  true  that,  since  the 
testator's  death,  his  widow  has  repudiated 
the  settlement,  and  carried  off  a  large  por- 
tiuo  of  what  was  destined  to  the  residuary 
le;;ateei;  but  surely  the  fact  that  the  widow 
i»  nmed  the  residuary  legatees  to  -get  less 
than  the  testator  designed  for  them,  -  is  no 
rmoD  why  the  special  legatees,  by  a  second 
and  nnnecessary  deviation  from  his  will, 
theold  get  more  than  he  ever  intended  for 
tnem." 

In  the  case  of  Breadalbane's  Trustees  v. 
Prufl^  Jan.  15, 1841, 3  D.  357,  the  testator 
had  directed  his  trustees  to  pay  over  the 
free  rents  of  his  unentailed  lands  to  his  two 
daughters  equally  between  them  while  both 
Aoald  be  in  life,  and  to  the  survivor,  and  to 
(Mtinne  to  do  so  as  long  as  both  or  either  of 
tfcem  should  be  alive.  One  of  the  daughters 
soceeKfuliy  claimed  her  legitim,  contrary  to 
the  scope  of  the  settlement  of  her  father,  and 
thereby  forfeited  her  interest  in  the  bequest. 
The  otiier  daughter  then  claimed  the  whole 
of  the  rents  of  the  unentailed  lands,  on  the 
Kromd  that  the  settlement  contained  no  di- 
rection regarding  the  half  of  the  rents  which 
her  sister  had  forfeited.  It  was  held,  how- 
«er,  that  her  interest  was  not  enlarged  by 
tbe  forfeiture  of  her  sister's  interest,  but  that 
ttie  forfeiture  operated  during  the  lifetime  of 
tl>at  sister  in  favour  of  the  heirs  of  entail, 
*bo  had  been  prejudiced  by  the  legitim 
havii^  been  claimed.  Lord  Mkdwyn  ob- 
«nred :— "  It  is  argued,  that  if  the  claim 
«f  the  truatew  was  to  be  sustained,  it  would 
b*  making  a  will  for  the  testator  different 
frwB  what  he  has  made,  and  different  per- 
Mf«  firom  what  be  would  have  made  if  he 
^utieipated  the  event  which  has  occurred. 


But  this  argument  will  apply  with  equal 
force  to  the  claim  on  the  other  side.  During 
the  lifetime  of  her  sister.  Lady  Elizabeth 
Pringle  was  only  to  have  the  half  of  the  rents, 
and  it  cannot  possibly  he  discovered,  from  tho 
tenor  of  these  settlements,  that  if  tho  Mar- 
quis had  known  that  the  Duchess  of  Buck- 
ingham would  claim  her  legitim,  and  there- 
fore interfere  with  the  purpose  of  the  trust, 
his  meaning  would  have  been  to  enlarge  Lady 
Elizabeth's  provision  by  one-half.  On  the 
contrary,  as  his  object  had  been  to  leave  his 
personal  succession,  free  from  any  claim  of  le- 
gitim, for  the  benefit  of  the  heirs  of  entail, 
when  that  object  was  in'  part  defeated  by  this 
claim,  it  is  natural  to  suppose  that  he  would 
wish  the  forfeited  interest  in  the  unentailed 
rents  to  go  into  the  general  trust,  to  supply 
in  part  what  had  been  taken  out-of  it  against 
his  will.  This  principle  of  turrogatum  was 
given  effect  to  in  the  case  of  Kerrs  v.  Waudioye; 
3d  May  1819,  in  the  House  of  Lords ;  of  Mac- 
dister,  29th  June  1827 ;  and  of  Peat,  Feb. 
14,  1839." 

In  the  case  of  Ni^efs  Trustees  v.  Nisbet, 
Dec.  5, 1851, 14  D.  145,  a  testator  directed 
his  heritable  and  moveable  estate  to  be  di- 
vided between  the  children  of  his  two  bro- 
thers and  sister,  and  declared  that,  should 
either  of  his  brothers  or  sister  challenge  the 
settlement,  they  should  forfeit  all  right  under 
it  for  themselves  and  their  families.  The 
eldest  brother  obtained  a  reduction  of  the 
settlement,  in  so  far  as  it  conveyed  heritage; 
on  the  head  of  deathbed,  and  thereby  for- 
feited his  children's  share  of  the  succession. 
The  next  of  kin  of  the  testator  then  clainied 
the  forfeited  share,  on  the  ground  that  the 
settlement  contained  no  provision  that  the 
forfeited  share  should  be  divided  among  the 
other  beneficiaries,  and  that,  therefore,  so  far 
as  regarded  that  share,  the  testator  must  be 
held  to  have  died  intestate.  It  was  held, 
however,  that  the  forfeited  share  did  not  fall 
to  be  divided  between  the  next  of  kin,  as  being 
intestate  succession,  but  fell  to  be  paid  to  the 
beneficiaries  under  the  trust-deed,  to  whose 
prejudice  the  reduction  of  the  settlement,  on 
the  head  of  death-bed,  had  operated.  Lord 
FuiiLBRTON  observed: — "I  must  hold  that  the 
forfeiture  was  presumably  intended  for  the 
benefit  of  the  remaining  legatees,  and  most 
certainly  not  for  the  benefit  of  the  next  of 
kin,  who  have  no  interest  whatever  under  the 
settlement ;  and  I  think  this  is  the  principle 
which  we  may  extract  from  the  different  deci- 
sions referred  to  of  Kerr,  Macalister,  Peat, 
and  Breadalbane,  ■  None  of-  them,  perhaps, 
are  in  point ;  but  all  of  them  will  be  found  to 
involve  this  principle,  that  the  forfeiture  or 
repudiation  of  a  settlement  by  a  party  inte- 
rested in  it  will  not  confctr  on  any  pttrtyte 


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benefit  not  contemplated  by  the  settlement,  at 
the  expense  of  the  parties  whose  interests 
have  been  diminished  by  the  challenge  of  the 
settlement  occasioning  the  forfeiture.  I  think 
this  principle,  perfectly  sound  and  reasonable 
in  itself,  is  quite  sufficient  to  determine  the 
present  competition  in  favour  of  the  remain- 
ing beneficiaries  under  the  trust  and  against 
the  next  of  kin." 

See  on  the  subject  of  this  article,  Erdc.  B. 
iii.  tit.  3,  §  49 ;  BelP»  Com.  rol.  i.  p.  146,  et 
teq.  5th  edit. ;  BeWt  Princ.  §  1937,  3d  edit. ; 
Brown's  Synop.  k.  t.;  Shan't  Digest,  h.  t.; 
Sandford  on  Entails,  p.  103  ;  SandfortPs  He- 
ritable Succession,  vol.  i.  pp.  97,  112,  142; 
11  iS.  p.  139 ;  Kames"  Prine.  of  Equity  (1825), 
205.    See  Deathbed. 

Approbatory  Artiolei.  See  Articles  Im- 
probittoiy. 

Appropriation;  signifies  the  annexing  of 
an  ecclesiastical  benefice  to  the  proper  and 
perpetual  use  of  some  religious  house,  bishop- 
ric, college,  or  spiritual  person,  to  enjoy  for 
ever.     Tomlins'  Diet. ;  Wharton's  Lex.  h.  t. 

Approved  Bill ;  in  mercantile  law  and 
nsage,  is  a  bill  to  which  no  reasonable  objec- 
tion can  be  made.  The  person  who  sells 
goods  for  approved  bilis  is  not  entitled  arbi- 
trarily to  repudiate  the  bill  offered  :  he  must 
state  a  reasonable  objection.  Broum  on  Sale, 
p.  41. 

Approver.  In  English  law  language,  an 
approver,  or  prover,  is  one  who  confesses  par- 
ticijlktion  in  a  felony,  and  bears  evidence 
against  his  accomplice  or  accomplices.  A 
person  who  has  once  pleaded  guilty  of  the 
crime  cannot  be  an  approver.  A  prisoner 
is  seldom,  and  only  in  very  special  circum- 
stances, convicted  upon  the  uncorroborated 
evidence  of  an  approver.  Tomlins,  h.  t.  Whar- 
ton's Lexicon,  h.  t.;  Taylor  on  Evidence,  778. 
An  approver  is  admitted  to  give  evidence 
npon  an  implied  promise  of  pardon,  if  he  make 
a  truthful  confession.     See  Accomplice. 

Apnd  Acta.  This  expression-is  applied  to 
judicial  notices  or  intimations  given  in  open 
court,  the  parties,  or  their  counsel  or  agents, 
being  present.  Thus,  if  an  adjournment  of  a 
proof  or  other  judicial  proceeding  is  made  by 
the  court,  or  by  a  commissioner,  and  the  par- 
ties and  witnesses,  being  present,  are  con- 
vened to  attend  at  a  future  day,  this  is  called 
a  citation  apud  acta.  So,  in  a  criminal  pro- 
cess, the  court  may  acyoum  a  trial  to  a  fu- 
ture day  specified  in  the  deliverance,  which 
being  intimated  apud  acta  to  parties,  witnesses, 
and  assizers,  is  sufficient  notice  without 
further  citation.  Sume,  ii.  275.  BeIVs  Notes, 
230. 

Apptirtenaiices ;  are  things  either  corpo- 
real or  incorporeal,  appertaining  to  another 
thing   as  principal,  as  hamlets  to  a  chief 


manor,  tie.  Tomlins'  Diet  See  Pertinent: 
Part  and  Pertinent. 

AqUBBdactu ;  a  known  rural  servitade, 
signifying  the  right  to  conduct  water  by  con- 
duits, canals,  pipes,  Ac.  in  the  servient  tene- 
ment. This  servitude  may  be  acquired  by 
immemorial  possession  ;  and  as  the  owner  of 
the  dominant  tenement  has  the  benefit  of  the 
servitude,  so  he  is  bound  to  maintain  the 
aqueducts,  pipes,  &e.,  in  such  a  condition  as 
to  prevent  their  injuring  the  servient  lands. 
The  servient  proprietor,  on  the  other  band, 
is  bound  to  allow  reasonable  access  for  re- 
pairs, cleansing,  and  the  like.  The  domi- 
nant proprietor  is  not  bound  to  repair  the  in- 
jury occasioned  by  restagnation  from  floods. 
Ersk.  ii.  9,  13 ;  Bell's  Prine.  §  1012  ;  Stair, 
B.  ii.  t.  7,  §  12  ;  Bank.  i.  681. 

Aqnshaustiu ;  or  watering  of  cattle,  is 
another  known  rural  servitude,  under  which 
the  dominant  proprietor  has  right  to  water 
his  cattle  at  a  stream,  well,  or  pond,  in  the 
servient  lands.  It  does  not  prevent  the  ser- 
vient proprietor  from  making  a  similar  nse 
of  the  water  for  his  own  cattle,  or  from  cover- 
ing it  over,  provided  he  leave  open  a  portion 
sufficiently  extensive  to  admit  of  a  reasonable 
exercise  of  the  servitude,  with  free  access. 
Ertk.  ii.  9,  13 ;  BeU's  Prine.  §  1011 ;  BanL 
i.  681. 

Arage ;  (from  averia,)  an  old  law  term  still 
employed  by  conveyancers,  signifying  services 
due  by  a  tenant  to  his  landlord  or  superior, 
and  performed  by  horses,  or  carriage  by 
horses.     Skene,  h.  t. 

Aratmm  Term;  a  ploughgate  of  land. 
It  consists  of  eight  oxgates  of  land,  becaose, 
anciently,  the  plough  was  drawn  by  eight 
oxen.    Balfour' I  Practices,  p.  441. 

Arbiter ;  a  person  voluntarily  chosen  by 
parties  to  decide  a  difference  between  them. 

Arbitration ;  this  term  is  applied  to  the 
voluntary  reference  of  a  dispute  to  the  deter- 
mination of  one  or  more  persons  appointed 
for  that  purpose  by  the  parties  ;  and  to  the 
decision  or  award  following  thereon.  It  is 
usually  effected  by  means  of  what  is  called  a 
submission,  i.e.  the  contract  of  reference,  and 
a  decree-arbitral,  i.e.  the  form  in  which  the 
award  is  promulgated.  Submissions  are 
either  general  or  special ;  the  former  indnd- 
ing  all  disputes  subsisting  at  the  time,  and 
the  latter  applying  merely  to  one  or  more 
particular  Bubject8,e.^.  a  previouslydepending 
process.  The  deed  of  submission  commonly 
contains  the  following  clauses,  viz.,  1  st.  The 
proper  clause  of  submission,  describing  the 
nature  of  the  reference  and  the  name  of  the 
referee.  2d,  A  clause  defining  the  arbiter's 
or  oversman's  powers,  which,  in  the  ordinary 
case,  are  declared  to  be  of  the  most  compre- 
hensive character,  including,  in  effect,  all  the 


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tights  poaewod  by  the  ordinary  tribunals 
which  determine  matters  of  the  particular 
dMcription  submitted.    3d,  A  clause  speci- 
fying the  time  within  which  the  award  or 
decree-arbitral  is  to  be  prononnced.    itk,  A 
elsDie  obliging  the  parties  to  implement  the 
STsrd  under  a  specified  penalty.     To  these 
cIsnMs,  in  the  ordinary  case,  there  is  annexed 
s  prorisioD,  that  the  reference  shall  be  bind- 
ing on  creditors  or  representatives,  notwith- 
itMding  the  death  or  bankruptcy  of  either 
party  before  its  determination  ;  and  also  a 
declaration,  that  in  case  the  submission  shall 
lerminate  without  a  final  decree-arbitral  hav- 
ing been  pronounced,  any  proof  which  may 
havt  been  taken  shall  be  received  as  legal,  in 
«BT  after  submission  or  process.    The  deed 
(onelsdes  with  the  usual  consent  to  registra- 
tion both  of  the  submission  and  consequent 
decree,  in  order  to  their  being  the  warrant 
of  diligence.    The  first  procedure  under  a 
nbaission  is  usually  the  acceptance  of  the 
nbmission  by  the  arbiter,  and  the  appoint- 
ment of  a  clerk,  by  a  minute  indorsed  on  the 
deed  of  submission.     The  pleadings,  when 
vritten,  eoimmence  by  a  claim  lodged  by  one 
of  the  parties,  which  is  followed  by  answers, 
replies,  4c.,  or  by  the  making  up  of  a  record, 
whfB  the  tu-biter  deems  that  necessary ;  after 
which,  the  arbiter  either  determines  the  case 
ie  piano,  or  allows  a  proof,  or  orders  further 
pleadings  or  procedure.      When  tliere  are 
tvo  arbiters,  the  deed  of  submission  usually 
prorides  that  they  shall  have  power  to  name 
in  nnpire  or  oversman,  in  case  they  shall 
differ  in  opinion ;  or  sometimes  such  an  o  vers- 
■an  is  named  in  the  deed ;  and  when  the 
arbiters  differ,  the  reference,  or  devolution, 
M  it  is  sometimes  called,  is  made  to  the  overs- 
nan,  who,  if  he  chooses,  may  order  further 
debate  before  deciding.    The  decree-arbitral 
eonusenres  with  a  narrative  of  the  nature  of 
the  submission,  and  of  the  consequent  proce- 
dnre;  and,  after  stating  that  the  pronouncer 
of  the  decree  has  ripely  advised  the  whole 
Blatter,  and  has  "  God  and  a  good  conscience 
before  hb  eyes,"  it  gives  forth  the  findings 
md  deeemiture.     It  concludes  with  an  order 
« the  parties  to  implement  the  decree,  under 
tilt  penalty  specified  in  the  submission,  and 
Bitually  to  discharge  each  other  of  the  mat- 
ter submitted,  on  that  implement  being  effect- 
ti-    Latttf,  It  ordains  the  submission  and 
decree  to  be  recorded  in  terms  of  the  clause 
of  r^istration  in  the  submission  ;  and  the 
ntraet  of  both  forms  a  warrant  to  either 
party  for  diligence  against  the  other.    A  de- 
wee^U'bitral  is  tested  and  executed  in  the 
fcnn  of  a  regular  deed.     By  act  of  regnla- 
tioM,  2d  Not.   1695,  c.  25,  decrees-arbi- 
M  irs  declared  not  to  be  reducible,  except 
<■  Am  grounds  of  bribery,  corruption,  or 
a2 


falsehood.  It  is  necessarily  implied,  however, 
in  their  nature,  that  such  decrees  are  also 
reducible  when  the  arbiters  exceed  the  powers 
with  which  the  submission  invests  them,  for 
by  it  their  jurisdiction  is  defined  ;  or  where 
the  proceedings  of  the  arbiter  are  palpably 
irreconcilable  with  the  principles  of  impar- 
tial justice  ;  as,  where  he  has  not  fully  heard 
the  parties,  or  where  he  has  taken  a  proof, 
or  any  other  important  step  in  the  submission, 
in  a^nce  of  one  of  the  parties.  On  this 
point  there  are  some  decisions,  both  in  the 
Court  of  Session  and  in  the  House  of  Lords, 
which  tond,  at  least,  to  a  liberal  con- 
struction of  the  specified  grounds  of  reduc- 
tion in  the  act  of  regulations.  See  the  fol- 
lowing cases:  Sharpe  v.  Bickerdyke,  3  Dow, 
102  ;  Johnstone  r.  Gheape,  5  Dow,  247  ; 
Eegqie  and  Co.,  1st  Feb.  1825,  3  S.  488 ; 
Earl  of  Dunmore,  28th  Jan.  1835,  13  S.  366 ; 
Mitch^  V.  Cable,  17tb  June  1848, 10  D.  1297  ; 
Mater  and  Sons  v.  Millar,  10th  March  1855, 
17  D.  689;  and  see  also  Menziet^  Gonvtyandng, 
p.  396  «t  seq. 

The  preceding  observations  apply  to  for- 
mal submissions  followed  by  regular  decrees- 
arbitral  ;  but  effect  will  also  be  given  to  less 
formal  agreements  to  refer,  more  particularly 
where  matters  are  not  entire,  ubi  res  non 
sunt  integrce,  as  it  is  expressed ;  that  is,  where 
something  has  been  done  on  the  faith  of  the 
agreement.  This  is  especially  the  case  in  re 
rustica  and  inter  nutieos;  or  amongst  mer- 
chants in  the  adjustment  of  mercantile  dis- 
putes. But  such  references,  and  the  awards 
following  on  them,  found  a  right  of  action 
merely  for  implement  against  the  party  re- 
fusing implement,  and  cannot  be,  like  a  for- 
mal submission  and  decree-arbitral,  the  war- 
rant of  summary  diligence.  It  would  now 
seem,  however  (although  there  are  dicta  to 
the  contrary),  that  such  submissions  and 
decrees-arbitnil,  unless  in  matters  of  the 
most  trivial  importance,  must  be  proved 
scripto;  Ferris,  6th  June  1824,  8  S.  113, 
and  eases  there  cited;  Tait  on  Evidence,  302; 
Didcson  on  Evidence,  p.  309. 

lu  articles  of  roup,  missives  or  minutes  of 
sale,  contracts  of  copartnership,  and  other 
mutual  deeds,  it  frequently  happens,  that  in 
contemplation  of  future  differences,  provision 
is  made  for  a  submission  or  reference ;  and  in 
all  such  cases,  where  the  arbiter  is  not  ex- 
pressly jutnted,  but  merely  described  as  the 
person  who  may  be  the  bolder  of  a  particular 
office  for  the  time,  the  reference  will  not  be 
effectual ;  BwAanan  v.  Muirhead,  25th  June 
1799,  Foe.  CoU.;  BelPs  Com.  vol.  ii.  p. 
648,  5th  edit. ;  BeWs  Prin.  §  391,  and  autho- 
rities there  cited ;  Menzie^  Conveyancing,  p.  387. 

Although,  however,  the  general  rule  is, 
that  a  reference  is  ineffectual  where  the 


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arbiters  Are  not  named,  there  is  an  exception 
to  the  rnle  where  the  reference  is  connected 
with  a  contract,  and  where  a  reference  may 
be  necessary  to  liquidate  the  contract.  Thus, 
in  the  case  of  a  contract  of  sale,  it  may  be 
stipulated  that  the  price  should  be  referred 
to  a  person  not  named,  but  to  be  mutually 
chosen  by  the  parties ;  in  such  a  case  there  is 
no  dispute  between  the  parties,  but  something 
to  be  decided  which  is  necessary  to  liquidate 
the  contract  of  sale.  In  a  contract  of  lease, 
also,  where  a  party  agrees  to  take  the  stock- 
ing at  a  valuation,  a  reference  to  a  party 
unnamed  will  be  sustained.  When,  there- 
fore, a  reference  is  necessarj'  to  liquidate  an 
obligation  come  under  by  a  party,  it  is  good, 
though  the  referee  is  not  named,  for  were  it 
otherwise,  the  obligation  itself  would  be  at 
an  end.  In  the  case  of  Smith  r.  Duff,  28th 
Feb.  1843,  5  D.  749,  a  tenant  was  under 
an  obligation  to  cede  possession  of  the  land 
let  to  him  at  any  time  before  the  expiry 
of  the  period  for  which  it  was  let,  on  being 
allowed  such  compensation  for  the  remain- 
der of  the  term  "  as  should  be  fixed  by  men 
to  be  mutually  chosen  for  that  purpose,"  and 
it  was  held  that  this  was  a  valid  obligation 
to  refer,  and  that  the  tenant  was  not  entitled 
to  have  the  compensation  fixed  in  any  other 
way.  See  also  Munro  v.  Mackemie,  18th 
Dec.  1823,  5  S.  59."^,  and  Dixon  r.  Campbdl, 
26th  June  1830,  8  -S.  970.  Where,  how- 
ever, a  lease  contains  a  general  clause  of  re- 
ference of  any  disputes  and  differences  which 
may  arise  as  to  the  true  intent  and  meaning 
of  the  lease,  or  as  to  any  other  matter  arising 
out  of  or  in  connection  with  the  lease,  the 
general  rule  applies  that  the  referees  must 
be  named,  otherwise  the  reference  is  nut 
oblii^atory.  In  the  case  of  Hendry's  Traetees 
v.  Neicton,  28th  May  1851,  13  D.  1001,  the 
reference  wm  of  that  description,  and  was  not 
sustained.  Lord  Fulleetok  observed: — 
"  The  point  that  a  general  submission  to  arbi- 
ters not  named  cannot  be  sustained,  seems  to 
be  definitely  fixed.  No  doubt,  in  another  de- 
scription of  cases,  decisions  have  been  pro- 
nounced which  at  first  sight  seem  to  be  in- 
consistent, but  it  will  be  found  that  those 
decisions  rest  upon  a  distinction  which, 
whether  in  itself  well  founded  or  not,  is  now 
definitely  recognised.  It  is  confessedly  an 
exception  from  the  general  rule,  and  applied 
only  in  cases  where  the  ascertainment  of  a 
point  essential  to  the  extrication  of  a  special 
stipulation  in  the  contract  is  made  part  of 
the  stipulation  itself ;  as,  for  instance,  where 
parties  bind  themselves  to  pay  and  receive  a 
sum  to  be  fixed  by  men  mutually  chosen,  or 
to  accept  their  opinion  as  the  criterion  of  the 
existence  or  non-existence  of  some  contingency 
on  which  the  obligation  of  the  parties  is  by 


the  contract  dependent.  Such  are  the  cir- 
cumstances of  the  case  relied  on  by  the 
petitionee ;  and  it  is  quite  clear  that  the  prin- 
ciple of  this  exception  cannot  apply  to  the 
present."  Lord  Ivoey  observed : — "  The  pur- 
pose of  this  submission  is  not  to  ascertain 
what  the  law  stipulates,  but  arises  out  of  mat- 
ters which  infer  nonperformance  or  neglect 
of  the  lease.  Questions  as  to  the  liquidation 
or  extrication  of  the  stipulations  of  the  con- 
tract are  the  kind  of  matters  which  the 
authorities  have  dealt  with  as  forming  part 
of  the  contract ;  and  if  the  question  does  not 
fair  within  that  description,  it  cannot  iw 
brought  under  the  exception  to  the  rules 
which  requires  that  the  arbiters  should  lie 
named.  If  this  submission  is  not  an  easeDtisi 
part  of  the  contract,  it  falls  under  the  general 
rule,  that  there  can  be  no  good  submission  of 
this  general  nature  to  parties  of  whom  there 
is  not  a  direct  delectus."  According  to  the 
law  of  England,  an  arbiter  has  no  power  to 
award  expenses,  unless  that  power  be  ex- 
pressly given  him  by  the  submission.  In 
Scotland  the  contrary  was  determined  in  the 
case  of  Rob^tson  v.  Broumf  15  S.  199 ;  on  the 
authority  of  previous  decisions  in  cases  of  ju- 
dicial reference.  The  point  was  again  deter- 
mined in  favour  of  the  power,  in  the  case  of 
Ferrier  v.  Allison,  5  D.  456,  and,  on  appeal, 
the  judgment  was  afBrmed;  5  BeU,  161. 
After  a  submission  has  expired,  an  arbiter 
cannot  sign  a  decree-arbitral,  although  he 
may  have  come  to  his  decision  before  the 
expiry,  and  recorded  it  in  an  informal  writing. 
Rwidman  v.  Craigie,  24th  May  1831,  9  S. 
629  ;  and  Lang  v.  Broum,  23d  Nov.  1852,  .15 
D.  38.  Where  two  arbiters  had  agreed  on 
certain  points,  and  differed  on  others,  and  had 
devolved  the  submission  upon  the  oversman 
quoad  the  points  on  which  they  difl'ered,  and 
the  oversman  had  prorogated  the  submission, 
it  was  held  by  a  majority  of  the  whole  Court, 
that  the  prorogation  not  merely  prorogated 
the  submission  quoad  the  points  referred  to 
him,  but  also  quoad  the  other  points,  so  as  to 
enable  the  arbiters  to  write  out  a  decree- 
arbitral  upon  these  points  after  the  period 
when,  but  for  the  oversman's  prorogation,  the 
submission  would  have  expired ;  Lang  v. 
Brown,  23d  Nov.  1852, 15  D.  38.  An  arbiter 
who  accepts  the  office,  is  not  entitled  capri- 
ciously to  renounce  it,  but  is  bound  to  per- 
form the  duty  he  has  undertaken  faithfully 
and  honestly,  and  he  may  be  compelled  to 
proceed  and  execute  a  decree-arbitral ;  Edin- 
burgh dt  Glasgow  Railway  Company  v.  MiUer, 
26th  March  1853,  15  D.  603.  See  on  the 
subject  of  this  article,  BeIVs  Com.  vol.  ii.  p. 
386,  5th  edit. ;  Stair,  B.  iv.  tit.  2, 1 18 ;  tit. 
3,  §  1,  aud  Mr  More's  Notes,  p.  xlii.  Iv. ;  Erd:, 
B.  i.  tit.  2,  §  2;  B.  ui.  tit.  3,  §  44;  B.  iv. 


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tii  3,  §  29,  and  notes  by  Mr  Ivory;  Bank. 
Tol.  i.  p.  453,  et  teq.;  vol.  iii.  pp.  56,  89 ; 
/'anbr  <m  Arbitration,  2d  edit. ;  aelPs  Prirte. 
3d  edit.  §  391, 2350 ;  Kamet'  Stat.  LawAbridg. 
k.  L;  Hunter's  Landlord  and  Tenant,  i.  pp. 
221,372;  ii.  626,  2d  edit.;  Brovon't  St/nop. 
k.  t.  pp.  369, 1427, 1847, 1893, 2737  ;  Shaw's 
Digest,  h.U;  Taifs  Justice  of  Peace,  voce  Sub- 
nission  ;  Blair's  Justice  of  Peace,  voce  Submis- 
tim;Jttrid.  Styles,  vol.  ii.  p.  162,3d  edit.; 
11 5.170,207, 345, 363, 659,778, 942;  12  S. 
•205,  210,  311,  887 ;  13  S.  188,  289,  356, 
361,  414,  641,  684 ;  14  S.  404,  447,  464, 
470;  15  S.  463;  Ersk.  Princ.  llth  edit. 
602-4;  Karnes'  Princ.  of  fijtt«<y(1825),466; 
Ihwde  Clarke,  ii.  121 ;  Shaw  A  Maclean,  i.  747 ; 
MiKie^  Lectures,  381. 

Aiiutrary  Pnnishment ;  is  a  punishment 
awarded  according  to  the  discretion  of  a 
Judge.  In  no  case  can  it  be  extended  to  a 
capital  pnnishment:  it  must  be  restricted  to 
fine,  corporal  punishment,  or  imprisonment. 
Ink.  B.  i?.  tit.  4,  §  15.  In  cases  punishable 
npitally,  the  public  prosecutor  may,  at  any 
tiiie  before  moving  for  sentence,  restrict  his 
libel  to  an  arbitrary  punishment;  but,  if 
there  be  no  such  restriction,  the  judge  is 
Iwand  to  pronounce  the  capital  sentence. 
MitM's  Prac.  88, 90,  97,  108 ;  Hume,  ii.  134 ; 
SteeU,  196. 

ArUttiom  Boni  YirL  A  dispute  left  ad 
tfiilrivm  boni  viri,  means  one  lo  be  decided 
u  a  person  in  whose  probity  confidence  may 
be  placed  would  decide.  The  price  of  a 
tiling  is  often  fixed  in  this  way.  When 
parties  in  their  contract  have  agreed  to  refer 
t»  persons,  who  afterwards  die  or  leave  the 
roantiy,  the  amoant  of  any  sum  to  be  paid, 
the  Court  of  Session  sometimes  modifies  the 
amount  as  a  thing  in  arbitrio  boni  viri. 
Brotm't  Synop.  h.  t. ;  Brown  on  Sale,  p.  149, 
I*;  Kame^  Princ.  of  Equity  (1825),  134, 
154. 

ArchlnBhops ;  Primates  of  the  church. 
Daring  the  establishment  of  Episcopacy  in 
Gotland  there  were  two  Archbishops;  the 
Archbishop  of  St  Andrews,  who  was  called 
the  Primate  of  all  Scotland ;  and  the  Arch- 
biihop  of  Glasgow,  who  was  called  the  Pri- 
Bate  of  Scotland. 

Aldus  Court.  The  Court  of  Arches  in 
Iiondon  is  the  chief  and  most  ancient  consis- 
tory court  belonging  to  the  Archbishop  of 
Canterbury,  for  the  disposal  of  spiritual 
cuni.  It  is  80  called  from  the  church  in 
LondoD,  St  Mary-Ie-£one  (de  Arcubus),  where 
it  was  formerly  held.  The  judge  of  this 
ravrt  is  called  the  Dean  of  the  Arches.  He 
pwaessea  extraordinary  jurisdiction  in  nil 
mletiastical  causes,  except  those  belonging 
to  the  Prerogative  Court ;  and  he  has  also 
ordinary  jurisdiction  in  appeals  from  all  in- 


ferior ecclesiastical  courts  within  the  province. 
An  appeal  lies  from  the  Court  of  Arches  to 
the  Judicial  Committee  of  the  Privy  Coun- 
cil. See  Tomlins,  h.  t. ;  Wharton's  Lex.  h.  t.  ; 
Stephen's  Blackstone. 

Aries.    See  Earnest. 

Armiger,  Esquire;  the  term  of  dignity 
below  a  knight,  and  above  that  of  a  gentle- 
man.    Tomlins,  h.  t. 

Armorial  Bearings,  or  Arms.  Mackenzie 
defines  arms  to  be  "  marks  of  hereditary 
honour,  given  or  authorized  by  some  supreme 
power,  to  gratify  the  bearer,  or  distinguish 
families," — and  historically,  armorial  bear- 
ings seem  to  have  been  originally  the  dis- 
tinctive marks,  badges,  or  devices,  whereby 
warriors  clad  in  armour  were  recognised  in 
battle.  The  bearings  so  assumed  or  conferred 
as  cognisances  became  permanent  in  families, 
and  in  prooss  of  time  heraldic  emblazonry 
was  reduced  to  a  system,  by  which  the  dif- 
ferent branches  of  a  family,  and  their  re- 
lationships and  intermarriages,  were  discover- 
able from  their  coats-armorial.  This  de- 
partment has  been  long  under  the  jurisdiction 
of  the  Lyon  King  of  Arms,  and  besides  hav- 
ing been  the  subject  of  several  statutes,  it 
has  been  illustrated  by  considerable  anti- 
quarian learning  and  research.  Strictly 
speaking,  the  privilege  of  conferring  armorial 
bearings  belongs  to  the  Crown ;  but  prac- 
tically, a  coat-armorial  may  now  be  pur- 
chased at  the  Lyon  Office;  see  M'Donnell,  20th 
Jan.  1826,  4  S.  371.  In  deeds  of  entail, 
stranger  heirs  called  to  the  succession  are 
frequently  enjoined  by  the  entailer  to  bear 
his  name  and  arms;  and  in  one  case,  where 
the  maker  of  the  entail  had  inserted  such  a 
clause  without  having  had  any  coat-armorial 
matriculated,  it  was  held  incumbent  on  the 
heir  of  entail  succeeding,  and  on  the  other 
heirs  of  entail,  to  follow  out  the  entailer's 
appointment  by  obtaining  from  the  Lyon 
Office  arms  of  the  proper  description,  de- 
scendible to  the  heirs  of  entail ;  Moir,  -dth 
Feb.  1794,  Mor.  15537.  See  the  statutes 
1587,  c.  46, 1592,  c.  127,  1672,  c.  21.  In 
the  case  of  Macdonnell  v.  Macdmwld,  2d  Jan. 
1826,  4  S.  37 1 ;  it  was  held  to  be  competent 
for  the  Court  of  Session  to  review  the  judgr 
ments  of  the  Lord  Lyon.  Lord  Robebtson 
observed : — "  The  power  of  granting  ensigns- 
armorial  is  part  of  the  royal  prerogative, 
but  everything  belonging  to  that  power  has 
been  given  by  sundry  statutes  to  the  Lord 
Lyon.  His  power  to  grant  new  armorial 
bearings  is  merely  discretionary  and  minis- 
terial, and  with  that  this  Court  cannot  inter- 
fere. >  But  if  the  Lord  Lyon  should  grant  to 
one  person  arms  which  another  is  entitled  to 
bear,  and  should  refuse  to  give  redress,  there 
could  be  no  doubt  of  the  jurisdiction  of  this 

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Court  to  entertain  an  action  at  the  instance 
of  the  party,  to  hare  his  right  declared,  as 
this  would  involve  a  qnestion  of  property, 
vhich  a  right  to  bear  particular  ensigns- 
armorial  undoubtedly  is."  Lord  Pituillt 
observed : — "  As  to  the  abstract  principle,  it 
is  dear  that  wherever  there  is  a  competition 
as  to  the  right  to  armorial  bearings  an  ap- 
peal lies  to  this  Court  by  advocation,  and  also 
by  reduction,  which  is  the  proper  remedy, 
when  the  arms  are  already  granted  ;  or  even 
if  the  Lyon  refuse  arms  to  a  party  entitled, 
the  Court  has  jurisdiction  to  give  redress. 
The  Lyon  Court  is,  in  fact,  on  the  same  foot- 
ing with  other  inferior  courts."  The  action 
was,  however,  dismissed,  on  the  ground  that 
the  pursuer  did  not  allege  that  the  arms 
borne  by  the  defender  belonged  to  him.  In 
the  case  of  Guninghame  t.  Cuninghame,  13th 
June  1849, 11  D.  1139 ;  it  was  also  held  that 
the  judgments  of  the  Lord  Lyon  in  matters 
of  heraldry  might  be  reviewed  by  the  Court 
of  Session,  and  the  objection  taken  to  the 
competency  of  an  advocation  was  repelled. 
In  this  case  the  question  was  raised,  whether 
the  heraldic  honours  of  a  family  went  to  the 
heir-male  or  the  heir  of  line,  the  heir-male 
bearing  them  with  a  mark  of  cadency ;  but 
it  was  not  determined,  as  the  rights  of  the 
competing  heirs  were  held  to  he  settled  by 
a  private  act  of  Parliament.  By  vaHous 
revenue  statutes  a  tax  is  imposed  on  armorial 
hearings,  whether  borne  on  plate  or  on  car- 
riages. Ersk.  B.  i.  tit.  4,  §  32,  et  seq.; 
Mackemi<^s  Heraldry  TTorifc*,  vol.  ii.  p.  575, 
folio  edit. ;  Encye.  Brit,  voce  Heraldry.  See 
also  Tailzie.  Lyon  King  of  Arms.  Lyon 
Court. 

Arraign ;  (ad  rationemponere)  is  an  English 
law  term,  signifying  to  indict  a  prisoner,  and 
call  upon  him  at  the  bar  for  his  defence. 
The  term  is  unknown  in  the  law  of  Scotland, 
except  in  trials  for  high  treason,  in  which 
the  forms  of  procedure  and  the  law  in  both 
countries  are  the  same.  See  Tomliru'  Law 
Did. ;  Wharton's  Lex.  h.  t. 

Arrears ;  money  unpaid  at  the  due  time, 
such  as  rent,  interest,  the  balance  of  an  ac- 
count, and  the  like.  The  most  important 
practical  rule  of  the  law  of  Scotland  with 
respect  to  arrears  is,  that  all  arrears  of  an- 
nual retui-ns,  and  of  funds  themselves  heri- 
table, such  as  arrears  of  rent,  the  arrears  of 
interest  due  on  an  heritable  bond  and  covered 
by  the  real  security;  arrears  of  feu-duties, 
the  balance  or  reversion  of  the  price  of  sub- 
jects sold  judicially,  and  the  like,  are  all  held 
to  be  moveable,  and,  in  questions  of  succes- 
sion, belong  to  the  executor,  and  not  to  the 
heir  in  heritage.  Ersk.  B.  ii.  tit.  2,  §  7,  and 
tit.  9,  §  64 ;  BetPs  Princ  §  1479,  and  aulhc- 
ritiet  th&re  cited;  Mr  More't  Notes  to  Stair,  p. 


oxxxix  ;  BeWt  Com.  vol.  i.  p.  131 ;  vol.  ii.p. 
8,  5th  edit.;  Hunter's  Landlord  and  Tenavi; 
Bell  on  Leases,  vol.  i.  pp.  403,  449 ;  vol.  iL 
p.  32.  See  Hypothec.  Heritabh  and  Mont- 
able.    Executor.     Confirmation. 

Arrendare ;  according  to  Skene,  is  a 
Spanish  word  used  in  old  Scotch  deeds,  to 
signify  a  rent  or  yearly  duty.    Skene,  h.  t. 

Arreraginin ;  a  word  used  in  the  Regim 
Majestatem,  to  signify  arrears  of  rents,  protti, 
and  duties.     Skene,  h.  t. 

Arrest.  As  applied  to  personal  diligenee, 
this  is  properly  an  English  law  term ;  and 
means  the  apprehending  or  restraining  a 
person  in  execution  of  the  command  of  a 
court  or  by  officers  of  justice.  In  Scotland, 
the  word  apprehension  or  apprehending  is 
usually  applied  to  this  species  of  arrest ;  and 
the  civil  and  criminal  warrants  for  snch 
apprehension  are  various.  The  following 
articles  may  be  consulted : — Caption.  Act  of 
Warding.  Border  Warrant.  Meditatio  Fug<e. 
Apprehending  a  Debtor.  Criminal  Prosecution. 
Bail,     Commitment. 

Arrest  of  Judgment;  an  English  law 
term.  To  move  an  arrest  of  judgment  is  to 
show  cause  why  judgment  should  be  stayed, 
notwithstanding  a  verdict.  Judgment  may 
be  arrested  for  good  cause  in  criminal  as  well 
as  in  civil  cases.  Tomlins,  h.  t. ;  Wharton's 
Lex.  h.  t.  In  the  practice  of  the  Scottish 
Criminal  Courts,  it  is  competent,  when  the 
prosecutor  moves  for  sentence,  for  the  panel 
to  propose  reasons  in  arrest  of  judgment 
But  no  objection  to  the  libel  or  to  the  proof 
admitted  can  be  received  in  arrest  of  judg- 
ment.   Alison's  Prae.  651 :  Hume,  ii.  463. 

Arrest,  Parliamentary  freedom  from.  See 
Privilege  of  Parliament. 

Arrestee ;  the  person  in  whose  hands  an 
arrestment  is  laid.  If  an  arrestee  disre- 
gards the  arrestment  and  pays  the  money 
to  the  common  debtor,  he  will  be  liable  in 
damages  and  expenses.  See  Breach  of  Arrest- 
ment. 

Arrestment ;  is  the  diligence,  whereby  the 
debtor  in  a  moveable  debt  or  obligation,  is 
interpelled  from  making  payment  or  delivery 
to  his  creditor,  until  the  debt  due  to  the  ar- 
rester by  the  arrestee's  creditor  is  paid  or 
secured.  The  party  in  whose  hands  the  ar- 
restment is  laid  is  called  the  arrestee;  the 
user  of  the  arrestment  is  called  the  arretter, 
and  the  arrester's  debtor  is  called  the  com- 
mon debtor,  because,  where  (as  usually  hap- 
pens) there  are  two  or  more  competitors  for 
the  arrested  fund  or  subject,  he  is  debtor  to 
all  of  them.  The  nous  thus  imposed  does  not 
operate  as  a  transfer  of  the  debt  or  subject  to 
the  arrester  (see  infra).  For  that  purpose  an 
action  of  furthcoming  is  necessary,  at  the  in- 
stance of  the  arrester,  in  which  he  calls  the 

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•TTHtee  and  tbecoqiinon  debtor ;  and  if  there 
be  no  competition,  and  no  objection  on  the 
part  of  the  common  debtor,  decree  of  furth- 
eoming  in  the  arrester's  favour  will  be  pro- 
noanced.  (See  Furthcoming.)  If,  on  the  other 
hand,  several  arrestments  have  been  used  by 
other  creditors  of  the  common  debtor,  then, 
instead  of  an  action  of  furthcoming,  the  aN 
restee,  or  any  of  the  creditors  in  his  name, 
may  bring  all  parties  into  the  field  by  an  ac- 
tioQ  of  muUipIepoinding,  in  which  the  ar- 
rettee  states  the  amount  of  the  debt  due  by 
him  to  the  common  debtor,  and  his  readiness 
to  pay  it  but  for  the  arrestments.  He  then 
cooclodes,  that  he  shall  be  held  liable  in  once 
and  single  payment  only,  and  found  entitled 
to  the  expenses  of  bringing  the  action  into 
coDTt ;  and  decree  to  that  effect  having  been 
pronoonced,  the  arrestee,  if  he  pleases,  or  if 
uj  party  interested  insist  on  it,  consigus  the 
nHmey,  or  places  the  subject  i»  manibus  curice ; 
or  the  arrestee  is  allowed  to  retain  the  sum 
or  the  subject  until  the  issue  of  the  competi- 
tion amongst  the  arresting  creditors.  He  is 
thai  discharged,  either  by  consignation,  or, 
where  that  has  not  been  insisted  for,  by 
making  payment  or  delivery  to  the  party 
preferred  by  the  decree  of  the  Court.  (See 
UMfltpMnding.')  Though  the  genera]  effect 
of  arrestment  is  merely  to  create  an  inchoate 
attachment,  arrestment  used  upon  an  extract 
decree  under  the  Court  of  Exchequer,  act 
Wand  20  Vict.,i5.  66,  §  30,  operates  "to 
Innfer  to  the  Crown,  preferably  to  all  other 
creditors  of  the  crown-debtor,  all  right  to  and 
islerest  in  the  arrested  fnnd  competent  to 
the  crown-debtor ;"  and  the  arrestee  is  en- 
titled to  pay  without  awaiting  the  institution 
of  a  furthcoming. 

As  to  the  mode  in  which  arrestment  is  laid 
M : — This  may  be  done  in  virtue  of  special 
Ittters  of  arreetment  passing  the  signet,  or  of 
the  warrant  to  arrest  contained  in  letters  of 
homing,  or  of  the  warrant  inserted  in  a  sig- 
neted  summons,  or  in  an  extract-decree  under 
the  provisions  of  1  and  2  Vict.,  c.  114,  §§  I, 
2, 17, 4e. ;  and  it  must  in  these  cases  be  ex- 
cited by  a  messenger-at-arms.  Arrestment 
Bay  also  be  laid  on  in  virtue  of  an  inferior 
j^je's  precept  of  arrestment,  or  of  warrant 
to  arrest  contained  in  a  libelled  summons  in 
the  Sheriff  Court,  or  in  an  extract  decree  or  act 
of  a  Sheriff,  or  extract  decree  of  registration  in 
ths  Sieriff  Court  Books ;  and  it  may  then 
be  exeented  by  the  officers  of  the  inferior 
nvt;  but  such  precepts  or  warrants  cannot 
^  azeeoted  against  the  arrestee  beyond  the 
ttnitoTf  of  ^a  inferior  judge,  though  the 
••■■OD  debtor  ihonld  be  resident  within 
ttw  Juriidietion.  When  the  arrestee  lives 
Wjw«l  the  jurisdiction,  the  sole  warrant 
vii  Wten  oi  arrestment  in  supplement,  (see 


Sttpplemmt,)  until,  by  1  and  2  Vict.,  e.  114, 
§  13,  it  was  made  competent  when  the  arrest- 
ment is  on  a  decree,  if  the  debtor's  moveables 
are  within  the  territory  of  another  sheriff 
than  him  from  whose  books  the  extract  has 
been  issued,  to  present  the  extract,  with  a 
minute  indorsed  thereon,  in  the  Bill-Chamber, 
or  in  the  court  of  the  sheriff  within  whose 
jurisdiction  the  moveables  are  ;  and  to  ob- 
tain a^<  authorising  the  arrestment  in  like 
manner  as  if  the  extract  had  been  originally 
issued  from  the  books  of  the  Court  of  Session 
or  concurring  sheriff. 

Arrestment  may  be  used  either  after  the 
arrester  has  constituted  his  debt  against  the 
common  debtor,  or  during  the  dependence  of 
an  action  for  that  purpose. 

When  the  arrester's  debt  is  already  con- 
stituted, the  warrant  for  arrestment  will  be 
either  the  letters  of  horning,  or  the  inferior 
court  precept ;  or  special  letters  of  arrestment, 
for  which  a  warrant  will  be  obtained  at  the 
Bill-Chamber  on  exhibiting  a  liquid  ground 
of  debt ;  or  the  warrant  appended  to  the 
extract  of  a  decree  by  the  Court  of  Session, 
Teind  Court,  Court  of  Justiciary,  Court  of 
Exchequer,  or  Sheriff,  upon  which  it  is  made 
lawful  to  arrest,  in  like  manner,  as  if  letters 
of  arrestment  on  a  liquid  ground  of  debt,  or 
letters  of  homing  coutaining  warrant  to  ar- 
rest, had  been  issued  under  the  signet,  or 
precept  of  arrestment  granted  by  a  sheriff; 
1  and  2  Vict,  c.  114 ;  19  and  20  Viet.,  c. 
56.  By  these  statutes  provision  is  also  made 
for  arrestment  at  the  instance  of  parties  ac- 
quiring right  to  extracts  containing  warrant. 

When  the  arrester's  debt  is  not  yet  consti- 
tuted, arrestment  may  be  used  on  the  de- 
pendence of  an  action  for  constituting  the 
debt,  as  to  which  the  rules  are — 1st,  Where 
the  action  was  raised  in  the  Court  of  Ses- 
sion, the  production  of  the  libelled  and  sig- 
neted  summons,  although  not  executed,  was 
formerly  a  sufficient  warrant  for  special 
letters  of  arrestment  on  the  dependence ;  and 
now,  by  1  and  2  Vict.,  c.  114,  §  17,  there 
may  be  inserted  in  summonses  concluding  for 
the  payment  of  money  a  warrant  to  arrest 
on  the  dependence,  until  caution  be  found  to 
make  the  subjects  arrested  furthcoming.  In 
virtue  of  this  warrant,  or  of  special  letters 
of  arrestment  according  to  the  former  prac- 
tice, it  is  competent  to  arrest  before  executing 
the  warrant  of  citation.  But  the  arrestment 
will  be  null  unless  the  warrant  of  citation  be 
executed  within  twenty  days  after  the  date 
of  execution  of  the  arrestment,  and  unless  the 
summons  be  called  within  twenty  days  after 
the  diet  of  compearance,  or,  where  the  expiry 
of  the  twenty  days  falls  within  the  vacation, 
or  previous  to  the  firat  calling-day  in  the 
next  session,  upon  the  first  calling-day  next 


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thereafter.  2d,  Such  arrestment  may  be 
used  at  any  time  during  the  dependence  of 
the  action,  the  action  being  held  as  in  de- 
pendence pending  an  appeal  to  the  House  of 
Lords ;  and  as  a  corollary  to  this  rule,  an 
arrestment  on  the  dependence  does  not  fall 
eo  ipso  by  a  judgment  of  the  Court  of  Session, 
assoilzieing  the  defender  from  the  conclusions 
of  the  action  on  the  dependence  of  which  the 
arrestment  has  been  used,  but  will  remain 
effectual  in  case  the  defender  should  take  an 
appeal,  and  obtain  a  reversal  in  the  House 
of  Lords.  3d,  The  will  of  an  inferior  court 
summons  may  also  contain  a  warrant  to  ar- 
rest on  the  dependence  ;  16  and  17  Vict.,  c. 
80,  §  1  ;  and  when  no  such  warrant  is  con- 
tained in  the  summons,  a  precept  of  arrest- 
ment may  be  obtained  on  the  dependence. 
Here,  also,  it  is  necessary  that  the  summons 
be  executed  within  twenty  days  after  the 
date  of  the  arrestment,  and  be  called  within 
twenty  days  "fter  the  diet  of  compearance  ; 
A.  S.  10th  July  1839,  §  154.  Where  the 
arrestee  lives  beyond  the  jurisdiction  of  the 
sheriff,  arrestment  on  the  dependence  may 
be  used  within  another  sheriffdom  upon  the 
sheriff-clerk  thereof  indorsing  the  warrant 
or  precept  of  arrestment ;  1  and  2  Vict.,  c. 
114,  §  19;  A.  S.  10th  July  1839,  §  155,— a 
provision  which  supersedes  letters  of  arrest- 
ment on  the  dependence  in  supplement.  Ar- 
restment on  the  dependence  covers  not  only 
principal  and  interest,  but  the  expenses  of 
process  till  its  Anal  issue,  into  whatever 
court  it  may  be  carried ;  but  not  the  ex- 
penses of  the  furthcoming.  Arrestment  is 
competent  upon  the  dependence  of  an  action 
brought,  not  for  the  real  purpose  of  being 
insisted  in  before  the  Court  of  Session,  but 
avowedly  in  order  to  secure  the  benefit  of  the 
diligence  during  the  dependence  of  a  similar 
suit  in  Chancery  ;  4  D.  924,  1334. 

The  subjects  which  may  be  arrested  are 
moveable  and  personal  debts,  not  made  real 
by  sasine,  including  the  arrears  of  interest 
(m  heritable  or  real  debts.  The  debt  or  sub- 
ject arrested  must  not  be  in  the  possession  of 
tlie  common  debtor  himself.  It  must  be  in 
the  hands  of  a  third  party.  As  the  subject  ar- 
rested must  not  be  in  possession  of  the  common 
debtor,  neither  must  it  be  in  that  of  his  servant, 
or  of  any  one  who  is  a  mere  custodier  for  him. 
On  the  contrary,  the  arrestee  must  be  pro- 
perly and  directly  the  debtor  of  the  common 
debtor  :  so  arrestment  is  ineffectual  in  the 
hands  of  one  who  is  factor  for  the  party  who 
is  indebted  to  the  common  debtor,  and  conse- 
quently accountable  not  to  the  common 
debtor  himself,  but  to  his  debtor ;  Campbell, 
12th  Dec.  1752,  if.  742;  jErat. Inst. iii.  6,  4 ; 
2  Bell's  Com.  74.  Now,  by  the  Mercantile 
Law  Amenilmpnt  .\vi  (19  and  20  Vict.,  c.  I 


60),  while  a  seller  of  goods  is  deprived  of 
his  general  right  of  retention  against  a  pgr- 
chaser  from  the  original  purchaser,  it  is  (ae« 
§  3)  made  competent  to  him  to  arrest  or 
poind  the  goods  in  his  own  hands  at  any  time 
prior  to  intimation  being  made  to  him  of  a 
sale  to  a  subsequent  purchaser  ;  and  such  sr- 
restment  or  poinding  is  declared  to  have  the 
same  effect  as  an  arrestment  or  poinding 
by  a  third  party.  Some  moveable  subjects 
are,  by  statute,  charter,  or  special  destina- 
tion, not  arrestable ;  «.  g.  the  original  stock 
of  the  Royal  Bank  of  Scotland ;  annuities  to 
widows  of  ministers  of  the  Church  of  Scot- 
land, of  writers  to  the  signet,  iie. ;  serrsnti' 
wages,  as  being  alimentary ;  the  wages  of 
labourers  and  manufacturers,  in  so  far  u  ne- 
cessary for  their  subsistence ;  1  Vict.,  c.  41, 
§  7  ;  M'Glash.  Sher.  Court  Prac.  377 ;  Bardat/'t 
Dig.  p.  33,  et  seq.;  8  and  9  Vict.,  c.  39; 
pensions  from  the  Crown ;  salaries  of  judgH 
of  the  Court  of  Session  ;  sums  expressly  de- 
clared to  be  alimentary,  except  for  aliment- 
ary debts ;  and  the  like ;  and  it  is  a  general 
rule,  that  fUnds  appropriated  for  a  special 
purpose,  which  arrestment  would  defeat,  can- 
not be  attached  by  this  diligence ;  Mor.  pp. 
744,  745.  With  these,  and  some  other  ex- 
ceptions of  the  same  class,  all  personal  claimi, 
and  all  claims  resolvable  into  personal  claims, 
are  aiTOstable,  even  although  payable  from 
the  proceeds  of  heritable  property.  Such  are 
claims  against  trustees  who  are  empowered 
to  sell  heritage,  and  to  apply  the  price,— ob- 
ligations by  trustees  to  account  for  the  price 
of  heritage, — and  so  forth.  A  creditor,  by 
producing  the  grounds  of  a  personal  or  more- 
able  debt  in  a  process  of  ranking  and  sale, 
does  not  thereliy  render  the  debt  heritable, 
or  bar  arrestment.  Neither  will  a  personal 
creditor's  accession  to  a  trust-deed,  conveying 
heritage  in  payment  of  debts,  have  that  effect. 
But,  on  the  other  hand,  the  shares  of  the 
price  of  heritage,  payable  under  a  ranking 
and  sale  to  heritable  creditors,  are  not  ar- 
restable ;  neither  is  the  reversion  of  an  heri- 
table estate  which  has  been  sold  judicially 
by  creditors.  So  also  a  debt,  secured  by  an 
assignation  to  a  lease  of  an  heritable  subject, 
is  not  arrestable,  although  a  debt  due  by 
heritable  bond  before  infeftment  is ;  1661,  t. 
51.  Debts  by  bill  of  exchange,  and  the  ifn 
corpora  of  bills,  are  not  arrestable ;  and  where 
a  mercantile  agent  has  sold  goods,  and  taken 
bills  for  the  price  as  agent,  an  arr^ment  in 
his  hands,  before  he  has  received  payment  of 
the  bills,  will  not  attach  either  the  bills  or 
their  proceeds,  as  a  debt  due  by  bim  to  his 
constituent;  Johnston,  12th  May  1837, 15  •'. 
904,  and  authorities  Vtere  cited.  And,  in  ge- 
neral, nothing  will  be  covered  by  arrestment, 
except  au  act  uiU  debt,  or  a  sum  -or  subject,  for 


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vbkh,  at  dAtor,  the  arre8iee  is  accountable 
to  the  common  debtor ;  see  Hume,  29th  May 
1852, 14  D.  821 ;  although,  on  this  subject, 
the  jadgments  of  the  court  have  varied,  and 
the  distinctions  drawn  have  been  ocoaitionally 
so  subtle,  that  it  is  difflcnlt  either  to  classify 
the  Mses,  or  io  deduce  any  abstract  rule  from 
them.  Future  debts,  t.  &,  debts  not  due  un- 
til after  the  arrestment  is  used,  are  not  at- 
tsched ;  but  this  does  not  include  debts,  the 
obligation  for  which  is  already  incurred, 
bat  the  term  of  payment  only  not  arrived. 
Arrears  of  rent  and  interest,  and  the  current 
term's  rent  or  interest,  may  be  arrested ;  and 
it  is  now  settled,  that  the  whole  term-day 
moft  ellipse  before  the  new  term  commences ; 
and  hence,  that  an  arrestment  used  on  the 
t«rm-day  to  attach  the  ensuing  term's  rent 
i>  premature.  But  such  arrestments  of  cur- 
rent rents  are  always  to  a  certain  extent  con- 
tingent, since  the  etficacy  of  the  arrestment 
depends  on  the  common  debtor  being  in  titulo 
to  exact  them  at  the  term  of  payment,  his 
right  being  defeasible  by  adjudgers,  or  other 
sio«:nlar  successors  acquiring  right  to  the 
lands,  and  consequently  to  the  rents,  iu  the 
intermediate  period.  In  like  manner,  where 
the  saltject,  the  rents  of  which  have  been  ar- 
rested e«rr  nte  termino,  has  been  a  donation 
inkr  vtrum  et  uzorem,  the  arrestment  may  be 
defeated  by  a  revocation  of  the  gift  by  the 
hosband  or  wife.  The  effect  of  arrestments 
depends  upon  the  legal  and  not  the  conven- 
tional term  of  payment,  though  the  arrester 
canoot  require  payment  before  the  conven- 
tional term  has  arrived.  The  contents  of  a 
policy  of  assurance  may  be  effectually  ar- 
nsted,  at  least  if  the  debtor  die  before  a 
new  premium  falls  due ;  Strachan,  19th  June 
1855, 13  S.  954.  Arrestment  in  the  hands 
of  a  mercantile  company  will  attach  the  in- 
terest of  a  partner  in  the  funds  of  the  com- 
pany, although  such  funds  should  be  entirely 
abroad,  or  should  consist  chiefly  of  heritable 
property ;  and  arrestment  in  the  hands  of  a 
partner  will  secure  funds,  «.  g.,  railway  calls, 
ovmg  by  him  to  the  company;  Hill,  13th 
Nor.  1849, 12  D.  46.  But  arrestment  used 
in  the  hands  of  the  consignee  of  goods  before 
they  hare  come  into  his  possession,  will  not 
attach  the  goods. 

As  to  the  parties  in  whose  hands  the  ar- 
restment must  be  used,  the  leading  rule  is, 
ttat  it  must  be  used  in  the  hands  of  the 
debtor  to  the  common  debtor.  Where  the 
debtor  is  an  incorporation  or  joint  stock  com- 
pany, it  will  be  validly  used  either  in  the 
haadi  of  the  treasurer  or  manager,  or  by 
being  executed  against  the  managers  and  di- 
fettors  by  serving  each  with  a  copy,  or  by 
dflirering  a  copy  to  them  when  met  on  the 
)xwM«8  of  the  incorporation.    If  the  debtors 


are  trustees,  the  arrestment  must  be  used  in 
the  hands  of  the  trustees  who,  under  the 
trust-deed,  are  empowered  to  act.  As  the 
creditor  can  arrest  in  the  hands  of  a  party 
indebted  to  his  debtor,  so  upon  the  death  of 
the  last  he  may  use  the  same  diligence  to 
attach  funds  owing  to  those  who  represent 
him  in  his  liabilities;  Globe  Insurance  Co., 
14th  August  1850,  7  Bdl't  App.  296.  By 
19  and  20  Vict.,  c.  56,  §  36,  it  is  made 
competent,  notwithstanding  the  death  of  a 
party  indebted  to  the  Crown  by  bond  or 
other  obligation  on  which  diligence  may 
proceed,  or  under  an  extract  decree  for  pay- 
ment of  any  Crown  debt,  to  proceed  against 
his  effects  by  aiTestment,  and  also  by  poind- 
ing, in  like  manner  as  if  he  were  alive, 
and  without  taking  any  proceedings  whatso- 
ever against  his  representatives.  Where 
the  debtor  is  abroad,  and  has  no  domicile  at 
which  the  arrestment  can  be  used,  it  may  be 
executed  against  him  edictally  by  delivery  of 
the  schedule  at  the  office  of  the  keeper  of 
edictal  citations ;  1  and  2  Vict.,  c.  114,  §  18  ; 
A.  S.  2ith  Dec.  1838.  But  he  will  not  be 
thereby  interpelled  from  making  payment  to 
his  original  creditor,  unless  it  be  proved  that 
he,  or  those  acting  for  him,  were  previously 
aware  of  the  arrestment,  19  and  20  Vict., 
c.  91,  §  1 ;  and,  on  the  same  principle,  even 
where  the  arrestee  is  in  this  country,  but 
makes  payment  to  his  creditor  in  circum- 
stances in  which  he  cannot  be  cognizant  of 
the  attachment  of  the  funds  in  his  hands,  he 
will  not  be  liable  in  second  payment ;  Laidlaw, 
26th  October  1841,  2  Rob.  App.,  490.  An 
edictal  arrestment  of  a  debt,  due  by  a  fo- 
reigner who  has  no  forum  whatever  in  Scot- 
land, has  been  held  to  be  inept.  Arrestment 
in  the  hands  of  the  tutor  of  a  pupil  is  effectual 
to  attach  a  debt  due  by  the  pupil ;  but  ar- 
restment in  the  hands  of  a  minor  pube»  is 
good,  although  not  executed  against  his  cura- 
tors. Every  arrestment  was  formerly  regu- 
larly executed  before  two  witnesses,  who 
required  to  subscribe  the  execution,  and  be 
designed  therein,  under  the  sanction  of  nul- 
lity; 1681,  c.  5;  now,  by  1  and  2  Vict., 
c.  114,  §  32,  extracts,  citations,  deliverances, 
schedules,andexecutionsmay  be  eitherprinted 
or  in  writing,  or  partly  both,  and,  except  in  the 
case  of  poindings,  more  than  one  witness  is  not 
required  for  service  or  execution  of  them. 
See  also  9  and  10  Vict.,  c.  67.  Shand"*  Prac. 
233  and  255.  The  execution  must  be  either 
personal,  or  by  leaving  a  service  copy  at  the 
arrestee's  dwelling-house.  If  left  at  his  shop 
or  counting-house,  (unless  the  arrestee  be  a 
mercantile  company),  it  will  be  iuept. 

If  the  arrestee  pay  or  deliver  in  the  face 
of  the  arrestment,  he  will  be  liable  for  the 
value  to  the  arrester,  at  least  to  the  extent  of 


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his  debt ;  see  Breach  of  ArrtttmetU.    But  the 
arreBtment  crMtes  no  real  right  entitling  the 
arrester  to  rindicate  the  subjeet  from  third 
parties  acquiring  iu  bona  fide.    Arrestment, 
where  used  nimiously  or  oppressively,  may  be 
recalled,  or  Uettd,  as  it  is  expressed,  or  re- 
stricted, where  a  largersum  than  is  reasonable 
has  been  attached.  The  Lord  Ordinary  before 
whom  the  cause  is  enrolled  may,  on  petition, 
recal  or  restrict  the  arrestment,  on  caution 
being  found  by  the  common  debtor,  or  with- 
out it.    The  Lord  Ordinary  on  the  Bills  has 
the  same  powers  in  vacation  ;  1  and  2  Vict., 
c.  114,  §  20.    It  is  also  made  competent  for 
any  Sheriff  from  whose  books  a  warrant  of 
arrestment  has  been  issued,  on  petition,  to  re- 
cal or  restrict  the  arrestment,  on  caution  or 
without  caution ;  §  21.    See  Looting  of  Ar- 
restmentt.    The  arrestment,  where  it  has  been 
used  on  the  dependence  of  an  action,  falls  by 
the  death  of  the  arrestee,  whose  heir  may  pay 
the  common  debtor,  unless  interpelled ;  but  it 
subsists,  to  the  effect  of  supporting  an  action 
of  furthcoming,  while  the  heir  holds  the  sub- 
ject ;  and  may  be  renewed  against  the  ar- 
-restee's  heir,  so  as  to  give  a  preference  to  the 
arrester  over  an  arrester  in  the  hands  of  the 
heir.     It  also  subsists  after  the  death  of  the 
common  debtor ;  and,  on  the  death  of  the  ar- 
rester, remains  effectual  to  his  heir.    All  ar- 
restments formerly  suffered  a  quinquennial 
prescription  ;  i.e.,  if  not  pursued  or  insisted  in 
within  four  years  after  traing  laid  on,  if  used 
on  liquid  grounds  of  debt  or  decrees,  and, 
where  used  on  the  dependence  of  an  action, 
within  five  years  after  decree  is  obtained  in 
the  depending  action  ;  1669,  c.  9.    By  "pur- 
sued or  insisted  in,"  was  meant,  following  up 
the  arrestment  by  furthcoming,  or  by  a  pro- 
cess of  multiplepoinding,  or  other  judicial 
claim  for  making  the  arrested  fund  available 
to  the  arrester.     Now,  by  1  and  2  Vict.,  c. 
114,  §  22,  the  prescription  of  the  act  1669, 
c.  9,  is  repealed  in  so  far  as  regards  the  pre- 
scription of  arrestments,  which  are  thereafter 
to  prescribe  in  three  years  instead  of  five. 
The  three  years  run,  in  arrestments  upon 
decrees  and  registered  protests,  from  the  date 
of  the  arrestments ;  in  the  arrestments  upon 
the  dependence,  from  the  date  of  the  final  in- 
terlocutor in  the  action ;  and  in  arrestments 
upon  a  future  or  contingent  debt,  from  the 
date  when  the  debt  becomes  due,  and  the  con- 
tingency is  purified.    Under  the  Sheriff  Small 
Debt  Act,  arrestments  fall  in  three  months, 
unless  renewed  every  three  months.    In  com- 
petition, arrestments  are  preferable  according 
to  their  dates :  hence,  in  the  execution,  the 
hour  at  which  the  arrestment  was  used  should 
be  mentioned.    If,  however,  there  have  been 
wun-A,  the  first  furthcoming,  though  following 
upon  a  posterior  arrestment,  is  preferred,  as 


being  the  first  completed  diligence.  Bat  all 
arrestments  used  within  sixty  days  before, 
and  four  months  after,  the  constitution  of  no- 
tour bankruptcy,  for  attaching  the  bankrupt's 
effects,  are  to  be  ranked  pan' j7a«nt;  while  ar- 
restments used  posterior  to  the  four  months 
cannot  compete  with  prior  arrestments,  but 
may  rank  with  each  other  on  any  reversion  of 
the  estate ;  19  and  20  Vid.,  c.  79,  §  12.  No 
arrestment  of  a  bankrupt's  effects,  used  on  or 
after  the  sixtieth  day  prior  to  sequestration, 
is  effectual,  and  the  effects  arrested  must  be 
made  forthcoming  to  the  trustee,  the  arrester, 
however,  having  a  preference  out  of  them  for 
the  expense  bond  fide  incurred  by  him  in  his 
diligence ;  ibid.  §  108.  In  competition  with 
assignations,  the  date  of  the  intimation  of  the 
assignation  is  the  criterion  of  preference,  not 
the  date  of  the  deed  of  assignation. 

In  the  attachment  of  a  ship  in  security  or 
execution,  arrestment,  and  not  poinding,  is 
the  proper  diligence.  For  such  arrestment 
the  ordinary  warrant  to  arrest  is  sufficient ; 
Clark,  17th  June  1853,  15  D.  750.  ThU  u 
made  by  affixing  a  copy  of  the  arrestment  on 
the  main-maat,  or  on  the  stern,  if  the  ship  has 
not  left  the  stocks,  and  by  chalking  above  it 
the  Royal  initials.  When  a  vessel  has  been 
arrested,  it  is  rendered  available  as  a  source 
of  payment  not  by  action  of  furthcoming, 
but  of  arrestment  and  sale;  Shand'e  Prac. 
417.  See  on  the  subject  of  this  article,  Enk. 
B.  iii.  tit.  6,  S  1,  «<  seq.;  Stair,  B.  iii.  tit.  1, 
§  24,  et  seq. ;  Itore's  Notes,  p.  ccLxxxiii.  et  seq. ; 
Bank,  vol  ii.  196,  et  seq. ;  Bell's  Com.  i.  6  ;  ii. 
65,  et  seq. ;  iii.  11,  et  seq. ;  Princ.  §  2272,  el 
seq.,  and  authorities  there  cited ;  Kames'  Stat. 
Law,  h.  t.;  Brown's  Symp.  h.  t. ;  and  pp.  288, 
304,  341,  439,  et  seq. ;  Shand's  Prac. ;  TaiVs 
Justice  of  Peace,  L  t. ;  Blair's  Manual,  k.  t. ; 
Jurid.  Styles;  Barclay's M'Glash.  Sher.  GmH 
Prac.  372 ;  Shaw's  Dig.:  Kames'  Equity,  282, 
290,  391,  475  ;  llenzies'  Cowoeyancing,  302. 
See  also  Furthcoming.  AssigiuUion.  MvU^le- 
poinding. 

Arrestment  in  Security.  In  the  preced- 
ing article  it  has  been  shown,  that  the  credi- 
tor in  an  illiquid  claim  may  obtain  a  security 
while  that  claim  is  under  judicial  discussion, 
by  arrestment  on  the  dependence.  Another  ease 
of  arrestment  in  security  arises  where  a  cre- 
ditor has  a  liquid  ground  of  debt,  such  as  a 
bill  or  bond,  but  the  term  of  payment  is  future. 
If  hi^  debtor  be  vergens  ad  inopiam,  the  cre- 
ditor in  such  a  document  may  obtain  in  the 
fiill-Chamber  warrant  for  letters  of  arrest- 
ment, which  secure  the  debt  till  caution  be 
found  that  it  be  made  forthcoming  to  him. 
See  authorities  cited  voce  Arrestment. 

Arrestment  Jurisdictioniifundandas  eauta; 
arrestment  for  the  purpose  of  founding  a  ju- 
risdiction.   This  arrestment  is  used  for  the 


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porpoM  of  briagiog  a  foreigner  under  the 
jariadietion  of  the  courts  of  Scotland.  A  per- 
loo  domiciled  abroad,  whether  native  or  fo- 
reigner, is  not  amenable  to  the  Scotch  courts, 
or  Uable  to  legal  diligence,  real  or  personal, 
nnles  he  either  has  property  in  Scotland,  or 
comet  personally  into  the  country.  Where 
hit  property  is  heritable,  he  is  held  to  have 
t/onm,  and  may  be  cited  as  fnrth  of  the 
kingdom.  But  where  his  property  is  merely 
moveable,  an  arrestment  to  found  a  jurisdic- 
tion  is  necessary.  This  arrestment  is  laid 
on,  either  in  virtue  of  the  warrant  of  an  in- 
ferior court,  or  of  letters  of  arrestment  /«- 
ritiktumu ^ndandae  causa,  passing  the  signet 
00  a  warrant  obtained  at  the  Bill-Chamber ; 
and  ereu  when  laid  on  by  the  warrant  of  an 
inferior  court,  such  an  arrestment  will  found 
a  jurisdiction  in  the  Supreme  Court.  This 
arrestment,  however,  is  merely  to  the  effect 
of  founding  a  jurisdiction  in  ordinary  patri- 
mooial  claims  of  debt,  or  the  like,  not  in 
qaertions  of  ttatus ;  and  it  will  have  no  effect 
ai  a  nexus,  in  competition  with  ordinary  ar- 
mtments.  For  that  purpose,  after  the  ju- 
risdiction has  been  thus  founded,  the  creditor 
anut  raise  an  action  against  his  debtor,  on 
the  dependence  of  which  he  may  then  use 
ao  arrestment  in  common  form ;  see  Menzies* 
CtmttytHcing,  p.  304.  An  arrestment  ad 
ftmndam  jurtsdicli&nem  is  also  required  to 
•arrant  the  raising  of  a  horning  against 
a  party  domiciled  abroad,  who  has  moveable 
property  in  Scotland.  But  this  kind  of  ar- 
restment is  not  necessary,  where  the  sum 
or  goods  belonging  to  the  absent  party  are 
already  the  subject  of  an  action  of  mui- 
tiplepoinding,  or  after  they  have  been  al- 
ready arrested,  or  where  jurisdiction  is 
foanded  on  the  principle  of  reconvention. 
Enk.  B.  i.  tit.  2,  §  19,  Ivories  edit.;  MVs 
Cm.  ii.  pp.  68,  168;  Shand^t  Prae.  i.  63, 
it  teq.;  Jurid.  Stylet,  rcl.  iii. ;  Kames'  Equity, 
286;  Brown's  Synop.  224,747.  See  Abroad. 
BtcomieiUion.     Foreigner.    Edictal  Citatum. 

Airlue.     See  Earnest. 

Aniage  and  Caxria^;  were  indefinite 
Mnicee formerly  demandable  from  tenants; 
kt  by  act  20  Geo.  II.,  c.  50,  §  21  and  22,  all 
indefinite  services  are  prohibited ;  and  none 
cao  now  be  demanded,  but  such  as  are  enu- 
■Mrated  in  the  lease,  or  in  writing  apart. 
Mill^aerrices  continue  on  the  former  footing. 
JSnl.  B.  ii.  tit.  6,  §  42  ;  Stair,  B.  ii.  tit.  4, 
$  7 ;  Bunieft  Landlord  and  Tenant,  i.  365. 

Anogatum ;  in  the  Roman  law,  was  the 
adoption  of  one  who  was  sui  juris,  as  contra- 
diitiagttished  from  proper  adoption,  which 
took  place  where  the  adopted  person  was 
fonnally  manumitted  by  his  natural  father, 
nd  taken  under  the  p(Uria  potestas  of  his 
•iopter.    Arrogation  was  originally  effected 


by  a  species  of  legislative  act,  assented  to  in 
the  Comitia  Curiata,  and,  during  the  empire, 
by  an  imperial  rescript.    See'Adoption. 

Anon ;  an  English  law  term,  synonymous 
with  wilful  fire-raisiug.  Arson  is  defined  to 
be  voluntarily  and  maliciously  burning  the 
house  of  another.  This  offence,  by  the  com- 
mon law  of  England,  was  a  capital  felony, 
and  punishable  with  death,  and  extended,  by 
7  and  8  Geo.  IV.,  c.  30,  to  the  burning  not 
only  of  dwelling-houses,  churches,  and  erec- 
tions for  the  purposes  of  trade,  but  also  of 
coal  mines,  stacks  of  com,  &c.  But,  by  1 
Vict.,  c.  89,  the  capital  punishment  is  confined 
to  the  offence  of  voluntarily  and  maliciously 
setting  fire  to  a  dwelling-house,  any  person 
being  therein ;  or  to  the  setting  fire  to  ves- 
sels with  intent  to  commit  murder.  This 
statute  does  not  extend  to  Scotland.  Where 
the  offence  is  not  accompanied  by  these  aggra- 
vations, it  is  punishable  with  transportation, 
penal  servitude,  or  imprisonment ;  16  and  17 
Vict.,  c.  99 ;  9  and  10  Vict.,  c.  24,  and  c.  25. 
See  Wharton's  Lex.  h.  t. ;  Bootkby's  Synop.  cf 
the  Law  relating  to  IndictMe  Offences,  p.  22. 
See  also  Wilful  Fire-raising. 

Art  and  Part ;  signifies  the  aiding  or  abet- 
ting in  the  perpetration  of  a  crime.  One 
may  become  art  and  part  guilty  of  a  crime : — 
1.  By  giving  a  warrant  or  mandate  to  com- 
mit the  crime ;  2.  By  giving  counsel  or  ad- 
vice to  the  criminal  how  to  conduct  himself 
in  it;  or,  3.  By  assisting  in  the  executioa 
of  it.  By  statute  1592,  c.  163,  all  criminal 
libels  must  contain  a  charge  of  art  and  part, 
even  although  the  crime  consisted  inasimple 
and  indivisible  act,  committed,  and  charged 
to  have  been  committed,  by  one  person  ;  so 
that  the  panel  may  be  convicted,  although 
it  should  turn  out  that  the  act  was  not  com- 
mitted by  him,  but  by  another  at  biscommand. 
In  this  way  also,  provided  the  fundamental 
fact  charged  remains  unaltered,  the  prosecu- 
tor is  secure,  although  his  proof  should  vary 
from  the  libel  with  respect  to  the  manner  in 
which  the  deed  was  done.  In  the  charge  of 
art  and  part,  the  prosecutor  is  not  under  the 
necessity  of  setting  forth  the  mode  of  the 
panel's  accession.  It  follows  from  the  nature 
of  this  charge,  that  a  verdict  of  guilty  art 
and  part  is  substantially  the  same  as  a  simple 
verdict  of  guilty,  and  does  not  infer  an  infe- 
rior degree  of  guilt.  See  9  Geo.  IV.,c.  29,  § 
9  ;  Hume,  ii.  226-9,  236-9,  441,  456 ;  BeWs 
Notes;  Steele,  193,201,211;  Alison's  Prac. 
250;  Brown's  Synop.  h.  t.  The  charge  of 
art  and  part  is  properly  omitted  in  indict- 
ments for  concealment  of  pregnancy,  under 
the  statute  49  Qeo.  III.  c.  14;  Punton,2  Sum- 
ton,  573. 

Articles,  Lords  of;  were  a  committee  of 
the  Scotch  Parliament,  thus  described  bj 


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Robertson :  "  As  far  back  as  our  records  en- 
able us  to  trace  the  constitution  of  our  Par- 
liaments, we  And  a  committee  distinguished 
by  the  name  of  Lords  of  Articles.  It  was 
their  business  to  prepare  and  to  digest  all 
matters  which  were  to  be  laid  before  the  Par- 
liament. There  was  rarely  any  business  in- 
troduced into  Parliament  but  what  bad 
passed  through  the  channel  of  this  commit- 
tee :  every  motion  for  a  new  law  was  first 
made  there,  and  approved  of  or  rejected  by 
the  members  of  it.  What  they  approved  was 
formed  into  a  bill,  and  presented  to  Parlia- 
ment ;  and  it  seems  probable,  that  what  they 
rejected  could  not  be  introduced  into  the 
House.  This  committee  owed  the  extraor- 
dinary powers  vested  in  it  to  the  military 
genius  of  the. ancient  nobles:  too  impatient 
to  submit  to  the  drudgery  of  civil  business, 
too  impetuous  to  observe  the  forms,  or  to  enter 
into  the  details  necessary  in  conducting  it, 
they  were  glad  to  lay  that  burden  upon  a 
small  number,  while  they  themselves  had  no 
other  labour  than  simply  to  give  or  to  i-e- 
fuse  their  assent  to  the  bilb  which  were  pre- 
sented to  them.  The  Lords  of  Articles,  then, 
not  only  directed  all  the  proceedings  of  Par- 
liament, hut  possessed  a  negative  before  de- 
bate. That  committee  was  chosen  and  con- 
stituted in  sucR  a  manner  as  to  put  this  va- 
luable privilege  entirely  in  the  King's  hands. 
It  is  extremely  probable  that  our  kings  once 
had  the  sole  right  of  nominating  the  Jjords 
of  Articles.  They  came  afterwards  to  be 
elected  by  the  Parliament,  and  consisted  of 
an  equal  number  out  of  each  estate,  and  most 
commonly  of  eight  temporal  and  eight  spi- 
ritual Lords,  of  eight  representatives  of  bo- 
roughs, and  of  the  eight  great  officers  of  the 
Crown."  Hist,  of  Scotland,  B.  i.  See  also 
1594,  c.  218,  and  1663,  c.  1.  At  the  Revo- 
lution of  1688,  this  system  was  thought  in- 
consistent with  the  freedom  of  Parliament, 
and  was  declared  a  grievance  by  the  Con- 
vention of  Estates ;  1689,  c.  18.  The  Lords 
of  the  Articles  were  accordingly  suppressed 
by  the  act  1690,  c.  3.  See  Ersk.  B.  i.  tit.  3, 
§5. 

Article*  of  Soup,  are  the  conditions  under 
which  property  is  exposed  to  sale  by  auction. 
They  refer  generally  to  the  nature  of  the 
right  to  be  conferred ;  specify  the  titles  by 
which  the  property  is  to  be  conveyed;  regu- 
late the  manner  of  bidding;  prescribe  the 
rules  by  which  offerers  are  to  be  preferred ; 
and  name  a  person  to  be  judge  of  the  roup, 
before  whom  the  procedure  takes  place,  and 
who  is  empowered  to  declare  the  purchaser. 
These  articles  are  executed  by  the  exposer 
on  stamped  paper  ;  and  when  the  day  of  sale 
arrives,  they  are  read  over  in  presence  of  the 
meeting,  at  the  place  and  time  appointed  for 


the  sale.  The  subject  being  exposed  to  sale 
by  an  auctioneer,  a  minute  of  the  offers  i« 
made,  generally  on  the  back  of  the  articles, 
and  signed  by  each  offerer,  and  the  highest 
offerer  at  the  out-running  of  a  sand-glass  is 
declared  to  be  the  purchaser  by  the  judge  of 
the  roup.  Minutes  of  the  procedure  are 
made,  and  regularly  signed  and  attested  at 
the  time  of  sale.  These  articles  contain  t 
clause  of  registration,  by  which  the  parties 
consent  to  a  decree  going  out  in  terms  of  tlie 
conditions,  under  which  they  may  be  enforced 
by  the  diligence  of  the  law.  Besides  the 
rules  and  conditions  expressed  in  the  written 
articles  of  roup,  there  are  implied  rules  bind- 
ing on  both  parties.  Thus,  the  exposer  must 
bring  the  subject  fairly  to  sale,  and  not  at- 
tempt to  raise  the  price  by  the  assistance  of  a 
white-bonnet  or  fictitious  offerer  ;  and  on  the 
other  hand,  there  must  be  no  combination 
amongst  the  offerers  to  suppress  the  natural 
ardour  of  competition  amongst  intending  pur- 
chasers. Ersk.  B.  iii.  tit.  3,  §  2,  a>id  note  by 
Mr  Ivory;  Belt's  Com.  vol.  ii.  p.  274,  5th 
edit. ;  Hunter's  Landlord  and  Tenant,  i.  405, 
407  ;  ii.  328 ;  Bell  on  Purchaser's  Title,  p.  165, 
et  seq.,  2d  edit. ;  Shand's  Prac.  p.  896;  Jurid. 
Styles.  Menzies'  Conveyancing,  i.  838  ;  />«/ 
on  Feudal  Riffhts,  162. 

Articles  Improbatory  and  Approbatory. 
By  the  old  form  of  process,  where  a  deed  or 
writing  was  objected  to  as  false  or  forged, 
after  the  party  founding  on  the  document 
had  abidden  by  it  sub  periculo  falsi,  pleadings, 
called  Articles  Improbatory  and  Approbatory, 
were  ordered  to  be  put  in.  According  to  the 
present  practice,  when  the  writing  has  been 
abidden  by,  the  record  is  made  up,  "  by  or- 
dering a  condescendence  of  articles  improba- 
tory, and  answers  containing  articles  appro- 
batory, which  shall  be  revised  and  accom- 
panied with  notes  of  pleas  in  law.  The  re- 
vised condescendence  and  answers  to  be  signed 
by  the  parties  respectively,  as  well  as  by  Uieir 
counsel,  except  where,  on  cause  shown,  and 
in  respect  of  the  particular  circumstances  of 
the  case,  it  may  be  deemed  necessary,  for  the 
ends  of  justice,  to  dispense  with  the  signature 
of  the  party,  and  without  prejudice  to  the 
form  of  procedure  heretofore  observed  in  such 
cases;  A.  S.  Utk  July  1828,  §  53.  These 
articles  improbatory  and  approbatory  consist  of 
articulate  averments  and  answers,  in  the  usual 
form  in  which  condescendences  and  answers 
are  prepared,  setting  forth  the  facts  and  cir- 
cumstances relied  on  by  the  one  party,  as  in- 
structing the  alleged  forgery  or  falsehood, 
and  by  the  other,  as  showing  the  writing  tu 
be  genaine  and  fairly  come  by.  See  Shand's 
Practice,  645.  See  Abiding  by.  Condescend- 
ence. 

Articulate  A^udication.    The  proper  oc- 


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cuioD  for  an  articulate  adjudication  is  where 
aerenl  separate  grounds  of  debt  are  vested 
in  a  trustee,  to  pursue  one  adjudication  for 
the  vhoie.  In  that  case  the  practice  is  to 
sccumnlato  each  debt  separately,  so  that,  if 
s  pluris  petitio  in  any  one  of  the  debts  should 
oKor,  it  may  ndt  prejudice  the  adjudication 
as  to  the  remainder.  This  is  called  an  arti- 
caJAte  adjudication  ;  and  correctly  there 
aught  to  be  conclusions  in  the  libel  for  accu- 
oalating  the  debts  separately,  or  the  inter- 
locutor must  be  so  expressed  as  to  have  that 
effect.  But  there  may  be  an  articulate  ad- 
judication where  there  is  only  one  ground  of 
debt ;  e.g.  a  bond,  with  principal,  interest, 
and  penalties  separately  stated,  instead  of 
twiog  accumulated  into  one  sum.  Shand's 
?Mdf«,ii.673;  Jurid.  Styles,  in.  iOl ;  BeWs 
''«.  i.  737.  See  Adjudication.  Plum  Pe- 
titio. 

Artists  and  Artifieen ;  are  held  to  pro- 
fits expertness  in  the  art  which  they  prac- 
tise, tpondere  peritiam  artis,  and  are  therefore 
liable  for  any  damage  which  may  occur 
tbrongh  their  want  of  skill,  on  the  maxim, 
impmtia  etUpce  annumeratur.  Under  this  rule 
all  professional  men  are  comprehended.  See' 
Bdfi  Com.  vol.  I.  p.  459,  for  the  rules  with 
r«g»rd  to  this  responsibility,  the  principle  of 
wbich  is,  that  the  performer  of  the  work  is 
responsible  for  any  deficiency  in  that  degree 
of  skill  which  the  hirer  or  employer  is  na- 
tirally  entitled  to  expect.  The  property  of 
artists  in  their  work  is  protected  by  various 
lUtates.  Ersk.  B.  ii.  tit.  1,  §  16  ;  BeWs  Com. 
Tol.i.  pp.  123,  469,  6th  edit.:  Bell's  Princ. 
§  154,  1361 ;  BeWs  lUustr.  5  164 ;  Shaw's 
l>ife$l;  Watstw's  Stat.  Law  h.  t.  See  also 
Literaty  Property.  Lien.  Location.  Nautce, 
tmoM. 

ArtitaiL  See  Master  and  Servant.  Work- 
wot.    Combination. 

Aseendants ;  persons  in  the  degrees  of 
kindred  reckoned  upwards.  Ascendants,  ac- 
cording to  the  former  law  of  Scotland,  suc- 
ceeded after  collateral  descendants.  Thus, 
iiuiitig  descendants,  that  is,  children  and  their 
children  in  succession,  and  failing  brothers  and 
sisters  and  their  descendants,  the  succession 
vent  to  ascendants,  that  is,  to  the  father  in 
the  first  place,  the  mother,  according  to  the 
lonner  law,  though  an  ascendant  in  the 
Bme  degree,  never  succeeding  to  her  child. 
By  the  act  18  and  19  Vict.,  cap.  23,  a  change 
«as  introduced  into  the  law  of  Scotland  ;  and 
it»»8  enacted,  that,  where  a  son  dies  intes- 
Utp  without  leaving  issue,  and  is  survived  by 
his  bther,  his  father  shall  have  right  to  one- 
half  of  his  moveable  estate  in  preference  to 
the  ion's  brothers  and  sisters,  or  their  de- 
>csDdant8whomaj  have  survived  him.  Where, 
*gsin,  the  father  predeceases  a  son  who  dies 


intestate  without  leaving  issue,  but  who  is' 
survived  by  his  mother,  his  mother  is  entitled 
to  one-third  of  his  moveable  estate,  in  pre- 
ference to  his  brothel's  and  sisters,  or  his 
other  next. of  kin.  Failing  the  father,  the 
succession  goes  to  collateraJs,  that  is,  to  the 
brothers  or  sistei's  of  the  father,  and  their 
descendants.  Failing  the  collaterals  of  the 
father,  the  succession  goes  to  the  grandfather 
and  his  collaterals;  and  so  upwards  as  far 
as  connexion  can  be  traced;  and  when  all 
trace  of  connexion  is  lost,  the  succession  goes 
to  the  Crown  as  ultimus  hceres.  Ei-m.  B.  i.  t. 
4,  §  8  ;  B.  iii.  t.  8,  §  7,  et  seq. ;  Enn..  Princ. 
11th  edit.  486. 

Assay  of  Weights  and  Heasnres ;  is  the 
examination  of  weights  and  measures  by  the 
proper  oflScers. 

Assassiiiation ;  is  the  murdering  of  a  per- 
son either  for  hire,  or  by  deliberate  lying  in 
wait.  It  might  be  inferred  from  some  Scota 
statutes  that  even  the  attempt  to  commit  this 
crime  is  capital ;  but  this  is  not  the  case. 
See  Hume,  vol.  i.  p.  180, 288  ;  Ersk.  B.  iv.  t. 
4,  §  45 ;  Swint.  Ahridg.  voce  Treason,  5  76. 

Assault ;  is  an  attempt  or  offer  with  force 
and  violence  to  do  a  corporal  hurt  to  another. 
It  does  not  necessarily  imply  an  injury  actu- 
ally done ;  it  is  sufBcient  if  such  was  intend- 
ed, and  a  menacing  gesture  may  amount  to 
an  assault ;  but  no  words,  if  unaccompanied 
with  violence,  wiU  amount  to  assault.  And 
no  words,  however  insolent  and  contumelious, 
will  justify  an  assault,  though  such  provoca- 
tion will  in  general  tend  to  mitigate  the  pun- 
ishment. Any  one,  however,  who  is  assailed 
with  blows,  is  quite  justified  in  defending  him- 
self in  the  same  manner,  and  is  not  to  blame 
if  the  assailant  be  injured  in  the  struggle* 
But  after  the  aggressor  has  been  disabled,  or 
has  submitted,  the  party  who  has  beeq  origi- 
nally assaulted  may  in  his  turn  become  the 
assailant  by  continuing  his  blows ;  in  which 
case  the  first  oifender  is  entitled  to  demand 
punishment  for  the  counter-assault  committed 
on  him.  No  provocation  which  did  not  take 
place  recently  before  the  assault  will  justify 
it ;  for  when  a  considerable  time  has  elapsed, 
the  deed  will  be  held  to  have  resulted  from  a 
spirit  of  revenge,  and  not  from  momentary 
passion.  The  aggressor  is  liable  both  to  a 
civil  action  for  damages,  and  to  a  criminal 
prosecution.  In  cases  of  assault,  even  of  the 
most  atrocious  kind,  the  practice  is  to  make 
a  charge  simply  of  assault,  and  to  state  the 
serious  parts  of  the  offence  as  aggravations 
of  the  simple  crime ;  by  which  means  the  risk 
is  avoided  of  the  whole  charge  falling  by  a 
failure  to  prove  the  aggravations.  The  high- 
est aggravation  of  assault  is  intent  to  murder, 
{^mAttempt  oiMurder).  But  assault  is  a  very 
aggravated  crime,  though  there  may  have 


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been  no  intention  to  kill,  if  it  has  been  to  the 
effusion  of  blood,  or  the  danger  of  life,  or  with 
loaded  fire-arms  or  other  lethal  weapons. 
The  intent  to  ravish  is  also  a  serions  aggra- 
vation of  assault,  which  will  not  be  made 
out,  however,  by  the  mere  using  of  indecent 
liberties,  unless  there  has  been  an  evident 
preparation  for  carnal  connection.  Intent 
to  rob,  which  is  also  an  aggravation  of  a  se* 
rioDS  nature,  is  proved  by  acts  of  violence, 
indicating  a  design  to  take  the  property; 
but  such  proof  is  admitted  with  caution,  as, 
in  the  confusion  of  an  assault,  acts  of  this 
kind  may  take  place  with  no  intention  to  carry 
off  the  property.  Assault  is  aggravated  when 
committed  in  pursuance  of  an  intent  to  com- 
pel a  rise  of  wages,  &c.,  or  when  committed 
on  a  magistrate,  or  any  other  officer  of  the 
law,  in  the  discharge  of  his  duty,  or  in  re- 
venge  for  the  exercise  of  it,— -on  a  parent, — 
on  a  wife, — or  on  any  one  in  his  own  house. 
(See  Hamemdun).  Mutilation  of  the  limbs 
may  be  charged  either  as  the  worst  aggrava- 
tion of  assanlt,  or  as  a  separate  offence.  The 
punishment  of  assault  is  arbitrary,  rar3ring 
from  imprisonment  for  a  month,  or  even  less, 
to  transportation  for  life.  In  cases  of  great 
cruelty,  scourging  has  frequently  been  added. 
See  6  <?«».  IV.,  c.  159  ;  Hume,  i.  827-336, 
26  ;  BelFs  Notes,  89,  90  ;  Aliton't  Princ. 
175-179, 188 ;  SteeU,  104 ;  Ertk.  B.  iv.  tit.  4, 

37  ;  Btfft  Prine.  4th  edit.  §  2032 ;  Jurid. 
'tylet,  2d  edit.  iii.  87  ;  Dole's  Appeal  Cases, 
ii.  66,  288. 

Anedation ;  is  an  old  law  term,  used  in- 
discriminately to  signify  a  lease  or  feu-right. 

AsMmblv,  OeneraL   See  General  Assembly. 

Ai8«iit,  KoyaL  When  a  bill  has  passed 
through  all  its  stages  in  both  Houses  of  Par- 
liament it  receives  the  royal  assent,  which  is 
always  given  in  the  House  of  Lords ;  the 
Commons  being  summoned  by  the  Black  Rod. 
The  Sovereign  may  either  be  present  in  per- 
son, or  the  assent  may  be  signified  by  letters- 
patent  under  the  great  seal,  signed  by  the 
Sovereign,  and  communicated  by  commission- 
ers ;  who  are  usually  three  or  four  of  the 
great  Officers  of  State.  The  Sovereign's  as- 
sent is  announced  by  the  clerk  of  Parliament 
in  French.  In  recent  times  there  is  no  in- 
stance of  the  royal  assent  being  refused ;  al- 
though that  occurred  once  or  twice  in  the 
reign  of  William  III.  and  once  in  the  reign 
of  Queen  Anne,  the  bill  not  assented  to  by 
her  having  been  the  Scotch  militia  bill.  In 
former  times  the  refusal  of  the  royal  assent 
was  not  an  unusual  occurrence.  By  a  legal 
fiction,  all  the  laws  passed  in  a  session  of  Par- 
liament are  considered  as  properly  only  one 
•tatnte,  the  separate  acta  being  so  many  dif- 
ferent chapters ;  and  this  fiction  having  led 
to  doabts  at  to  the  proper  commencement  of 


the  act,  it  was  ordered,  by  33  Geo.  III.,  c.  13, 
that  the  clerk  of  Parliament  should  iodone 
on  every  bill  the  day  on  which  it  received  tbt 
royal  assent,  and  that  from  that  day,  if  not 
otherwise  provided  in  the  act,  its  operation 
should  commence.  HatsdVs  Preeedentt,  p. 
338,  et  seq. ;  May's  Treatise  <m  Parliamntary 
Law,  p.  387,  et  seq. 

Aueswn  to  a  Judge ;  are  persons  poswsed 
of  knowletlge  in  the  law,  who  are  appoint- 
ed to  advise  and  direct  the  decisions  of  tbt 
judges  in  certain  inferior  courts.  Stair,  B. 
iii.  tit.  5,  §  25;  Bank.  ii.  507;  Eutse,'\\. 
15,  29,  31. 

Anets ;  is  an  English  law  term,  (now 
much  used,  in  Scotland),  signifying,  strictly 
speaking,  goods  or  effects  enough  to  discharge 
the  burdens  cast  upon  the  heir  or  execntor 
in  satisfying  the  debts  and  legacies  of  the 
testator  or  ancestor ;  but  applied  more  ge- 
nerally to  the  estate  and  effects  of  every  de- 
scription available  for  the  payment  of  the 
debts  of  a  bankrupt  or  insolvent.  See  W\ar- 
ton's  Lex.  h.  t. 

AMigBAtion.  la  legal  phraseology,  the 
term  assignation  is  applied  to  a  written  deed 
of  conveyance  in  favour  of  another,  made  bj 
the  creditor  in  any  obligation,  or  the  pro- 
prietor of  any  subject  not  properly  feadsL 
The  maker  of  the  assignation  is  called  the 
cedent;  the  receiver  is  called  the  assigiue,  or 
eessioner,  or  aessionary ;  and  where  the  right  or 
subject  assigned  is  a  debt  or  obligation,  the  ob- 
ligant  or  debtor  therein  is  called  the  cmnun 
debtor.  According  to  the  usual  style  of  ths 
the  deed,  assignee  and  his  heirs  and  donaton 
are  made  the  lawful  cessioners  of  the  cedent 
"  in  and  to"  the  sum  or  subject  assigned,  and  in 
and  to  the  deed  by  which  the  right  is  consti- 
tuted, or  the  written  evidences  of  the  claim,  if 
there  be  any.  This  form  of  expression  arise* 
from  the  circumstance  of  the  deed  having  been 
anciently  of  the  nature  of  a  mandate  or  pro- 
curatory  <»  rem  svam.  In  modem  practice, 
however,  it  has  become  common  to  use  the 
words  "  assign,  convey,  and  make  over," 
which  correspond  more  with  the  actual  chv 
racter  and  effect  of  the  deed.  The  other 
clauses  are,  1.  A  declaration  of  the  naturt 
of  the  assignee's  powers.  In  the  ordins^ 
ease,  these  powers,  whether  expressed  or  not, 
include,  of  course,  all  those  possessed  by  the 
cedent.  2.  A  clause  of  warrandice.  uene> 
rally  speaking,  where  the  right  assigned  is  a 
debt,  it  is  not  to  be  presumed  that  the  cedent 
is  to  warrant  the  solvency  of  the  common 
debtor.  The  cedent  has,  in  the  usual  case, 
no  security  that  the  claim  will  be  made  good, 
except  the  solvency  or  credit  of  the  common 
debtor.  Hence  the  implied  warrandice  of 
assignations  is  warrandice  from/act  and  deei. 
Wsrnuidiee  of  a  higher  kind,  however,  may 


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be  qieeiallj  giren.  3.  A  elanse,  mention- 
iof  vhst  deeds  are  delivered  to  the  assignee ; 
— ind,  lasti7,the  nsual  registration  and  test- 
is duses.  When  the  assigoee  conveys  to 
a  third  party,  the  deed  is  called  a  trangla- 
tm;  tod  when  he  reconveys  to  the  cedent, 
it  is  called  a  retroeettum. 

In  order  to  complete  the  transference  to 
tiie  assignee,  the  assignation  must  be  inti- 
■•t«d  to  the  common  debtor  ;  and  so  essential 
is  this,  that  in  competition,  an  assignation 
fnt  iDtimated  will  be  preferred  to  one  prior 
in  dst«,  but  posterior  in  intimation.  Rega- 
Itrlj  the  intimation  ought  to  be  notarial,  yet 
tlM  lav  admits  eqnipollents  when  the  notice 
to  the  common  debtor  is  equally  strong ;  «.  y. 
a  charge  on  letters  of  homing  at  the  assig- 
nte's  instance  against  the  common  debtor,  or 
a  judicial  demand  by  action  or  otherwise. 
Th«  assignee's  possession  of  the  right,  as,  for 
sumple,  by  receiving  payment  of  rents  or 
interest  from  the  common  debtor,  is  another 
•qairalent  to  intimation;  or  his  being  a  party 
to  the  aasignation  ;  or  his  acknowledgment 
is  vritiag  on  the  back  of  the  assignation,  or 
Ij  letter.  So  also  a  written  promise  by  the 
cMUBon  debtor  to  pay  to  the  assignee  as  in 
right  of  the  debt,  or  a  draft  accepted  or  pre> 
mted  and  protested,  in  the  case  of  a  money 
debt,  will  be  suflSeient.  Bnt  the  common 
debtor's  mere  private  knowledge  of  the  assig- 
ution,  nnaeeompanied  by  possession  on  the 
part  of  the  assignee,  in  competition  with 
nore  formal  rights  or  intimations,  is  not  held 
tantamonnt  to  intimation,  although  such 
knovledge  may  be  a  tuficient  bar  to  the 
Mtunon  debtor's  paying  to  the  cedent.  When 
the  common  debtor  is  out  of  Scotland  the 
intiitation  most  be  made  edictally ;  the  war- 
nat  for  which  is  obtained  at  the  Bill-Cham- 
Wr,  on  prodnction  of  the  ground  of  debt  and 
aangnation.  Formerly  edictal  intimation 
«as  Bade  at  the  market-cross  of  Edinburgh, 
and  pier  and  shore  of  Leith ;  but  now  the  in- 
tioation  is  made  at  the  Register  House ;  6 
e«.  IV^  c  120,  §§  61,  62 ;  A.  S.  24tt 
Dtc.  1838.    See  Edictal  Citation. 

Where  a  debt  is  due  by  several  co-obli- 
g»«ti,  the  transference  of  the  debt  will  be 
HB^eted,  by  intimation  being  made  to  any 
••e  of  them.  Mr  Erskine  observes: — "Where 
t^An  are  many  obligants,  whether  joint 
^kten,  or  principals  and  cautioners,  intima- 
tiM  Bade  to  any  one  is  sufficient  for  com- 
flitiag  the  conveyance ;  bnt  such  intimation 
■  Hi  effectual  for  interpelling  those  to  whom 
Miatination  was  made  from  making  payment 
I*  A*  eedent ;  and  therefore  assignees  ought 
■inieoeetoniake  intimation  to  all  of  them." 
A  £iwent  rule,  however,  has  been  held  to 
^l^to  the  case  of  a  partner  of  a  firm  as- 
4p4K  fcii  intareat  in  the  firm  to  another. 


In  the  ease  of  RutteU  t.  Breaiatbane,  5  W. 
db  S.  266,  there  were  only  two  partners,  and 
the  one  assigned  to  the  other.  Intimation 
in  such  a  case  was  held  to  be  unnecessary. 
Where,  however,  there  are  more  persons  than 
the  cedent  and  the  assignee,  it  has  been  held 
that  the  transference  of  the  rights  available 
against  the  other  partners  requires  intima- 
mation  to  each  of  the  copartners,  or,  what  ' 
is  held  to  be  equivalent  to  it,  intimation  to 
the  company  in  its  social  character,  at  its 
usual  place  of  business,  to  one  representing 
it.  This  rule  was  applied  in  the  case  of  Hill 
V.  Lmdtay,  7th  Feb.  1846,  6  D.  472,  which 
was  the  case  of  a  competition  between  the 
trustee  on  the  sequestrated  estate  of  the  ce- 
dent  partner,  and  an  assignee  partner,  d« 
facto  the  managing  partner  of  the  company. 
This  circumstance,  however,  was  held  not 
to  he  equivalent  to  an  intimation  to  the 
company.  In  the  case  of  EiU  v.  Lindtay, 
Lord  FuLLERTON  observed':—"  There  is  no 
room  for  the  application  of  the  principle 
laid  down  by  Mr  Erskine,  that  in  a  joint 
obligation,  the  intimation  to  one  of  tha 
eorrei  debmdi  is  a  good  intimation.  The 
question  here  does  not  regard  a  joint  obliga- 
tion. The  rights  and  correspondent  obliga- 
tions among  the  partners  themselves  are  in 
their  nature  several.  Each  is  bound  to  every 
one  of  the  others  by  the  force  of  the  contract 
of  copartnery ;  indeed  it  is  that  combination 
of  all  these  several  oblirations  which  con- 
stitutes the  copartnery.  Bnt  it  seems  to  fol- 
low from  this,  that,  to  complete  the  transfer- 
ence of  the  rights  of  one  partner  in  the  con- 
cern as  against  his  copartners,  there  must 
be  intimation  to  each  of  these  copartners,  aa 
each  of  the  several  debtors  in  that  combina- 
tion of  several  obligations  which  is  sought  to 
be  transferred.  Holding  this  to  be  the  sound 
view,  the  case  of  Rusteli  v.  Breadalhane  is  of 
no  weight  in  the  present  case.  There  there 
were  but  two  partners,  and  the  one  assigned 
to  the  other.  Intimation  was  unnecessary 
and  incongmous.  An  intimation  by  the  as- 
signee to  himself  would  have  been  absurd. 
Indeed  it  is  obvious,  that  in  such  a  case  an 
assignation,  t.  e.,  an  active  transference  of 
right  was  unnecessary.  A  single  renuncia- 
tion by  the  one  partner  would  have  answered 
every  purpose,  as  it  would  have  left  the  re- 
maining partner  in  the  full  possession  of  the 
whole  rights  of  the  company.  Bnt  where 
there  are  more  partners  than  the  cedent  and 
assignee,  and  where  an  active  transference 
is  necessary,  the  transference  of  the  rights 
available  against  the  other  partners  seems  to 
require,  as  in  other  cases,  intimation  to  all 
of  those  parties  against  whom  the  obligation 
was  sought  to  be  inferred.  Then  there  was 
here  no  intimation  to  the  company  in  its 


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social  character  at  its  asual  place  of  busi- 
ness, or  to  any  one  representing  it,  which 
might  perhaps  be  held  to  imply  an  intimsi- 
tion  to  each  of  the  partners.  There  was  no- 
thing bat  the  private  knowledge  of  the  two 
partners,  who  happened  to  stand  in  the  situa- 
tion of  cedent  and  assignee."  Lord  JxrFitBT 
dissented,  and  held  "  that  there  was  a  very 
strong  analogy  between  the  claim  by  a  partner 
for  a  dividend  out  of  the  free  stocic  of  the 
company,  and  a  debt  due  by  the  company, 
which  is  the  case  mentioned  by  Mr  Brsliine, 
and  to  which  the  decisions  cited  by  him 
refer."  The  passage  in  Mr  Erskine  is  as 
follows : — "  In  debts  due  by  a  corporation, 
or  a  trading  company,  it  would  be  often  ex- 
tremely difficult,  if  not  impracticable,  to  dis- 
cover all  its  members,  and  the  places  of  their 
residence,  so  that  if  there  were  a  necessity  to 
intimate  to  all  of  them,  there  could  be  no 
security  in  the  purchasing  of  shares  in  any 
joint  stock.  Wherefore,  in  practice,  the  in- 
timation of  an  assignation  of  a  debt  due  by 
an  hospital,  made  to  no  other  but  the  trea- 
surer, was  admitted  as  a  proper  intimation, 
Jan.  1739,  Gred.  o/Letham{Dict.  p.  738) ;  and 
an  intimation  to  two  clerks,  who  were  also 
the  managers  of  a  trading  company,  a  minute 
of  which  was  regularly  entered  into  their 
books,  was  adjudged  to  have  the  effect  of 
fully  divesting  tlie  ledent ;  Tinw.  19th  Nov. 
1755  ;  Watton  of  Muirhoute  contra  Murdoch, 
Ac.  (Diet.  p.  850)." 

Certain  assignations  require  no  intimation, 
such  are  indorsations  to  bills  of  exchange— 
acljudication,  which  is  a  judicial  assignation — 
and  marriage  {quoad  the  husband's  rights), 
which  is  a  legal  assignation, — the  assigna- 
tion to  all  rights  vested  in  the  bankrupt  in 
favour  of  the  trustee  under  mercantile  se- 
questration,— and  in  England,  the  assignation 
under  a  commission  of  bankruptcy.  The 
class  of  subjects  which  are  not  assignable  is 
very  limited.  Text  writers  enumerate  merely 
liferent  rights  (i.  «.,  the  rights  themselves, 
not  the  profits  of  them),  alimentary  provi- 
sions and  paraphernal  goods ;  which  last  are 
said  to  be  so  peculiarly  the  wife's  property, 
that  if  not  specially  assigned,  they  are  not 
carried  by  a  general  assignation  of  the  wife's 
moveable  estate. 

An  assignation  vests  the  assignee  with  the 
whole  right  which  was  in  the  cedent ;  and 
hence,  where  diligence  has  been  raised  by  the 
cedent  against  the  common  debtor,  the  as- 
signee, according  to  Erskine,  may  use  the 
cedent's  name  in  following  it  out.  But  with- 
out judicial  authority  the  assignee  is  not  en- 
titled to  execute  in  his  own  name  diligence 
which  has  been  raised  in  the  name  of  the 
cedent.  The  requisite  warrant  for  the  change 
will  be  obtained  at  the  Bill-Chamber,  on  pro- 


duction of  the  assignation ;  and  in  every  ease 
this  would  seem  preferable  to  following  oat 
the  diligence  in  tlie  name  of  the  cedent  alter 
he  is  denuded.  A  special  assignee  will  not 
be  affected  by  latent  claims  of  trust  plead- 
able against  the  cedent,  unless  they  hare 
been  duly  notified  to  the  party  holding  the 
right  assigned.  In  the  case  of  Redfeam  v. 
S&mervail.  22d  Nov.  1805,  a  party  held  some  J 
stock,  apparently  in  his  own  right,  but  truly 
in  trust  for  another  company,  of  which  lie 
was  a  partner.  This  party  having  borrowed 
money  for  his  own  use,  assigned  in  security 
to  the  leader  the  stock  in  the  company  which 
he  held  iu  trust,  and  the  assignation  was  in- 
timated. On  his  bankruptcy,  a  competition 
arose  between  the  company,  for  whom  the 
bankrupt  had  held  the  share  in  trust,  and 
the  assignee.  Lord  Craio,  Ordinary,  found 
that  the  bankrupt  was  not  only  allowed  to 
remain  in  the  quiet  and  undisturbed  posses- 
sion of  said  stock,  as  absolute  proprietor,  for 
a  considerable  time  after  he  made  the  pur- 
chase, but  for  several  years  after  the  com- 
pany for  whom  he  li«ld  the  stock  in  trost  was 
dissolved.  His  Lordship,  therefore,  and  in 
respect  that  it  was  not  alleged  that  Francis 
Redfearn,  the  special  assignee,  was  in  mala 
Jide  to  accept  the  assignation  under  chal- 
lenge, sustained  his  claim.  Somervail,  the 
party  representing  the  company  for  whom 
the  bankrupt  held  the  stock  in  trust,  re- 
claimed against  the  interlocutor  of  the  Lord 
Ordinary,  and  the  Court  found  thst  the  alle- 
gation of  the  stock  in  question  having  stood 
in  the  person  of  David  Stewart  the  bankrupt, 
in  trust  for  David  Stewart  and  Company,  re- 
levant to  exclude  the  assignation  granted  by 
the  bankrupt  to  Francis  Redfeam.  Against 
this  judgment  the  assignee  pleaded,  that  it 
was  undoubted  law  that  a  posterior  assigna- 
tion first  intimated  was  preferable  to  a  prior 
one  which  had  not  been  intimated,  and  that 
there  was  no  difference  between  such  a  case, 
in  which  a  party  conveyed  a  right  which  he 
once  had,  but  which  he  had  previously  given 
away,  and  the  present  case,  where  a  party 
conveyed  a  right  which  apparently  stood  in 
his  person,  but  which,  by  a  latent  trust-deed, 
was  held  by  him  for  behoof  of  others  ;  that 
in  both  cases  the  simple  form  of  intimation 
would  have  prevented  the  wrong,  and  that 
in  both  the  safety  of  commerce  demanded 
that  the  same  rule  should  be  adopted.  The 
Court,  however,  adhered  to  their  judgments 
The  assignee,  however,  having  appealed  to 
the  House  of  Lords,  the  judgment  was  re- 
versed. Lord  Rkdbsdalb  observed :  — "  So- 
mervail, carrying  his  right  to  the  utmost  pos- 
sible extent,  could  not  be  in  a  better  position 
than  an  assignee  without  intimation  ;  and 
Redfeam,  whose  assignation  was  intimated; 


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had  closrly  the  preferable  right.  It  was 
tbsard,  therefore,  to  say,  that  a  person  having 
the  qoalified  right  of  a  latent  trust  should 
be  preferred  to  Redfearn,  who  had  an  inti- 
mated assignment."  Lord  Eldok  oltserred : 
— "  If  latent  equities  were  suffered  to  pre- 
vail against  assignations,  the  effect  would  be 
that  nothing  could  ever  be  assigned ;  for,  as 
loog  as  our  Scotch  neighbours  retained  any 
part  of  their  characteristic  shrewdness,  they 
would  never  take  an  assignment,  if  they  were 
tw^  that,  by  means  of  latent  equities,  such 
assignments  might  give  them  nothing.  No 
ease  or  authority  of  any  kind  has  been  found 
to  snpport  the  position,  that  an  intimated 
aaignation  might  be  defeated  by  a  latent 
equity,  which,  as  being  latent,  ex  necetsitate, 
(onld  not  be  intimated." 

A  different  rule,  however,  has  been  applied 
by  the  Court  to  the  case  of  creditors  who  did 
Dot  advance  their  money  on  the  faith  of  a 
special  assignation  of  a  right  held  by  a  party, 
a  faeie  absolutely,  but  truly  in  trust  for  an- 
other. In  the  case  of  Dingmtt  v.  MaeCombie, 
Jane  6, 1822, 1  S.  463,  a  party  who  held 
tertain  shares  in  a  company  in  trust  for 
another  transferred  them  in  favour  of  the 
tme  owner  within  sixty  days  of  his  own  bank- 
niptey.  In  a  competition  between  the  truster 
and  ^e  creditors  of  the  trustee,  the  former 
»as  preferred.  Lord  Allovat,  Ordinary, 
held  that  the  creditors  of  the  trustee  could 
not  stand  in  a  better  situation  than  he  did ; 
and  the  Court  adhered.  Lord  Gillibs  oh- 
mned;— "  It  is  true  that,  if  the  share  be- 
longed to  Thomson  (the  trustee),  he  could  not 
convey  to  Dingwall  (the  truster)  so  near  to 
im  bankruptcy ;  but  if  he  merely  held  it  in 
tnist,  I  think  he  could  give  an  acknowledg- 
iiient  thereof  at  any  time.  There  is  a  great 
difference  where  the  question  is  with  the 
creditors  of  the  trustee  and  a  hona  fide  pur- 
chaser. The  creditors  stand  in  the  situation 
of  the  bankrupt,  whereas  a  purchaser  is  en- 
titled to  rely  on  the  holder  being  the  true 
ovner.  The  ease  of  Redfearn  being  that  of 
a  parchaser  is  not  applicable."  In  the  case 
olGariott  v.  Gheyne,  Feb.  6, 1824,  2  S.  676, 
it  vasheld,  in  conformity  with  the  case  of 
'^iN^iM^  V.  MaeCombie,  that  shares  in  a  com- 
pany held  by  a  party  ex  facie  absolutely,  but 
ifiily  in  trust,  were  not  attachable  by  the 
trnstee  for  his  creditors,  but  belonged  to  the 
irnster.  Lord  Bal&bat  observed : — "  If  this 
vere  a  question  with  an  intimated  assignation, 
thet»  eould  be  no  diflSculty ;  but  the  question 
ii,  whether  the  share  did  not  remain  in  bonis 
of  the  truster,  and  whether  he  is  not  entitled 
to  vindicate  it  in  a  question  with  the  trus- 
tee'i  creditors.  Trusts  in  moveables  have 
l>«ea  always  acknowledged  by  us  as  lawful, 
sad  indeed  it  is  impossible  to  carry  on  com- 


merce without  them.  A  party  may  be  un- 
able to  act  for  himself,  or  his  property  may 
be  situated  in  a  foreign  country,  where  he  is 
not  naturalized,  and  where  he  must  avail 
himself  of  a  trust.  It  is  well  known  that 
millions  of  the  public  funds  belong  to  foreign- 
ers, and  are  held  for  their  behoof  by  trus- 
tees. It  is  therefore  a  very  alarming  doc- 
trine to  maintain,  that  by  the  bankruptcy  of 
the  trustee  all  the  funds  belonging  to  third 
parties,  and  confided  to  his  care,  pass  imme- 
diately to  his  creditors.  The  general  rule  of 
law  is,  nemo  plus  potest  transferre  quam 
ipsehabet,  and  assignattts  utitur  jure  auctoris  ; 
but  there  are  exceptions,  such  as  heritable 
rights,  which  are  governed  by  what  appears 
on  the  record ;  and  moveable  subjects,  the 
title  to  dispose  of  which  is  affected  by  the 
state  of  possession.  But  in  regard  to  jura 
incorporalia  the  general  rule  has  always  been 
considered  as  applicable.  Diblbtoit  and  our 
older  writers  even  hold  it  to  apply  to  the 
case  of  a  purchaser ;  and  Lord  Elcuies  was 
the  first  to  point  out  the  inconvenience  of  the 
rule  being  so  applied.  I  think  that  the  House 
of  Lords  were  mistaken  as  to  the  nature  of 
the  old  decisions.  We  were  so  much  influ- 
enced by  them,  that  we  decided  Redfeam's 
case  in  conformity  to  them.  But  the  House 
of  Lords  introduced,  what  I  think  is  a  rea- 
sonable distinction,  and  one  for  the  benefit  of 
society.  There  is,  however,  no  such  benefit 
in  applying  the  exception  to  such  a  case  as 
the  present,  but  the  reverse.  Then  look  to 
the  equity  as  affecting  both  parties.  If  a 
creditor  wish  for  security,  he  should  not  rely 
on  the  mere  reputation  of  his  debtor, — ^he 
should  inquire  and  obtain  a  security.  If  he 
does  not  so,  he  has  himself  to  blame.  But  if 
I  place  my  property  under  the  care  of  a  trust- 
worthy person,  and  he  become  bankrupt  next 
day,  is  there  any  equity  in  transferring  my 
property  to  his  creditors  ?  ■  No  doubt  the 
prima  facie  appearance  of  the  property  being 
in  the  bankrupt  lays  on  me  the  burden  of 
showing  that  he  is  merely  a  trustee ;  if  I  do 
so,  I  am  entitled  to  have  my  property  restored. 
But  would  it  not  be  most  inequitable  to  deprive 
me  of  that  right,  because,  without  any  fault 
on  the  part  of  myself  or  my  trustee,  he  has 
become  bankrupt.  If  the  creditors  can  show 
any  culpa  on  my  part,  whereby  a  false  credit 
is  raised  in  favour  of  their  debtor,  as  if  I  put 
property  into  his  possession  so  as  to  increase 
bis  credit,  my  right  to  restitution  may  be 
barred ;  but  it  is  incumbent  on  them  to  show 
this  ;  and  here  they  have  not  done  so.  I 
therefore  can  see  no  reason  for  applying  the 
rule  of  Redfeam's  case  to  the  present  one. 
I  have  also  been  influenced  in  my  opinion  by 
the  views  and  decisions  in  England ;  and  in 
regard  to  matters  of  this  nature  it  is  expe- 


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dient  to  approximate  the  two  systems  as  near- 
ly as  possible.  The  English  law  appears  in- 
deed to  be  conclnsive  as  to  the  distinction 
between  purchasers  and  creditors,  and  the 
case  of  Chim  is  directly  applicable."  Lord 
Pbksidekt  observed : — "  The  case  is  cer- 
tainly not  unattended  with  difficulty,  and 
puzzles  may  be  raised ;  but  I  concur  in  the 
opinion  of  the  majority.  YTe  mnst  look,  in 
the  first  place,  to  Scotch  principles  and  deci- 
sions. I  think  Redfearn's  case  an  exception; 
and  I  am  not  inclined  to  extend  it  to  the  case 
of  parties  not  dealing  on  the  faith  of  the  spe- 
cial subject.  The  general  rule  nemo  potest, 
tic,  and  assignatus  utitur,  is  clear,  audi  bow  to 
Redfearn's  case,  Ac^as  an  equitable  decision, 
although  I  think  it  contrary  to  our  law. 
Down  to  the  publication  of  Elchies'  Notes, 
no  such  distinction  was  ever  drawn.  He  saw 
the  blemish,  but  states  the  law  to  be  dif- 
ferent ;  and  the  case  of  Redfeam  introduced 
the  exception.  But  there  is  no  similarity 
between  it  and  the  present  one.  Redfearn  did 
not  trust  to  general  credit,  he  simulated  for 
and  obtained  a  special  subject.  In  that  case, 
either  he  or  the  truster  was  to  be  elected ; 
and  the  latter,  who  put  it  in  the  power  of 
the  trustee  to  defraud,  must  suffer.  In  the 
present  case,  the  shares  were  acquired  by 
Sanders  with  Gordon's  money  for  Gordon's 
behoof.  They  are  taken  in  name  of  Sanders, 
and  so  entered  in  the  books.  But  the  trust 
is  proved  by  the  letter  written  unico  contextu 
with  the  transaction.  Gordon  trusts  to  his 
general  honesty ;  so  do  the  creditors.  They 
take  the  chance  of  what  Sanders  may  have ; 
they  do  not  lend  either  money  or  sell  their 
goods  on  the  security  of  a  special  subject. 
What  equity  is  there  in  their  favour  in  a 
question  with  the  venu  dommts  f  I  can  see 
none.  But  I  rest  my  opinion  on  the  general 
rule  of  law ;  and  I  admit  that  I  am  happy 
that  our  law  has,  by  Redfearn's  case,  been 
assimilated  to  that  of  England.  But  we  see 
that  in  England  the  same  decision  has  been 
pronounced  as  we  propose  to  pronounce  in 
this  case.  I  do  not  think  that  the  bankrupt 
act  either  applies,  or  was  intended  to  apply, 
to  a  case  of  this  kind." 

Assignations  of  moveables  retentapossetsione, 
ue.,  while  the  cedent  himself  retains  posses- 
sion, cannot  prejudice  his  onerous  creditors. 
Neither  will  an  assignation  of  moveables, 
followed  by  symbolical  ^livery  and  an  in- 
strument of  possession,  but  without  an  actual 
change  of  possession,  be  effectual  to  exclude 
creditors.  See  the  cases  Borthtptck  v.  Urquhart, 
7  S.  420  ;  Freuer  v.  Fresby,  8  &  982 ;  Eo- 
hert  V.  Wallace,  5  D.  4. 

In  the  cases  of  leases,  where  assignation  is 
otherwise  lawful,  diffioultira  connected  with 
the  nature  of  the  subject  have  arisen.    The 


question  then  is,  whether  the  right  of  the 
assignee  to  a  lease  can  be  completed  by  inti- 
mation without  possession,  as  to  which  the 
following  points  appear  to  be  settled : — 1.  Ac- 
tual possession  of  the  subject  of  the  lease  by 
the  assignee  certainly  completes  the  assig- 
nation. 2.  Where  the  principal  tenant  has 
subset,  and  has  then  assigned,  intimation  to 
the  subtenant  will  complete  the  assignation, 
to  the  effect  of  entitling  the  assignee  to  draw 
the  subrent,  to  which  the  cedent  would  hare 
been  entitled.  3.  When  the  object  of  the 
principal  tenant  is  to  convert  his  lease  into  a 
security  for  debt,  the  expedient  resorted  to 
has  been  to  grant  an  assignation  of  the  lease 
to  the  creditor,  and  to  intimate  that  asngna- 
tion  to  the  landlord ;  and  then  for  the  assig- 
nee, as  principal  tenant,  to  grant  a  sublease 
to  iJie  cedent.  In  this  way  no  change  in  the 
actual  possession  takes  place,  and  there  being 
no  record  of  leases,  the  assignation  remains, 
to  a  certain  extent,  latent,  or  at  least  a  deed 
known,  it  may  be,  only  to  the  landlord,  the 
tenant  and  the  assignee.  The  question  as  to 
the  validity  of  such  a  security  has  been  much 
agitated  both  in  the  Court  of  Session  and  in 
the  House  of  Lords ;  and  although  it  is  said  to 
be  still  an  open  question,  yet,  so  far  as  it  has 
been  decided,  the  general  rule  is,  that  pos- 
session, natural  or  civil,  is  indiq>ensable  to 
the  validity  of  the  assignation  ;  and  conse- 
quently, in  a  question  with  the  creditors  of 
the  cedent,  the  security  is  not  to  be  relied  on. 
In  the  ease  of  Brock  y.  CbWxjJi,  8  S.  647, 
the  question  was  raised,  whether  an  assigna' 
tion  of  a  lease  by  a  tenant  to  a  creditor,  ia 
security  of  a  debt,  and  followed  by  intimation 
to  the  landlord,  but  without  any  actual 
change  of  possession,  was  sufficient  to  exdnde 
the  general  body  of  creditors  of  the  tmant. 
There  was  considerable  difference  of  opinion 
on  the  Bench,  the  majority  holding  that  pos- 
session was  necessary  to  complete  the  trans- 
ference. In  the  House  of  Lords  the  general 
point  was  not  determined,  and  the  judgment 
of  affirmance  proceeded  on  the  special  circum- 
stances of  the  case.  These,  however,  do  not 
appear  to  have  been  such  as  to  have  wantmt- 
ed  a  waiving  of  the  decision  of  the  genenil 
point  raised.  Money  had  been  advanced  to  the 
tenant  by  a  bank,  and  the  lease  had  been  as- 
signed to  them  in  security  of  the  advance, 
itnd  intimation  had  been  made  to  the  land- 
lord, and  a  sublease  was  taken  by  the  ten- 
ant from  the  bank,  his  assignee  to  the  prin- 
cipal lease.  This  last  circumstance  seemed 
to  have  been  considered  in  the  House  of  Lords 
as  one  which,  instead  of  mending  the  matter, 
threw  suspicion  on  the  transaction.  It  is 
difficult  to  see  how  this  should  be  the  ease, 
the  bank  having  done  all  that  it  could  think 
of  to  complete  the  security  which  it  had  n- 


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•eired.  The  general  point,  therefore,  whe- 
ther s  leoM  can  be  effectually  transferred 
withoot  an  actaal  change  of  posBossion,  rtill 
renaioa  nndetermined.  Consult  on  the  sub- 
ject, Bdr$  Com.  i.  66,  d  seq. ;  Ivory"*  Ertk.  B. 
ii.  tit.  b',  §  26,  noU  102 ;  Hmter  on  LanMord 
nd  Tautni,  i.  487,  495. 

In  connection  with  the  subject  of  assigna- 
tions, it  maj  be  stated  as  a  general  rule,  that 
in  erery  case,  where  a  creditor  receives  pay- 
Bent  from  a  eantioner,  or  from  one  who  is 
Bot  the  proper  debtor,  be  is  bound  ex  cequitaie, 
ud  for  the  relief  of  the  cautioner,  to  grant 
u  MBgnation  to  any  separate  security  which 
the  enditor  may  have  held  for  his  debt.  To 
this  rule,  however,  there  is  an  exception, 
vhere  sock  equitable  assignation  cannot  be 
gruted  without  prejudice  to  some  separate 
right  in  the  creditor  ;  e.g^  a  security  over  the 
ttffle  subject  for  a  different  debt.  In  that 
case,  the  cautioner  paying  the  one  debt,  could 
not  deBNmd  an  assignation  to  the  security, 
■ithoit  abo  making  payment  of  the  other. 
A  postponed  heritable  creditor  is  not  en- 
titled to  demand  from  a  prior  creditor  an 
•■ignation  to  his  debt  on  his  making  payment 
•f  the  debt,  unless  he  can  show  that  such  as- 
agution  is  necessary  to  enable  him  to  re- 
WKt  payment  of  his  own  postponed  debt. 
To  eai^le  him  to  make  such  a  demand,  some 
legitimate  reason  must  be  stated.  The  right 
to  demand  an  assignation  is  an  equitable  one, 
ud  a  can  most  Im  established  to  justify  the 
interposition  of  the  equitable  power  of  the 
tout  in  favoor  of  the  party  making  the  de- 
■sol  Althongh  it  would  be  a  good  reason 
^  the  aasignation  was  necessary  to  enable 
the  postponed  heritable  creditor  to  recover 
his  debt,  it  wonld  not  be  a  legitimate  reason 
that  he  wished  to  acquire  or  keep  up  a  good 
■avertment ;  Cunningham's  TVustees  v.  Button, 
I)n.  18,  1847,  10  D.  307.  In  this  case 
tte  Court  refosed  to  interdict  a  primary  he- 
rittble  creditor  from  selling,  although  the 
ywtpoaed  heritable  creditor  offered  to  pay 
<he  prior  debt  on  obtaining  an  assignation  to 
the  prior  security.  The  estate,  however,  was 
■Seient  to  pay  the  whole  heritable  debts,  and 
*Mlt  wu  tliongfat  expedient  by  the  tutors  of 
tt*  htir  of  the  debtor.  See,  on  the  subject  of 
Onartiek,  Enk.  B.  iii.  tit.  5 ;  Stair,  B.  iii. 
■*•!;  Jff  Mor^$  Notes, cclxxxi. ;  Bank.  vol.  ii. 
1J8;  Wr,  Com.  u.  16,  et  seq. ;  Prine.  §  1459, 
^tn-sl  Dom,  50;  ii.  248;  Kamet^  Equity, 
38i74,156,  262,  504;  Memies'  Conveyancing. 

AaigMtM  Vtttnr  Jure  Aaetoris ;  a  law 
**■^  importing  that  the  assignee  comes 
■^tt*  ri^t  and  place  of  the  cedent  See 
y  JbnP*  Notes  on  Stair,  p.  Ixxi.    See  also 


;  the  person  in  whose  favour  an 
H  granted. 
r2 


Asaignees.  The  assignees  under  an  En- 
glish commission  of  bankruptcy  are  persons 
chosen  by  the  creditors  at  a  meeting  called 
by  previous  advertisement.  The  bankrupt 
estate  is  vested  in  the  assignees,  who  are  in- 
trusted with  the  care  of  recovering  and  dis- 
tributing the  proceeds  amongst  the  creditors, 
according  to  the  order  fixed  by  the  commis- 
sioners. See  6  Geo.  IV.,  c.  16  ;  Bell's  Com.  ii. 
303,  «t  seq. 

AsaigiiBient ;  an  English  law  term,  simi- 
lar in  import  to  the  term  assignation  in  the 
law  of  Scotland.  An  assignment  is  defined 
to  be  a  deed  or  instrument  of  transfer,  the 
operative  words  of  which  are,  "  assign,  trans- 
fer, and  set  over ;"  and  which  passes  both  real 
and  personal  property.    Tomlins,  h.  t. 

It  is  generally  supposed  in  Scotland  that 
an  assignation  or  assignment  of  a  debt  in  Eng- 
land does  not  require  intimation  to  complete 
the  transfer.  Fbgfessok  BblIi  states,  "  an 
assignation  made  in  England  requires  not 
the  ceremony  of  intimation  to  complete  the 
transfer  of  a  debt  due  there."  2  Bell's 
Com.  18;  Bell's  Principles,  1466.  Notice, 
however,  is  necessary.  It  was  otherwise 
ruled  by  Sib  Thomas  Plcxeb,  in  the  case 
of  Cooper  v.  Fynmore,  1814,  3  JRussell,  60, 
who  held,  that  priority  of  time  must  pre- 
vail, and  that  mere  neglect  of  notice  was 
not  sufficient  to  postpone  a  prior  assignee, 
and  that  in  order  to  deprive  him  of  his  pri- 
ority, it  was  necessary  that  there  should  be 
such  laches,  as  in  a  court  of  equity  amount- 
ed to  fraud.  In  the  subsequent  cases,  how- 
ever, of  Deazle  v.  Sail,  and  Loveridge  v.  Cooper, 
3,  Russdl,  1,  the  same  Judge  pronounced  a 
different  judgment,  and  observed : — "  To^ve 
notice  is  a  matter  of  no  difficulty,  and  when- 
ever persons  treating  for  a  chose  in  action 
do  not  give  notice  to  the  trustee  or  executor 
who  is  the  legal  holder  of  the  fund,  they  do 
not  perfect  their  title ;  they  do  not  all  that 
is  necessary,  in  order  to  make  the  thing  be- 
long to  them  in  preference  to  all  other  per- 
sons, and  they  become  responsible  in  some 
respects  for  the  easily  foreseen  consequences 
of  their  negligence.  In  EyaU  v.  Rowley,  1 
Vesey  senr.,  371,  the  Judges  held  "that,  in 
the  case  of  a  chose  in  action,  you  must  do 
everything  towards  having  possession  which 
the  subject  admits  of;  yoa  must  do  that  which 
is  tantamount  to  obtaining  possession,  by 
placing  every  person  who  has  an  equitable 
or  legal  interest  in  the  matter  under  an  obli- 
gation to  treat  it  as  your  property.  For  this 
purpose  you  must  give  notice  to  the  legal 
holder  of  the  fund ;  in  the  case  of  a  debt,  for 
instance,  notice  to  the  debtor  is  for  many 
purposes  tantamount  to  possession.  If  you 
omit  to  give  that  notice,  you  are  guilty  of  the 
same  degree  and  species  of  neglect  as  he  who 


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leaves  a  personal  chattel  to  which  he  has  ac- 
quired a  title  in  the  actual  poesession  and 
under  the  actual  control  of  another  person." 
A  similar  judgment  vas  proaonnced  in 
Loveridge  t.  Cooper,  decided  of  the  same  date 
with  Deazle  v.  Hall,  and  both  judgments  were 
aflSrmed  by  Lord  Ltndhubst,  who  observed : 
— "  Where  personal  property  is  assigned,  de- 
livery is  necessary  to  complete  the  transaction, 
not  as  between  the  vendor  and  vendee,  but  as 
to  third  parties,  in  order  that  they  may  not 
be  deceived,  by  apparent  possession  and  own- 
ership remaining  in  a  person  who  in  fact 
is  not  the  owner.  This  doctrine  is  not  con- 
fined to  chattels  in  possession,  but  extends 
to  choses  in  action,  bonds,  Sie.  In  RyaU  v. 
Rowley,  it  is  expressly  applied  to  bonds,  simple 
contract  debts,  and  other  chotet  in  aetion,  and 
Lord  Chief  Baron  Farkb  says,  that  on  the  as- 
signment of  a  bond-debt  the  bond  should  be 
delivered,  and  notice  given  to  the  debtor ;  and 
he  adds,  that  with  respect  to  simple  contract 
debts,  for  which  no  securities  are  holden,  such 
as  book-debts,  for  instance,  notice  of  the  as- 
signment should  be  given  to  the  debtor,  in 
order  to  take  away  from  the  debtor  the  right 
of  making  payment  to  the  assignor,  and  to 
take  away  from  the  assignor  the  power  and 
-disposition  over  the  thing  assigned.  In  cases 
like  the  present,  the  act  of  giving  the  trustee 
notice  is,  in  a  certain  degree,  taking  posses- 
sion of  the  fund.  It  is  going  as  far  towards 
equitable  possession  as  it  is  possible  to  go;  for, 
after  notice  given,  the  trustee  of  the  fund  be- 
comes a  trustee  for  the  assignee  who  has  given 
him  notice."  In  Meux  v.  BeU,  1841,  1  Hare, 
73,  theVice-Chancellor  Wigbam  observed : — 
"  I  believe  that,  prior  to  the  decision  in  Mr 
Start's  case  in  1809,  Wright  v.  Lord  Dorchester, 
3  Russell,  49,  it  had  never  been  held  that 
the  mere  omission  of  a  person  having  an  equi- 
table interest  in  a  fund,  the  legal  property  of 
which  was  in  another,  to  give  notice  of  that 
interest,  would  of  iteelf  give  a  puisne  incum- 
brancer the  priority ;  and  I  think  it  is  appa- 
rent, upon  the  judgment  in  Evan$  v.  Bidmetl,  6 
Ves.  190,  that  Lord  Eij>oir  at  that  time  did 
not  consider  the  mere  omission  to  give  notice, 
when  the  transaction  was  quite  destitute  of 
fraud,  would  have  that  effect.  Sir  Thomas 
Flumer,  also,  in  1814,  in  the  case  of  Cooper  v. 
Fynmore,  3  Russell,  60,  expressed  clearly  the 
law  of  the  Court  to  be,  that  the  mere  omis- 
sion to  give  notice  would  not  postpone  a  prior 
to  a  puisne  incumbrance.  I  conceive  it  to  be 
now  clearly  decided  by  the  cases  of  Deazle  v. 
HaU,  Loveridge  v.  Cooper,  and  Foster  v.  Cocker- 
tU,  Myl.  db  K.  297,  and  9  BUgh,  N.S.  332, 
that,  if  a  bona  fide  incumbrancer  upon  a  fund, 
the  legal  interest  in  which  is  in  a  trustee, 
gives  notice  of  his  incumbrance  to  the  trustee, 
and  neitiier  the  incumbrancer  giving  the  no- 


tice, nor  the  trustee  at  the  time  of  such  notice 
being  given,  has  notice  of  any  prior  incun- 
brance  affecting  the  fund,  the  incumbrancer 
giving  such  notice,  as  long  as  the  circum- 
stances of  the  case  remain  unaltered,  will  be 
entitled  to  priority  over  a  prior  incumbrancer 
upon  the  fund,  who  has  omitted  or  neglected 
to  give  notice  of  his  incumbrance,  although 
the  puisne  incumbrancer  may  have  advanced 
his  money  without  making  any  previous  in- 
quiries of  the  trustee.  In  the  absence  of  no- 
tice, the  party  claiming  the  prior  incum- 
brance, has  not  perfected  his  title.  In  a  case 
where  there  cannot  be  an  actnal  transfer  of 
the  subject,  he  must  do  all  that  is  in  his  power ; 
and  if  he  fails  to  do  this,  and  another  person 
takes  an  incumbrance  and  gives  notice,  the 
second  person  has  acquired  a  perfect  assign- 
ment, whilst  the  first  equitable  assignment  is 
imperfect." 

Notice  given  to  one  of  several  trustees  will 
be  sufficient  to  perfect  the  right  of  the  party 
giving  the  notice ;  and  it  is  immaterial  that 
the  notice  was  not  given  for  the  purpose  of 
completing  and  giving  validity  to  the  assign- 
ment. In  Smith  v.  Smith,  1833,  2  C.  R.  and 
Cr.  and  M.  231,  Lord  Ltndbubst,  in  deliver- 
ingthe  judgment  of  the  Court,  observed:  "We 
think  that  the  purpose  for  which  the  notice 
was  given,  if  a  notice  were  in  fact  given,  is 
altogether  immaterial.  If  the  trustee  were 
made  acquainted  by  the  plaintiff  with  the 
fact  of  the  assignment,  there  should  be  no  ne- 
cessity for  giving  him  a  second  notice.  It 
would  have  been  a  mere  form,  and  altogether 
superfluous."  In  Meux  v.  Bell,  the  Vice-Chan- 
cellorWiSRAU  observed:  "  The  next  question 
is,  whether  the  first  incumbrancer,  in  order  to 
perfect  his  security,  must,  where  there  are 
several  trustees,  give  notice  to  all  of  them. 
If  notice  to  all  is  not  necessary,  I  am  unable 
to  discover  upon  what  principle  notice  to  one 
can  be  deemed  insufficient.  If  the  case  of 
Smith  v.  Smith  has  determined  that  notioe  to 
one  trustee  is  sufficient,  I  should  not  exercise 
a  sound  discretion  if  I  were  to  create  aay 
doubt  upon  that  point.  Another  question  is 
on  the  nature  of  the  notice.  It  was  said  in 
argument,  that  it  did  not  appear  that  the 
notice  was  given  for  the  purpose  of  affecting 
the  trustee  with  notice  of  the  settlement!.  If 
the  trustee  had  said  that  the  fact  had  come 
to  his:  knowledge  in  one  transaction,  and  be 
had  &u-gotten  it  at  the  time  of  the  other, 
there  ihight  be  reason  for  the  distinction 
which  has  been  attempted  to  be  made  with 
regard  to  the  manner  in  which  the  trustee 
gained  his  information.  In  such  a  case  there 
might  be  a  distinction  between  knowledgo 
which  is  the  result  of  express  and  pointed  in- 
struction, and  notice  which  is  derived  from 
casual  information.    If  the  trustee  has  actaal 


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knoirled^,  at  the  time  the  transaction  takes 
place,  I  hare  alvays  understood  the  principle 
of  Uw  to  be,  that  what  a  man  knows  for  one 
purpoM,  he  knows  for  sU  ;  and  you  do  not  in- 
qnire  whether  he  learnt  it  in  one  character 
or  in  another."  1  Hare,  73.  The  ground  for 
thii  appears  to  be,  that  the  second  assignee 
would  hare  been  safe  if  he  had  made  inquiry, 
for  he  would  then  hare  been  informed  of  the 
prior  assignment.  Although  notice  to  one 
of  sereral  holders  of  a  fund  is  8u£Scient,  this 
would  not  apply  to  the  case  of  a  company, 
touixting  of  numerous  partners.  In  such  a 
case,  notice  should  be  given  to  the  company  at 
its  office.  In  the  case  of  Thompson  v.  Spiers, 
1845, 13  Sim.  469,  the  question  was,  whether 
actual  notice  of  the  assignment  of  a  policy, 
effected  with  the  Equitable  Assurance  Society, 
was  necessary  to  take  the  policy  out  of  the 
order  and  disposition  of  the  assured.  In 
Dmem  v.  Ckamberlayne,  11  Sim.  123,  it  had 
been  held  that  such  notice  was  not  necessary, 
00  the  ground  that  all  the  assured  of  the 
EqaitaWe  Society  were  partners.  The  Vice- 
Chancellor  observed : — "  The  rule  is,  that  no- 
tice to  one  partner  is  notice  to  the  partner- 
Aip;  and  as  all  the  insurers  in  the  Equitable 
Asinrance  Office  are  partners  in  the  Society, 
the  fact  of  the  assignment  of  a  policy  by  one 
of  the  asjnred  must  be  taken  to  be  a  fact  of 
which  the  Society  had  notice."  In  Thompson 
T.  Sfiert,  1845, 13  Sim,  469,  the  case  of  Dun- 
c«  r.  Chamberlayne  was  overruled,  on  the 
ground  that,  in  order  to  take  a  policy  of  in- 
nnmee  out  of  the  order  and  disposition  of 
(be  atsignor,  it  is  essential  to  the  interests  of 
naokind  that  something  should  be  done  of  a 
decwre  nature,  which  might  effectually  pre- 
Teot  the  payment  of  the  proceeds  to  any  other 
penon  than  the  assignee.  The  Yice-Chan- 
eellor  observed : — "  The  Equitable  Assurance 
Company  is  a  very  numerous  and  wealthy 
body,  and  therefore  it  would  be  idle  to  say, 
tbat,  because  the  assured  happens  to  be  a 
nember  of  the  company  in  a  legal  sense,  any 
act  which  he  does,  with  reference  to  his  own 
particular  policy,  is  to  be  taken  to  be  a  part- 
uenhip  act,  so  as  to  affect  the  whole  body 
with  notice  of  it.  In  consequence  of  the  de- 
wion  in  ex  parte  HeMssof  by  the  Lord  Chan- 
ttllor  of  Ireland,  I  had  a  conversation  a  few 
ilaji  ago  with  his  Lordship  upon  the  subject, 
and  we  agreed  that  conrta  of  equity  ought 
to  Uy  down  some  rule  which  should  not  be 
fouoded  on  so  unsubstantial  a  basis  as  the 
technical  doctrine  of  implied  or  constructive 
uetice,  but  which  should  make  it  morally  im- 
PMBblefor  the  assignor  to  have  dominion  over 
tb«  p^ey,  without  the  assent  of  the  assignee." 
It  has  already  been  seen,  that  an  as- 
spaat  is  complete,  if  the  party  holding 
^  right  assigned  is  in  the  knowledge  of  the 


assignment,  although  such  knowledge  may 
not  have  been  obtained  by  an  express  notifi- 
cation by  the  assignee.  This  constitutes  a 
material  point  of  difference  between  the  laws 
of  England  and  Scotland,  in  the  matter  of 
assignments ;  for,  in  Scotland,  private  know- 
ledge of  an  assignment  by  the  party  holding 
the  right  assigned  is  not  sufficient  to  perfect 
the  assignment,  and  intimation  on  the  part  of 
the  cedent  is  necessary  for  that  purpose.  The 
English  rule  appears  to  be  founded  on  this, 
that  all  that  is  required,  is  knowledge  of  the 
assignment  by  the  party  holding  the  right 
assigned  ;  and  that,  if  a  proposed  second  assig- 
nee, before  taking  the  assignment,  does  not 
apply  to  the  party  holding  the  right  assigned, 
to  ascertain  whether  a  prior  assignment  ex- 
ists or  not,  he  has  no  just  ground  of  complaint 
if  it  should  afterwards  appear  that  such  party 
was  in  the  knowledge  of  a  prior  assignment. 
In  such  a  case,  it  would  appear  that  the 
general  rule,  "aseignoMu  utitwjwe  auctoris," 
is  allowed  to  take  effect.  Another  point  of  dif- 
ference between  the  laws  of  the  two  countries 
appears  to  be,  that  by  the  law  of  England 
the  puisne  incumbrancer  must  be  in  bona  fide, 
and  not  in  the  knowledge  of  the  prior  incum- 
brancer. By  the  law  of  Scotland  again,  the 
assignation  first  intimated  prevails,  in  the 
case  of  an  incumbrance  or  security. 

Afluaa;  has  various  significations  in  the 
older  law  of  Scotland :  thus,  it  signifies  pro- 
perly a  sitting  in  session — and  is  taken  also 
in  the  Regiam  Majestatem  for  a  constitution, 
ordinance,  or  law.  It  is  likewise  used  to 
signify  a  measure  of  quantity,'— a  rent  due 
to  the  king, — and  finally,  it  signifies  a  jwy, 
in  which  last  acceptation  it  is  still  in  use. 
Skene,  h.  t. 

Assize ;  sometimes  signifies  the  sittings  of 
a  court,  sometimes  its  ordinances,  and  some- 
times it  signifies  a  jury  ;  see  Skene,  De  Signi- 
Jieatione  Verborwn,  under  the  word  Assita. 
A  jury,  OB^ssize,  in  the  Court  of  Justiciary, 
consists  o^fteen  men,  formerly  chosen  by  the 
Court,  now  balloted,  from  a  greater  number 
(not  exceeding  forty-five,)  summoned  by  the 
Sheriff,  and  of  whom  a  list  must  be  served 
on  the  defender  along  with  the  copy  of  his 
indictment.  This  number  used  to  be  re- 
stricted to  forty-five,  but  power  was  given,  by 
6  Geo.  IV.,  c.  22,  to  the  Lord-Justice  Clerk, 
or  any  one  of  the  Lords  Commissioners  of  Jus- 
ticiary, to  direct  a  larger  number  to  be  sum- 
moned where  required.  This  power  has  been 
exercised  where  there  were  several  panels 
to  be  tried  on  one  indictment;  and  to  the 
High  Court  and  Glasgow  Circuits  respec- 
tively sixty-five  and  one  hundred  are  cited. 
Ersk.  B.  iv.  tit.  4,  §  92,  and  §  101 ;  Bank.  vol. 
ii.  p.  661;  Kames"  Stat.  Law  Ahridg.  h.  t.; 
Hvme,  i.  380,  384 ;  ii.  138 ,  et  seq.,  154,  et 


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*eq.,  279  to  318,  414  to  462 ;  BelPs  Nattt, 
p.  257 ;  11  and  12  Vkt.,  c.  79. 

Aasociate  in  Crime.    See  AecompUce. 

Assoilzie ;  is  to  free  a  party  from  the  con- 
clusions of  an  action,  or  to  find  a  criminal 
not  guilty. 

Assumpsit;  is  the  commonest  form  of 
action  in  the  English  courts  for  the  recovery 
of  damages  occasioned  by  the  breach  of  a 
simple  contract.  The  name  is  derived  from 
the  plaintiff  asserting  that  the  defender  un- 
dertook to  perform  or  pay  something  to  him  ; 
and  hence,  the  action  can  only  be  sustained 
when  there  has  been  an  express  promise,  or 
when  equivalent  circumstances  have  taken 
place.     Tomlin$,  h.  t. ;  Wharton,  h.  t. 

Assmnptioii  of  indrds.  This  was  a  pro- 
vision for  the  clergy  by  the  act  1667,  c.  10, 
which  directed  the  whole  teinds  of  all  the  Po- 
pish benefices,  without  exception,  to  be  paid 
to  the  collectors  for  the  ministers'  stipend ; 
and  particular  localities  were  assigned  in 
every  benefice  to  the  extent  of  a  third.  This 
was  called  the  Assumption  of  Thirds.  This 
plan  of  providing  for  the  clergy  was  rendered 
unproductive  by  the  act  1606,  c.  2,  restoring 
bishops,  who,  though  laid  under  an  obliga- 
tion to  provide  for  their  clergy  out  of  the 
thirds,  succeeded  in  evading  the  law.  Ersk. 
B.  ii.  tit.  10,  §  17. 

Assumption,  Deed  of ;  is  a  deed  executed 
by  trustees  under  a  trust-deed  or  deed  of 
settlement,  assuming  a  new  trustee  or  trus- 
tees. An  express  power  from  the  truster  is 
necessary  in  order  to  entitle  trustees  to  exe- 
cute such  a  deed ;  the  terms  of  which  must, 
of  course,  depend  upon  the  nature  of  the 
powers  conferred  by  the  trust-deed.  See 
Jurid.  Styles,  vol.  ii.  p.  498,  3d  edit. ;  Dvf 
on  Deeds  ;  Menties  on  Conveyancing. 

Assurance.    See  Insurance. 

Assurance,  Oath  o£    See  Oaths. 

Assytiiment ;  is  an  indemnification  due  to 
the  heirs  of  a  person  murder^  from  the 
person  guilty  of  the  crime.  The  assythment 
may  be  made  the  ground  of  an  action,  where- 
ever  a  person  pleads  on  a  remission,  since  the 
doing  so  is  an  acknowledgment  of  the  crime. 
It  may  also  be  the  ground  of  an  action, 
wherever  the  crime  has  been  found  by  the 
decision  of  a  court ;  It'Harg  v.  Campbdl,  Feb. 
24,  1767,  M.  p.  12541.  But,  where  the 
criminal  has  suffered  the  pains  of  law,  no 
claim  for  assythment  lies.  If  the  criminal 
has  fled,  and  been  fugitated,  the  assythment 
may  be  obtained  from  the  donatory  of  the 
escheat  of  the  criminal.    See  Hume,  vol.  i. 


p.  279,  and  li.  p.  477  ;  Statr,  U.  u  tit.  9,  § 
7 ;  Jf(we'«  Notes,  p.  Ivii. ;  Ersk,  B.  iv.  tit.  4, 
§  106 ;  Bank.  vol.  i.  p.  246,  et  seq. ;  BdPs 
Princ.  §  2029,  et  seq.  3d  edit. ;  Karnes"  Stat. 
Law  Ahrig,  voce  Reparation ;  Brown's  Synop, 


p.  2131 ;  Jvrid.  Styles,  vol.  ii.  p.  406,  3d 
edit. 

Astriction;  is  the  obligation  imposed  by 
the  servitude  of  thirlage,  by  which  certain 
lands  are  astricted  to  a  particular  mill,  and 
the  possessors  bound  to  grind  their  grain 
there.  Stair,  B.  iv.  tit.  16 ;  Ersk.  B.  ii.  tit. 
9,  §§  18,  32 ;  BeU's  iVtne.J  1017,  3d  edit; 
Brown's  Synop.  p.  3.    See  Thirlage. 

Atheism ;  disbelief  in  the  existence  of  God. 
Under  the  act  1661,  c  21,  and  1695,  c  11, 
persons  guilty  of  certain  degrees  of  this  of- 
fence were  liable  to  capital  punishment ;  but 
these  statutes  were  repealed  by  the  53  Gea 
III.,  c.  160,  §  3,  and  the  punishment  is  now 
arbitrary  at  common  law.  See  Hnme,  vol.  i. 
p.  668 ;  Erdt.  B.  iv.  tit.  2,  §  23,  and  noU; 
tit.  4,  §  16 ;  Bank.  vol.  ii.  p.  646 ;  Earned 
Stat.  Law  Abridg.  h.  t. ;  Hutch.  Justice  <^Ptaa, 
vol.  ii.  p.  336 ;  Alison's  Prac.  437.  As  to  th« 
effect  of  atheism  in  disqualifying  witnesses, 
see  Brown,  221 ;  Tait  on  Evidence,  347 ;  Did- 
son  on  Evidence,  848,  907. 

Attachiamentnm ;  from  the  French  word 
attacher,  used  in  the  Regiam  Majestatem  to 
signify  a  charge  or  binding  of  a  person,  to 
the  effect  he  may  be  compelled  to  appear  to 
answer  in  judgment.  It  also  signifies  an  at> 
tachment  of  goods  and  effects  by  arrestment 
or  otherwise.     Skene,  h.  t. 

Attachment ;  in  English  law,  is  a  judicial 
proceeding,  answering  to  what  in  Scotland  is 
termed  aiTestment,  by  means  of  which  a 
creditor  may  obtain  the  security  of  the  goods 
or  other  personal  property  of  bis  debtor,  in 
the  hands  of  a  third  person,  for  the  purpose, 
in  the  first  instance,  of  enforcing  the  appear- 
ance of  the  debtor  to  answer  to  an  action ; 
and  afterwards,  upon  his  continued  default, 
of  obtaining  the  goods  or  property  absolutely 
in  satisfaction  of  the  demand.  AttaAmefU  ii 
also  used  to  signify  a  kind  of  criminal  protest, 
which  courts  of  record  are  authorised  sum- 
marily to  issue  upon  a  mere  suggestion,  or 
upon  the  personal  knowledge  of  the  judges, 
without  indictment  or  information.  It  is 
properly  granted  in  cases  of  contempt.  Tom- 
tins,  h.  t. 

Attainder ;  is  the  corruption  of  Mood  cos- 
sequent  on  a  conviction  for  high  treason.  Its 
effect  is  to  make  the  convicted  person  forfeit 
his  honours  and  dignities,  and  become  in- 
capable of  succeeding  to  any  ancestor.  The 
estate,  which  he  is  thus  prevented  from  taking, 
falls  to  the  immediate  superior  as  escheat. 
It  follows  as  a  necessary  consequence  of  the 
corruption  of  blood,  that  the  heirs  of  the 
attainted  person  cannot  inherit  upon  his 
death,  nor  can  an  heir  succeed  to  an  ancestor 
where  the  propinquity  between  the  two  is 
through  the  attainted  person.  ErsL  B.  ii. 
tit.  3,  §  16 ;  B.  iv.  tit.  4,  §  24;  Bank.  vol.  ii. 


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p.  261,  ri  teq. ;  Smnt.  Abridg.  voce  Treason,  96. 
See  Tnaien. 

Attapit ;  eoDvicted.    ^cene,  h.  t. 

AUmpt  ti  Kinder.  At  common  law,  an 
attempt  at  mnrder  ig  held  to  have  been  com- 
mitted when  the  panel  has  inflicted  an  in- 
jorj  of  sQch  a  natnre  as  shows  him  to  have 
ton  quite  reckless  of  the  life  of  the  sufferer ; 
tt  when  he  has  done  aU  that  he  could  to  ac- 
eofflplith  his  purpose,  although  no  injury  may 
hsre  ensoed ;  as,  e^^  where  the  pistol  misses 
tre,  or  the  ball  does  not  hit  its  object.  An 
Kt  of  a  more  remote  nature,  by  which  the 
puel  intended  to  destroy  life,  and  which 
wonld  hare  had  that  effect  had  it  not  been 
defeated,  amounts  to  thfis  crime.  But  mere 
preparations  for  murder,  while  the  deed  is 
(till  in  the  panel's  option,  are  not  legally 
M^nittble.  Any  circumstances,  which  would 
bare  made  the  killing  amount  only  to  justifi- 
able  or  culpable  homicide,  if  the  wonnded 
naa  had  died,  will  of  course  go  to  extenuate 
tbe  attempt.  Attempt  at  murder  is  punish- 
able at  common  law  with  any  pain  short  of 
death.  By  10  Geo.  IV.,  c.  38,  attempt  to 
Bsrder,  or  to  do  severe  bodily  injury,  is  capi- 
tal in  the  following  cases  : — 1.  Where  loaded 
fire«ini  are  discharged,  or  attempted  to  be 
dJRhuged,  at  any  one.  In  this  case,  the  in- 
tentien  to  kill  or  injure  does  not  need  proof. 
2.  Stabbing  or  cutting  with  intent  to  mnrder 
«r  ialict  iigury.  In  this  case  the  intent  must 
be  proved,  and  also  that  it  has  taken  effect 
entke  person  aimed  at.  3.  Where  poison 
)g  administered  with  intent  to  murder  or  in- 
liet  isjuty.  Here,  also,  the  intent  must  be 
proved,  and  the  poison  must  have  been  actu- 
tll;  Bvallowed,  and  not  merely  put  in  the 
nj  of  tbe  intended  victim.  4.  An  attempt 
tenJToeate,  strangle,  or  drown,  with  intent 
to  kin  or  inflict  ii\jury.  Here  the  intent 
BBitbe  proved.  5.  Where  sulphuric  acid 
or  other  corrosive  substance  is  thrown  at  a 
penoB  with  intent  to  murder,  disfigure,  or  in- 
jure, and  where  the  person  aimed  at  has  been 
disfignred  or  seriously  injured  in  consequence. 
Tbe  mere  throwing  of  the  acid,  or  its  burn- 
ing or  destroying  the  dress,  will  not  be  sufii- 
(iat.  Here  also  the  intent  must  be  proved. 
Cimmstanoes  which  would  have  lowered  the 
vim  from  murder,  had  death  followed,  do 
Ht  raader  the  statute  inapplicable,  but  mere- 
Ijaodifytke  punishment.  The  prosecutor 
kaatte  power  of  restricting  the  pains  of  law 
*ithoat  departing  from  the  statute.  See 
*"e,  L  26-30 ;  Bdl't  Com.  p.  66 ;  Alison, 
IW ;  Slide's  Powers  and  Duties  of  Juries,  98. 
^Mnrder. 

Atteitor,  ta  the  BUI- Chamber ;  is  one  who 
fttaats  the  snflleiency  of  a  cautioner  offered 
is  tke  Bill-Chamber.  W  here  a  cautioner  is 
<iCmd  and  objected  to,  and  where  the  objec- 


tion cannot  be  otherwise  obviated  to  the  sa- 
tisfaction of  the  clerk  of  the  bills,  the  addi- 
tional caution  of  an  attestor  is  interposed. 
The  attestor  not  only  certifies  the  sufiiciency 
of  the  cautioner  offered,  but  binds  himself 
subsidiarie  along  with  the  cautioner ;  where- 
as, when  a  justice  of  the  peace  or  other  re- 
spectable person  certifies  that  the  proposed 
cautioner  is  habite  and  repute  in  good  circum- 
stances, such  a  certificate  imports  no  more 
than  that  at  the  time  the  fact  so  certified  is 
true,  without  inferring  any  personal  respon- 
sibility beyond  the  knowledge  and  belief  of 
the  magistrate,  or  other  person  certifying. 
A.  S.  21th  Dee.  1709 ;  Stair,  B.  iv.  tit.  62, 
§  10  and  §  25  ;  Mor<ls  Notes,  cxiii. ;  Ersk.  B. 
iii.  tit.  3,  §  71 ;  Bank.  vol.  i.  459 ;  BeWs  Com. 
i.  323 ;  Kernel  Stat.  Law,  voce  Cautioner  in 
Suspension ;  Jurid.  Styles,  ii.  90 ;  Bent/ridge 
on  Bill-Chamber,  p.  33,  and  App.  p.  44 ; 
SharuPs  Prac.  478.  See  Cautionary.  Discus- 
sion.   BiU-Chamber. 

Attorney;  one  appointed  by  another  to 
act  for  him  in  his  absence.  There  is  not  in 
Scotland,  as  in  England,  a  class  of  practi- 
tioners of  the  law  who  take  the  name  of  at- 
torneys. The  office  of  attorney  in  Scotland 
is  private,  and  conferred  by  letters  of  attor- 
ney, which  regulate  the  extent  of  power  con- 
ferred on  the  attorney.  In  the  ceremony  of 
giving  sasine,  the  person  who  acted  for,  or  re- 
presented the  party  who  was  to  be  infeft,  and 
who,  as  his  procurator,  received  symbolicab 
delivery,  was  denominated  the  attorney,  and 
was  formerly  appointed  by  special  letters  of 
attorney ;  but  now  possession  of  the  warrant 
for  infeftment  is  held  to  be  sufficient  evidence 
of  his  commission,  though  a  fraudulent  use  of 
the  warrant  may  annul  the  sasine.  Stair,  B. 
ii.  tit,  3,  §§  16  and  17  ;  Mor<?s  Notes,  p. 
xi. ;  BelPs  Com.  vol.  i.  p.  478 ;  voL  ii.  p.  349, 
5th  edit. ;  Jurid.  Styles,  vol.  ii.  p.  303,  etseq. 
3d  edit.    See  Meftment. 

Attonus'i  dertiflcate.  Under  certain 
revenue  sIRutes,  every  writer  to  the  Signet, 
solicitor,  agent,  attorney,  or  procurator  in  the 
law  courts  in  Scotland,  is  subject  to  a  high 
license-duty  on  his  admission ;  and,  in  order 
to  authorize  him  to  make,  or  at  least  to  re< 
cover,  his  professional  fees  or  charges  for  ju- 
dicial business,  he  is  also  bound  annually  to 
take  out,  and  to  record,  in  a  special  record 
kept  for  the  purpose,  a  stamped  certificate  or 
license.  The  license-duty  at  present  payable 
by  an  agent,  solicitor,  or  writer  to  the  Signet, 
on  his  admission  as  a  practitioner,  is  L.25. 
An  agent  in  the  Supreme  Court,  if  admitted 
without  indenture,  pays  (in  addition  to  the 
above  L.25)  the  sum  of  L.60.  In  the  infe- 
rior courts,  if  admitted  without  an  indenture, 
(in  addition  to  the  above  L.25,)  L.30.  For 
a  license  to  acl^  as  a  notary-public,  the  stamp 


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is  L.20 ;  and  the  annual  license  of  attorneys 
or  agents  resident  in  the  city  or  shire  ot 
Edinburgh,  who  hare  been  admitted  for  three 
years  or  upwards,  is  L.9.  Where  under  three 
years,  L.4,  10s.  If  resident  elsewhere  in 
Scotland,  under  three  years,  L.3  :  if  of  three 
or  more  years'  standing,  L.6  per  annum.  In 
Bdinburgh  (city  and  county)  these  annual 
certificates  are  entered  in  a  record  kept  by  an 
ofScer  appointed  by  the  Judges  of  the  Court 
of  Session,  who  marks  on  the  back  of  the  cer- 
tificate the  date  of  its  being  exhibited  to  him, 
and  then  redelivers  it  to  the  party  ;  and  this 
entry  must  be  made  by  31st  December  year- 
ly, or  before  tlie  agent  begins  to  practise. 
These  certificates,  in  Scotland,  are  issued  from 
the  Stamp  Office  annually  between  31st  Oc- 
tober and  1st  December :  they  bear  date  1st 
November,  and  they  expire  annually  on  31st 
October.  The  penalty  of  a  failure  to  take 
out  and  record  such  annual  certificate  is,  that 
the  defaulter  shall  forfeit  L.50,  and  "  be  in- 
capable of  maintaining  or  prosecuting  any 
action,  suit,  or  proceeding  in  any  court  of  law 
or  equity,  for  the  recovery  of  any  fee,  reward, 
or  disbursement,  upon,  account  of,  or  with  re- 
lation to,  any  business,  matter,  or  thing  per- 
formed, executed,  directed,  or  conducted  by 
him  in  any  character  or  capacity  requiring  a 
certificate."  The  statutes  regulating  this 
matter  are,  25  Geo.  III.,  c.  80 ;  37  Geo.  III., 
c.  90  (which,  however,  seems  to  be  limited 
to  England) ;  7  Geo.  iF.,  c  44 ;  9  Geo.  IV.,  c. 
49 ;  and  16  and  17  Vict.,  c  63.  The  result 
of  several  decisions  in  the  Court  of  Session 
rather  appears  to  be,  that  the  penal  clause  in 
the  statutes  is  personal  to  the  agent,  opera- 
ting as  a  bar  against  his  suing  his  client  for 
the  recovery  of  judicial  expenses  incurred,  as 
well  as  disbursements  made,  while  he  had  not 
a  license;  or,  where  expenses  have  been  found 
due  to  his  client,  barring  the  agent-disbur- 
ser  from  taking  decree  in  hisownnAme  against 
the  opposite  party ;  but  that  it  ju-esents  no 
bar  to  a  decree  for  expenses  in  mbe  of  the 
client  who  has  employed  the  unlicensed  agent ; 
at  least  where  the  client,  in  ignorance  of  his 
agent's  omission,  has  actually  paid  him,  and 
has  been  found  entitled  to  costs  against  the 
opposite  party  in  the  suit.  The  decisions  on 
this  point,  however,  have  not  been  uniform ; 
and  at  all  events  it  seems  to  be  clear,  that 
the  Court  will  not  sanction  any  collusive  ar- 
rangement betwoun  agent  and  client,  where- 
by the  object  of  the  above  statutes  may  be 
evaded,  and  the  agent  enabled  to  recover,  in 
name  of  his  client,  what  he  would  not  have 
been  entitled  to  sue  for  in  his  own  name. 
See  on  this  subject,  Barry  r.  Singer,  July  8, 

1826,  4  S.  813 ;  Smt/lh  v.  Nisbet,  Feb.  20, 

1827,  5  S.  388  ;  M'Goum  v.  Beag,  Jan.  24, 
1828,6  S.  420;  Darling  v.  Adamson,  Nov. 


26,  1834,  13  S.  93  ;  Johnson  v.  M'Quein, 
June  21. 1834, 12  S.  770.  and  March  11, 
1835,  13  S.  682  ;  Irdand  v.  Wilson,  June 
25,  1851,  13  D.  1226,  where  a  distinction 
was  refused  to  be  taken  between  proper  judi- 
cial expenses  and  expenses  incurred  in  a  judi- 
cial reference. 

Attomey-OflneraL  In  England  and  Ire- 
land the  Attorney-General  is  the  first  minis- 
terial law-officer  of  the  Crown,  appointed  by 
letters-patent.  He  is,  in  principle,  attorney 
for  the  Sovereign,  to  whom  he  stands  in  the 
same  relationship  that  any  other  attorney 
does  to  his  employer.  His  official  duty  is  to 
exhibit  informations,  and  conduct  prosecu- 
tions for  such  crimet  and  offences  as  tend  to 
endanger  the  state ;  to  advise  the  heads  of 
the  various  departments  of  Government  on 
legal  questions ;  to  conduct  all  suits  and  pro- 
secutions connected  with  the  recovery  of  the 
revenue  of  the  Crown,  for  the  protection  of 
charitable  endowments ;  and,  in  general,  to 
appear  in  all  courts  in  England  or  Ireland, 
when  the  interests  of  the  Crown  are  in  ques- 
tion. Many  questions  of  precedence  have 
arisen  between  the  Attorney-General  and 
other  functionaries ;  but  it  was  settled  by 
royal  warrant  in  1811.  that  the  Attorney  and 
Solicitor-General  take  rank  at  the  head  of 
the  English  bar ;  and  by  the  Lord  Chancel- 
lor in  1834,  that  at  the  bar  of  the  House  of 
Lords,  the  Attorney-General  has  precedence 
of  the  Lord  Advocate  of  Scotland.  In  some 
respects,  the  office  of  Attorney-General  is 
analogous  to  that  of  Lord  Advocate  ;  but  the 
powers  of  the  Lord  Advocate  are  greatly 
more  extensive  and  uncontrolled.  Buui. 
iii.  27 ;  Tomlins,  h.  t.      See  Advocate,  Lord. 

AttOTney-at-Law.  In  the  English  Supe- 
rior Courts  of  Common  Law  at  Westminster, 
the  profession  of  attorney-at-law  is  analc^ous 
to  that  of  law-agent  or  solicitor  in  Scot- 
land ;  and  to  that  of  Solicitor  in  the  CourU 
of  Chancery,  and  of  Proctor  in  the  Eccle- 
siastical Courts.  In  England,  anciently, 
suitors  could  not  appear  in  court  by  attor- 
ney, without  the  king's  special  warrant ;  but 
by  Stat.  13  Edward  1.,  c.  10,  parties  were  em- 
powered to  prosecute  and  defend  by  attorney ; 
after  which  the  attorneys  were  formed  into  a 
regular  body  of  law-practitioners.  They  are 
now  admitted  to  practise  in  the  English  courts, 
and  enrolled  according  to  certain  statutory 
regulations.  They  must  also  take  out  a  cer- 
tificate at  the  Stamp  Office  annually  ;  and  in 
other  respects  their  duties,  responsibilities, 
and  privileges,  resemble  those  of  law-ageats 
in  Scotland.  See  Bacon's  Abridg.  voce  Attor- 
ns; Tidd'sPrae.  c.Sand  14;  Metnjidts  Law 
of  Attomies;  1  Chitt.  Arch.  v.  Attomies;  and 
especially  Ae  Attomies'  and  Solicitors'  J^,  6 
and  7  Vict.  c.  73.    See  Attorneys  CertificcUe. 


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Anbaine.    See  Droit  eCAubaine. 

Aoetion  or  Soup ;  a  mode  of  selling  va- 
rious descriptions  of  property,  by  a  competi- 
tion of  bidders  or  offerers,  under  certain  con- 
ditions prefiously  stipulated.  These  condi- 
tions set  forth  the  terms  of  tbe  contract  be- 
tween the  exposer  and  the  offerer  or  pur- 
chaser. See  More' s  Notes  to  Stair,  pp.  Is.  Ixiv. 
itieq.,  lei ;  Ersk.  B.  iii.  tit.  3,  §  2,  and  note  ly 
Mrlmy;  BeWt  Princ.  §  130,  et  seq.,  2426, 
2430,  3d  edit. ;  BeWs  IduM.  §  130  ;  Swint. 
Ahriig.  k.  t. ;  Brown  on  Sale,  p.  678,  et  seq. ; 
Brum's  Syiwp.  p.  2201 ;  Bateman  on  Auctions; 
Snoieti'i  law  of  vendors  and  purchasers.  See 
alio  Articles  of  Roup. 

ioctio&eer ;  is  the  person  who  officiates  at 
an  anetioD.  He  puts  up  the  articles  to  sale 
at  a  certain  price  ;  he  calls  the  offers  ;  and 
dedares  the  purchaser  by  knocking  down  the 
article  to  him.  An  auctioneer  must  take  out 
a  license  annually,  for  which  a  duty  is  paid 
to  GoTemment  42  Geo.  III.,  c.  93,  and  other 
Stsmp  Acts. 

inditer ;  an  officer  or  agent  of  the  Crown, 
•r  of  a  prirate  party,  or  of  a  corporation, 
vbo  examines  periodically  the  accounts  of 
Dfider  officers,  tenants,  stewards,  or  bailiffs, 
and  reports  the  state  of  their  accounts  to  his 
principal.    Tomlins,  h.  t. 

isoitor  of  the  Court  of  Session ;  an  offi- 
cer appointed  by  the  Crown,  to  whom  either 
«f  tbe  Divisions,  or  any  Lord  Ordinary,  re- 
nit  to  tax  the  costs  of  a  suit  in  which  ex- 
penses are  found  due>  A  special  remit  of  the 
particnlar  account  to  be  taxed  is  necessary ; 
and  tbe  saditor  returns  a  report  to  the  Judge 
or  Ceart  making  the  remit,  who  thereupon 
pronoanoes decree  for  the  amount  of  the  taxed 
acconnt  If  either  party  considers  himself 
aggrieved  by  the  report  of  the  auditor,  it  is 
competent  for  him  to  state  his  objections  to 
He  Court  or  Judge,  by  whom  they  will  be 
sonmarily  and  finally  disposed  of.  This  offi- 
cer was  appointed  for  the  first  time  by  the 
Coart  itself,  by  Actof  Sederunt,  6th  Febrnary 
1 806,  and  his  fees  were  settled  by  Act  of  Pari  ia- 
nent  50  Geo.  III.,  c.  112,  §  48.  And  by  1 
and  2  Geo.  lY.,  c.  38,  §  32,  the  office  is  made 
permanent,  and  the  nomination  is  vested  in 
the  Crown ;  the  office  to  be  held  ad  vitamaut 
adpam.  Two  auditors  may  be  appointed,  if 
oMetsary ;  one  for  each  Division.  The  au- 
ditor cannot  practise  before  the  Court,  either 
dinetly  or  indirectly,  under  pain  of  deprive 
tion  of  office.  If  ans^le  to  discharge  his 
duties  fi-Qm  temporary  indisposition  or  ab- 
Ksee,  the  Court  may  appoint  a  fit  person, 
though  practising  before  the  Court,  to  offi- 
ciate in  die  interim.  Friorto  the  passing  of 
the  Stat.  59  Geo.  III.,  c.  35  (1815),  costs  in  jury 
<:*nse8were  taxed  by  the  secon^  and  third  jury 
derb;  but  by  that  statute,/  33,  the  auditor 


of  the  Court  of  Session  is  also  appointed  au- 
ditor of  accounts  in  jury  causes.  The  persons 
eligible  to  the  office  are  writers  to  the  Signet, 
who  have  practised  as  such  for  not  less  than 
three  years,  and  members  of  the  incorporation 
of  solicitors  before  the  Supreme  Courts  in 
Scotland ;  land  2  Geo. IV., c.  38, § 32.  The 
auditor's  salary  is  now  fixed  by  1  and  2  Vict.,  c 
118,  §  24.  In  the  inferior  courts,  an  officer, 
with  the  like  powei:8,  is  usually  appointed  by 
the  particular  court.  See  on  the  subject  of 
thisarticle, /SAawi'sProc.i.  118  ;  Macfarlane's 
Jury  Practice,  8,  291 ;  Shaw's  Digest;  11  S. 
62  ;  13  S.  964.     See  also  Expenses. 

Augmentatioii,  Process  of;  is  a  process 
in  the  Teind  Court,  raised  by  the  minister 
of  a  parish  against  the  titular  and  heritors, 
for  the  purpose  of  obtaining  an  increase  of 
his  stipend.  By  stat.  48  Geo.  III.,  c.  138 
(1808),  it  is  enacted,  that  no  stipend  which 
has  been  modified  before  the  passing  of  that 
act  shall  be  augmented  until  fifteen  years 
after  the  date  of  the  last  final  decree  of  mo- 
dification ;  and  that  all  stipends  augmented 
after  the  passing  of  that  act  shall  not  be 
again  augmented  for  twenty  years ;  nor  at 
any  future  period  is  a  stipend  ever  to  be  aug- 
mented until  twenty  years  after  the  date  of 
the  last  decree  of  modification.  The  same 
statute  provides,  that  all  augmentations  shall 
in  future  be  modified  in  grain  or  victual,  un- 
less when  peculiar  circumstances  render  it 
necessary  to  modify  them  in  money  ;  but  al- 
though modified  in  grain,  the  stipend  is  to  be 
paid  in  money,  according  to  the  fiar  prices  of 
that  year  for  which  it  is  payable.  It  is  also 
enacted  (§  17  of  this  statute),  that  in  addi- 
tion to  the  heritors,  the  minister  pursuing  a 
process  of  augmentation  shall  cite  the  moder- 
ator and  clerkofthe  presbytery  of  the  bounds. 
The  summons  of  augmentation  has  two  ob- 
jects :  first,  The  ascertainment  or  modification, 
aR  it  is  expressed,  of  a  suitable  stipend  for  the 
minister,  regard  being  had  to  the  state  of  the 
teinds  of  the  parish,  its  extent,  and  other  cir- 
cumstances ;  and,  secondly,  Tbe  allocation  or 
localling  of  the  stipend,  so  modified,  on  the 
heritors.  There  is  also  a  conclusion  for  a 
suitable  sum  for  communion  elements;  and 
in  his  summons  the  minister  must  state,  as 
accurately  as  he  can,  the  number  of  the  in- 
habitants, the  extent  of  the  parish,  and  the 
other  circumstances  on  which  he  founds.  The 
summons  is  signed  by  the  teind  clerk,  and 
passes  the  Signet.  The  titular,  or  the  tacks- 
man of  the  teinds,  heritors,  or  liferenters,  or 
other  intromitters  with  the  toinds,  and  others 
having  interest,  are  not  cited  personally,  but 
by  the  precentor  giving  public  notice  from 
his  desk,  immediately  before  the  congrega- 
tion is  dismissed  irom  the  forenoon  service. 
This  notice  specifies  the  day  in  which  the 


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summons  will  be  called  in  court,  being  not 
less  than  six  weeks  after  the  date  of  the  first 
notice,  and  the  notice  must  be  repeated  three 
several  Sundays ;  a  certificate  to  that  effect 
being  transmitted  to  the  pursuer's  agent. 
Notir«  in  writing  must  also  be  put  up  on  the 
principal  door  of  the  church  by  a  messenger- 
at-arms  or  by  a  constable,  who  also  transmits 
to  the  pursuer's  agent  a  certificate  to  that 
effect ;  and,  finally,  the  pursuer  most  insert 
similar  notices,  three  several  days,  in  the 
Edinburgh  Evening  Courant,  Caledonian 
Mercury,  and  Edinburgh  Advertiser  News- 
papers.  When  it  is  necessary  to  call  the 
Officers  of  State  for  the  interest  of  the  Crown, 
they  are  called  on  inducia  of  six  weeks ;  and 
the  moderator  and  clerk  of  presbytery  are 
sufficiently  cited  by  a  letter  from  the  pursuer 
himself,  engrossed  in  the  presbytery  record, 
one  month  before  the  summons  is  called  in 
court ;  A.  S.  12th  Nov.  1825. 

As  soon  as  the  summons  is  signeted,  the 
pursuer  must  lodge  with  the  clerk  of  court  a 
note  of  the  amount  of  the  present  stipend, 
specifying  how  it  is  paid,  and  the  amount  of 
the  communion  elements.  He  must  also  give 
in  a  rental  of  the  parish  (usually  called  the 
minitter's  rental),  distinguishing  the  rent  of 
each  heritor  as  exactly  as  he  can  ;  and  when 
the  summons  is  called,  which  is  by  calling 
list,  as  in  the  Court  of  Session,  the  ease  is 
enrolled  in  the  ordinary  action  roll  of  the 
Teind  Court  (Inner-House),  when  all  con- 
cerned will  be  allowed  to  see  the  summons 
and  writings  produced  in  the  clerk's  hands, 
for  fourteen  days.  On  the  lapse  of  that  pe- 
riod the  ease  may  be  again  enrolled,  when 
a  proof  will  be  allowed  of  the  rental  of  minors' 
lands,  and  the  heritors  who  are  major  will  be 
held  as  confessed  on  the  minister's  rental,  un- 
less one  or  more  of  them  take  a  day  to  depone, 
One  act  and  commission,  at  the  expense  of 
the  heritors  deponing,  is  in  that  case  extract- 
ed for  the  whole,  on  which  they  or  their  fac- 
tors may  depone ;  and  as  to  the  rental  of 
minors'  lands,  it  may  be  proved  by  a  certifi- 
cate under  the  hand  of  any  of  the  tutors  or 
curators,  without  extracting  an  act  and  com- 
mission. When  the  day  assigned  for  depo- 
ning and  proving  has  elapsed,  the  cause  may 
be  again  enrolled,  to  have  the  term  for  prov- 
ing circumduced,  and  a  remit  made  to  the 
Junior  Lord  Ordinary  to  prepare  a  scheme  of 
the  rental,  either  accordiug  to  the  minister's 
rental,  if  there  has  been  no  proof,  or  accord- 
ing to  the  proof  led,  and  the  certificates  of 
rental  and  decrees  of  valuation  produced. 
And  when  the  scheme  of  the  proven  rental  (as 
it  is  technically  called)  is  prepared,  the  cause 
maybe  again  enrolled  before  the  Teind  Court, 
when  the  parties  will  lie  heard,  viva  voce,  on 
the  merits,  and  the  augmentation  granted  or 


refused.    When  a  decree  modifying  a  stipe  d 
has  been  pronounced,  it  is  declared  by  the 
Act  of  Sederunt,  12th  Nov.  1825,  to  be  final, 
and  not  subject  to  review  in  the  Teind  Court 
by  petition  or  otherwise,  unless  it  has  been 
pronounced  in  absence  ;  in  which  case  a  note 
may  be  given  in  by  the  defenders,  praying  to 
be  heard ;  and  on  payment  of  previous  ex- 
penses the  case  may  be  reheard.    But  doubts 
have  been  lately  raised  whether  an  interlo- 
cutor of  the  Teind  Court  refusing  an  aug- 
mentation may  not  be  submitted  to  review, 
by  a  reclaiming  petition  to  the  Teind  Conrt. 
The  doubt  is  founded  on  the  enactment  in  Uie 
Judicature  Act  (1825),  that  the  ministerial 
and  discretionary  jurisdiction  of  the  Teind 
Court,  expressly  including  the  modification 
of  stipends, "  shall  nowise  be  altered  or  affect- 
ed by  this  act ;"  and  although  the  Teind 
Court  Act  of  Sederunt,  12th   Nov.  1825, 
plainly  contemplates  an  assimilation  of  the 
practice  of  that  Court  to  the  altered  praotiee 
of  the  Court  of  Session,  as  to  the  finality 
of  Inner-Honse  interlocutors,  the  question 
mooted,  and  likely  soon  to  be  tried,  is  as  to 
the  power  of  the  Court,  under  the  words  of 
the  statute,  to  alter  the  older  practice  of  the 
Teind  Conrt  by  an  Act  of  Sederunt ;  see  6 
Oeo.  IV.,  c.  120,  §  54.     When  the  decree  of 
modification  is  pronounced,  the  Teind  Court  at 
the  same  time  remits  to  the  second  junior  Lord 
Ordinary  to  prepare  a  scheme  of  locality;  i.e., 
an  allocation  of  the  modified  stipend  on  the 
several  heritors  or  others  liable  therefor  ;  A. 
S.  Uth  Nov.  1825.    (See  Locality).    Whe- 
ther the  heritors  oppose  the  augmentation  or 
not,  unless  in  very  special  circumstances,  the 
minister's  own  expenses,  at  least,  must  be 
borne  by  himself ;  but  the  heritors  are  at  the 
sole  expense  of  the  locality,  the  common  agent 
being  authorized  to  furnish  the  minister  with 
an  extract  of  the  decree  of  locality,  interim 
or  final,  at  the  common  expense ;  A,  S.  5(i 
Jult/ 1809.    As  to  the  mode  of  applying  for 
the  benefit  of  the  statutes  50  Geo.  III.,  c  84, 
and  5  Geo.  IV.,  c.  52,  for  improving  small 
stipends,  and  making  allowances  in  lieu  of 
manses  and  glebes,  seo  Small  Stipend;  and 
see  on  the  subject  of  the  present  article,  More't 
Notes  on  Stair,  pp.  xciii.  ccxxxvii. ;  Ersk.  B. 
i.  tit.  5,  §  21,  et  seq.,  and  B.  ii.  tit.  10,  §  46 ; 
Ivory's  Form  of  Process,  ii.  444,  et  seq. ;  Be- 
veridge,  ii.  729,  et  seq.;  Jurid.  Styles,  iii.  485,  et 
seq.;  Gonnell on  Tithes,i\.  89,  et  seq.;  Brown's  Sy- 
nop.f.  2313;  Shaw's  Digest.  See  Teinds.  Teind 
Court,  Stipend. 

Author ;  in  Scots  law,  signifies  the  person 
from  whom  a  proprietor  has  purchased  or 
acquired  prooerty  by  singular  titles,  as  con- 
tradistinguished A'om  an  ancestor,  from  whom 
the  property  h&s  come  by  descent.  ErtL  B. 
ii.  t.  7,  §  1.     See  Ancestor. 


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Alttborddp.     Seo  Literary  Property. 

Auto  de  1% ;  or  Auto  da  Fe  (Act  of  Faith) ; 
mu  the  public  and  solemn  reading  of  extracts 
from  the  trials  promoted  by  the  Inquisition, 
and  of  the  sentences,  condemnatory  or  of 
acqaittal,  pronounced  by  the  judge  of  that 
tribnnal.  The  offenders,  or  their  bones  or 
efBgies,  were  present  at  this  ceremony.  The 
ci*^  and  criminal  authorities  of  the  place 
were  also  present,  into  vhose  hands  the  of- 
fenders were  delivered  for  punishment.  See 
Enq^e.  Brit,  voct  Aet  of  Faith. 

Avail  of  Marriage ;  was  the  sum  former- 
ly payable  to  the  superior  by  the  heir  of  a 
deceased  ward  vassal,  on  his  becoming  mar- 
riageable. Marriage  was  a  casualty  in  ward- 
holding,  which  entitled  the  ward  superior  to 
receive  from  the  heir  of  his  former  vassal  a 
certain  sum  as  the  value  (avail)  or  tax  due 
on  his  marriage.  Anciently,  this  casualty 
affected  minor  heirs  only,  who,  after  puberty, 
refined  to  marry  upon  the  superior's  requisi- 
tion ;  but  afterwards  the  single  avail  became 
doe,  though  the  heir  had  been  major  at  the 
death  of  his  ancestor,  and  had  died,  neither 
married,  nor  required  to  many,  by  the  su- 

Serior.  The  avail  was  not  due  where  the 
eir  was  married  before  the  ancestor's  death, 
or  where  he  died  before  puberty.  The  single 
avail  was  fixed  by  the  Court  of  Session,  in 
1674,  at  three  years'  rent  of  the  vassal's  es- 
tate ;  bat  it  was  afterwards  reduced  to  two 
years'  rent  The  double  avail  was  due  where 
the  superior  offered  a  wife  to  the  heir,  in  every 
respect  his  equal,  who  publicly  declared  her 
readiness  to  marry  him,  but  whom  he  refused 
to  marry,  and  married  another.  At  first,  the 
double  avail  was  estimated  at  two  single 
avails ;  but  it  is  probable  that,  had  it  been 
qaestioned,  it  would  have  been  reduced  to 
tluree  years'  free  rent  of  the  vassal's  estate. 
In  estimating  the  amount  of  the  avail,  not 
«ilj  the  ward  estate,  but  the  whole  other  free 
estate  of  the  vassal,  was  brought  in  compute, 
as  it  stood  at  the  period  when  he  became  mar- 
riageable. The  act  20  Geo.  II.,  c.  50,  abo- 
Uahing  ward-holding,  put  an  end  to  this  exac- 
tion. See  Stair,  B.  ii.  tit.  4,  §  47,  and 
Jf«r«'«  Notes,  p.  ccvili. ;  ErsL  £.  ii.  tit.  5,  § 
18,  el  $eq.;  BatUc.  i.  637,  et  seq. 

ATerage;  a  term  used  in  commerce  and 
navigation  to  signify  a  contribution  made  by 
the  owners  of  the  ship,  freight  and  goods  on 
board,  or  the  insurers  of  these,  in  proportion 
to  their  respective  interests,  towards  any  par- 
ticular loss  or  expense  sustained  for  the  ge- 
neral safety  of  the  ship  and  cargo.  This  is 
the  originiQ  and  proper  meaning  of  average; 
and  in  this  sense  it  is  commonly  called  general, 
or  yrost  average,  as  falling  generally,  or  on 
the  gross  amount  of  ship,  cargo,  and  freight ; 
BdPt  Com.  vol.  i.  p.  583, 5th  edit.    This  con- 


tribution was  established  by  the  Rhodian  law, 
and  prevails  in  every  commercial  nation. 
Passengers  on  board,  with  the  apparel,  jewels, 
&c.,  of  their  persons,  seamen's  wages  and  pro- 
visions, suffer  no  part  of  the  general  average. 
Goods  thrown  overboard  are  estimated  (in 
later  times)  at  the  price  they  would  have 
brought  at  the  port  of  delivery,  freight,  du- 
ties, &c.  deducted.    See  CorUribution. 

Particular  Average,  is  used  to  denote  a  loss 
for  which  no  relief  can  be  had  by  general 
contribution ;  e.g.,  the  loss  of  an  anchor,  the 
accidental  loss  of  any  part  of  the  ship  or  cargo 
washed  from  the  deck,  &c.    BelVs  Com.  ib. 

Petty  Averages,  are  the  accustomed  duties 
of  anchorage,  pilotage,  4c.,  which,  when  they 
occur  in  the  usual  course  of  the  voyage,  are 
not  considered  as  a  loss,  but  as  part  of  the 
necessary  expense ;  BeWs  Com,  ib.  p.  667 ; 
but  if  incurred  for  any  extraordinary  pur- 
pose, or  to  avoid  impending  danger,  they  are 
regarded  as  a  loss  includible  within  gross 
average.  ^r«ib.  B.  iii.  t.  3,  §  17  ;  BdPsPrinc. 
3d  edit.  §  437,  et  seq.;  JUust.  ib.  See  Colli- 
sion of  Ships.  And  on  the  subject  of  this  ar- 
ticle geherally,  consult  Park  on  Insurance,  c. 
vii.;  Marshall,  B.  i.  c.  12,  §  7;  Stevens  on 
Average ;  Benecke  on  Indemnity;  Abbot  on  dip- 
ping, part  3,  c.  8. 

Average  Bond ;  is  a  deed  which  it  is  osual 
for  the  parties  liable  to  a  general  average  to 
execute,  empowering  an  arbiter  to  ascertain 
the  value  of  the  property  lost,  and  to  fix  the 
proportion  of  the  loss  which  each  proprietor 
shall  bear.  See  Jurid.  Styles,  vol.  ii.  p.  554, 
2d  edit. ;  Smith's  Maritime  Practice,  p.  144. 

Averia.  In  the  Regiam  Majestatem,  this 
word  signifies  the  lest  animal,  which,  in  law, 
was  given  by  a  husbandman  to  his  master  as 
an  herezelde. 

Averment ;  in  Scotch  judicial  proceedings, 
is  a  statement  in  point  of  fact,  which  the  party 
making  it  is  understood  to  be  prepared  to 
prove.  The  word  seems  to  have  a  different 
meaning  in  English  law.  See  Tomlins'  Law 
Diet. 

Aversio.  Sale  per  aversionem,  means  sale 
by  the  bulk ;  as,  all  the  wine  in  one's  cellar. 
Stair,  B.  i.  tit  15,  §  17 ;  Bank.  vol.  i.  p.  419. 

Avizandnm.  To  make  avizandum  with  a 
process,  or  part  of  it,  is  to  take  it  from  the 
public  court  to  the  private  consideration  of 
the  judge.  When  a  Lord  Ordinary  in  the 
Court  of  Session,  either  after  hearing  parties, 
or,  of  consent,  without  a  debate,  is  called 
upon  to  pronounce  his  decision,  and,  in  place 
of  doing  so  de  piano  in  open  court,  takes  time 
to  consider,  he  makes  avizandum  with  the 
process  and  debate,  if  there  has  been  one, 
and  a  formal  interlocutor  to  that  effect  is  in 
such  cases  written  out.  The  process  is  then 
transmitted  to  him  by  the  clerk  ;  and,  after 


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consideriog  it,  the  Lord  Ordinary  issues  his 
decision  in  the  usual  form.  Prior  to  the 
changes  introduced  by  13  and  14  Vict.,  c.  36, 
when  the  parties  had  finally  adjusted  their 
averments  and  answers,  and  were  prepared  to 
close  the  record,  the  cause  was  enrolled  be- 
fore the  Lord  Ordinary,  who  made  avizan- 
dum with  it,  with  the  view  of  seeing  how  far 
the  averments  of  the  parties  met  each  other, 
and  that  the  record  was  in  a  fit  shape  for 
being  closed,  a  formal  interlocutor  making 
avizandum  being  also  written  by  the  clerk ; 
and  the  Lord  Ordinary  having  satisSed  him- 
self that  the  record  was  correctly  framed,  re- 
turned the  case  from  avizandum,  and  ordered 
it  to  be  enrolled,  for  the  purpose  of  closing  the 
record,  as  more  particularly  explained  voce 
Record.  This  form  of  procedure  is  now  en- 
tirely abolished,  except  in  actions  of  multiple- 
poinding  and  other  processes  of  competition, 
which  are  still  regulated  by  the  former  rule  ; 
and  the  revised  papers  are  now  simply  trans- 
mitted to  the  Lord  Ordinary  by  the  clerk, 
without  any  enrolment  or  formal  interlocutor 
for  the  purpose.  With  incidental  proceed- 
ings, such  as  reports  ordered  by  himself  for 
his  own  information,  the  Lord  Ordinary 
usually  makes  avizandum.  In  consistorial 
actions  also  he  makes  avizandum  with  the 
summons,  in  order  to  consider  and  dispose  of 
the  relevancy  of  the  averments  before  allow- 
ing proof.  See  Record;  Great  Avizandum; 
Stair,  B.  iv.  t.  2,  §  9  ;  t.  20,  §  20 ;  t.  43,  § 


12 ;  Bank.  i.  675 ;  SharUPs  Prac.  334,  338, 
341,  360 ;  Shand's  Dig.  of  Court  of  Session  Act ; 
Maefarlane't  Jury  Prac.  34.  For  forms  ob- 
served in  Sheriflf  Courts,  see  Barclay's  Sheriff 
Court  Prac. 

Avnlrio ;  takes  place  where  lands  are,  by 
an  inundation  or  current,  separated  from  the 
property  to  which  they  originally  belonged, 
and  added  to  the  lands  of  another  pei'son ; 
or  where  a  river  changes  its  course,  and,  in 
place  of  continuing  to  run  between  two  pro- 
perties, cuts  off  part  of  one,  and  joins  it  to  the 
other.  The  property  of  the  part  thus  sepa- 
rated continues  in  the  original  proprietor ;  in 
which  respect  the  term  avultio  may  be  con- 
trasted with  the  term  <dluvio,  by  which  an 
addition  is  insensibly  made  to  a  property  by 
the  gradual  washing  down  of  a  river,  and 
which  addition  Itecomes  the  property  of  the 
owner  of  the  lands  to  which  the  addition  is 
made.  Ersk.  B.  ii.  tit.  1,  §  14 ;  Bank.  i.  506 ; 
BeWt  Princ.  3d  edit.  §  936.     See  AUuvio. 

ATUncnlos  ;  the  mother-brother,  but  some- 
times taken  for  the  father-brother.   Skene,  h.  t. 

Award ;  is  properly  an  English  law  term, 
signifying  the  judgment  or  determination  of 
an  arbiter.  It  is  sometimes  used  in  Scotland, 
but  improperly,  to  signify  a  decree-arbitral ; 
for  the  award  of  an  English  arbiter,  and  the 
decree-arbitral  of  a  Sooich  arbiter,  are  not  in 
all  respects  analogous.  Ersk.  B.  ir.  t.  3,  § 
21 ;  BelFs  Com.  ii.  304,  326,  5th  edit.  See 
Arbitration. 


B 


Back-Bond ;  is  a  deed  attaching  a  qualifi- 
eatioH  or  condition  to  the  terms  of  a  convey- 
ance or  other  instrument.  This  deed  is  used 
when  particular  circumstances  render  it  ne- 
cessary to  express  in  a  separate  form  the  li- 
mitations or  oualifications  of  a  right.  Stair, 
B,  i.  tit.  10,  §  16 ;  B.  ii.  tit.  10,  §  6 ;  B.  iii. 
tit.  1,  §  21 ;  Bank.  vol.  ii.  pp.  95, 196 ;  Bell's 
Com.  vol.  i.  p.  34,  672 ;  vol.  ii.  pp.  211, 240, 
5th  edit. ;  Broum's  Synop.  p.  1527 ;  Jurid. 
Styles,  3d  edit.  vol.  ii.  p.  101,  et  seq. ;  vol.  iii. 
p.  682.    See  Absolute  Disposition. 

Back-Taok ;  was  a  tack  connected  with 
wadsets,  whereby  the  actual  possession  of  the 
wadset  lands  was  coatinued,  or  returned,  to 
the  proprietor  or  reverser,  on  payment  of  a 
rent  corresponding  to  the  interest  of  the  loan. 
Where  the  wadset  was  accompanied  by  such 
a  back-tack,  it  was  termed  an  improper  wad- 
set. Stair,  B.  ii.  tit.  10,  §  11 ;  Ersk.  B.  ii.  tit. 
8,  §  28 ;  Bank.  vol.  ii.  p.  128,  et  seq. ; 
Jwid.  Styles,  2d  edit.  vol.  i.  p.  641.     See 


Baoking  a  Warrant  Where  a  warrant 
for  apprehending  a  person  is  granted  in  one 
jurisdiction,  and  comes  to  be  executed  in 
another,  the  judge  ordinary  of  the  bounds,  or 
a  justice  of  the  peace,  if  otherwise  competent, 
must  concur  in  authorizing  his  officers  to  aid 
the  person  possessed  of  the  original  warrant 
in  carrying  it  into  execution.  This  autho- 
rity is  given  by  indorsing  or  backing  the 
warrant,  as  it  is  termed,  which  is  then  exe- 
cuted by  an  officer  of  the  jurisdiction  where 
the  indorsement  was  made.  See  Hume,  ii. 
78  ;  Alison's  Prac.  125.  The  remedy  of  in- 
dorsement of  a  warrant  applies,  where  the 
offender  has  made  his  escape  out  of  one  part 
of  the  United  Kingdom  into  another,  or  out 
of  any  other  part  of  Her  Majesty's  dominions 
into  the  United  Kingdom,  and  vice  versa; 
13  Geo.  III.,  c.  31  ;  45  Geo.  III.,  c,  92  ;  54 
Geo.  III.,  c.  186  ;  6  and  7  Vict.,  c.  34 ;  but, 
in  such  cases,  oath  to  the  authenticity  of  the 
warrant  must  he  made  by  the  bearer  before 
the  magistrate  t«  whom  he  applies.      The 


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Tvling  sUtate  on  this  point,  13  Geo.  III.,  c. 
31,  applies  only  where  the  object  of  the  ap- 
prehension is  to  bring  the  offender  to  trial. 
Any  officer  may  convey  a  prisoner  to  gaol,  or 
before  a  magistrate,  through  any  county  ad- 
joining to  that  over  which  such  magistrate 
possesses  jurisdiction,  or  to  that  where  the 
gaol  is  situated,  in  the  same  way  as  if  he  were 
an  officer  of  the  county  through  which  he 
may  so  pass,  and  as  if  the  warrant  had  been 
granted  or  indorsed  by  a  magistrate  of  such 
eoanty ;  11  Gee.  IV.,  and  1  Will.  IV.,  c.  37, 
§  6.  Farther,  it  is  provided  by  1  and  2  Vict, 
c  119,  §  25,  that  a  criminal  warrant,  granted 
by  a  Skmf  against  one  charged  with  com- 
mitting a  crime  within  his  jurisdiction,  is 
roSeient  for  his  apprehension  within  anotiher 
county,  and  without  indorsation,  if  executed 
by  a  messenger-at-arms  or  an  officer  of  the 
court  where  it  was  issued.  The  apprehen- 
lioD  of  French  criminals  found  within  the 
British  dominions  is  regulated  by  6  and  7 
Viet.,  c  75.  The  act  6  and  7  Vict.,  c.  76, 
provides  for  the  mutual  delivering  up  of  par- 
ties found  in  this  country  or  in  the  United 
States  of  America,,  and  charged  with  having 
conunitted  certain  specified  offeuces  within 
the  jurisdiction  of  the  other  power.  See  on 
the  subject  of  this  article,  M'Kay  v.  M'Adam, 
Jane  16, 1854 ;  1  Irvine,  497,  and  coses  there 
cUed.    See  also  Bail. 

Bagimont'8  Boll;  was  the  rent  roll  of 
benefices  in  Scotland  made  up  by  Benemundus 
it  Vied,  vulgarly  called  Bagimont,  who  was 
employed,  in  the  reign  of  Alexander  III. 
(▲j>.  1275),  to  collect  the  tenth  of  benefices, 
ijkene's  account  of  this  roll  is  erroneous. 
See  Hailed  AnnaU,  vol.  iii.  p.  200 ;  Bank.  ii. 
53 ;  Skene,  h.  t. 

Bail ;  is  the  security  given  for  the  appear- 
ance of  a  person  accused  of  a  crime.  Persons 
committed,  or  about  to  be  committed,  for  trial, 
are  entitled,  under  the  act  1701,  c  6,  to  be 
liberated  on  bail,  provided  the  crime  charged 
against  them  is  not  capital.  And  in  extra- 
ordinary circumstances  the  Court  of  Justi- 
ciary may  take  bail  even  in  capital  cases ; 
Brme,  ii.  90,  et  seq.  It  is  competent,  too, 
for  the  Lord  Advocate,  in  cases  clearly  capi- 
tal, to  consent  to  bail ;  but  such  bail  may  be 
fixed  at  any  amount  he  pleases ;  Alison's  Prac. 
167.  The  Stat.  9  Geo.  II.  c,  35,  §  35,  also 
authorizes  bail  to  be  taken  for  officers  of  the 
eostoms  or  excise,  and  those  assisting  them, 
when,  in  the  execution  of  their  duty,  they 
have  kUled  or  wounded  any  one,  and  thereby 
expoeed  themselves  to  a  capital  charge.  The 
lune  is  the  case  where  persons  have  been 
killed  or  wounded  on  board  a  vessel,  which 
hat  refiised  to  submit  to  seizure  or  examina- 
tion by  a  vessel  of  the  royal  navy  or  revenue ; 
24  Geo.  III.,  seas.  2,  c  47,  §  23 ;  47  Geo.  III., 


8.  2,  c.  66,  §  36.  By  6  and  6  Will.  IV.,  o. 
73,  no  person  committed  for  trial  for  an  of- 
fence, the  punishment  of  which  is,  by  2  and 
3  Will.  IV.,  c.  123,  commuted  from  death  in- 
to transportation  for  life,  is  entitled  to  bail, 
the  Court  of  Justiciary,however,havingpower 
to  admit  to  bail.  And  by  7  Will.  IV.,  and 
1  Vict.,  c.  36,  persons  accused  of  high  crimes 
and  offences  against  the  Post-Office  laws  can- 
not insist  on  bail ;  but  bail,  even  in  these 
cases,  may  be  accepted,  with  consent  of  the 
public  prosecutor,  or  at  the  discretion  of  the 
Lords  of  Justiciary  or  of  the  Sheriff;  See 
BeU's  Notes  on  Hume,  168.  The  application 
for  liberation  on  bail  ought  to  be  made  in 
writing,  and  may  be  addressed  to  the  judge 
committer,  or  to  the  Commissioners  of  Justi- 
ciary, or  other  judge  competent  to  try  for  the 
crime.  The  magistrate  must,  within  twenty- 
four  hours  after  the  petition  comes  into  his 
hands,  determine  whether  the  crime  be  bail- 
able, and  fix  the  amount  of  the  bail,  unless 
when  it  is  necessary,  on  a  charge  for  sedition, 
to  correspond  with  the  Lord  Advocate,  in 
order  to  ascertain  whether  he  means  to  apply 
for  extension  of  the  amount  of  the  bail ;  in 
which  case,  it  is  thought  that  time  for  cor- 
respondence will  be  allowed  ;  Andrew  v.  Mur- 
doch, June  20,  1806,  Hume,  ii.  p.  93 ;  but 
see  Alison's  Prac.  172.  On  the  requisite  bail 
being  found,  the  magistrate  is  bound  imme- 
diately to  liberate  the  prisoner.  A  failure 
in  any  part  of  the  magistrate's  duty  subjects 
him  to  an  action  for  wrongous  imprisonment ; 
1701,  c.  6.  It  is  the  duty  of  the  clerk,  and 
not  of  the  magistrate,  to  determine  the  suffi- 
ciency of  the  cautioner. 

By  39  Geo.  III.,  c.  49,  the  maximum  for 
bail  is  fixed  for  L.1200  sterling  for  a  noble- 
man, L.600  for  a  landed  gentleman,  L.300  for 
any  other  gentleman,  burgess,  or  householder, 
and  L.60  for  any  inferior  person  ;  and,  on  a 
charge  of  sedition,  any  of  the  Lords  of  Justi- 
ciary, on  an  application  from  the  Lord  Advo- 
cate, may  extend  the  bail  to  such  sum  as  may 
be  thought  pi'oper  in  the  circumstances  of 
the  case.  Some  of  the  revenue  statutes  fix 
particular  bail  for  offences  against  the  re- 
venue laws.  See  24  Geo.  III.,  c.  47  ;  42  Geo. 
III.,  c.  82 ;  15  Geo.  III.,  c.  121.  The  bail 
found  is,  that  the  person  admitted  to  bail 
shall  appear  and  answer  to  any  libel  for  the 
offence  charged,  which  shall  be  raised  within 
six  months  after  the  date  of  the  bail-bond ; 
and  if  the  trial  is  to  proceed  in  an  inferior 
court,  and  the  party  fail  to  appear,  the  bail- 
bond  isdeclared  forfeited,  and  warrant  granted 
for  apprehending  him,  inferior  judges  having 
no  power  to  outlaw  for  non-appearance ;  Hume, 
ii.  p.  69.  As  soon  as  the  prisoner  is  remitted 
to  an  assize,  the  privilege  of  bail  ceases ;  but 
he  may  still  receive  that  indulgence  there- 


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after,  if  the  prowcntor,  in  special  circnm- 
staoees,  consent,  and  nnder  such  penalty  as 
the  Coart  may  fix  beyond  the  statutory  sum ; 
Hume,  ii.  94.  Where  persons  are  appre- 
hended in  Scotland  on  a  warrant,  indorsed 
in  terms  of  the  IS  Geo.  III.,  c.  31,  or  44 
Geo.  III.,  c  92  (see  Backing  a  Warrant),  for 
crimes  committed  in  other  parts  of  the  United 
Kingdom,  and  brought  before  the  judge  who 
indorses  the  warrant,  he  may,  if  the  offence 
he  bailable,  take  bail  for  the  person  accused, 
in  the  same  manner  as  the  judge  who  issued 
the  warrant  might  have  done.  If  the  offence 
charged  be  not  bailable,  the  judge  who  g^nts 
the  original  warrant  must  write  on  the  face 
of  it,  "  not  bailable  f  and,  where  these  words 
are  not  written,  the  judge  before  whom  the 
offender  is  brought,  under  the  indorsed  war- 
rant, may  admit  him  to  bail ;  45  Geo.  III., 
c  29,  §§  1  and  2.  See  also  Enk.  B.  ir.  tit. 
4,  §  86,  and  note,  §  31,  and  note ;  Bank.  vol. 
i.  p.  458 ;  BMt  Com.  toI.  i.  p.  380  ;  rol.  ii. 
566;  BeWt  Prine.  §  2035;  Swint.  Ahridg. 
h.  t. ;  Hutch.  JutUee  of  Peace,  vol.  i.  p.  462, 
2d  edit. ;  TaWt  Justice  of  Peace,  h.  t.;  Blair'* 
Juitiee  of  Peace,  h.  t. ;  Jurid.  Stylet,  3d  edit 
Tol.  ii.  p.  93  and  614 ;  Anton's  Prae.  160,  et 
seq.  ProTision  is  made  for  the  liberation  of 
a  peer  upon  bail,  by  6  Geo.  IV.  c.  66. 

Bail  t»  GtuH  Adiont.    See  Caution. 

Bailiary,  Letter  of ;  is  a  commission,  by 
which  an  heritable  proprietor,  entitled  to 
grant  such  a  commission,  appoints  a  baron- 
bailie,  with  the  usual  powers  to  hold  courts, 
appoint  officers  under  him,  &c.  See  Jurid. 
StyUs,  ii.  p.  269,  Sd  edit. ;  Erik.  B.  ii.  tit.  3, 
§33,  et  seq. ;  BeWs  Prine.  §  764, 770 ;  Brown's 
Synop.  p.  1104. 

Biulie ;  a  magistrate  ;  also  an  officer  ap- 
pointed by  a  precept  of  sanne  to  give  infeft- 
ment  in  land. 

1.  A  Ifa^Mnife.— The  bailie  of  a  burgh, 
whether  a  royal  burgh  or  a  burgh  of  barony, 
is  a  magistrate  possessed  of  certain  jurisdic- 
tion by  common  law  as  well  as  by  statute. 
Thus,  at  common  law,  he  is  held  to  possess 
the  same  power  within  his  territory  as  the 
sheriff  in  his  county ;  and  by  special  statute, 
1644,  e.  33,  1668,  c.  6,  the  provost  and 
bailies  of  royal  burghs  have  power  to  value 
and  sell  ruinous  houses  to  the  highest  offerer. 
Their  criminal  jurisdiction  extends  to  petty 
riots ;  but  none  except  the  magistrates  of  the 
burghs  of  Edinburgh,  Stirling,  and  Perth, 
have  jurisdiction  in  bloodwits.  The  chief 
magistrate  of  the  burgh  is  named  in  all  com- 
missions of  the  peace.  By  3  and  4  Will.  lY. 
c.  76,  when  any  of  the  bailies  go  out  at  the 
annual  retirement  of  a  third  of  the  council- 
lors, their  places  are  directed  to  be  supplied 
from  the  councillors,  on  the  third  day  after 
the  election  of  the  council,  by  a  plurality  of 


voices  in  the  council,  the  first  attending  ma- 
gistrate having  a  casting  vote  in  cases  of 
equality.  The  newly-elected  bailie  is  gene- 
rally miade  lowest  in  rank.  ErtL  B.  i.  tit.  4, 
§  21.    See  Burah,  RoyaL 

The  Bailie  of  the  Abbey,  is  appointed  by  the 
Duke  of  Hamilton  as  heritable  keeper  of 
the  palace  of  Holyroodhouse,  and  has  ju- 
risdiction in  all  civil  debts  contracted  vitbia 
the  precincts  of  the  Sanctuary.  B^»  Cam. 
ii.  673. 

2.  An  officer  appointed  by  precept  of  seuiM  to 
give  inf^ment. — Anciently  any  person  might 
have  been  named  as  bailie  to  give  infeflment ; 
but  by  1606,  c  15,  all  sasines  on  precepts 
from  Chancery  in  favour  of  heirs,  upon  re- 
tours,  are  ordered  to  be  given  by  the  iheriff 
as  bailie ;  because,  when  an  heir  is  to  rater 
by  retour  to  lands  held  of  the  Crown,  he  be- 
comes debtor  to  the  Crown;  and  it  is  the 
duty  of  the  sheriff,  as  the  King's  bailie,  to 
receive  payment,  or  to  take  security  for  the 
casualties  due  on  the  heir's  entry.  In  every 
other  ease,  any  person  may  be  bailie ;  and 
the  precept,  aluiongh  blank  in  the  bailie's 
name,  is  a  sufficient  warrant  for  any  person 
to  perform  the  office.  At  the  same  time, 
were  there  reason  to  suspect  fraud,  the  court 
would  allow  an  investigation  to  ascertain  the 
authority  under  which  infeftment  had  been 
given.  The  blank  in  the  precept  of  sasine 
is  not  filled  up  after  the  office  is  exercised. 
ErsL  ii.  t.  3,  i  33.    See  Precept  of  Sasine. 

Bailiff;  in  English  law,  is  a  keeper  or  su- 
perintendent. Bailiffs  of  sheriffs  are  officers 
appointed  by  the  sheriff  to  execute  all  pro- 
cesses directed  to  him.  Bailiffs  of  memors  are 
stewards  appointed  by  the  lord  to  superintend 
the  manor.     Tomlins'  Diet.,  h.  t. 

Bftilnwmt ;  an  English  law  terra,  defined 
to  be,  "  a  delivery  of  goods  for  a  particular 
purpose,  upon  a  contract,  express  or  implied, 
that  the  purpose  shall  be  carried  into  effect, 
and  that,  when  that  is  done,  the  goods  shall 
be  restored  by  the  bailee,  or  person  to  whom 
they  are  delivered,  to  the  owner  or  bailor,  or 
according  to  its  directions."  Tomlin^  Diet., 
h.  t.     Wharton's  Lex. ;  Story  on  Bailmentt. 

Bainua ;  a  dyvour  or  bankrupt.  Skene, 
h.  t.    See  Dyvour. 

Bainu ;  according  to  Erskine, "  is  a  known 
term  used  to  denote  one's  whole  issue."  In 
destinations  of  heritage  to  the  heirs  and  bairns 
of  a  marriage,  the  estate  is  carried  to  the 
eldest  son.  On  the  other  hand,  when  the 
word  heirs  is  left  out,  and  the  destination  is 
to  "  the  bairns,"  or  to  "  the  bairns  and  duU 
dren,"  all  the  children  succeed  equally.  The 
term  "  heirs  and  bairns,"  or  "  temw,"  in  des- 
tinations of  moveables,  leaves  the  ordinary 
rule  of  law  to  take  effect,  whereby,  in  move- 
able succession,  all   the  children   sncceed 


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fqoallj.  Ertk.  B.  iii.  tit.  8,  §  48 ;  Bdfs 
Prhe.  3d  edit  §  1961 ;  Sandford  <m  Herit^ 
Me  Stueetsion,  i.  178,  et  seq.  Mmuies  on 
Cowofancing.  See  Ikttination.  Heirs  and 
Btinu. 

Bainu'  Part  of  Gear ;  or  legitim ;  is  the 
ihsre  of  the  father's  free  moveable  property, 
to  which,  on  the  father's  death,  the  children 
are  entitled  by  law.     See  Legitim. 

BaDinu;  a  bailiff,  bailie,  or  jadge.  Scene, 
Kt. 

Baneret ;  is  a  knight  made  in  the  field  of 
battle.  Banerets  created  by  the  King  under 
&e  royal  standard  in  battle  take  precedence 
of  baronets.  Tomlins,  h.  t.,  and  Skene,  voce 
BmreiUet, 

BaiJahaieiit ;  the  punishment  of  exile  from 
Scotland,  inflicted  on  persons  convicted  of 
Mrtain  erimea  (comparatively  few  in  num- 
ber, and  in  a  great  degree  obsolete),  for  which 
tkat  punishment  is  provided  by  special  sta- 
tats ;  11  Oeo.  IV.  wad  1  WiU.  IV.,  c.  37 ; 
iitm't  Prae.  63,  669.    See  Trantportation. 

Buk ;  in  English  common  law,  is  usually 
taten  for  a  seat  or  bench  of  judgment 

Buk ;  the  place  or  o£Bce  where  a  corpo- 
ntimi  or  company  of  money-dealers  carry  on 
tkir  bosinesB.  The  term  also  applies  to  the 
raporation  itself;  and  in  this  sense  banks 
are  said  to  be  either  public  or  private.  Pub- 
lie  banks  may  be  constituted  by  act  of  Par- 
liaoent,  or  by  charter  from  the  King.  The 
coDstitatien  of  the  company,  its  office-bearers, 
extent  of  capital,  and  the  rights  of  the  part- 
■ers.  Bust  depend  upon  the  powers  conferred 
by  Ae  Crown  or  by  Parliament,  and  on  the 
bj»4a«i  which  the  corporation  may  frame, 
OT  m  the  eooditiona  of  the  original  contract. 
Ib  banks  instituted  by  act  of  Parliament  the 
partnen  are  sometimes  relieved  from  liability 
beynd  the  ralne  of  their  respective  shares ; 
vbeteaa  the  partners  in  other  banks,  like 
the  fartners  in  a  private  trading  company, 
an  unlimited  responsibility  for  the 
of  the  bank.  See  Joint  Stock-Com- 
The  older  chartered  banks  in  Scot- 
kalsre, 

1.  T]u  Bank  cf  Scotland,  erected  by  a 
fiTata  act  of  the  Scotch  Parliament  (July 
17, 1695),  with  a  capital  of  L.l  ,200,000 
6Mts(L.100,000  steriing),  increased  by  se- 
wd  British  statutes  (the  last  of  which  is 
44  Qm.  Ill,,  c.  23)  to  L.1,500,000  sterling. 
Ths  ikarte  are  declared  assignable,  the  trans- 
in  bmg  entered  in  a  book  subscribed  by 
tkt  SHigBor  and  assignee.  They  are  also  dis- 
fMrtia  by  will  entered  in  the  book  of  trans- 
^withaat  eonftrmation ;  and  they  may  be 
^^Wiittuil "  by  adjudication,  or  other  legal 
f^Htnam,  in  nvour  of  one  person  allenarly, 
*hi^«Qca  Buumer,  shall  succeed  to  be  a 
I  Us  predecessor's  place ;  so  that  the 


foresaid  sums  of  subscription  may  neither  be 
taken  oat  of  the  stock,  nor  parcelled  among 
more  persons  by  legal  diligence,  in  any  sort 
to  the  diminishing  or  disturbing  of  the  stock 
of  the  said  company  and  good  order  thereof." 
On  the  bankruptcy  or  forfeiture  of  a  share- 
holder, the  governor  and  directors  may  order 
his  share  to  be  sold  by  public  roup,  after  such 
intimations  as  are  prescribed  for  the  sale  of 
bankrupt  lands.  The  act  does  not  say  whe- 
ther the  stock  is  to  be  heritable  or  moveable. 

2.  The  Royal  Bank  of  Scotland,  erected  by 
charter,  in  pursuance  of  5  Geo.  I.,  c.  20. 
The  stock  of  this  bank  is  declared  moveable, 
descendible  to  executors,  bat  not  liable  to  ar- 
restment or  attachment  By  a  bye-law,  no 
proprietor  can  transfer,  but  in  presence  of 
the  Court  of  Directors,  who  may  stop  the 
transfer  until  he  finds  security  for  what  he 
owes  the  bank. 

3.  The  British  Linen  Company  was  erected 
into  a  body  corporate,  by  charter,  in  1746. 
The  shares  are  declared  of  the  nature  of  per- 
sonal estate,  and  to  be  transferred  by  certain 
forms.  The  charter  was  confirmed  and  en- 
larged in  1806,  by  a  charter  from  Geo.  III. 
Nothing  is  said  in  the  charter  as  to  the  mode 
of  attaching  the  stock. 

In  addition  to  these  there  are  now  other 
banks  in  Scotland,  on  which  certain  privi- 
leges have  been  conferred  by  charter ;  such 
are,  The  Commercial  Bank  of  Scotland,  The 
National  Bank,  and  some  others ;  but  those 
charters  do  not  affect  the  responsibility  of  the 
partners  of  these  establishments  for  the  debts 
and  obligations  of  the  company.  By  7  Geo. 
IV.,  c.  67,  it  is  enacted,  that  joint  stock  bank- 
ing companies  may  sue  and  be  sued  in  name 
of  their  manager  or  other  principal  officer, 
on  condition  of  their  giving  in  to  the  Stamp- 
Office  annual  returns,  upon  oath,  of  the  name 
of  the  firm,  of  the  names  of  the  individual 
members,  and  of  their  manager ;  and  of  giv- 
ing, in  the  course  of  the  year,  an  account  of 
any  persons  ceasing  to  be  members  or  officers, 
and  of  those  entering  in  their  stead.  As  to 
other  regulations  affecting  banks,  see  the 
statutes  3  and  4  WiU.  IV.,  c.  83  (1833) ; 
4  and  5  Vict.,  e.  60  (1841),  and  8  and  9 
Vict.,  c.  38,  (1846);  See  Joint-Stock  Com- 
panies. 

Bank  Stock ;  is  the  capital  of  a  bank  di- 
vided into  shares,  according  to  the  original 
constitution  of  the  company.  These  shares 
are  held  by  the  partners  of  the  bank,  and 
may  be  disposed  of,  and  are  transferred  by 
an  entry  in  the  books  of  the  bank,  under  such 
forms  as  may  have  been  prescribed  by  the 
contract  or  charter  of  the  particular  bank, 
for  the  security  of  the  bank  and  partners. 
Ersk.  B.  ii.  tit  2,  §  8 ;  B.  iii.  tit.  9,  §  4 ; 
BelPs  Com.  vol.  i.  p.  106 ;  vol.  ii.  p.  3,  &th 


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edit.:  BeWs  Prine.  3d  edit.  §  ISU.etteq.; 
Bdl'g  lUust.  §  1345 ;  Jurid.  Styles,  2d  edit, 
vol.  iii.  p.  355. 

Bank  of  England.  This  bank,  which  has 
been  the  subject  of  various  statutes,  is  under 
the  management  of  a  governor  and  directors, 
possessed  of  certain  qualifications  prescribed 
in  the  charter.  Its  stock  is  lent  to  Govern- 
ment at  8  per  cent,  interest,  and  is  redeemable 
on  payment  of  the  money  borrowed.  TonUins' 
Dict.,k.  t.  The  most  recent  statute  affecting  the 
Bank  of  England  is  7  and  8  Vict.,  c.  32  (1844). 

Bank  Notes ;  are  notes  issued  by  a  bank 
for  value  received,  and  made  payable  to  the 
bearer  on  demand,  but  bearing  no  interest. 
They  supply  the  place  of  coin,  either  by  autho- 
rity of  public  law,  in  the  case  of  the  Bank  of 
Eugland,  or  by  public  consent,  in  the  case  of 
private  or  joint-stock  banks.  They  are,  pro- 
perly speaking,  nomina  dd)itorum,  or  obliga- 
tions which  may  be  the  ground  of  an  action, 
rather  than  corpora  of  moveables,  and  will  be 
so  interpreted  in  a  conveyance  of  moveables. 
More's  Notes  on  Stair,  p.  xlii. ;  Ersk.  B. 
iii.  tit.  5,  §  6  ;  tit.  6,  §  20,  note;  tit  7,  §  29, 
note  by  Mr  Ivory;  BeWs  Princ.  §  1377,  3d 
edit. ;  Brown's  Synop.  pp.  166,  101,  1236 ; 
Thomson  on  Bills,  y.  218,  47,  621 ;  Jurid. 
Styles,  2d  edit.  vol.  iii.  pp.  596,  744  ;  Hume, 
L  136,  151-2  ;  ii.  376.  The  issue  of  bank 
notes  in  England  is  now  regulated  by  the  act 
7  and  8  Vict.,  c.  32  (1844) ;  and  the  issue  in 
Scotland  by  the  act  8  and  9  Vict.,  c.  38 
(1845). 

Bank  Credits ;  are  credits  peculiar  to 
Scotch  banking,  by  which,  on  proper  security 
given  to  the  bank,  a  person  is  permitted  to 
draw  to  a  certain  amount  agreed  upon,  and 
for  which,  with  the  interest  that  may  fall  due 
upon  the  sum  drawn  out,  security  is  given. 
The  account  opened  with  the  bank  on  this 
credit  is  carried  on  by  occasional  money  trans- 
actions ;  the  person  receiving  the  credit 
drawing  out  or  lodging  money  as  his  occasions 
require.  The  balance  is  thus  continually 
fluctuating ;  the  sum  which  the  person  is  due 
to  the  bank  one  day  being  perhaps  repaid 
the  next  day,  and  drawn  out  again  on  the  day 
following.  The  fluctuating  nature  of  this 
balance,  as  well  as  the  provision  of  the  act 
1696,  c.  5,  that  no  heritable  security  shall  be 
given  for  a  future  debt,  formed  an  obstacle  to 
heritable  security  being  given  to  banks  for 
cash  credits.  The  only  way  formerly  of 
managing  such  a  transaction  was  for  the  per- 
son desirous  of  obtaining  such  a  credit  on 
heritable  security,  to  procure  friends  whose 
personal  security  was  sufficient,  who  might 
join  with  him  in  an  obligation  to  the  bank  ; 
and  to  those  friends  he  gave  an  heritable  bond 
of  relief.  But  even  this  was  not  held  to  re- 
pove  the  difficulty;  for  although  the  bond 


was  given  to  relieve  the  cautioners  of  their 
obligation,  yet  it  was  thought  that  the  fluc- 
tuating nature  of  the  original  debt  affected 
even  the  cautionary  engagement,  and  ren- 
dered it  ineffectual ;  see  Creditors  of  Burgh, 
March  2,  1791,  M.  1159.  But  this  has 
been  since  provided  for  by  a  clause  in  the  act 
54  Geo.  III.  c.  137,  §  14,  which  declares, 
"  That  it  shall  be  lawful  for  any  person  or 
persons  possessed  of  lands,  or  other  heritable 
subjects,  and  desiring  to  pledge  the  same  in 
security  of  any  sums  paid  or  balances  arising, 
or  which  may  arise  upon  cash-accounts  or 
credits,  or  by  way  of  relief  to  any  person  or 
persons  who  may  become  bound  with  him  or 
them  fur  the  payment  of  such  sums  or  ba- 
lances, although  posterior  to  the  date  of  the 
iufeftment,  to  grant  heritable  securities  ac- 
cordingly upon  their  said  lands,  or  other  heri- 
table estate,  containing  procuratory  of  r«ig- 
nation  and  precept  of  sasine,  for  infefting  any 
bank  or  bankers,  or  other  persons  who  shall 
agree  to  give  them  such  cash-accounts  or 
credits,  or  for  infefting  such  persons  as  shall 
become  cautioners  for  them,  or  jointly  bound 
with  them,  in  such  cash-accounts  or  credits : 
Provided  always,  that  the  principal  and  in- 
terest which  may  become  due  upon  the  said 
cash-accounts  or  credits  shall  be  limited  to  a 
certain  definite  sum,  to  be  specified  in  the  se- 
curity, the  said  definite  sum  not  exceeding 
the  amount  of  the  principal  sum,  and  three 
years'  interest  thereon,  at  the  rate  of  5  per 
centum ;  And  it  is  hereby  declared,  that  it 
shall  and  may  be  lawful  to  the  person  to  whom 
any  such  cash-account  or  credit  is  grant«d 
to  operate  upon  the  same,  by  drawing  out  and 
paying  iu  such  sums,  from  time  to  time,  as 
the  parties  shall  settle  between  themselves ; 
and  that  the  sasines  or  infeftnients  taken  upon 
the  said  heritable  securities  shall  be  equally 
valid  and  effectual,  as  if  the  whole  sums  ad- 
vanced upon  the  said  cash-account  or  credit 
had  been  paid  prior  to  the  date  of  the  sasine 
or  infeftment  taken  thereon ;  and  that  any 
such  heritable  security  shall  remain  and  sub- 
sist to  the  extent  of  the  sum  limited,  or  any 
lesser  sum,  until  the  cash-account  or  credit  is 
finally  closed,  and  the  balance  paid  np  and 
discharged,  and  the  sasine  or  infeftment  re- 
nounced." On  compliance  with  this  regula- 
tion, an  heritable  security  may  be  given  for 
a  cash-credit.  Bdl's  Princ.  §  299,  et  seq. ;  II- 
lust.  ib.  By  the  act  9  and  10  Vict.,  c  79,  § 
2  (1856),  the  act  Geo.  III.,  c  137  is  repealed, 
but  by  another  act  of  the  same  session,  c  91, 
it  is  declared  in  the  preamble,  that  it  is  ex- 
pedient that  certain  provisions  contained  in 
that  act  relating  to  securities  for  debts  in 
Scotland  should  be  amended  and  re-enacted, 
and  by  §  7,  the  above  provisions  of  the  act  54 
Geo.  III.  are  re-enacted.     In  describing  the 


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fomn  of  the  secnrities  to  lie  granted,  the  new 
statate  makes  nse  of  the  same  words  as  are 
employed  in  the  old  one,  regard  not  being  hsui 
to  the  changes  in  the  form  of  securities  intro- 
dneed  by  the  act  8  and  9  Viet,  c  31  (1845). 
In  consequence  of  this  OTorsigbt  a  doubt  has 
been  raised  as  to  whether  a  security  for  cash- 
credits  in  the  new  form  wonld  be  valid.  It 
is  thought,  however,  that  securities  in  the 
new  form  would  be  sustained. 

Bank  Agent  The  national  banks,  as  well 
as  private  bankers,  generally  employ  persons 
to  act  as  their  agents  for  conducting  their 
banking  operations  in  provincial  towns.  The 
powers  of  these  agents  depend  upon  the  rules 
and  regulations  of  the  particular  bank  for 
which  they  act ;  but,  in  the  ordinary  case, 
they  are  authorized  to  discount  bills,  &&,  for 
behoof  of  the  bank,  either  on  their  own  re- 
qransibiiity,  or  at  least  under  a  responsibility 
for  a  certain  proportion  of  the  discounts.  The 
power  of  granting  cash-credits  is  generally 
reserved  to  the  principal  bank.  Caution  to 
a  large  amount  is  required  for  bank-agents ; 
and  on  the  failure  of  the  agent,  it  seems  to 
be  held  that  the  money  found  in  the  desks, 
drawers,  or  boxes,  used  for  carrying  on  the 
basinees  of  the  bank,  is  the  specific  property 
ef  the  bank,  and  may  be  reclaimed  by  it ;  and 
tbii  although  the  identical  notes  issued  by 
the  bank  may  hare  been  replaced  by  others. 
A  danse  empowering  the  bank  summarily  to 
terminate  the  agency,  and  to  seize  and  carry 
off  the  whole  notes,  cash,  obligations  and 
effects  belonging  to  the  bank,  is  usually  in- 
awted  in  the  bond  of  caution  taken  by  the 
bask  from  the  agent.  See  BdPg  Com,  vol.  i.  p. 
264, 362,480, 5th  edit ;  Princ.  §§  231, 290,  et 
uq. ;  lUiut.  ib. :  Jurid.  SitfUt,  2d  edit.  iii.  615. 

&aik  Interest;  is  the  interest  allowed  by 
poblie  and  private  banks  on  money  deposited 
with  them.  It  has  varied  of  late  years  from 
2  to  3  and  3^,  and  at  present  is  4  per  cent. 
For  money  advanced,  either  by  discounting 
bfljs  or  on  cash-credits,  banks  usually  charge 
2  per  cent,  higher  than  the  interest  allowed 
by  them. 

ISBker ;  is  the  partner  or  manager  of  a 
Wak,  who  deals  in  discounting  bills.  Some 
of  the  rules  of  bankers  concerning  bill  trans- 
aetioDi  may  be  here  stated.  A  bill,  regu- 
larly discounted,  is  held  to  be  a  hill  purehated 
by  a  hanker,  and,  on  his  failure,  is  the  pro- 
perty of  his  creditors.  Bills  sent  merely  for 
segotistion  are  the  property  of  the  sender,  if 
distinguiahable ;  the  banker,  as  to  them,  being 
merely  an  agent.  Where  bills  are  blank  in- 
doned  to  a  ^nker,  on  the  understanding  that 
the  iodorser  is  to  be  allowed  to  draw  for  a 
certain  proportion  of  their  amount,  the  bills 
hehmg  to  the  indoraer,  under  a  lien  for  the 
adTanees.    Long-dated  bills,  deposited  in  se- 


curity of  bills  at  a  shorter  date,  discounted 
by  a  banker,  are  held  to  be  impledged  to  the 
banker ;  and,  on  retiring  the  short-dated  bills, 
the  customer  is  entitled  to  receive  the  long- 
dated bills,  notwithstanding  the  intervening 
bankruptcy  of  the  banker.  Bills  blank  in< 
dorsed  to  a  banker,  and  deposited  for  a  spe- 
cial purpose,  may  be  discounted  or  paid  away 
by  the  banker  to  whom  they  are  so  indorsed ; 
and,  on  his  failure,  the  indorser  cannot  re- 
claim the  bills,  but  must  rank  as  a  mere  per- 
sonal creditor.  A  banker  has  a  lien  for  the 
general  balance  of  his  account  over  all  bills 
deposited  with  him,  "  unless  they  have  been 
discounted,  in  which  case  they  are  taken  out 
of  the  account  between  the  parties."  See 
BdPs  Com.  vol.  i.  p.  270,  et  teq. ;  vol.  ii.  p. 
118, 6th  edit. ;  Ertk.  B.  iii.  tit.  4,  §  21,  wtt 
by  Mr  Ivory;  BeWt  Prime.  §  32, 1460 ;  Belf$ 
lUutt.  ib. ;  Thornton  on  BilU,  pp.  403,  477,  «t 
teq,,  523,  806 ;  Jwrid.  Sh/let,  3d  edit.  voL  ii. ; 
Bume,  i.  64. 

Banks  for  Savings.  See  Savingt  Banks. 
Taift  Justice  of  Peace,  h,  t. ;  Blait't  do.,  h.  t. 

Bankrapt  A  bankrupt  is  an  insolvent 
person  who  has  subjected  himself  to  the  ope- 
ration of  the  bankrupt  laws.  Every  person 
subject  to  the  laws  of  Scotland  may  be  ren- 
dered legally  bankrupt.  By  the  statute  1696, 
c.  5,  a  "  notour  bankrupt"  is  a  "  debtor  who 
being  under  diligence  by  homing  and  caption 
at  the  instance  of  his  creditor,  ^all  be  either 
imprisoned  or  retire  to  the  Abbey,  or  any 
other  privileged  place ;  or  flee  or  abscond  for 
his  personal  safety ;  or  defend  his  person  by 
force  ;  and  who  shaJl  afterwards  be  fonnd,  by 
sentence  of  the  Lords  of  Session,  to  be  insol- 
vent." The  statute  64  Geo.  III.,  c.  137,  §  1, 
extended  the  description  of  bankruptcy  to 
persons  subject  to  the  laws  of  Scotland  who 
were  absent  fi'om  Scotland,  or  not  liable  to 
imprisonment,  by  reason  of  privilege  or  per- 
sonal protection ;  and  declared  that  a  charge 
of  homing  executed  against  such  a  person,  or 
an  execution  of  arrestment  of  anyof  his  effects, 
not  loosed  or  discharged  within  fifteen  days, 
or  a  poinding  of  any  of  his  moveables,  or  a 
decree  of  abjudication  of  any  part  of  his  he- 
ritable estate,  should,  when  joined  with  in- 
solvency, be  held  a  sufficient  proof  of  legal 
bankruptcy,  and  equivalent  to  notour  bank- 
ruptcy under  the  act  1696. 

Under  the  act  1696,  all  voluntary  disposi- 
tions, assignations  or  other  deeds,  granted 
directly  or  indirectly  by  the  bankrupt,  at  or 
after  the  time  of  his  bankruptcy,  or  within 
sixty  days  before  it,  in  favour  of  a  creditor, 
either  in  satisfaction  or  further  security,  to 
the  prejudice  of  other  creditorx,  are  void  and 
null.  This  act  also  declared,  that  in  the  ap> 
plication  of  the  act,  all  dispositions,  heritable 
bonds,  or  other  heritable  rights  granted  by 


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the  bankrnpt,  on  which  infeftment  may  foUov, 
shall  be  reckoned  to  be  of  the  date  of  the 
■acine  lawfully  taken  thereon.  It  further 
declared,  that  all  dispoeitions  or  other  rightg 
granted  for  relief,  or  in  lecarity  of  future 
debta,  shall  be  of  no  force  as  to  any  debt  con- 
tracted after  the  date  of  the  sasine.  The 
act  concludes,  by  ordaining  fraudulent  bank- 
rupts to  be  punished,  by  being  held  infamous, 
infamia  jwris,  and  by  banii^ment,  or  such 
other  punishment  short  of  death,  as  the  Court 
of  Session  shall  see  cause  to  inflict  (See  Fraud- 
tilent  Bankn^t.)  The  statute  54  Geo.  III^ 
e.  137,  declared,  that  when  a  debtor  bad  been 
rendered  legally  bankrupt  in  terms  of  the 
act  1696,  all  arrestments  used  for  attaching 
the  effects  of  the  bankrnpt  within  sixty  days 
before,  and  four  calendar  months  after  the 
bankruptcy,  should  be  ranked |>artp<ust(;  and 
that  all  poindings  used  within  the  same  pe- 
riod should  give  a  preference  to  the  poinder ; 
bnterery  other  creditor havingliquid  grounds 
«f  debt,  or  decree  for  payment,  and  sum- 
moDiBg  the  poinder,  or  judicially  pro- 
ducing the  same  in  any  process  or  competi- 
tion relatire  to  the  price  of  the  poinded  goods, 
before  the  lapse  of  the  four  months,  diould 
be  entitled  to  a  proportional  share  of  the  price 
of  the  goods  so  poinded,  corresponding  to  his 
debt,  deducting  the  expense  of  the  poinding, 
which  the  poinding  creditor  shall  retain.  The 
same  statute  also  enacted,  that  in  all  ques- 
tions OB  the  act  1696,  and  under  this  statute, 
the  dispositions,  heritable  bonds,  or  other 
rights  on  which  infeftment  may  follow,  in- 
stead of  being  reckoned  of  the  date  of  the 
tasinet,  as  provided  by  the  act  1696,  should 
be  held  of  the  date  of  the  regutration  of  the 
sasine  ;  and  that  all  dispositions,  assignations, 
and  venditions  which  do  not  require  sasine, 
should  be  reckoned  (in  so  far  as  these  statutes 
were  concerned)  of  the  date  of  the  intimation, 
delirery,  or  othei^  act  requisite  for  completing 
the  right,  without  prejudice  to  the  validity  of 
these  rights  in  all  other  req>ects.  From  the 
provision  of  the  act  1696,  regarding  securi- 
ties for  future  debts,  heritable  securities  for 
cash  accounts  were  excepted ;  54  Geo.  JIL,  c 
187,  $  14.  With  regard  to  judicial  ssJes 
of  the  lands  of  a  bankrupt,  and  idienations,  on 
the  approach  of  bankruptcy,  to  conjunct  and 
eonfident  persons,  see  the  articles  Judicial 
Sale  and  Ranking,  and  Conjunct  and  Confident. 
The  act  19  and  20  Vict.,  o.  79, 1856,  is 
"  An  act  to  consolidate  and  amend  the  laws 
relating  to  Bankruptcy  in  Scotland,"  and  re- 
peids  the  acts  54  Geo.  III.,  c.  137,  2  and  3 
Vict.,  c.  41,  and  16  and  17  Vict.,  c.  63,  ex- 
cept as  regards  any  act  or  deed  done  or 
granted  prior  to  the  new  act  coming  into 
operation,  which  is  declared  to  be  1st  No- 
vember 1856.   The  general  provisions  of  the 


statute  will  now  be  given,  as  it  wonid  oeenpy 
too  much  space  to  give  the  whole  proriai<m> 
in  detail. 

The  date  of  a  deed  under  the  new  act,  or 
under  the  act  1696,  o.  5,  is  the  date  of  re- 
cording the  sasine  where  sasine  is  requisite, 
and  in  other  cases,  the  date  of  registration 
of  the  deed,  or  of  delivery,  or  of  intimation, 
or  of  such  other  proceeding  as  shall  Jn  the 
particular  case  be  requisite  for  rendering  the 
deed  effisctual. 

Notour  bankruptcy  of  an  indiridnal  is  con- 
stituted, firit,  by  sequestration,  or  by  the 
issuing  .of  an  adjudication  of  bankruptcy  in 
England  or  in  Ireland ;  or,  ucond.  By  insol- 
vency concurring  either — (1.)  With  a  duly 
executed  charge  for  payment,  followed,  where 
imprisonment  is  competent,  by  imprisonment, 
or  formal  and  regular  apprehension  of  the 
debtor,  or  by  his  flight  or  absconding  from 
diligence,  or  retreat  to  the  sanctuary,  or  for- 
cible defending  of  his  person  against  dili- 
gence, or  where  imprisonment  is  incompetent 
or  impossible  by  execution  of  arrestment  of 
any  of  the  debtor's  efEects  not  loosed  or  dis- 
charged for  fifteen  days,  or  by  execution  of 
poinding  of  any  of  his  moveables,  or  by  de- 
cree of  a^'udication  of  any  part  of  his  herit- 
able estate  for  payment,  or  in  security ;  or, 
(2.)  Concurring  with  sale  of  any  effects  be- 
longing to  the  debtor  under  a  poinding,  or 
under  sequestration  for  rent,  or  with  his  re- 
tiring to  the  sanctuary  for  twenty-four  honrs^ 
or  with  his  making  application  for  the  benefit 
of  ctttio  bonorum.  In  the  ease  of  a  company 
it  is  constituted  either  in  any  of  the  foregoing 
ways,  or  by  any  of  the  partners  being  ren- 
dered notour  bankrupt  for  a  company  debt. 
Notour  bankruptcy  is  held  to  commence  from 
the  time  when  its  several  requisites  concur ; 
and  when  it  has  once  been  constituted,  con- 
tinues, in  case  of  a  sequestration,  till  tiie 
debtor  obtain  his  discharge,  and  in  other  cases 
until  insolvency  cease,  without  pr^udice  to 
notour  bankruptcy  being  constituted  anew 
within  such  period. 

Deeds  made  void  by  the  act,  and  all  aliena- 
tions of  property  voidable  by  statute,  or  at 
common  law,  may  be  set  aside  either  by  way 
of  action  or  exception,  and  may  be  so  set 
aside  by  the  trustee  on  a  sequestrated  estate. 

Arrestments  and  poindings  used  within 
sixty  days  prior  to  the  constitution  of  notoor 
bankruptcy,  or  within  four  months  there- 
after, are  ranked  ftari  passu,  provided  the 
arrestments,  if  used  on  the  dependence  of  an 
action,  or  on  an  illiquid  debt,  are  followed 
up  without  undue  delay.  A  creditor  judi- 
cially producing  in  a  process  relative  to  a 
subject  arrested  or  poinded  liquid  grounds  of 
debt,  or  decree  of  payment  within  the  above 
period,  is  entitled  to  be  ranked  as  if  he  had 


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neentod  an  arrestment  or  a  poinding.    The 

int  arresting  or  poinding  creditor  who  re- 
eoren  payment  is  acconntable  for  the  sum 
reeorered  to  the  subsequent  creditors,  who 
are  entitled  to  be  ranked  pari  pastu  with 
ihem.  Arrestments  used  after  the  fonr 
■MHiths  are  ranked  with  each  other  on  any  re- 
Tenion  of  the  fbnd  attached,  according  to 
law  and  praetiee,  and  do  not  compete  with 
tkn  nsed  within  the  said  periods. 

In  the  ease  of  a  living  debtor  subject  to 
tlie  jnrisdietions  of  the  Supreme  Courts  of 
Seodand,  sequestration  may  be  awarded  on 
nth  debtor's  own  petition,  with  the  ooncur- 
rmee  of  a  creditor  whose  debt  amounts  to  not 
Ini  than  L.50,  or  of  two  creditors  whose  debts 
together  amount  to  not  less  than  L.70,  or  of 
tliree  or  more  creditors  whoee  debts  tog^ether 
UHHint  to  not  lees  than  L.lOO,  whether  the 
debts  are  liquid  or  illiquid,  provided  they  are 
not  contingent.  Sequestration  may  also  be 
swarded  in  the  case  of  a  living  debtor,  on  the 
petition  of  a  creditor  or  creditors  under  the 
tbore  qnalillcations,  provided  the  debtor  be 
a  notonr  bankrupt,  and  have  within  a  year 
More  the  presenting  of  the  petition  resided 
er  had  a  dwelling-house  or  place  of  business 
is  Scotland  ;  or  in  the  case  of  a  company 
Mag  notour  bankrupt,  if  it  have  within  such 
pniod  carried  on  business  within  Scotland, 
ud  any  partner  have  so  resided  or  had  a 
dvtUing-nonse,  or  if  the  company  have  had 
s  place  of  business  in  Scotland. 

In  the  case  of  »  deceased  debtor,  who  at 
tlw  date  of  his  death  was  subject  to  the  juris- 
^OB  of  the  Supreme  Courts  of  Scotland, 
■fMitration  may  be  awarded  either  on  the 
petition  of  a  mandatory  to  whom  he  had 
(Tiated  a  mandate  to  apply  for  sequestra- 
tion, or  on  the  petition  of  a  creditor  or  cre- 
diton  qoalified  as  above  mentioned. 

Ib  the  ease  of  a  living  debtor,  petitions  for 
■^estration  presented  without  his  concur- 
fnce  are  competent  only  within  fonr  months 
<f  hit  notour  bankrupt*^.  In  the  case  of  a 
^Messed  debtor,  the  petition  at  the  instance 
*f  a  creditor  may  be  presented  at  any  time 
*ft*r  the  debtor's  death,  but  no  sequestration 
*iH  be  awarded  until  the  expiration  of  six 
Moths  from  the  debtor's  death,  unless  he  was 
*t  the  tine  of  his  death  notour  bankrupt,  or 
^1«>  hii  sueeeasors  shall  concur  in  the  peti- 
^,  er  renounce  the  succession. 

t^here  a  petition  for  sequestration  is  pre- 
■aM,  the  Court,  on  speciad  application  by  a 
*'*'iter,  or  without  such  application  if  the 
(^oot  think  proper,  may  take  immediate 
■•■••iw  for  the  presenration  of  the  estate, 
*^^  hy  the  qppomtraent  of  a  judicial  factor 
•  •aenriae. 

'^UMii-atioa  may  be  awarded  either  by 
the  CMrt  of  Senon  or  by  the  Sheriff  of  any 


county  in  which  the  debtor  for  the  year  pre> 
ceding  the  date  of  the  petition  has  resided 
or  carried  on  business,  provided  that  no  se- 
questration has  been  awarded  in  another 
court,  and  remains  undischarged.  When  se- 
questration has  been  awarded  by  two  or  more 
Sheriffs,  the  later  sequestration  must  be  re- 
mitted to  the  first  in  date. 

A  mtyority,  being  four-fifths  in  value  of 
the  creditors,  may  resolve  that  the  estate  of 
their  debtor  ought  to  be  wound  up  under  a 
deed  of  arrangement ;  and  on  such  a  resolu- 
tion being  come  to,  an  application  may  be 
made  to  the  Lord  Ordinary  or  the  Sheriff, 
within  four  days  of  the  resolution,  for  a  sist 
of  the  sequestration;  and  in  the  event  of  the 
application  being  granted,  the  Lord  Ordi- 
nary or  the  Sheriff  may  make  such  an  ar- 
rangement as  they  may  think  reasonable  for 
the  interim  management  of  the  estate. 

Warrant  of  protection  against  arrest  or 
imprisonment,  until  the  meeting  of  the  credi- 
tors for  the  election  of  a  trustee,  may  be  grant- 
ed by  the  Lord  Ordinary  or  the  Sheriff,  when 
awarding  sequestration.  Warrant  also  for 
liberating  the  debtor  from  prison  may  also 
be  granted  by  the  Lord  Ordinary  or  the 
Sheriff  by  whom  the  sequestration  is  awarded, 
and  such  warrant  of  protection  or  liberation 
protects  or  liberates  the  debtor  from  arrest 
or  imprisonment  for  debts  contracted  previous 
to  the  date  of  sequestration,  but  are  of  no 
effect  against  apprehension  or  imprisonment 
in  meditatione  fvgce,  or  adfadxm  prattandum, 
or  for  any  criminal  act. 

The  creditors  of  the  sequestrated  debtor 
can  only  vote  and  rank  for  the  accumulated 
sum  and  interest,  up  to  the  date  of  sequestra- 
tion, and  when  the  claim  of  a  debtor  depends 
upon  a  contingency,  he  may  apply  to  have  a 
value  put  upon  such  debt.  A  claim  upon  an 
annuity  must  also  be  valued  by  the  sheriff  or 
trustee,  and  in  making  the  valuation,  regard 
is  had  to  the  original  price  given  for  the  an- 
nuity, deducting  therefrom  such  diminution 
of  the  value  as  shall  be  caused  by  the  lapse 
of  time,  since  the  date  of  it  being  granted,  up 
to  the  date  of  sequestration.  After  the  date 
of  sequestration,  the  creditor  in  an  annuity 
is  not  entitled  to  sue  any  cautioner  for  it,  ex- 
cept for  the  value  fixed,  and  the  arrears  and 
interestthereon ;  and  the  cautioner,  on  making 
payment  of  such  value,  and  arrears  and  in- 
terest, is  discharged  of  all  liability  for  the 
annuity,  and  he  may  claim  in  the  sequestration 
for  the  sums  repaid.  If,  however,  he  does  not 
pay  the  sum  so  fixed,  and  arrears  and  interest, 
he  continues  bound  for  the  annuity  until  such 
payment  is  made,  under  deduction  of  such 
dividend  as  the  creditor  may  have  received. 

A  co-obligant  with  the  bankrupt  in  a  debt 
is  not  freed  from  his  liability,  in  recpect  of 

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any  Tote  giren,  or  dividend  dravn  by  the  cre- 
ditor in  the  BeqnestratioD,  or  in  respect  of  his 
assenting  to  the  discharge  of  the  bankrnpt,  or 
to  any  compensation.  Such  co-obligant,  how- 
ever, may  at  his  own  expense  obtain  from  the 
creditor  an  assignation  of  the  debt,  on  paying 
ite  amount,  and  may  thereafter  himself  claim 
in  the  sequestration. 

Where  a  creditor  holds  a  security  for  his 
debt  over  any  part  of  tlie  bankrupt's  estate, 
be  must,  before  voting,  make  an  oath,  in 
vhich  he  shall  put  a  specified  ralne  on  the 
Becurity,  and  deduct  its  value  from  the  debt, 
and  specify  the  balance,  and  be  is  entitled  to 
vote  in  respect  of  the  balance  only,  except  in 
questions  relating  to  the  disposal  and  manage- 
ment of  the  estate  over  which  his  security  ex- 
tends, in  which  case  he  is  entitled  to  vote  in 
respect  ofthe  full  amount  of  his  debt.  Where 
a  creditor  has  an  oblig^t  bound  to  him  along 
with  the  bankrupt,  but  who  is  liable  in  relief 
to  the  bankrupt,  or  holds  any  security  from 
such  an  obligant,  or  any  security  from  which 
the  bankrupt  has  a  right  of  relief,  the  cre- 
ditor shall,  before  voting,  make  an  oath  in 
which  he  shall  put  a  specified  value  on  the 
obligation  of  such  obligant,  or  on  such  secu- 
rity, to  the  extent  to  which  the  bankrupt  is 
entitled  to  relief,  and  he  shall  deduct  such 
value  fi-om  his  debt,  and  specify  the  balance, 
and  he  shall  be  entitled  to  vote  in  respect  of 
snch  balance  only. 

A  creditor  on  the  estate  of  a  company  is 
not  bound,  for  the  purpose  of  voting  on  the 
company's  estate,  to  deduct  from  Eis  claim 
the  value  which  he  may  be  entitled  to  draw 
from  the  estates  of  the  partners  of  the  com- 
pany. If,  however,  he  claim  on  the  estate  of 
a  partner,  he  must,  before  voting,  put  a  spe- 
cified value  on  his  claim  in  the  estate  of  the 
company,  and  also  of  his  claim  against  the 
other  partners  thereof,  in  so  far  as  they  are 
liable  to  relieve  such  partner,  and  must  de- 
duct snch  value  fVom  his  debt  and  specify  the 
balance,  and  he  is  entitled  to  vote  in  respect 
of  snch  balance  only. 

The  trustee  in  the  sequestration,  with  con- 
tent of  the  commissioners,  may  require  a  con- 
veyance of  a  creditor's  security  on  payment  of 
the  specified  value,  with  an  addition  of  20 
per  cent.  Mandatories  for  creditors  may  vote 
in  absence  ofthe  creditors,  but  persons  acquir- 
ing debts  after  sequestration  are  not  entitled 
to  vote  in  the  election  of  the  trustee  or  com- 
missioners, but  in  all  other  respects  may  be 
ranked  as  creditors. 

To  entitle  a  creditor,  who  holds  a  security 
over  any  part  of  the  bankrupt's  estate,  to  be 
ranked  in  order  to  draw  a  dividend,  he  must 
on  oath,  put  a  specified  value  on  the  security, 
and  deduct  its  value  from  the  debt,  and  spe- 
cify the  balance ;  and  on  payment  of  the  ba- 


lance so  specified,  the  trustee,  with  the  con- 
sent of  the  commissioners,  is  entitled  to  a  con- 
veyance of  the  security,  or  full  benefit  of  the 
security  may  be  reserved  to  the  creditor,  and 
in  either  case  he  is  ranked  only  for  the  ba- 
lance of  the  debt,  after  deducting  the  value 
of  the  security.  Where  a  creditor  claims  npon 
the  estate  of  the  partner  of  a  company,  in 
respect  of  a  company  debt,  the  trnstoe  on  snch 
partner's  estate  must,  before  ranking  the  cre- 
ditor, put  a  valuation  of  the  estate  of  the  com- 
pany, and  deduct  from  the  claim  of  the  cre- 
ditor such  estimated  value,  and  rank  hiin  fat 
the  balance  only. 

The  election,  removal,  and  resignation  of 
the  trustee  are  regulated  by  §§  67  to  74  in- 
clusive, and  the  election  and  removal  of  the 
commissioners  are  regnlated  by  §§  75  and  76. 
The  duties  of  the  tmstee  and  the  commis- 
sioners  are  prescribed  by  §§  79  to  86  inclu- 
sive. The  protection  and  allowance  to  the 
bankrupt  are  regulated  by  §§  77  and  78, 
and  his  examination  by  §§  87  to  95  indnsive. 

The  act  and  warrant  of  confirmation  in 
favour  of  the  tmstee,  ipto  jwe,  transfers  to, 
and  vests  in  him,  or  any  succeeding  tmstee, 
for  behoof  of  the  creditors,  absolntely  and 
irredeemably,  as  at  the  date  of  the  seques- 
tration, the  whole  moveable  estate  of  the 
debtor,  wherever  situated,  to  the  same  eflTeet, 
as  if  actual  delivery  or  possession  had  been 
obtained,  or  intimation  made  at  that  date,, 
subject  always  to  such  preferable  aecnrities 
as  existed  at  the  date  of  the  sequestratira, 
and  were  not  null  or  reducible.  It  also  vests 
in  the  trustee  the  whole  heritable  estate  of 
the  bankrupt,  to  the  same  effect  as  if  a  decree 
of  adjudication  in  implement  of  sale,  as  well 
as  a  decree  of  adjudication  for  payment  and 
in  security  of  debt,  subject  to  no  legal  revi- 
sion, had  been  pronounced  in  favour  of  the 
trustee  and  recorded  at  the  date  of  the  seques- 
tration, and  as  if  poinding  of  the  ground  had 
been  executed,  subject  always  to  such  prefer- 
able securities  as  existed  at  the  date  of  the 
sequestration,  and  were  not  null  or  reducible. 
The  sequestration  also  vests  in  the  trustee  all 
real  estate  belonging  to  the  bankrupt  situat- 
ed in  England  or  Ireland,  or  any  of  the  Bri- 
tish dominions,  provided,  as  regards  all  free- 
hold, copyhold,  and  leasehold  estate,  the  act 
and  warrant  of  confirmation  be  registered  in 
the  chief  court  of  bankruptcy,  for  the  conn^ 
in  which  the  property  is  situated;  and  no  pur- 
chaser of  such  estate  for  a  valuable  considera- 
tion is  affected  by  the  bankruptcy  until  the 
act  and  warrant  shall  have  been  so  registered. 
Where  also  a  conveyance  of  such  estate  would 
have  required  registration  or  enrolment,  the 
act  and  warrant  must  also  be  so  registered 
or  enrolled ;  and,  if  not  so  registered  or  en- 
rolled, a  purchaser  for  valuable  eonaidera- 

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tioa  and  withont  notice  of  &e  seqnestration, 
B  not  affected  by  it. 

Snbieqaent  aeqaiaitions  by  the  bankrupt 
become  the  property  of  the  creditoi-s ;  and 
where  any  property  has  been  improperly  in- 
doded  in  the  sequestration,  application  may 
be  made  to  have  it  strack  out. 

A  sequestration  is  equivalent  to  a  decree 
of  sdjadication  for  payment  of  the  whole 
debts  of  the  bankrupt,  principal  and  interest, 
aeenmulated  at  the  date  of  the  sequestration ; 
and  when  the  date  is  within  year  and  day  of 
anj  efiectual  abjudication,  the  estate  of  the 
bankrupt  will  be  disposed  of  under  the  se- 
questration, but  the  rights  of  any  heritable 
creditor  having  a  power  of  sale  preferable  to 
the  power  of  the  trustee,  are  not  affected  by 
this  provision.  A  sequestration  is  also  equi- 
valent to  an  arrestment  in  execution  and  de- 
cree of  forthcoming,  and  to  an  executed  or 
eonpleted  poinding ;  and  no  arrestment  or 
poinding  executed  on  or  after  the  sixtieth 
dsj prior  to  the  sequestration  is  effectual; 
bat  an  arrester  or  poinder  within  that  pe- 
riod is  entitled  to  the  expense  bonajide  incur- 
red by  him  in  the  execution  of  his  diligence. 

Prescription,  under  the  law  of  Scotland, 
ii  iniermpted,  and  the  statute  of  limitation 
in  England  is  barred,  by  a  creditor  presenting 
orcooenrring  in  a  petition  for  sequestration, 
or  lodging  a  claim  under  it,  and  thai  al- 
tbongh  the  sequestration  should  be  after- 
wards recalled. 

In  the  case  of  a  deceased  debtor,  where  the 
aeqaestration  is  dated  within  seven  months 
sfWr  his  death,  any  preference  or  security 
for  any  prior  debt  acquired  by  legal  dili- 
geaee  on  or  after  the  tixlieth  day  before  his 
death,  or  subsequent  to  his  death,  and  any 
preference  or  security  acquired  fur  a  prior 
debt  by  any  act  or  deed  of  the  debtor  which 
had  not  been  lawfiilly  completed  for  a  period 
of  more  than  tixty  days  before  his  death,  and 
any  confirmation  as  executor-creditor  after 
the  debtor's  death,  shall  have  no  effect  in 
competition  with  the  trustee. 

AU  payments  made,  and  acts  done,  or 
deeds  granted  by  the  bankrupt,  after  the  date 
ef  the  seqnestration,  are  null,  except  in  the 
«>w  of  a  bona  fide  purchaser  of  moveable 
cSeets  who  was  ignorant  of  the  sequestration, 
and  in  the  case,  also,  of  a  debtor  to  the  bank- 
rapt  nuiking  payment  of  his  debts  in  bona 
/iK,and  in  ignorance  of  the  sequestration. 
The  possessor  also  of  a  bill  or  promissory- 
note  payable  by  the  bankrupt,  but  who  has 
reeonrse  against  other  parties,  or  the  poa- 
Mur  of  a  security  for  a  debt  due  by  the 
baakmpt,  who  shall  receive  payment  of  his 
debt  in  ignorance  of  the  sequestration,  and 
given  np  the  bill  or  promissory-note,  or  se- 
cvity  tothe  bankrupt,  is  not  liable  to  repay 


to  the  tmstee  the  amount  received,  unless  the 
trustee  shall  replace  him  in  the  situation  in 
which  he  stood,  or  reimburse  him  for  any  loss 
or  damage. 

A  creditor  holding  a  security  over  the  he- 
ritable estates  of  the  bankrupt  preferable  to 
the  right  of  the  trustee,  and  having  a  power 
to  sell,  may  sell  in  terms  of  his  security,  not- 
withstanding the  sequestration,  and  the  trus- 
tee may  concur  in  the  sale  in  order  to  fortify 
the  title.  Such  creditor  and  the  purchaser 
must  account  for  any  reversion  of  the  price. 
If  such  creditor  concur  with  the  trustee  in 
bringing  the  estate  to  sale,  the  trustee  sells 
in  his  own  name,  and  the  conveyance  is  exe- 
cuted by  him  with  consent  of  the  creditor 
and  the  commissioners.  The  price  is  paid 
by  the  purchaser  to  the  parties  legally  en- 
titled to  it ;  and  in  so  far  as  not  paid  at  the 
time  of  the  delivery  of  the  conveyance,  it  is 
consigned  in  the  bank  in  which  the  money  of 
the  sequestrated  estate  is  deposited,  and  such 
payment  or  consignation  of  the  price  frees 
and  discharges  the  estate  sold  and  the  pur- 
chaser from  the  security  of  the  consenting 
creditor,  whether  the  debt  in  the  security  be 
satisfied  or  not,  and  from  all  securities  post- 
poned to  the  security  of  such  creditor. 

The  payment  of  dividends  is  regulated  by  sec- 
tions 121  to  136  inclusive,  and  the  discharge 
of  the  bankrupt,  with  or  without  a  composi- 
tion, by  the  sections  137  to  149  inclusive. 

All  preferences,  payments,  and  collusive 
agreements  for  discharge  are  void,  and  the 
bankrupt,  if  cognizant  of  the  giving  such 
preference,  or  making  ^uch  payments,  or 
entering  into  such  agreements,  forfeits  all 
right  to  a  discharge,  and  all  benefits  under  the 
act,  and  a  discharge,  if  granted,  is  annulled. 

The  discharge  of  the  trustee  is  regulated 
by  section  152  to  155  inclusive.  A  new  of- 
ficer,called  "The  Accountantin  Bankruptcy," 
is  appointed  by  section  156,  and  his  duties  are 
regulated  by  sections  157  to  163  inclusive. 

In  the  case  of  a  party  dying  without  a  set- 
tlement appointing  trustees  to  manage  his 
estate,  any  creditor  to  the  amount  of  L.100, 
or  any  person  having  an  interest  in  his  suc- 
cession may  apply  by  summary  petition  for 
the  appointment  of  a  judicial  factor,  and  such 
factor  may  be  appointed  by  the  Court,  sub- 
ject to  such  conditions  as  to  caution,  and 
such  other  conditions  as  the  Court  may  pro- 
vide by  act  of  sederunt.  The  proceedings 
of  such  factor  are  under  the  superinten- 
dence of  the  Accountant  in  Bankruptcy,  who 
reports  to  the  Court  from  time  to  time  as  he 
may  deem  expedient,  and  discharges  the  same 
duties  with  regard  to  him  as  he  discharges 
with  regard  to  a  trustee  under  a  sequestra- 
tion. Where  the  deceased  party  has  left  a 
settlement  in  favour  of  trustees  to  manage  his 


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catete,  tbe  trutees  may,  with  or  vithoat  the 
conourrenoe  of  the  creditors  of  the  deceased, 
or  of  persons  interested  in  his  sucoeasion,  ob- 
tain an  order  on  the  Accountant  to  superin- 
tend  the  administration  of  the  estate,  in  which 
case  he  will  discbarge  the  same  duties  as  those 
aboTO  mentioned. 

Any  trustee  to  whom  the  pursuer  of  a  e«s$io 
shall  grant  a  conveyance  of  his  estate  and 
effects  for  behoof  of  his  creditors,  must  act 
under  the  superTision  and  control  of  the  Ac- 
countant in  Bankruptcy,  in  the  same  manner 
as  the  trustee  under  a  sequestration. 

Where  tbe  estate  of  a  bankrupt  is  not  likely 
to  yield  free  funds  for  division  among  the 
ordinary  creditors,  after  payment  of  the  pre- 
ferable debts  or  expenses,  beyond  one  hundred 
pounds,  a  majority  in  number  and  value  of 
the  creditors  may  resolve  that  the  bankrupt 
shall  only  be  entitled  to  apply  for  and  obtain 
a  decree  of  etssio,  and  shall  have  no  right  to 
a  discharge  in  the  sequestration,  and  the 
Lord  Ordinary  or  the  Sheriff  shall  there- 
after determine  whether  such  a  resolution 
shall  be  confirmed  or  recalled ;  and  if  it  be 
oonSrmed,  the  bankrupt  is  entitled  to  apply 
for  a  decree  of  easio  in  the  sequestration, 
without  bringing  a  separate  process. 

The  trustee  in  a  sequestration  may,  with 
the  consent  of  the  commissioners,  compound 
and  transact,  or  refer  to  arbitration,  any 
question  which  may  arise  in  tbe  course  of  se- 
questration regarding  tbe  estate,  or  any  de- 
mand or  claim  made  thereon ;  and  the  com- 
promise, transaction,  or  decree-arbitral,  is 
binding  on  the  creditors  and  the  bankrupt. 

The  Lord  Ordinary  or  the  Sheriff,  on  cause 
shown,  may  order  that,  for  a  period  not  ex- 
ceeding three  months  from  the  date  of  the  or- 
der, all  letters  addressed  to  the  bankrupt 
shall  be  delivered  by  the  Postmaster-general 
or  the  officer  acting  under  him,  to  the  She- 
riff-clerk or  trustee,  to  be  opened  b  presence 
of  the  sheriff  after  written  notice  to  the  bank- 
rupt to  attend,  if  within  Scotland,  and  such 
order  may  be  renewed,  on  cause  shown  for  a 
like  period,  as  often  as  shall  be  necessary. 

A  member  of  Parliament,  against  whom  a 
commission  of  bankruptcy  has  issued,  and  who 
is  found  bankrupt,  during  twelve  calendar 
months  from  its  issuing,  is  incapable  of  sitting 
or  voting,  unless  the  commission  be  super- 
seded, and  the  full  amount  of  debts  paid.  On 
certificate  by  the  commissioners,  at  the  expi- 
ration of  the  said  twelve  months,  to  the 
Speaker,  the  election  is  void  ;  and  after  four- 
teen days'  notice  by  the  Speaker  in  the  Lon- 
don Gazette,  he  issues  his  warrant  for  a  new 
writ  This  is  confined  to  persons  already 
elected.     Ghambert  on  Electtont,  h.  (. 

Banlmiptcy,  Aots  o£  See  Actt  of  Bani- 
ruptcy. 


Baaaoek ;  it  a  thick  cake  of  oatmeal,  and 
is  a  term  for  one  of  the  duties  in  thirlage. 
It  is  a  perquisite  of  the  servant  or  assistant 
in  the  mill. 

Bannitna ;  from  franntm,  a  trumpet ;  ban- 
ished for  a  crime  or  other  cause ;  or  being  put, 
as  it  were,  to  the  horn  or  trumpet,  by  three 
blasts,  according  to  the  old  Scotch  consuetude. 
Skene,  h.  i. 

JlummUm ;  banerets ;  in  old  law  language, 
a  kind  of  estate,  greater  and  more  honourable 
than  barrones.  Barons  were  permitted  to 
choose  commissioners  to  the  Scotch  Paiiia> 
ment ;  but  banrentes  were  summoned  person- 
ally to  Parliament.  The  term  would  seem 
also  to  signify  the  rent  or  yearly  duty  (qitati 
banner-rent)  of  one  of  the  King's  banner  or 
standard-bearers.    Skene,  h.  t. 

Basni.  Ban  is  a  Saxon  word,  signifying 
proclamation  or  public  notice ;  Bttrti^  Law 
Diet.  But  banns,  in  Scotch  law,  is  used  to  sig- 
nify the  proclamation  in  church,  which,  by 
the  law  of  Scotland,  is  necessary  to  constitute 
a  regular  marriage.  This  proclamation  is 
made  in  church,  immediately  before  the  com- 
mencement of  divine  service.  It  is  done  with 
an  audible  voice ;  and  consists  in  calling  the 
names  and  designations  or  additions  of  the 
parties  who  intend  to  intermarry ;  and  inviW 
ing  thoae  who  know  of  any  sufficient  objec- 
tion, to  state  it  before  it  be  too  late ;  .&sL 
B.  i.  tit  6,  §  10.  By  the  10  Queen  Anne, 
c  7,  it  is  enacted,  "  That  no  Episcopal  minis- 
ter residing  in  Scotland  shall  marry  any 
person  but  thoae  whose  banns  have  been  duly 

Sublished  three  several  Lord's  days  in  the 
Ipiscopal  congregation  which  the  two  parties 
frequent,  and  in  the  churches  to  which  Aey 
belong  as  parishioners,  by  virtue  of  their  re- 
sidence." Marriages  contracted  without  pro- 
clamation of  banns  are  valid ;  but  the  parties, 
oelebrator  and  witnesses  of  such  marriages^ 
are  liable  in  certain  penalties.  The  parties 
may  be  punished  by  fine  and  imprisonment, 
and  the  celebrator  by  perpetual  banishment 
Ersk.  ib.  §  11,  see  Ivory's  edit  noU  143 ;  B^t 
Prine.  §  1510,  4th  edit. ;  Broum  Syn.^.  876; 
Hutcheson's  Justice  of  Peace,  vol.  i.  p.  8  ;  vol 
ii.  p.  221,  2d  edit ;  Taies  Justice  of  Peau, 
voce  Marriage;  Hume,  i.  463 ;  Alison's  iV**. 
543.  In  practice,  the  strictness  of  the  law, 
requiring  proclamation  of  banns  on  three 
successive  Sundays,  has  been  departed  from, 
and  proclamation  is  permitted  to  be  made  on 
two,  or  even  on  one  Sunday,  upon  payment  of 
a  higher  fee.  The  certificate  of  due  pro- 
clamation cannot  be  disproved. 

Baratry;  is  tbe  crime  committed  by  a 
judge  who  is  induced  by  a  bribe  to  pronounce 
a  judgment  Baratriam  committit  qui  prefter 
pecuniamjustitiam  baractat,  he  commits  bara- 
try who  barters  justice  for  money.   This  prac- 


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tiee  (eenu  in  former  times  to  have  been  very 
g«mal  in  Scotland.  See  the  act  1540,  c. 
104;  ErA.B.iv.U4,^3Q.) 

Baratry;  amongBt  ecclesiastical  persons, 
WIS  tl>e  offence  of  exporting  money  out  of 
Scotland  to  parchaae  benefices  at  Rome,  and 
wit  prohibited  by  several  old  acts  of  Parlia- 
ment. See  1426,  c  84;  1567,  c.  3;  Acta 
PaH.  rol.  iiL  p.  14  ;  Ertk.  B.  iv.  tit.  4,  §  30 ; 
Ktmet"  Stat.  Law  abridy.  L  L;  Hime,  i.  587. 

Suatry  of  mariners  ;  is  gross  tmii  on  the 
psrt  of  the  master  or  mariners,  tending  to 
tJiair  own  benefit,  and  to  the  prejudice  of  the 
fwaerg  of  the  ship.  BtiPt  Prime,  §  479 ;  il- 
hut.\\>.;  Shaw's  Digest. 

Baigain;  is  a  consensual  contract  or  agree- 
BMnt,  and  is  generally  used  to  signify  such 
eontnets  as  may  be  completed  without  the  in- 
terreotion  of  writing,  e^g.  sales  of  moveables, 
locations,  &c.  By  the  stat.  1669,  c  9,  such 
bii^gains,  which  are  proveabla  by  witnesses, 
prescribe  in  five  years  after  the  bargain.  In 
nmmttoria,  bu-gains  of  great  importance 
na;  be  proved  by  letters  of  correspondence, 
or  even  by  less  formal  writings.  BdCs  Com. 
l^;  Tait  (m  Emdence,  120;  Dickson,ZffJ. 

Bazgaia  and  Sale ;  in  English  law,  is  an 
intmment  whereby  the  property  of  lands 
tod  tenements  is,  for  valuable  consideration, 
granted  and  transferred  from  one  person  to 
uother.    TomUm'  Did.  h.  t. 

Ban;  a  baron.    Sk«ne,h.t, 

Baraa;  in  its  more  ordinary  acceptation, 
it  the  degree  of  nobility  next  to  a  viscount ; 
bst  anciently,  in  Scotland,  all  those  vassals 
who  held  their  lands  immediately  of  the  Crown 
ware  termed  barons.  When  titles  of  nobili- 
tj  were  conferred  on  barons,  they  were  called 
the  ffnaier  barons;  but  both  the  greater  and 
the  laaer  sat  indiscriminately  in  the  Scotch 
Parliament  until  1427,  when,  by  the  act  102 
of  that  year,  the  attendance  of  tlie  lesser 
barons  was  dispensed  with,  on  condition  of 
their  tending  representatives  from  each  coun- 
ty, to  be  called  "  commissioners  of  the  schire." 

But  although  every  person  holding  of  the 
Crown  came  under  one  or  other  of  thia  above 
deaominations  of  greater  or  lesser  barons, 
jet,  to  constitute  a  baron  in  the  strict  legal 
■erne  of  the  word,  his  lands  must  have  b€«n 
oreeted,  or  at  least  confirmed,  by  the  King 
ialibenm baroniam.  And  such  a  baron  had 
ajnritdietion.both  civil  and  criminal,  which 
he  might  have  exercised  either  in  his  own 
person,  or  by  his  bailie.  This  jurisdiction 
WM,  however,  reduced  by  20  Geo.  II.,  c.  43, 
to  the  right  of  recovering  from  his  vassals 
and  tenants  the  feu-duties  and  rents  of  their 
lud,  and  compelling  them  to  perform  the 
Berrieet  to  which  they  may  be  bound,  and  to 
the  right  of  deciding  in  civil  questions  where 
the  debt  or  damage  did  not  exceed  40s.    Be- 


yond this  the  baron  or  his  bailie's  civil  juris- 
diction cannot  be  prorogated.  The  criminal 
jurisdiction  of  the  baron  is,  by  the  same 
statute,  limited  to  assaults,  batteries,  and 
smaller  offences,  which  may  be  punished  by  a 
fine  not  exceeding  20s.,  die.  Where  a  fine  is 
inflicted,  it  is  to  be  recovered  by  poinding,  or, 
in  default  of  goods,  by  one  month's  imprisoiv- 
ment  at  farthest.  But  this  jurisdiction  is 
put  under  so  many  regulations  uid  restric- 
tions that  it  is  now  seldom  if  ever  exercised. 
The  act  20  Geo.  II.  farther  provides,  that  no 
future  charter  of  erection  of  a  barony  shall 
convey  any  higher  jurisdiction  than  for  re- 
covering the  rents  of  lands,  multures,  and  mill 
services.  An  exception  has,  however,  been 
made  to  this  by  the  statute  35  Geo.  III.,  c. 
122,  by  which  the  Crown  is  authorized  to 
erect  free  and  independent  bnrriis  of  barony 
in  those  parts  of  the  sea-coast  in  which  the 
fisheries  are  carried  on.  The  magistrates  in 
such  burghs  are  to  exercise  the  power  of  jus- 
tices cumulatively  with  the  justices  of  the 
county.  Ersk.  B.  i .  tit .  4,  §  26,  «<  seq. ;  Stair^ 
B.  ii.  tit.  3,  §§  2  and  62 ;  Bank.  vol.  i.  p.  55, 
564,  e<s«;;  siviwt.  Abridg.  h.  t.;  Bdlon  Leases, 
vol.  ii.  p.  45,  326 ;  Sumter  on  Landlord  and 
Tenant,  pp.  664, 667 ;  Brom's  Synop.vm.  1146, 
2341. 

Baroa  of  Ezcheqner ;  the  Judges  of  the 
Scotch  Court  of  Exchequer  were  termed 
Barons  of  Exchequer.    See  Exchequer. 

Baron  and  Feme ;  the  English  law  term 
for  husband  and  wife.    Tomlins'  Diet.  h.  t 

Baironet ;  a  dignity  or  degree  of  honour 
next  after  barons,  having  precedency  of  all 
knights  excepting  knights-banerets,  created 
by  the  King  under  the  royal  standard.  Tom- 
Ims,  h.  t. 

Barony ;  is  the  territory  over  which  the 
rights  of  barony  extend :  it  also  signifies  the 
right  itself.  The  right  of  barony  can  be  con- 
ferred only  by  the  Crown,  and  cannot  be 
transmitted  by  the  baron  to  be  held  base  of 
himself.  Where  it  is  transmitted,  it  must 
be  by  a  public  holding,  which  enables  the  di»> 
ponee  to  renew  the  title  from  the  Crown  by 
resignation  or  confirmation,  and  so  to  come 
into  the  place  of  the  diq^ner.  The  right  of 
barony  also  incorporates  the  whole  parts  of 
which  the  barony  consists,  so  that  a  convey- 
uioe  of  the  barony,  in  general  terms,  carries 
every  part  and  parcel  of  the  barony,  though 
not  named,  and  every  right  connected  with  a 
barony,  though  these  rights  be  not  expressed. 
One  effect  of  the  right  of  barony  was  to  unite 
the  whole  separate  subjects  of  which  the  ba- 
rony consists,  so  that  one  sasine,  taken  on  any 
one  part  of  the  barony,  carried  the  whole. 
And  while  a  clause  of  union  united  only  lands 
which  are  locally  discontignous,  the  union 
effected  by  a  charter  of  barony  united  lands 


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though  flowing  from  dilTereiit  superion,  or 
held  by  different  tenares,  u  well  as  where  the 
snbjecta  are  diicontiguouB  in  place.  ThiH 
privilege,  however,  is  now  rendered  naeless 
since  the  act  8  and  9  Vict.,  c.  35  (1845),  which 
allows  sasine  to  be  given  by  merely  recording 
the  instrument,  and  does  away  with  the  ne- 
cessity ofgiTinginfeftmei)ton  the  lands  them- 
selvee.  By  the  act  1595,  c.  93,  it  is  provid- 
ed, that  the  inhabitants  of  all  barony  lands 
shall  be  amenable  to  the  courts  within  whose 
jurisdiction  the  lands  are  situated.  Stair,  B. 
ii.  tit.  3,  §  60 ;  Ertk.  B.  ii.  tit  3,  §  46 ;  tit. 
6,  §  8,  «( $eq. ;  Bank.  rol.  i.  p.  564,  et  uq. ; 
MTt  Prme.  §§  749,  849,  2191,  4th  edit.; 
Shati/i  Digett,  k.  t. ;  Jwrid.  Stylet,  4thedit.vol. 
i.  p.  355;  Mauiet'  Conveyancing.  See  Baron. 

SamnneM.    See  Sterility. 

Banifter,  or  Barraster;  in  English  law, 
a  counsel  learned  in  the  law,  admitted  to 
{dead  at  the  bar,  and  thereto  take  upon  him 
the  protection  and  defence  of  clients.  The 
period  of  his  probationary  attendance  at  the 
inns  of  court  ought  to  be  five  years.  A 
counsel  can  maintain  no  action  for  his  foes. 
Where  Scotch  and  English  counsel  appear  in 
the  same  cause,  precedence  is  gener^ly  de- 
termined by  their  standing  at  their  respective 
bars.  Chatnben  on  Electione,  h.  t. ;  Tomlin^ 
Diet.  k.  t.    See  Advocate. 

Burratrie,  or  Barrataria ;  in  the  old  Scotch 
law  language,  a  kind  of  simony  in  acquiring 
right  to  benefices.    Skene,  h.  t    See  Baratry. 

Bartar ;  called,  in  the  Roman  law,  pertnu- 
taticn,  is  a  contract  by  which  one  thing  is 
given  in  exchange  for  another.  The  distinc- 
tion between  barter  and  sale  is,  that,  in  the 
former,  money,  which  is  an  essential  of  sale, 
is  never  one  of  the  things  exchanged.  By 
the  Roman  law,  if  one  of  the  things  exchanged 
were  evicted,  the  party  so  losing  it  had  a  riffht 
of  recourse  to  the  thing  which  he  gave.  But 
with  us  this  right  of  recourse  is  confined  to 
the  contract  of  excambion,  i.e.,  the  exchange 
of  heritable  subjects,  and  has  no  place  in  the 
exchange  of  moveables.  Stair,  B.  i.  tit.  14, 
§  1 ;  Bank.  vol.  i.  P<  407.    See  Excambion. 

Base  lUghts.  where  a  person  disponed 
feudal  property  to  be  held  under  himself,  in- 
stead of  under  his  superior,  the  right  which 
the  disponee  thus  acquires  is  called  a  base 
right.  In  the  original  charter,  the  lands  are 
disponed  to  the  receiver,  to  be  held  by  him 
of  the  grantor  either  in  feu  or  in  blench, 
there  being  no  other  species  of  holding  in 
modem  conveyancing.  In  the  feu-holding, 
a  feu-duty  or  annual  payment  in  money  or 
victual  is  given.  In  the  blench-holding,  an 
elusory  duty,  as  a  penny  Scots  money,  or  the 
like,  is  stipulated  as  an  acknowledgment  of 
superiority.  Where  lands  are  given  out  on 
either  of  these  holdings,  the  charter  describes 


the  subject,  the  disponee  or  vassal,  the  hold- 
ing, and  the  nature  of  the  warrandice  under- 
taken by  the  grantor :  it  assigns  the  rents  to 
the  disponee,  and  contains  a  mandate  to  the 
grantor's  bailie  to  give  infeftment  to  the  Tas- 
sal.  This  is  the  base  right,  by  which,  in 
medem  conveyancing,  subinfeudation  is  effect- 
ed. The  grantor  remains  vassal  to  his  own 
superior,  and  the  subinfeudation  makes  no 
change  on  the  titles  he  holds  from  his  supe- 
rior. Thus,  suppose  A.  to  hold  of  the  Crown 
blench,  and  that  he  subfeus  his  lands  to  B., 
to  be  held  in  feu.  A.  is  the  vassal  of  the 
Crown,  and  B.  is  the  sub-vassal  in  the  lands. 
B.,  the  Bubvassal,  has  thus  two  superiors ;  A, 
from  whom  he  derives  his  right,  who  is  his 
immediate  superior,  and  the  Crown,  which  is 
his  mediate  superior.  The  right  in  A.  is 
termed  the  <iomtiiNM»  dtrectum,  in  refarenre 
to  B.'s  right  over  the  property,  and  B.'s  the 
iowUnitm  utile,  or  property.  A.'s  right  is 
termed  a  public  one ;  B.'s  a  base  or  subaltern 
right.  These  two  rights  stand  on  different 
sets  of  titles,  entirely  unconnected  with  each 
other.  A.'s  title  stands  on  his  own  Crown 
charter  and  sasine ;  B.'s  on  his  baae  right 
The  base  right  in  favour  of  B.  can  never  be 
confirmed  by  the  Crown,  to  the  effect  of  mak- 
ing B.  hold  of  the  Crown.  This  would  be  to 
deprive  A.  of  his  subrassalage,  which  no  act 
of  the  Crown  or  of  B.  can  accomplish.  For- 
merly, when  the  casualty  of  recognition  ex- 
isted, by  which  the  whole  land,  in  conaeqnence 
of  the  acts  of  the  immediate  superior  (that 
is  of  A.  in  the  case  supposed),  might  have 
recognosced,  it  was  common  for  a  anbTasaal 
to  t^e  a  confirmation  from  his  mediate  su- 
perior ;  because  such  a  confirmation,  though 
it  did  not  make  the  snbvassal  hold  of  his  me- 
diate superior,  freed  him  from  the  conse- 
quences of  this  casualty.  But  now  that  ward- 
holding  is  abolished,  the  necessity  of  this 
measure  is  at  an  end,  and  a  confirmation  of 
this  kind  is  not  sought  for.  The  only  con- 
firmation in  modem  practice  is  the  confirma- 
tion of  a  right  given  to  a  purchaser  to  be  held 
of  the  seller's  superior,  as  is  elsewhere  ex- 
plained. The  modem  disposition  to  a  pur- 
chaser, from  considerations  of  expediency, 
gives  the  disponee  the  alternative  either  of  a 
public  or  a  base  holding;  and  infeftment 
taken  on  the  precept  of  sasine  in  such  &  dis- 
position constitutes  a  complete  base  right, 
which  may  be  afterwards  rendered  public  by 
a  charter  of  confirmation  from  the  disponer's 
superior.  Stair,  B.  ii.^tit.  3,  ^27,  et  teq.,  App. 
§  2 ;  Moref»  Notes,  p.  clxxi ;  Ertk.  B.  ii.  tit 
7,  §  8,  et  teq. ;  BeWs  Com.  vol.  L  p.  68,  5th 
edit ;  BdPs  Princ.  4th  edit  §  816 ;  Earned 
Stat.  Law  Abridg.  h.  t. ;  Broum's  Synop.  voce 
Bate  Inftfinieni;  Menziet^  Convincing.  See 
I  Diipotition.     Ciutrter.    Public  Right. 


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T»«"H'»     See  Roman  Law. 

Butard;  a  child  born  of  a  woman  who 
Tu  not  married  to  the  father  at  the  time  of 
conception,  and  who  was  never  thereafter 
muried  to  him.  Bastards  are  termed  ille- 
gitimate children,  in  contradistinction  to  le- 
ijtiinate  or  lawfnl  children  born  in  wedlock. 
But  although  the  act  1600,  c.  20,  declares, 
that  a  marriage  contracted  after  a  divorce  for 
sdaltery  between  the  divorced  person  and  the 
panunonr  is  unlawful,  and  that  the  issne  are 
inespable  of  succeeding  to  their  parents,  such 
children  are  not  to  be  regarded  as  illegiti- 
nate  or  bastards.  Stair,  B.  iii.  tit.  3,  §  42 ; 
Eri.  B.  i.  tit.  6,  §  51.  A  bastard  can  have 
DO  heirs  except  of  his  own  body,  because  snc- 
eeaiion  is  through  the  father  only,  and  bas- 
tards have  no  lawful  father.  Stair,  ib.  §  44. 
On  the  failure  of  heirs  of  a  bastard's  body, 
the  King  sneceeds  as  uUimut  lusret.  But  al- 
theagfa  a  bastard  cannot  succeed  as  heir  or 
executor  either  to  his  father  or  mother,  he 
may  succeed  by  destination.  He  may  also 
dispose  of  his  own  estate,  heritable  ur  move- 
abte,  by  a  deed  inter  vivo» ;  and  he  may  even 
settle  bis  heritable  estate  on  any  person  he 
plesses,  by  a  destination  which  is  not  to  take 
effect  nntil  after  his  death.  But  prior  to  the 
passing  of  the  stat  6  Will.  IV.,  c.  22,  if  a 
bastard  had  no  lawful  children  of  his  own 
body,  he  could  neither  dispose  of  his  heritable 
or  moveable  estate  on  deathbed,  nor  make  a 
tcetsment  to  the  prejudice  of  the  Crown's 
right.  Where  he  had  lawful  issue,  however, 
be  might  make  a  testament  either  in  their 
fsvoar  or  in  favour  of  a  stranger ;  for  the 
King,  being  excluded  by  the  mere  existence 
of  loeh  issue,  has  no  interest  to  challenge 
uydeetination  of  the  bastard's  property  which 
he  may  think  proper  to  make.  And  now, 
by  the  statute  referred  to,  bastards  have  the 
power  of  disposing  of  their  moveables  by  tes- 
tsaeot,  in  like  manner  as  other  persons ;  6 
Wa.  IV.,  c  22.  The  widow  of  a  bastard, 
whether  there  be  issue  or  not,  enjoys  her  legal 
rights  of  terce  and  jus  rdietcs ;  and  creditors 
ate  (sntitled  to  use  the  ordinary  diligence  for 
^ttsdiing  the  heritable  or  moveable  estate  of 
s  bastard,  both  before  and  after  his  death. 
See  Stair,  B.  iii.  tit.  3,  §§  42,  44;  More't 
X9ta,  pp.  IV.  xxxii. ;  Ersk.  B.  iii.  tit.  10,  §  5, 
ftteg.;  Bank.  vol.  i.  pp.  46, 119,  276;  Bell'$ 
Prine.  3d  edit  §  2059,  et  $eq.;  Karnes'  Stat. 
^  Abridg.  h.  t. ;  Brown' t  Synop.  h.  t.  and  p. 
1172 ;  Siaw"*  Diffest ;  Hutch.  Justice  of  Peace, 
vol  iL  pp.  263-8,  2d  edit ;  Tai^s  Justice  of 
Pttce,  voce  Children;  xii.  s.  p.  663, 183,  604 ; 
xiii.  s.  p.  235 ;  xiv.  s.  pp.  816,  852v  47 ; 
Kmi^  Prine.  cf  Equity  (1«25),  497  ;  Hwme,  i. 
447 ;  ii.  122, 333.  As  to  the  legitimation  of 
bsitards,  and  its  effects,  see  LeyitimaHon;  see 
skoAUen. 


Bastard,  Aliment  o£  The  aliment  of  il- 
legitimate children  is  a  joint  burden  upon 
both  parents.  The  mother  is  entitled  to  the 
custody  of  the  child,  and  the  father  is  bound 
to  contribute  his  proportion  of  the  expense  ; 
and  if  neither  the  mother  nor  father  can  sup- 
port the  child,  it  must  be  supported  by  the 
parish  in  which  the. mother  has  a  settlement. 
The  period  for  which  the  mother  is  entitled 
to  the  custody  of  the  child  does  not  appear  to 
be  precisely  fixed ;  and,  by  decisions  of  the 
Court,  it  has  varied  from  seven  to  fourteen 
years ;  Ersk.  B.  i.  tit  6,  §  66 ;  Mor.  Diet. 
442,  et  seq.  and  p.  11080.  Neither  does  it 
appear  to  be  settled,  whether  or  not,  after 
the  period  of  the  mother's  custody  of  the  child 
ceases,  the  father  is  entitled  to  insist  on  tak- 
ing the  child  from  the  mother.  In  the  case 
of  Goadby  against  M'Candy,  7th  July  1815, 
Fac.  Coll.,  the  mother  was  preferred  to  the  cus- 
tody of  a  child  of  thirteen  years  of  age,  in 
competition  with  the  relations  of  the  deceased 
father.  As  to  the  quantum  of  aliment  awarded 
against  the  father,  it  has  varied  of  late  from 
L.4  to  L.IO  a-year,  according  to  the  rank  of 
the  parties.  In  general,  the  award  against 
artisans  is  from  L.4  to  L.6  a-year,  and  where 
the  father  is  of  a  higher  rank  of  life,  L.IO 
a-year  is  generally  given.  It  is  payable  quar- 
terly by  advance,  and  is  continued  until  the 
child  can  earn  its  bread.  On  the  insolvency 
of  the  father  of  an  illegitimate  child,  the 
mother's  claim  for  aliment  to  the  child  gives 
her  a  jus  crediti,  which  entitles  her  to  rank 
for  the  aliment  on  the  father's  bankrupt  es- 
tate ;  in  which  respect  she  has  an  advantage 
over  the  mother  of  a  lawful  child,  who,  hav- 
ing united  her  fortunes  and  those  of  her  chil- 
dren with  the  father,  must  follow  his  fate, 
and,  independently  of  special  contract,  has 
no  jus  creaiti  entitling  her  or  her  children  to 
rank  for  their  legal  provisions  in  case  of  in- 
solvency ;  Bell's  Com.  vol.  i.  pp.  635, 643,  6th 
edit.  A  debtor  who  has  been  imprisoned  for 
the  aliment  of  a  bastard  child  has  been  held 
not  entitled  to  the  benefit  of  the  cessio.  Ib. 
voL  ii.  p.  591.  See  Bell's  Prine.  §  2062,  et 
seq. ;  Dunlop's  Parish  Law,  205  ;  Brown's 
Synop.  p.  73,  et  seq. ;  Shaw's  Digest;  Sutch. 
Justice  of  Peace,  vol.  i.  p.  114. 

Bastardns ;  (old  French)  bastard ;  a  child 
unlawfully  begotten  "  outwith  the  band  of 
marriage,"  according  to  the  old  definition. 
The  word  is  said  by  Skene  to  be  barbarous. 
Skene,  h.  t. 

Bastardy,  Oift  of ;  is  a  gift  of  the  Crown 
of  the  heritable  or  moveable  effects  of  a  bas- 
tard who  has  died  without  having  lawful  issne, 
and  without  having  disposed  of  his  property  in 
liege  poustie.  By  this  deed  the  Crown  gives, 
grants,  and  dispones  to  the  donatory,  the 
bastard's  estate  and  effects,  with  power  to  in- 


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ititnte  an  action  of  deekraior  of  th«  iMitardy, 
which  is  necevaiy  to  entitle  the  donatory  to 
take  the  benefit  of  the  gift.  See  Jurid. 
Stylet,  Tol  i.  p.  461  and  504,  2d  edit. ;  Sun- 
t«r't  Landlord  and  Tgnant,  178.    See  Gtfi. 

Baatardy,  Declarator  of ;  is  am  action  in- 
ititnted  in  the  Coart  of  Seauon  by  the  dona- 
ixyrj  in  a  gift  of  bastardy,  for  hanng  it  de- 
clared that  the  landi  or  effects  which  be- 
longed to  the  deceased  bastard  belong  to  the 
donatory  in  virtue  of  the  gift  from  the  Crown. 
The  defender  called  in  this  action  is  the  per- 
son who,  had  the  bastard  been  a  lawful  child, 
would  have  succeeded  to  him.  If  the  bas- 
tard's heritable  estate  has  been  held  imme- 
diately of  the  Crown,  the  property  and  su- 
periority are  consolidated.  Mid  it  is  unneces- 
sary to  bring  an  action  of  declarator  of  bas- 
tardy unless  a  donatory  has  been  named. 
But  where  the  bastard's  lands  are  held  of  a 
subject,  the  Sovereign,  who  cannot  be  vasal 
to  a  subject,  always  names  a  donatory,  who, 
in  order  to  complete  his  title,  must  obtain  a 
decree  of  declarator  of  bastardy.  See  Stair, 
B.  iii.  tit  3,  §  43,  B.  iv.  t  12,  §  2 ;  Brown't 
Syn.  p.  357 ;  Jwrid.  Stylet,  2d  edit  iii.  200; 
j^oiufs  PracUee,  421;  Dickttm  on  Evidence, 
8, 190,  703.  A  declarator  of  bastardy  seems 
also  to  be  competent,  during  the  life  of  a 
bastard,  at  the  instance  of  any  party  who 
has  a  good  title  and  interest  to  prove  the 
bastardy. 

BastoB,  or  Baton;  a  staff  or  baton.  This 
is  the  proper  symbol  of  resignation,  though 
a  pen  has,  by  immemorial  custom,  been  mule 
nse  of  as  the  symbol  in  the  act  of  resignation. 
Ertk.  B.  ii.  tit.  3,  §  36 ;  Rote,  ii.  216 ;  A.  S. 
11th  Feb.  1708. 

Battery  Pmdente  Lite;  was  a  statutory 
offence  consisting  in  assaulting  an  adversary 
in  a  law-suit,  daring  the  dependence  of  the 
suit  The  two  statutes  (1584,  c.  138,  and 
1694,  c.  219.)  upon  which  it  was  founded, 
and  which  declared  the  punishment  of  the 
crime  to  consist  in  the  loss  of  the  cause,  are 
repealed  by  7  Geo.  IV.,  c  19.  For  the  his- 
tory and  application  of  these  statutes,  see 
Erik.  B.  iv.  tit.  4,  §  37 ;  Bank.  vol.  i.  p.  288 ; 
Kame't  Stat.  Law  eiridg.  h.  t. ;  Brown' t  Synop. 
h.  t.  and  p.  454;  Walton' t  Stat.  Law,  h.  t; 
Gordon,  27th  Feb.  1781,  Jfw.  1378,  and  ottor 
catet  there  cited. 

Beasts,  Wild.  The  right  to  wild  beasts, 
or  to  fowls  or  fishes,  is  acquired  by  occupancy, 
unless  they  have  been  previously  deprived  of 
their  natural  liberty,  as  by  inclosing  deer  in 
a  park,  fishes  in  a  pond,  or  birds  in  an  aviary; 
but  when,  by  any  accident,  they  have  re- 
gained their  natural  liberty,  and  the  former 
proprietor  has  given  over  his  pursuit  of  them, 
the  right  to  them  may,  as  before,  be  acquired 
by  occupancy.    Domestic  animals,  although 


they  should  stray,  still  remain  the  property 
of  their  Minnal  owner.  ErtL  B.  iL  tit.  1,  § 
10 ;  Stair,  B.  ii.  tit.  1,  §  6,  and  33;  Bank. i 
505. 

Beating  of  Jndj^.  To  beat,  atrike,  or 
insult  any  judge  sitting  in  judgment,  or  on 
account  of  his  judicial  conduct,  was  at  am 
time  a  capital  offence ;  1693,  c.  177 ;  1600, 
c  4 ;  and  threats  of  violence  used  to  a  judge 
on  account  of  his  conduct  in  that  capacity 
will  subject  the  offender  to  an  arbitrary  judg- 
ment; Hume,  vol.  i.  p.  406.  Erskine  in- 
cludes under  this  crime  all  offences  against 
the  law  or  its  execution,  «.  g.  deforcement  of 
messengers,  breach  of  arrestment,  battery 
pendente  lite.  ErA.  B.  iv.  tit  4,  §  42.  AH- 
ton't  Princ  p.  573.  See  Drforcement,  Breach 
of  Arrettment,  and  Battery  Pendente  Lite. 

Bees ;  are  not  private  property  unless  they 
are  in  a  skep,  or  are  working  in  the  hollow 
of  a  tree,  w^l,  or  house.  When  they  hive, 
they  remain  the  property  of  their  former 
owner,  so  long  as  he  centinues  in  pursuit  of 
them ;  but  thereafter  they  bekmg  to  the  tint 
occupant  Ertk.  B.  ii.  t.  1,  §  10 ;  Stair,  B. 
ii.  1. 1,  §  33 ;  Bkur't  Manual,  L  U;  Eume,  L 
80. 

Before  Answer.  In  judicial  proceedings 
this  expression  signifies,  before  deciding  this 
main  question  raised.  It  frequently  hap- 
pens that  the  full  bearing  of  written  or  of 
parole  evidence  is  not  apparent  when  per- 
mission to  adduce  the  evictonce  is  asked  ;  or 
the  relevancy  of  the  proof  offered  may  he 
questionable ;  or  in  accountings,  the  precise 
state  of  the  balance  may  affect  the  legal 
questions  raised ;  or  in  questions  aboat  farms, 
buildings,  machinery  or  the  like,  it  may  aid 
the  judge  in  deciding,  if  he  has  correct  infor- 
mation as  to  the  state  of  the  subject-matter 
of  the  suit.  In  these,  and  similar  cases,  our 
courts,  both  supreme  and  inferior,  are  in  nse 
to  pronounce  interlocutors  allowing  proo&,  or 
granting  diligence  for  the  recovery  of  writ- 
ings, or  ordering  judicial  reports  from  ac- 
countants or  from  persons  of  skill,  "  before 
answer,"  that  is,  reserving  for  after  consider- 
ation the  relevancy  as  well  as  the  1^^  ef- 
fect of  the  proof,  productions,  or  reports,  on 
the  merits  of  the  legal  questions  at  issae. 
The  words  "  before  answer,"  are  perh^s 
not  absolutely  indispensable  in  such  cases; 
but  they  have  the  a[dvantage  of  barring  all 
dispute  as  to  the  purpose  of  the  inquiry  so 
authorized,  and  preventing  the  plea  that  the 
relevancy  of  the  proof  was  determined  before 
it  was  ordered  by  the  court  See  Proof.  Evi- 
dence. Gommittion,  M'Farlane't  Pr.  p.  52. 
Dickson  on  Evid.,  pp.  966,  783. 

Beggars.  There  are  many  severe  statutes 
against  beggars  and  vagabonds :  thus,  1424, 
c.  42;  1525,  c  22;  1579,  c  74;  1592.  c 


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147;  1597,  c  268 ;  and  tbe  whole  acts  and 
Priry  Couneil  proclamations  against  beggars 
•nd  ragranti  are  renewed  and  ratified  by  the 
act  1696,  c.  21.  Hume,  vol  i.  p.  475,  477  ; 
Srd.  B.  i.  tit  7,  §  61 ;  B.  ir.  tit.  4,  §  39 ; 
Smat.  Ahridg.  voce  Poor;  HtUeh.  Jtutice  «f 
Peaety  toL  ii.  p.  20,  and  App.  Noe.  xxx.  llv. 
2d  edit. ;  DunU^'s  Parisk  Law,  pp.  214,  264 ; 
Dvdtp'g  Poor  Law,  pp.  1-27 ;  CatriPs  Poor 
Lme,f.  37.    See  Vagabonds. 

SuaTioBT  aa  Heir ;  or  gesHo  pro  harede; 
k  s  pMriTe  title,  by  which  an  apparent  heir, 
bj  introminion  with  his  ancestor's  heritage, 
inean  a  universal  liability  for  his  debts  and 
obligations.  This  passive  title  was  intro- 
dneed  into  the  law  of  Scotland  as  early  as  the 
iutitotion  of  the  GoUege  of  Justice ;  for  the 
purpoM,  it  would  appear,  of  checking  the 
frsBds  to  which  creditors  were  exposed  under 
the  more  ancient  law,  according  to  which  the 
heir  was  liable  to  the  extent  of  his  actual  in- 
trominioDS  only.  The  passive  title  of  gtitio 
fn  ktr«de  is  incurred,  1.  By  the  heir's  im- 
■iiing  with  the  heritable  snbjects  of  the  an- 
cestor, letting  tacks,  &c.  2.  By  intromitting 
Tith  heirship  moveables,  which,  in  questions 
of  neeeesion,  are  reckoned  heritage.  S.  By 
iatenieddling  with  the  title-deeds  of  the  an- 
cestor's heritable  estate,  in  such  a  manner  as 
to  give  rise  to  a  reasonable  presumption  that 
he  intends  to  represent  him.  4.  By  the  heir's 
msking  over  to  a  third  party  any  part  of  the 
saeestor's  heritable  estate,  or  by  granting 
diaeharges  to  uiy  of  the  ancestor's  debtors. 
Bat  the  simple  rranneiation  by  the  heir  of 
aD  daim  to  the  suecession  in  favour  of  the 
heb-male  or  of  provision,  even  for  a  valuable 
eootiderati(»,  infers  no  passive  title,  because 
creditors  are  not  hurt  by  such  a  renunciation. 
5.  The  passive  title  of  gestio  pro  hteredt  is  in- 
arred  under  the  act  1695,  c.  24,  if  the  heir, 
witiMat  service  or  entry  as  heir,  shall  "  either 
enter  to  poaseaa  his  predecessor's  estate  or 
any  part  thereof,  or  shall  purchase,"  either 
hj  himself  or  by  means  of  another  person  for 
hii  behoof^  any  right  to  his  predecessor's  es- 
tate, or  any  legal  diligence  or  other  right  af- 
fecting the  estate,  redeemable  or  irredeem- 
able, except  as  highest  bidder  at  a  judicial 
nie.  But  in  construing  this  clause  of  the 
statute,  it  has  been  hold,  in  opposition  to  the 
opinion  of  Eirskine,  that  the  mere  purchase 
by  the  heir  of  a  debt  affecting  the  ancestor's 
estate  will  not  subject  the  heir  unless  hepos- 
Mu  in  virtue  of  the  right  so  purchased ;  Clel- 
Isad  «.  Campbell,  10th  June  1796,  Mor.  p. 
9759.  Id  this  case,  however,  although  the 
point  was  fully  discussed,  it  was  not  at  the 
iottanoe  of  creditors.  It  may  be  remarked 
in  general,  with  regard  to  this  passive  title, 
that  the  question,  whether  or  not  it  has  been 
iaeorred,  will  depend  a  good  deal  upon  cir- 


cnmstaaees ;  and  as  its  consequences  may  be 
highly  penal,  it  would  seem  that,  where  the 
intromission  has  been  inconsiderable,  and 
where  there  has  been  evidently  no  intention 
of  de&anding  creditors,  the  heir  will  be  re- 
lieved from  the  effects  of  his  intromission. 
The  court  has  even  authorized  an  actual  ser- 
vice as  heir,  to  be  set  aside,  in  order  to  free 
the  heir  from  his  passive  title.  Ayton,  7th 
July  1784,  Mor.  p.  9732.  See  also  Ersk.  B. 
iii.  tit.  8,  §  82,  «t  seq.;  Stair,  B.  iii.  tit.  6,  § 
1 ;  Jfore's  Notes,  p.  cccxxxvii ;  Bank,  vol.  ii. 
p.  366,  et  seq.;  BelPs  Com.  toL  i.  pp.  660, 
711 ;  Eta's  ^rine.  §  1919. 

Benoh ;  in  English  law,  has  different  sig- 
nifications; thus,  Free  bench  signifies  that  es- 
tate in  copyholds,  which  the  wife,  being  es- 
poused a  virgin,  has,  after  the  decease  of  her 
husband,  for  her  dower,  according  to  the  cu»- 
tom  of  the  manor;  Tomlm^  Did.  King'» 
(Queen's)  Bench;  a  court  in  which  the  King 
was  formerly  accustomed  to  sit  in  person: 
and  which,  on  that  account,  was  moved  with 
his  household.  This  court  consists  of  a  lord 
chief-justice,  and  three  other  justices  or 
judges,  who  are  invested  with  a  sovereign 
jurisdiction  over  all  matters,  whether  of  a 
criminal  or  public  nature.  The  court  is 
now  divided  into  a  crown  side  and  plea 
side  ;  the  one  determining  criminal,  and  the 
other  civil  causes.    Tomlm^  Diet. 

Benchers ;  in  the  inns  of  court,  are  the 
senior  members  of  the  society,  who  are  in- 
vested with  the  government  of  the  body  to 
which  they  belong.    Enc.  Brit. 

Beaeflce;  a  church  living.  Prior  to  the 
Reformation,  benefices  were  of  two  kinds. 
They  consisted  either  of  lands  or  teinds :  the 
former  were  called  the  temporality,  the  latter 
the  spirituality  of  benefices.  In  consequence 
of  the  Reformation,  James  YI.  considered 
himself  proprietor  of  all  the  church  lands, 
and  erected  several  abbacies  and  priories  into 
temporal  lordships.  Those  to  whom  he  gave 
these  grants  were  termed  lords  of  erection, 
or  titulars,  as  having  a  title  to  the  erected 
benefices.  Abbacies  and  priories,  and  even 
bishoprics,  were  erected  into  temporal  lord- 
ships, the  proprietors  of  which  received  the 
titles  of  lords  of  erection,  titulars,  or  com- 
mendators ;  and  the  property  which  formerly 
belonged  to  the  bishops  and  their  chapters 
was,  to  a  considerable  extent,  brought  back 
into  the  hands  of  the  Crown  by  the  restor- 
ation of  Episcopacy,  and  its  subsequent  abo- 
lition. The  lords  of  erection,  and  other  lay 
proprietors  of  church  lands,  exercised  the 
same  rights  in  drawing  the  telnd  which  had 
formerly  been  exercised  by  the  clergy ;  when 
fortunately  this  state  of  matters  was  put  an 
end  to  by  the  decrees-arbitral  pronounced 
by  Charles  I.  on  the  surrender  of  tithes. 


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iSr<at>,  B.  ii.  tit.  8,  §10,  et  stq.;  Enk.  B.  ii. 
tit  10,  §  4,  «<  teq. ;  Bank.  vol.  ii.  p.  1,  «( ««;.  ; 
BOTt  Gotn.  rol.  i.  p.  127,  5tli  edit. ;  HtOdi. 
Justice  of  Peace,  vol.  ii.  p.  410,  2d  edit ;  Enk. 
Prine.  11th  edit.  244-9 ;  Swne,  i.  675.  See 
T«ind$,     Annexatiotu 

BenefloiumCedendarnm  Aetionnm.  This 
WM  a  riglit  conferred  by  tlie  Roman  law, 
wliereby  a  eo-caationer,  who  had  paid  the 
debt  for  the  principal  debtor,  waa  entitled  to 
compel  the  creditor  to  assign  his  right  of  ac- 
tion against  the  other  co>cantioners,  so  as  to 
enable  the  cautioner  who  had  paid  to  operate 
his  relief  from  those  who  wer^  bound  along 
vith  him.  By  the  law  of  Scotland  a  co-cau- 
tioner, who  has  paid,  has  an  action  of  relief, 
without  the  necessity  of  any  such  conveyance 
from  the  creditor.  In  the  practice  of  Soot- 
land,  a  catholic  creditor,  who  has  a  security 
extending  over  several  subjects,  must,  if  he 
draws  his  payment  from  one  subject  only, 
convey  his  security  to  the  other  creditors  on 
that  subject,  to  the  effect  of  enabling  them  to 
draw  from  the  other  subjects  over  which  the 
security  extends,  so  as  in  the  end  to  make 
the  catholic  debt  rank  proportionally  on  aQ 
the  subjects  over  which  the  security  extends. 
Ertk.  B.  ii.  tit.  12,  §  66 ;  B.  iii.  tit.  3,  §  68 ; 
Brown's  Swop.  h.  t. ;  Memie^  Commfaneiny. 
See  CatluHic  Creditor. 

Jensfleinm  LiTantarii;  was  a  privilege  en- 
joyed by  an  apparent  heir  in  heritage,  who 
was  doubtful  whether  the  value  of  the  inhe- 
ritance would  be  adequate  to  the  payment  of 
his  predecessor's  debts.  This  privilege  was 
conferred  by  the  act  1695,  c.  24,  whereby  an 
apparent  heir  within  year  and  day  after  his 

Sredecessor's  death,  that  is  within  the  annus 
eliberandi,  was  permitted  to  enter  to  his  pre- 
decessor enm  beneficio  inventarii,  or  upon  in- 
ventory, according  to  the  practice  in  move- 
able succession.  The  effect  of  entering  in 
this  way  was,  that  the  heir  became  liable  for 
his  predecessor's  debts  and  deeds,  to  the  va- 
lue of  the  heritage  given  up  in  the  inven- 
tory only,  and  no  farther.  The  statute  re- 
quired the  heir,  within  the  anntu  deM>erandi, 
to  make  up  and  exhibit  upon  oath  a  full  and 
particular  inventory  of  "  all  lands,  houses, 
annual  rents,  or  other  heritable  subjects,"  to 
which  he  "  may  or  pretends  to  succeed :" — 
which  inventory  was  regularly  subscribed 
before  witnesses,  and  given  in  to  the  Sheriff- 
clerk  of  the  county  where  the  heritage  was  si- 
tuated ;  or,  if  the  defunct  had  no  lands  or  he- 
ritage requiring  sasine,  to  the  Sheriff-clerk  of 
the  county  where  the  defunct  died.  The  in- 
ventory thus  given  in  was  directed  to  be  sub- 
scribed by  the  Sheriff  and  the  clerk  of  the 
court,  and  recorded  in  the  Sheriff-court  books, 
from  which  extracts  of  the  inventory  were  to 
be  given.  The  inventory  reqnired  t«  be  given 


in,  recorded  and  extracted,  withb  tiie  yew 
and  day ;  and  thereafter,  within  forty  daji 
after  the  expiration  of  the  year  and  day,  the 
extract  of  the  inventory  was  again  pre- 
sented and  recorded  in  the  books  of  Conneil 
and  Session,  in  apartieular  register  kept  for 
the  purpose.  Where  any  part  of  the  d». 
funet's  heritable  estate  had  been  accidentdly, 
and  without  fraud,  omitted  in  the  inventory, 
the  omission  might  be  supplied  by  what  was 
called  an  eik,  or  addition  to  the  inventory, 
which  was  made  and  subscribed,  given  in  and 
recorded,  in  the  same  manner  with  the  prin- 
cipal inventory ;  provided  such  eik  was  made 
within  forty  days  after  the  heir  came  to  tb« 
knowledge  of  the  omission.  By  intromitting 
with  the  heritage  without  attending  to  the 
provisions  of  this  statute,  the  heir  incurred 
a  universal  responsibility  for  the  debts  of  the 
defunct.  (See  Bdiavicur  at  Heir.)  The  sta- 
tute did  not  require  the  heir  to  serve  within 
the  year.  If  the  inventory  was  given  in  and 
recorded  within  the  statutory  period,  the 
heir  might  serve  at  any  time  he  pleased ;  and 
the  only  change  produced  in  tbe  form  of  the 
service  was,  that  the  heir  was  declared  to  be 
served  cum  beneficio  inventarii.  The  inventory 
and  service  might  be  expede  by  a  factor  ap- 
pointed by  the  Court  of  Session  to  manage 
the  heritable  estate  of  the  defunct,  in  the  ap- 
parent heir's  absence.  Paton,  petitioner, 
24th  July  1785,  Foe.  CM.  Mot.  p.  4071 : 
Ertk.  B.  iii.  tit.  8,  §  68 ;  Bank.  vol.  ii.  p.311 ; 
BeU't  Com.  vol  i.  p.  662,  et  tea. ;  BeWs  Princ 
§1926;  Hunter's  Landlord  and  Tenant}  Stotr, 
B.  iii.  tit.  4,  §  32 ;  More's  Notes,  p.  eocxxL 
See  as  to  the  form  of  entry  cum  beneficio  inven- 
tarii, Jurid.  Styles,  vol.  i.  p.  401,  3d  edit.  By 
the  act  10  &  11  Vict.,  c.  47  (1847),  decrees 
of  special  and  general  service  infer  only  a  li- 
mited passive  representation  of  the  deceased, 
and  the  heir  sued  is  liable  only  to  the  extent 
or  value  of  the  land  and  heritages 'taken  up. 
Benefloium  CompetentisB.  By  the  Ro- 
man law,  the  granter  of  a  gratuitous  obliga- 
tion, who  was  reduced  to  indigence,  before 
fulfilling  his  obligation,  had  beneficium  com- 
peteniicB,  or  the  privUege  of  retaining  a  suffi- 
ciency for  his  own  subsistence.  The  law  of 
Scotland  confers  this  privilege  on  fathen 
and  grandfathers  against  their  children  and 
grandchildren,  even  although  the  effect  of  it 
should  be  to  reduce  the  children  to  indigence ; 
but  it  does  not  extend  it  to  the  case  of  stran- 
gers, or  to  collateral  relations,  or  even  to 
the  case  of  a  brother  against  a  sister ;  Ertk. 


6.  iv.  tit.  3,  §  89.  See  also  Hogg  against 
Hoggs,  30th  Nov.  1749  ;  Kilk.  Mor.  p.  1390 ; 
and  tiardies  against  Hardie,  1st  July  1813, 


Fac.  CoU.  According  to  Erskine  (B.  iv.  tit. 
3,  §  27),  a  bankrupt  who  has  obtained  the 
benefit  of  a  eessio  bonomm,  and  who  after- 


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wards  acqaires  property,  bas  henefieium  com- 
petmtia;  but  this  doctrine  is  not  sanctioned 
b;  uy  reported  case ;  on  the  contrary,  it 
hu  been  held  that  a  bankrupt,  in  such  oir- 
dungtanees,  has  not  beneficium  eofopetentiOB, 
asd  that  aU  vhich  he  is  entitled  to  reserve 
are  his  working  took  and  his  wearing  apparel. 
EtA.  B.  ir.  tit  3,  §  89 ;  Hardies,  lit  My 
1813,  Fat.  CdL;  Mer^s  Notes  to  Stair,  p. 
ccccuxTii. ;  Brom^s  Synop.  h.  t.;  Shanfs 
Ptattke,  p,  793 ;  HutA.  Justice  of  Peace, 
ToL  ii.  p.  284 ;  S.  D.  xiii.  p.  664 ;  Karnes' 
ftm.  of  Eq»ify  (1825)  295  ;  BeU^s  Com.  ii. 
594, 597,  and  cotes  &tre  cited. 

Benefldnm  Diviflioiiu ;  in  the  Boman 
lav,  was  an  equitable  privilege,  by  which  a 
<»-«aBtioDer,  who  was  required  to  pay  the 
debt,  night  insist  that  the  creditor  should 
make  the  demand  on  him  only  pro  rata,  or 
for  bis  proportion  along  with  the  other  sol- 
rent  eaationers.  By  the  law  of  Scotland,  a 
eo^aotioner  enjoys  this  privilege  when  he  is 
bonnd  simply  as  cautioner,  along  with  an- 
other, for  the  principal  debtor.  But  where 
eaationers  bind  themselves  "  conjunctty  and 
teteni^  with  and  for  the  principal  debtor, 
the  benefit  of  division  is  lost,  and  the  creditor 
may  select  any  of  them  he  pleases,  and  re- 
cover the  whole  debt  from  him.  Stair,  B.  i. 
tit  17,  §  12 ;  ErsL  B.  iii.  tit.  3,  §  63.  See 
CaiUionty, 

BcBeflehim  Ordinis;  or  the  benefit  of 
diseuaion.  Both  by  the  Roman  law  and  for- 
merly by  the  law  of  Scotland,  a  cautioner 
wbo  was  bound  simply  as  such,  might  insist, 
before  paying  the  debt,  that  the  principal 
debtor  should  be  discussed ;  that  is,  that  the 
debt  should  not  only  be  demanded  from  him, 
bat  that  letters  of  homing  for  the  debt  should 
be  executed  against  him,  and  the  denuncia- 
tion recorded ;  that  his  moveables  should  be 
attached  by  poinding,  or  arrestment  and 
fiirtiieoming ;  and  his  heritage  by  abjudica- 
tion. Stair,  B.  i.  tit.  17,  §  6  ;  Ertk.  B.  iii. 
tit.  3,  §  61 ;  BdPs  Com.  i.  347.  By  the  act 
19  and  20  Viet.,  c.  60  (1856),  the  benefit  of 
discussion  is  abolished,  and  the  creditor  is 
BOW  entitled  to  proceed  directly  against  the 
cautioner,  unless  the  cautioner  has  stipulated 
in  the  instrument  of  caution  that  the  creditor 
shall  be  bound  to  discuss  and  do  diligence 
againat  the  principal  debtor  before  proceed- 
ing against  him.    See  Gautionry. 

Benefit  of  Clergy;  in  the  criminal  law 
of  England,  was  a  privilege  which  a  person 
convicted  of  a  capital  felony  (not  excluded 
from  tile  benefit  of  clergy),  might  plead  in 
arrest  of  judgment  for  the  first  offence.  This 
privilege  operated  as  a  species  of  statdtory 
pardon,  and  was  originally  confined'  to  the 
clergy,  or  to  persons  in  holy  orders.  It  was 
afterwards  extended  to  all  persons  who  could 


read ;  and  at  that  time  it  was  the  practice, 
on  the  conviction  of  a  felon  whose  crime  was 
not  denied  the  benefit  of  clergy,  to  present 
him  with  a  book  in  which  he  was  required  to 
read,  and  on  the  proper  ofBcer  pronouncing 
the  words,  "  legit  u(  clerictis,"  the  convicted 
person  was  burnt  on  the  hand  and  discharged. 
If  he  could  not  read,  he  suffered  the  statutory 
punishment  for  his  crime.  By  5  Anne,  c.  6, 
the  benefit  of  clergy  was  extended  to  all  per- 
sons convicted  of  clergyable  offences,  whether 
they  could  read  or  not ;  and  by  the  same 
statute,  and  several  subsequent  ones,  instead 
of  burning  on  the  hand,  a  discretionary  power 
was  given  to  the  judge  to  inflict  a  pecuniary 
fine  or  imprisonment.  The  benefit  of  clergy 
is  now  abolished  by  7  and  8  Geo.  IV.,  c.  28, 
§  6,  and  by  the  4  and  5  Vict.,  c.  22,  as  to 
peers.  In  the  more  atrocious  capital  offences, 
it  had  previously  been  taken  away  by  various 
statutes ;  and  in  the  criminal  code  of  Eng'^ 
land,  there  are  many  enactments  creating 
felonies  "  without  benefit  of  clergy."  A 
very  interesting  historical  account  of  the 
origin  of  this  privilege  will  be  found  in  BUuh- 
stone,  B.  iv.  c.  28.  See  also  TemUns'  Diet. ; 
Hutch.  Justice  of  Peace,  ii.  180 ;  Burn's  Jus- 
tice of  Peace,  29th  edit.  i.  681 ;  Stqihen's  Com. 
3d  edit.,  iv.  485. 

Beasvolenoe ;  in  English  law,  was  a  spe- 
cies of  forced  loan  or  gratuity  from  the  sub- 
jects to  the  King ;  one  of  the  arbitrary  modes 
of  obtaining  money,  which,  in  violation  of 
Magna  Charta,  were  formerly  resorted  to  by 
the  kings  of  England.     Totidins'  Diet.  h.  t. 

Berfoensek,  or  Birdinsek;  according  to 
the  orthography  of  Skene,  the  same  word 
with  Burdenseck.  Skene,  h.  t.  See  Burdenseck. 
Berwick-upon-Tweed.  This  town,  which 
was  originally  part  of  the  kingdom  of  Scot- 
land, was  ceded  to  England  by  Edward 
Baliol ;  and  its  liberties  and  customs,  as  an 
English  town,  were  afterwards  confirmed  by 
Edward  IV.  and  James  VI.  Although, 
therefore,  it  has  some  local  peculiarities  de- 
rived from  the  ancient  laws  of  Scotland,  it  is 
clearly  a  part  of  England,  being  represented 
by  burgesses  in  the  House  of  Commons,  and 
bound  by  aU  acts  of  the  British  Parliament, 
whether  expressly  mentioned  or  not ;  see  20 
Geo.  II.,  c.  42.  Indictments  and  other  local 
matters  in  the  town  of  Berwick  may  be  tried 
by  a  jury  from  the  county  of  Northumber- 
land.   Bladcstone,  i.  98. 

Bestiality;  carnal  intercourse  with  the 
lower  animals  is  a  crime  punishable  by  the 
Scotch  law  with  death.  The  attempt  to 
commit  the  crime  may  he  punished  arbi- 
trarily. Hume,  vol.  i.  p.  469 ;  Alison,  i.  666 ; 
Sainton's  Reports,  vol.  i.  p.  5  ;  2  Brown,  464. 
I  Betting.  See  Gaming, 
I     Bigamy;  is  the  contracting  of  a  second 


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muriMo  during  the  Balwisteiice  of  a  former 
one.  By  1551,  c.  19,  thia  crime,  whether 
eommitted  by  the  man  or  the  woman,  is  pun- 
ishable with  the  pains  of  perjury  :  these  are, 
confiscation  of  goods,  imprisonment,  and  in- 
famy. Bigamy  is  not  committed,  if  the  first 
marriage  was  unlawful  through  near  rela- 
tionship, or  if  it  was  dissohed  by  divorce 
(unless  'Qie  diroroe  was,  obtained  by  the  fraud 
of  the  accused,  and  is  afterwards  set  aside), 
or  if  the  accused  believed,  on  reasonable 
grounds,  that  the  first  marriage  was  dissolved 
by  death.  The  crime  is  committed,  however 
exceptionable  and  vitionsthe  second  marriage 
may  be,  provided  it  has  been  regularly  cele- 
brated. The  clergyman  and  second  spouse 
are  art  and  part  if  they  were  aware  that  the 
former  marriage  subsisted.  The  witnesses 
also  are  art  and  part,  if  they  concealed  the 
former  marriage  from  the  second  spouse,  or 
from  the  clergyman,  who  were  ignorant  of  it. 
In  proof  of  bigamy,  the  extract  of  proclama- 
tion of  banns,  and  the  marriage  certificate  of 
the  clergyman,  in  regard  to  liotfa  marriages, 
ought  to  be  produced.  The  clergyman,  if 
alive,  must  swear  to  his  certificate ;  and  if 
he  be  dead,  some  one  acquainted  with  his 
handwriting  must  prove  it.  If  the  extract 
of  proclamation  or  certificate  has  been  de- 
stroyed or  lost,  or  if  it  never  existed,  the 
testimony  of  those  present  at  the  marriage 
will  be  held  snfBcient ;  and  in  case  of  their 
death,  of  those  who  heard  by  report  that  the 
parties  were  married,  and  lived  openly  as 
man  and  wife.  The  first  wife's  evidence  is 
inadmissible  against  her  husband ;  but  the 
establishment  of  the  first  marriage,  by  an- 
nulling the  second,  removes  the  objection  to 
the  second  wife's  testimony ;  when  both  mar- 
riages and  the  existence  of  the  first  spouse 
are  proved,  the  burden  of  proving  his  belief, 
on  reasonable  grounds,  that  the  first  mar- 
riage was  dissolved,  lies  upon  the  panel. 
9  Geo.  IV.  c.  31,  5  22 ;  Hwne,  i.  469,  et  seq. ; 
Burnett,  433;  Alison,  i.  536;  SUde,  177; 
Shaw's  Digest,  i.  336  ;  iii.  Ill ;  Taiet  Justice 
of  Peace,  h.  t. ;  WcUson's  SUU.  Law,  h.  t. ;  BdPs 
Supp.  to  Hume,  p.  112. 

Bill ;  in  Scotch  judicial  proceedings,  is  the 
name  given  to  the  application  or  petition  to 
the  Court  of  Session,  praying  the  court  to 
authorize  those  signet  letters,  which  require 
such  a  warrant  to  pass  the  King's  signet. 
See  BiUs  of  Signet  Letters,  Bill-Chamber.  Peti- 
tions to  the  Court  of  Session,  or  reclaiming 
petitions  (when  in  use)  against  judgmenia  of 
the  court,  or  of  the  Lords  Ordinary,  and  in 
general  all  applications  or  pleadings  not 
ordered  by  the  court,  were  formerly  denomi- 
nated biUs ;  and  the  roll  in  which  petitions 
and  reclaiming  notes  are  first  set  down  to  be 
moved  in  court  is  still  called  the  roll  of  single 


hiOt.  See  Stair,  B.  ir.  tit.  2,  $  12,  and  B. 
iv.  tit.  40,  passim.    See  Redaiming  Note, 

Bill  of  Ezohaage.  Bills  of  exchange 
form  a  class  of  documents  of  most  extensive 
use  in  the  mercantile  dealings,  not  of  this 
country  only,  but  of  all  civilized  nations. 
Mr  Thomson,  in  his  valuable  Treatise  on  the 
Law  of  Bills,  with  equal  correctness  and  per- 
^icuity,  thus  describes  the  instrument :  **  A 
bill  of  exchange  is  a  written  request,  ad- 
dressed by  a  person  who  is  called  the  drawer, 
to  another  person  called  the  drawee,  desiring 
him  to  pay  a  certain  sum  of  money,  either  to 
the  drawer  himself,  or  to  a  third  party  called 
the  payee,  within  a  certain  time  aAer  its 
date,  or  after  it  is  presented  for  payment,  or 
on  demand.  If  the  drawee  signs  Uie  bill  in 
token  of  his  agreeing  to  this  request,  he  is 
called  the  acceptor." 

The  following  will  serve  as  an  example  of 
the  ordinary  inland  bill ;  but  no  prescribed 
form  of  words  u  necessary  to  constitute  a  bilL 

L.lOO  sterling.  Edinburgh, 

Three  months  after  date,  pay  to  me  (or  to 
some  third  party,  E.  F.),  or  order,  at  your 
shop  in  Glasgow,  the  sum  of  One  hundred 
pounds  sterling,  for  value  received. 

(Sign^)        A.  B.  (the  drawer.) 
(Signed)        C.  D.  (the  acceptor.) 
To  C.  D.  Grocer,  Glasgow. 

This  document  admits  of  being  passed,  to 
the  effect  of  assigning  the  debt  from  the 
drawer  to  a  third  party,  and  from  him  to 
others  by  indorsation,  either  before  or  aftor 
acceptance  ;  and  in  practice,  most  bills  of  ex- 
change are  so  transferred  to  bankers,  who, 
by  means  of  their  correspondents  and  other- 
wise, possess  facilities  for  negotiating  them ; 
and  generally  the  banker  advances  the  amount 
at  the  time  the  document  is  indorsed  to  him, 
discounting  the  interest  up  to  the  day  of  pay- 
ment. 

A  foreign  bill  of  exchange  differs  little, 
either  in  its  form  or  qualities,  from  an  inland 
bill.  To  provide  against  the  risk  of  loss  or 
detention  in  the  course  of  transmission,  it  is 
usual  to  draw  foreign  bills  in  sets,  and  to 
transmit  each  bill  by  a  different  conveyance ; 
by  which  means  the  due  negotiation  of  the 
document  is  with  greater  certainty  insured. 
In  accordance  with  this  practice,  foreign  bills. 
whether  drawn  in  this  country  or  by  mer- 
chants abroad,  are  generally  in  such  torms 
as  these : — 

L.100  sterling.  Rotterdam, 

At  sixty  days  after  sight  of  this  our  first 
of  exchange  (second  and  third  of  same  tenor 
and  date  being  unpaid)  pay  to  our  order  (or 


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to  C.  D.  or  OTder),  tbe  sum  of  One  Iinndred 
poonds  iterliDg,  for  value  as  advised. 

(Signed)        A.  B.  b  C». 
(Signed)        P.  L.  &  Son. 
T«  Mam  P.  L.  it  Son.'i 
Mmiants,  Edinburgh.  J 

Sieh  a  bill  of  exchange,  or  an  indorsed 
UU,  is  thns,  in  effect,  an  assignment  to  the 
p«jee  or  indorsee,  of  a  debt  due  by  the  drawee 
to  the  drawer.  This  form  of  assignment  took 
its  origin  entirely  from  the  practice  of  mer- 
ebsnts,  to  whose  transactions  it  is  peculiarly 
idiqitad.  Its  utility  and  extensive  iq)plica- 
tion  to  commercial  transactions,  which,  among 
BMvhants  residing  at  a  distance  from  each 
ctker,  wonld  have  been  greatly  encumbered 
bj  u  adherence  to  more  formal  writings, 
early  recommended  the  bill  of  exchange  to 
tbe  attention  of  tbe  law  in  every  country  in 
Europe. 

b  Scotland,  peculiar  privileges  have  been 
(onferred  upon  bills  both  by  statute  and  by 
tbe  cofflmon  law.  By  the  statute  1681,  c. 
20,  payment  of  foreign  bills  may  be  enforced 
aumouuily,  without  the  necessity  of  an  action 
for  constituting  the  claim  ;  and  the  same  pri- 
Tilegv  was  extended  to  inland  bills,  by  the 
act  16%,  c  36.  At  common  law  also,  bills, 
both  in  Uieir  constitution  and  mode  of  trans- 
miaioD,  have  acquired  an  exemption  from 
the  itriet  form  of  other  legal  documents. 
The  nbscription  of  a  party  is  in  general 
seceatary  to  render  a  bill  binding ;  but  it  is 
not  aeeenary  that  the  bill  should  be  either 
holograph  or  tested  in  the  manner  required 
in  (^er  probative  writings.  When  a  party 
cssnot  write,  subscription  by  a  notary  and 
t*»  witnesses  has  been  sustained ;  Din woodie, 
28th  Jnne  1737,  M.  1419.  In  certain  casos, 
other  substitutes  even  have  been  received  in 
place  of  the  full  subscription.  Thus,  subscrip- 
tion by  initials  or  by  a  mark  has  each  been  sus- 
tained  as  sniBcient ;  Shepherd,  19th  Nov. 
1760,  M.  589 ;  Kennedy,  26th  May  1816,  F.C. 
The  mode  of  transferring  right  to  the  bill  and 
ite  contents  is  equally  simple.  This  may  be 
done  by  the  payee,  or  any  indorsee  from  him, 
nerely  putting  his  name  on  the  back  of  the 
bill,  without  stating  the  name  of  the  indorsee, 
which  is  eaUed  a  blank  indorsation.  In  this 
daps  a  bill  may  be  passed  from  hand  to  hand, 
witMot  further  indorsation,  and  the  blank 
nay  be  afterward  filled  up  with  the  name  of 
any  one  into  whose  hands  it  may  come.  The 
indorsement,  however,  may  also  be  made  in 
a  tpecial  form,  by  the  indorser  putting  above 
hit  taheeription  words  to  this  purpose,  "  Fay 
theemitents  to  B.  F."  And  the  effect  of 
these  indorsations  in  either  form  will  be,  to 
render  the  indorser  liable  in  recourse  to  the 
iodonee  for  the  unount  of  the  bill,  in  case  it 


be  not  paid  by  the  acceptor.  But  it  may 
happen  that  the  indorser  has  no  personal  in- 
terest in  the  transaction,  and  though  desirous 
of  transmitting  the  bill  to  those  who  have 
right  to  it,  or  of  assigning  the  debt  to  another, 
he  may  be  unwilling  to  undertake  any  obli- 
gation of  recourse,  or  guarantee  for  the  suflS- 
cienoy  of  the  acceptor ;  and  in  that  ease  he 
may  indorse  the  bill  with  safety,  to  the  effect 
of  assigning  the  debt,  by  adding  the  words, 
"  Fay  the  contents  to  E.  F.,  without  recourse 
on  me,  A.  B." 

Such  is  an  outline  of  the  privileges  pos- 
sessed by  bills  of  exchange ;  and  a  short  enu- 
meration of  some  of  the  requisites  essential  to 
their  constitution,  and  to  their  due  negotia- 
tion, will  convey  all  that  can,  with  advantage, 
be  embraced  within  the  limits  of  this  work. 
Bills  must  be  written  on  paper  duly  stamped. 
The  last  statute  regulating  the  stamp  duties  is 
17  and  18  Vict.,  c.  63, 1854.  A  bill  on  un- 
stamped paper,  or  on  too  low  a  stamp,  is  null  • 
31  Geo. HI.,  c. 25,  §  19,  and  65  Geo.  JII.c.  184, 
§  8 ;  and  the  commissioners  of  stamp  duties 
have  no  power  to  a£Sx  the  proper  stamp, 
after  the  instrument  has  been  engrossed.  But 
it  is  of  no  consequence  although  the  bill 
should  be  written  on  an  inproper  stamp,  pro- 
vided the  stamp  duty  be  of  equal  or  of  greater 
value  than  the  proper  stamp,  and  that  the 
stamp  is  not  specially  appropriated  to  some 
other  instrument,  by  having  its  name  on  the 
face  of  it ;  stat.  §  10.  Bills  must  be  for  a 
sum  of  money,  and  unconditional.  Bills  for 
delivery  of  grain,  or  the  like,  or  for  a  sum  of 
money  payable  contingently  on  a  particular 
event,  have  been  denied  the  privileges  of 
bills  {Mor.  p.  1399  and  p.  1412).  It  is  no 
objection  to  a  bill,  that  it  stipulates  interest 
from  the  term  of  payment,  or  from  its  date. 
But  a  stipulation  for  a  penalty,  in  case  of 
failure  to  pay,  bas^  been  held  sufficient  to 
annul  the  bill,  although  it  has  been  doubted 
whether  these  precedents  would  now  be  fol- 
lowed ;  see  Tkmton  on  BiUs,  pp.  19,  20.  A 
legacy,  or  mortis  causa  donation  in  the  form 
of  a  bill  would  not  be  effectual  to  the  payee, 
but  good  in  the  hands  of  an  onerous  inc^rsee ; 
see  Jfor.  pp.  8107,  12,341, 1444.  Any  essen- 
tial vitiation  in  a  bill  infers  nullity.  For  an 
example  of  an  ingenious  fraud  by  interpola- 
tion, where  the  stamp  had  not  been  written 
over,  and  as  to  the  consequences  of  such  a 
fraud,  in  questions  with  bond  jide  onerous 
holders,  see  Graham,  27th  Jan.  1796,  Mor. 
1453;  Pagan,  19th  Jnne  1793,  Mor.  1660. 
The  result  seems  to  be,  that  where  an  ac- 
ceptor has  been  so  careless  as  to  accept  a  bill ' 
with  blanks,  which  can  be  filled  up  in  such  a 
manner  as  to  render  the  fraud  imperceptible, 
he  will  be  liable  to  the  bond  fide  onerous 
holder,  although  the  acceptor  may  be  himself 


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entirely  innocent  of  the  fraud.  Bilb  Myable 
at  a  distant  term  have  been  considered  incon- 
sistent with  the  nature  of  bills ;  and  in  one 
case,  a  bill  payable  at  three  years  after  date, 
was  held  not  entitled  to  the  privileges  of  a 
bill ;  but  it  has  been  doubted  by  high  autho- 
rity whether  the  same  strictness  would  now 
be  obserred. 

What  is  called  the  negotiation  of  a  biU,  con- 
sists in  the  regular  and  punctual  prosecution 
of  those  steps,  which,  in  case  of  dishonour  by 
the  acceptor,  are  essential  to  preserve  the 
holder's  claim  of  recourse  against  the  drawer 
and  indorsers.  For  this  purpose,  three  things 
must  be  attended  to :  1.  Presentment  for  ao- 
eeptance  or  payment ;  2.  Protest  in  ease  of 
didiononr ;  3.  Intimation  to  the  drawer  and 
indorsers. 

1st,  The  duty  of  presentment  for  acceptance 
will  depend  upon  the  terms  of  the  bill.  If  it 
be  made  payable  at  a  certain  term,  it  issaffi- 
eient  to  present  it  on  the  day  of  payment. 
Where,  on  the  other  hand,  it  is  payable  at  a 
particular  period  after  sight,  it  is  requisite 
to  the  due  negotiation,  that  it  be  presented 
within  a  reasonable  time  after  the  indorsa- 
tion ;  the  precise  extent  of  which  will  depend 
upon  the  custom,  the  distance  to  which  the 
bUl  must  be  transmitted,  and  all  the  eircnm- 
stances  of  the  ease.  The  draft,  however,  may 
be  left  with  the  drawee  for  twenty-four  hours, 
that  he  may  make  up  his  mind  whether  to 
aeeept  or  not  With  regard  to  an  accepted 
bill,  if  it  be  payable  at  a  particular  term,  it 
must  be  presented  (and  if  dishonoured,  it 
most  be  protested  or  noted),  on  the  day  of 
payment,  or  within  the  three  following  days, 
which  are  called  days  of  grace ;  Cruiki^anks, 
2dth  Jan.  1751,  KiUc ;  Mor.  p.  1576 ;  British 
Linen  Company,  19th  May  1807,  not  report- 
ed, but  noted  in  BelSt  Com.  i.  410.  See  Dcufs 
of  Qraet.  A  bill  payable  on  demand  must  be 
presented  within  a  reasonable  period,  and 
without  any  undue  delay.  The  presentment 
must  be  made  at  the  place  of  payment  speci- 
fied in  the  bill,  or,  if  no  place  of  payment  be 
mentioned,  to  the  acceptor  persomUly,  or  at 
his  dw.elling-house,  or  at  his  place  of  business, 
if  at  his  place  of  business,  it  must  be  pre- 
sented during  the  hours  of  business. 

2d,  The  only  legal  evidence  of  presentment 
is  an  instrument  of  protest  under  the  hands 
of  a  notary-public,  certifying  that  he  pre- 
sented the  bill,  and  protested  it  for  non-pay- 
ment or  non-acceptance.  The  instrument  of 
protest  must  specify  that  the  bill  was  pre- 
sented by  the  notary  before  two  witnesses, 
whose  names  must  also  be  inserted,  although 
it  is  not  necessary  that  they  sign  the  instru- 
ment. It  seems  doubtful,  however,  how  far 
the  presentment  by  the  notary's  clerk  is  not 
sufficient ;  Stevenson,  14th  Nov.  1764,  Mor. 


p.  1518 ;  British  Linen  Company,  Idtli  Hay 
1807,  iMpra.  See  also  BetPt  Com.  i.  408,  et 
*eq.  With  a  riew  to  summary  diligence,  the 
protest  must  be  recorded,  and  a  decree  of 
registration  interponed,  within  six  months 
after  the  bill  falls  due,  in  case  of  non-pay- 
ment ;  and  within  the  same  period  after  the 
date  of  the  bill,  in  case  of  non-aoeeptanee. 

3d,  If  the  bill  be  dishonoured,  notice  must 
be  sent  to  the  drawer  and  indorsers,  inti- 
mating the  protest,  and  claim  of  reooone 
arising  to  the  holder.  This  ought  to  be  done 
in  writing ;  but  a  verbal  intimation  ia  suffi- 
cient, provided  the  evidence  of  it  be  clear ; 
Syme,  25th  June  1813.  The  delivery  of  the 
notice  into  the  Poe(-Offioe,  or  into  the  hands 
of  any  regular  carrier,  is  held  in  the  Bnglidi 
cases  to  Im  sufficient,  although  the  receipt  is 
denied;  BdPM  CotA.  i.  415.  In  regard  to 
foreign  bills,  the  statute  12  Geo.  IIL,  c.  74, 
declares,  "  that  notification  of  dishonour  is  to 
be  made  within  such  time  as  is  required  by  tiie 
usage  and  cnstom  of  merchants."  Erskine's 
doctrine,  that  the  notification  must  be  made 
"  within  three  posts  at  farthest,"  seems  to 
rest  on  no  authority,  and  it  was  disregarded 
by  the  Court  in  the  case  of  Garridc,  23d  May 
1790,  Mor.  p.  1614.  In  that  ease,  the  Court 
seemed  rather  to  sanction  the  rule  established 
by  the  English  decisions,  which  appears  to 
amount  to  this,  that  the  notice  mast  be  sent 
the  next  day,  where  the  parties  reside  in  the 
same  place,  and,  if  possible,  by  the  next  post, 
to  those  who  reside  at  a  distance. 

It  is  necessary  to  notify  the  dishononr  to 
the  drawer  or  indorsers  notwithstanding  the 
known  insolvency  of  the  acceptor.  But 
neither  notification  of  dishononr,  nor  protest 
is  necessary,  where  the  drawer  has  no  effects 
in  the  acceptor's  hands ;  for  in  that  case  the 
drawer  loses  nothing  by  the  want  of  intiraa- 
tion  or  protest ;  HUl,  5th  June  1805  ;  Mor. 
App.  voce  BiU  of  Exchange,  No.  18.  See  Ae- 
eommodation  BiUt. 

The  intimation  with  regard  to  inland  bills 
was  formerly  regulated  by  the  act  12  Oeo. 
III.,  c.  72,  §  41 ,  made  perpetual  by  22  Geo. 
III.,  c.  81,  and  which  declared  that  it  shonid 
be  sufficient  to  preserve  recourse,  if  notice 
was  given  of  the  dishonour  within  fourteen 
days  after  the  protest  was  taken.  This  sta- 
tutory provision  was  certainly  an  objection- 
able one,  as  making  a  great  distinction  be- 
tween the  notice  of  dishonour  of  inland  bills 
in  England  and  in  Scotland.  As,  however, 
bills  drawn  in  Scotland  upon  England  were 
held  to  be  foreign  bills,  the  operation  of  the 
statute  was  strictly  confined  to  Scotland.  The 
provision,  however,  has  been  repealed  by  the 
Mercantile  Law  Amendment  Act  of  Scotland, 
1856,  so  that  notice  of  the  dishonour  of 
any  bill  or  promissory-note  must  be  given 


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ta  ^e  same  roaaner  ami  within  the  same 
time  as  is  required  in  the  case  of  foreign 
bills.   By  the  same  act  it  is  declared,  that 
the  true  date  of  bills  or  notes,  when  issued 
witfaont  dat«,  may  be  proved  by  parole  evi* 
dence:  bnt  summary  diligence  is  not  com- 
petent on  such  bills  or  notes.    The  same  act 
declsres,  that  no  acceptance  of  a  bill  shall  bo 
valid  nnlesa  it  is  made  in  writing  on  the  bill, 
sod  signed  by  the  acceptor,  or  some  person 
duly  aathorized  by  him.    It  farther  declares, 
that  all  bills  or  notes  drawn  or  made  within 
the  United  Kingdom  and  the  islands  men- 
tioaed  in  the  act,  on  any  party  within  the 
United  Kingdom  or  such  islands,  shall  be 
held  to  be  inland  bills.    Under  the  same  act 
s  notarial  protest  of  an  inland  bill  of  ex- 
thtoge  is  not  now  necessary,  except  for  the 
purpose  of  summary  diligence.      Where  a 
bill  or  note  is  lost,  stolen,  or  A'audulently 
obtained,  the  holder  must  now  prove  that  he 
gave  value  for  it.    Where,  also,  a  bill  or 
note  is  indorsed  after  the  period  of  payment, 
the  indorsee  is  subject  to  all  the  objections 
orexeeptions  to  which  the  bill  or  note  was 
nbjeet  in  the  hands  of  the  indorser. 

See  as  to  prescription  of  bills  the  title 
Pracriptim ;  as  to  discounting  of  bills,  see 
Batter;  and,  in  general,  on  the  subject  of 
this  article,  and  as  to  the  numerous  questions 
which  hare  occurred  connected  with  bills  of 
exchange,  the  following  authorities  may  be 
toBtnlt^ :  Thornton  on  BiUa,  2d  edit. ;  Baykif 
««  Bills ;  Olen  on  Bills ;  Chitty  on  Bills  ;  BetPs 
flw.  i.  386,  a  teq. ;  Prine.  4th  edit.  §  305, 
etuf.;  must.  ibid. ;  Ersk.  B.  iii.  tit.  2,  §25  ; 
IvHft  Nota ;  Stair,  B.  i.  tit.  11,  §  7  ;  B.  iv. 
tit.  4,  §  6 ;  tit.  47,  §  7  ;  Mr  More's  Notes,  p. 
49, 119, 272, 401 ;  Bank.  vol.  i.  358 ;  Kame^ 
SW.  i.  t.;  Watson's  Stat,  h.  i.  ;  Brown's  Sy- 
<Mp.  i.  t.;  Memies'  Conveyancing  ;  Ross'  Lead- 
i»3  (kttt,  vol.  i. ;  Jurid.  Styles,  ii.  2,  et  seq. 
See  Promissory  Note. 

KQ-ChuaMr,  Bonds  in.  See  Caution. 
AUeittr. 

BfltChuiber.  "The  Bill-Chamber  is  a 
Ittrticnlar  department  of  the  Court  of  Ses- 
SM,  chiefly  for  determining  upon  applica- 
tions for  warrants  to  expede  signet  letters. 
1'he  Royal  Signet  in  Scotland  is  placed  un- 
der the  direction  and  control  of  the  Judges 
«f  fte  Court  of  Session ;  and  it  is  in  the  form 
of  letters  passing  uuder  it  that  all  ordinary 
tiril  actions  are  instituted,  or  legal  execution 
against  either  person  or  property  authorized, 
^me  ef  these  letters,  such  as  ordinary  sum- 
nonset,  are  allowed  to  pass  the  signet  without 
snyq)eei8l  warrant  fVom  the  court;  but  a 
variety  of  signet  letters  require  the  authority 
of  the  Court  of  Session  to  be  interposed  in 
the  shape  of  a  deliverance  orfaU  on  a  bill  or 
petition  as  their  warrant.  (See  Bills  of  Signet 


Letters.)  These  warrants  are,  in  the  ordinary 
case,  granted  of  course ;  and  signet  letters 
are  now  so  well  regulated  by  the  recognised 
forms  and  practice  of  the  court,  that  the  fiat 
authorizing  them  to  pass  the  signet  is  suffi- 
cient if  signed  by  the  officiating  clerk  in  tho 
Bill-Chamber ;  53  Geo.  III.,  o.  64,  §  17.  All 
bills  praying  for  signet  letters  are  presented 
at  the  Bill-Chamber;  the  clerks  in  which 
either  themselves  grant  the  necessary  warrant 
in  virtue  of  the  act  53  Geo.  III.,  c.  64,  or 
they  transmit  the  bill  to  the  judge  officiating 
in  the  Bill-Chamber  for  his  determination 
upon  its  merits,  before  whom  pleadings,  either 
oral  or  written,  may  take  place,  after  which 
he  pronounces  a  judgment,  either  refusing 
the  bill,  or  passing  it,  or  remitting  the  case 
to  the  inferior  judge.  The  decision  of  the 
Lord  Ordinary  officiating  in  the  Bill-Cham- 
ber, with  some  exceptions,  may  be  brought 
under  review  of  the  Court ;  and  the  judgment 
of  the  Court  thus  sitting  on  Bill-Chamber 
cases  may  be  brought  before  the  House  of 
Lords  by  appeal,  in  the  same  manner  with 
their  judgments  in  ordinary  cases.  It  is  al- 
most  exclusively  in  questions  as  to  the  pass- 
ing  or  refusing  of  bills  of  suspension  of  dili- 
gence, or  in  certain  cases  of  advocation  of  the 
judgments  of  inferior  courts,  that  these  dis- 
cussions in  the  Bill-Chamber  take  place; 
and  hence  the  result  of  such  a  discussion, 
however  protracted,  can  only  be  the  roAisal 
or  the  granting  of  a  warrant  for  expeding 
letters  of  suspension  or  of  advocation.  8o 
that  the  introduction  of  a  cause  into  the  court 
is  all  that  is  attained  by  the  party  who  sac- 
coeds  in  getting  such  a  bill  passed ;  and,  in 
general,  even  this  advantage  is  not  gained,  un- 
less caution  be  found  to  falfll  to  the  opposite 
party  the  decree  which  may  be  ultimately 
pronounced  in  the  cause  thus  introduced." 

The  above  quotation  is  made  from  the  last 
edition  of  this  work,  since  which  time  import- 
ant changes  have  taken  place.  There  is  not 
now  the  same  occasion  for  signet  letters,  or, 
where  signet  letters  are  necessary,  for  war- 
rants by  bill  for  espeding  them,  as  formerly 
existed.  The  necessity  of  signet  letters  as 
warrants  for  diligence  against  person  or 
property,  where  they  proceeded  upon  decreet, 
is  superseded  by  the  Personal  Diligence  Act, 
1  and  2  Vict.,  o.  114,  which  authorizes  a 
warrant  to  be  inserted  in  the  extract  decree, 
to  charge  the  debtor  or  obligant  to  pay  or 
perform  within  the  days  of  charge,  under 
pain  of  poinding  and  imprisonment,  and  to 
arrest  and  poind ;  and  declares  that  diligence 
shall  proceed  upon  such  warrant  in  the  same 
way  as  if  it  had  been  executed  in  virtue  of 
signet  letters.  (See  Bills  of  Signet  Letters.) 
Again,  it  is  no  longer  necessary  that  a 
summons  before  the  Court  of  Session  shall 


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5roceed  iip(fti  a  bill ;  13  and  14  Vict.,  c.  36, 
18.  And,  especially,  a  change  has  been 
made  in  the  practice  as  to  advocations  and 
suspensions.  Before  1838  these  had  origi- 
nated by  the  presentment  of  a  bill  to  the 
Lord  Ordinary  on  the  Bills,  which  bill  of 
suspension  or  advocation,  being  passed,  be- 
came the  warrant  of  the  letters  of  suspension 
or  advocation.  Still,  all  advocations  and 
suspensions,  with  the  exception  of  advoca- 
tions, of  final  judgments  and  of  brieves,  ori- 
ginate in  the  Bill-Chamber;  but  letters  of  ad- 
vocation and  of  suspension  are  abolished,  and 
written  notes,  prepared  in  terms  of  1  and  2 
Yict.,  c.  86,  and  the  relative  Act  of  Sederunt, 
24  Dec,  1838,  passed  to  regulate  proceed- 
iugs  in  the  Bill-Chamber,  have  superseded 
both  the  former  bills. and  letters.  The  arti- 
cles upon  Advocation  and  Suspension  show  the 
modern  forms  of  procedure.  See  also  Caution. 
Homing.  Arrestment.  Poinding.  Diligence. 
Letters. 

The  Bill-Chamber  is  open  at  all  times, 
both  during  the  sittings  of  the  Court  and 
in  vacation  ;  the  junior  Judge  of  the 
Court  of  Session  officiating  permanently 
in  the  Bill-Chamber  during  the  sittings  of 
the  Court ;  53  Geo.  III.,  c.  64,  §  2.  In  va- 
cation and  recess  the  Bill-Chamber  business 
is  performed  by  the  six  Judges  of  the  Court 
of  Session,  who  are  not  Justiciary  Judges, 
with  power  to  all  the  Judges  of  the  Court  of 
Session,  in  case  of  indisposition  or  absence  of 
any  one  of  the  six  Judges,  to  act  for  him  ; 
2  and  3  Vict.,  c.  36.  The  rotation  in  which 
the  Bill-Chamber  Judges  officiate  during 
vacation  is  fixed  by  Act  of  Sederunt,  8th 
August  1839  (See  Shand's  Practice,  p.  71). 
As  to  the  duties  of  the  Bill-Chamber  clerks, 
see  Shand's  Practice,  p.  109. 

By  the  Bankruptcy  Act,  1856,  19  aud  20 
Vict.,  c  79,  sequestration  may  be  awarded 
either  by  the  Lord  Ordinary  on  the  Bills,  or 
by  a  Sheriff.  In  sequestrations  awarded  by 
the  former,  and  remitted  to  the  Sheriff,  the 
process  of  sequestration  is  held  to  be  in  the 
r  Bill-Chamber  of  the  Court  of  Session,  and 
the  clerks  of  the  Bill-Chamber  to  be  clerks 
;  io  such  sequestration ;  §  43.  The  fees  of 
these  Clerks  are  regulated  by  §  181 ;  and 
extracts  of  deliverances  and  decrees  in  se- 
questrations in  the  Court  of  Session  are  pie- 
pared  by  them  ;  see  Act  of  Sederunt,  20th 
July  1842,  which,  though  bearing  reference 
to  the  prior  statute,  is  still  observed  in  the 
practice  of  the  Bill-Chamber. 

For  a  historical  account  of  the  origin  of 
the  Bill-Chamber,  see  Beveridge  on  the  Bill- 
Chamber ;  Juridical  Styles,  vols.  ii.  iii. ;  Ivory's 
flrskine,  iv.  3,  §  5 ;  Shaiid's  Practice,  p.  444. 

Bill  of  Bights.  The  statute  1  W  ill.  and  I 
Jifary,  stat.  ii.,  c.  2,Lis  ^  called  from  declar- 1 


ing  the  rights  of  British  subjects.     Toalifti, 
h.t. 

Bill  of  Ladisg ;  is  an  acknowledgment 
granted  by  the  master  of  a  ship  to  the  ship- 
per of  goods,  specifying  the  particular  de- 
scription of  goods,  and  the  quantity  shipped. 
The  bill  of  lading  contains  also  an  obliga- 
tion on  the  master  to  deliver  the  goods  so 
shipped  at  the  port  to  which  the  vessel  is 
bound,  to  a  particular  person  named,  or  to 
his  order,  or  to  bis  assignees,  on  payment  «f 
the  freight,  &c.  It  is  usual  to  sign  three 
copies  of  the  bill  of  lading,  one  for  the  buyer 
or  consignee,  another  to  go  with  the  cargo, 
and  a  third  for  the  seller  or  consigner,  each 
bill  containing  a  clause  that,  one  being  ful- 
filled, the  rest  shall  be  void.  Bills  of  lading 
are  invalid  if  not  written  on  a  proper  stamp; 
BeWs  Com.  i.  543,  et  seq.  The  bill  of  lading 
is  transferable  by  indorsation  without  inti- 
mation to  the  master ;  and  the  property  of 
the  goods  specified  in  the  bill  is  transferred 
to  an  onerous  and  honafde  indorsee  unaffeet- 
able  by  any  claim  of  retention  of  the  goods 
on  the  part  of  the  original  seller,  or  any 
right  in  him  to  stop  them  *»  transitu.  The 
master  is  bound  to  deliver  the  goods  to  the 
holder  of  the  bill,  or  to  the  person  who  has 
acquired  right  to  it  by  indorsation ;  B«Jf» 
Cam.  i.  198.  See  the  form  of  the  bill  of 
lading,  Jurid.  Styles,  vol.  ii.  p.  572.  See  also 
Bdl's  Princ.  4th  edit.  §  414,  etseq.;  Befft 
Illust.  §§  410,  415  ;  Brown  m  Safe,  p.  483; 
Smith's  Maritime  Practice,  p.  30. 

Bill  of  Health,  or  Sick  Bill ;  is  the  name 
given  to  the  application  made  .under  the  Act 
of  Sederunt,  14th  June  1671,  by  an  impri- 
soned debtor  for  liberation  on  account  of  bad 
health.  The  debtor's  sickness  "  and  extreme 
danger  of  life,"  had  to  be  attested  on  oath 
under  the  hand  of  "  a  physician^  surgeon, 
apothecary,  or  minister  of  the  gospel  in  the 
place  ;"  and,  on  such  certificate  being  given, 
the  magistrates.  Were  authorized  to  allow  the 
debtor  to  reside  during  his  sickness  in  sooie 
house  within  the  town,  they  being  always 
responsible  in  case  he  should  escape,  and 
bound  that,  on  his  recovery,  he  should  re- 
turn to  prison.  The  practice  in  Edinburgh 
was  for  the  debtor  to  present  a  petition  to 
the  magistrates,  accompanied  by  the  proper 
certificate ;  and  if  the  magistrates  were  satis- 
fied, they  pronounced  an  interlocutor  finding 
him  entitled  to  leave  the  jail,  on  his  lodging 
a  bond  with  sufficient  caution  that  he  should 
return  to  prison  on  his  convalescence.  The 
question  as  to  the  nature  of  the  security  to 
be  given  for  his  return  was  necessarily  one 
of  circumstances;  and  it  rather  appears 
that  the  magistrates  were  not  entitled  to  in- 
sist for  unexceptionable  caution,  as  that,  in 
many  cases,  would  have  amounted  to  a  total 


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denial  of  the  privilege.  The  general  rule 
vu  that  the  magistrates  should  have  regard 
to  the  health  of  the  debtor,  and  take  such 
precautions  as  circumstances  admitted  ;  and, 
tbere  satisfactory  caution  was  not  found,  it 
would  seem  that  they  were  bound  to  place  a 
^ard  over  the  person  of  the  debtor,  so  as  to 
^rerent  his  escape.  A  prisoner  liberated  on 
attount  of  bad  health  was  not  freed  from  re- 
straint :  he  was  confined  to  a  house  within 
the  town,  unless  his  illness  wei-e  such  as 
abeolntely  to  require  air  and  exercise.  See 
BeWt  Com.  ii.548,  etseq.;  14  S.,  124;  Daw's 
Appeal  dues,  vol.  v.  37. 

The  remedy  under  the  above  Act  of  Sede- 
nmt  was,  till  recently,  confined  solely  to  the 
case  of  Magistrates  of  Royal  Burghs,  who 
were  formerly  the  keepers  of  the  prisons.  By 
thePrison  Act,2  and  3  Vict.,c.42,all  liability 
of  Magistrat«8  for  the  holding,  maintaining, 
aid  managing  of  prisons,  or  the  aliment  or 
(leape  of  prisoners,  is  declared  to  cease,  §  108 ; 
xml  it  is  further  enacted,  by  7  and  8  Vict.,  c. 
34,  §  11,  that  Sheriffs  within  their  respective 
sheriffdoms  shall  have  power,  by  summary 
application  to  the  County  Prison  Board,  ac- 
companied by  proper  and  satisfactory  medical 
certificates,  to  aathorize  the  removal  of  any 
civil  or  criminal  prisoner  afiSicted  with 
any  contagious  or  infections  disease,  or  any 
disease  which  threatens  immediate  danger  to 
Kfe,  and  cannot  be  treated  in  prison,  from 
aoy  prison  within  the  county  to  any  hospital 
or  other  proper  place  within  the  same,  or  to 
any  hospital  near  the  same,  for  such  period 
^d  nnder  such  precautions  for  the  safe  and 
pr»per  custody  of  the  prisoner,  and  of  his  re- 
imprisonment  as  they  may  direct. 

aiU  «f  Health,  of  a  Ship  ;  is  a  certificate 
of  the  health  of  the  crew,  required  where 
Ae  vessel  has  come  from  a  suspected  port. 
I'nder  the  obligation  in  the  charter-party  to 
faraish  the  ship  •'  with  everything  needful 
»nd  necessary  for  the  voyage,"  the  master 
will  be  bound  to  procure  a  bill  of  health, 
*here  that  is  necessary  ;  and  if,  from  a  ne- 
glect to  procure  it  when  it  might  have  been 
got,  the  vessel  is  prevented  from  delivering 
l)«r  cargo,  the  master  or  owners  will  be  lia- 
ble to  make  good  to  the  freighter  any  loss 
tlienee  arising.  Beffi  Com.  vol.  i.  p.  558, 
5th  edit. 

Bill  of  Advocation.  See  Advocation. 
■  Bill  of  AdTOcation  io  Court  of  Justiciary ; 
i«  an  application  to  the  Lords  Commissioners 
of  Justiciary,  praying  that  the  proceedings 
ia  an  inferior  criminal  court  may  be  advo- 
«t«d  or  brought  nnder  review  of  the  Court 
of  Jutieiary.  Instead,  however,  of  exped- 
ing  the  letters  of  advocation,  as  in  the  Court 
«f  Session,  the  practice  is  to  debate  and 
finally  to  ditouss  the  whole  merits  of  the  case 


upon  the  bill.    During  the  litigation  on  ihe 
bill  of  advocation,  the  personal  presence  of 
the  parties  is  not  required ;  but  after  the 
bill  is  passed,  the  presence  of  both  parties  is 
necessary,  as  in  an  original  criminal  process 
in  the  Court  of  Justiciary.     One  Judge  may 
pass  a  bill  of  advocation,  but  two  are  neces- 
sary to  refuse  one.     An  interlocutor  pro- 
nounced, at  the  first  diet,  in  a  criminal  cause 
in  the  Sheriff  Court,  finding  the  libel  rele- 
vant, cannot  be  advocated  until  the  trial  is 
concluded,  though  there  may  he,  perhaps, 
such  extreme  cases  as  will  induce  the  Court 
of  Justiciary  to  stop  an  inferior  Judge  from 
proceeding  with   a  cause   pending  before 
him  ;  Jameson,  3d  December  1855  ;  2  Irvine, 
273;    Hume,  vol.   ii.  p.  511,   512;  BeU't 
Notes,  306  ;  Alison's  Prac.  p.  26. 
Bill  of  Suspension.    See  Suspension. 
Bill  of  Suspension  «n  Court  of  Justiciary. 
This  (like  the  note  of  suspension  in  the  Court 
of  Session)  is  an  application  to  the  Lords  of 
Justiciary,  after  the  conclusion  of  a  criminal  - 
trial  in  an  inferior  court,  to  stay  execution  ■ 
of  the  sentence.    The  merits  of  the  bill  of 
suspension  are  judged  of  in  the  same  manner ' 
with  those  of  the  bill  of  advocation  ;  and  in 
it  also  one  Judge  may  pass  the  bill,  but  two  ■ 
Judges  are  required  to  refuse  it.    It  is  no 
good  reason  of  suspension  or  of  advocation 
that  the  verdict  of  a  jury  is  not  warranted 
by  the  evidence,  the  only  ground  on  which 
a  verdict  can  be  brought  under  review  in 
this  form  being  that  the  inferior  judge  has 
admitted  unlawful  evidence,  or  has  impro- ' 
perly  circumscribed  the  proof;  for  these,  and 
similar  grounds  of  complaint  do  not  affect 
the  jury,  but  the  Judge,  who  has  not  afforded 
the  jury  the  legal  materials  for  coming  to  a 
correct  verdict.    The  Court  of  Justiciary,  ■ 
on  the  same  principle,  will  judge  of  all  objec- 
tions which  appear  on  the  face  of  a  ver(Uct, ' 
or  which  arise  from  irregular  pr<iceedings  on 
the  part  of  the  jury.     It  will  not  prevent 
the  suspension  of  a  sentence,  that  it  has  been  . 
already  partly,  or  even  wholly,  executed ; 
GUUes,  4th  December  1839,  2  Swinton,  454.  > 
JIutne,  ii.  513  ;  Bell's  Notes,  506 ;  Alison's  • 
Prae:  27- 

Bills  of  Si£^et  letters ;  are  the  warrants ' 
necessary  to  authorize  the  keeper  of  the 
Royal  Signet  in  Scotland  to  affix  it  to  cer- 
tain classes  of  the  writs  which  pass  that  seal.  - 
Letters  passing  the  signet  were  formerly 
much  more  in  use  than  at  present.     In  the 
case  of  diligences  against  the  property  or  per- ' 
son,  and  in  some  other  instances  owing  to  the . 
peculiar  nature  of  the  case,  signet  letters 
were  required,  which  proceeded  on  an  imme- 
diate warrant  from  the  Court  of  Session, 
which  warrant  was  interposed  in  the  shape 
either  of  a  decree,  or  of  a  deliverance  or  in- 


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terlocntor  on  a  hill,  i.e.  a  petition  praying 
for  tho  letters ;  and  signet  letters  upon  de- 
crees were  said  to  pass  per  decretttm  Domi- 
norum  Coneilii.  Now,  by  the  Personal  Dili- 
gence Act,  1  and  2  Vict.,  c.  114,  it  is  ren- 
dered unnecessary  to  execnte  diligence  upon 
deerecB  of  the  Court  of  Session,  Teind-Court, 
or  Court  of  Justiciary,  or  Sheriff-Courts,  or 
upon  decree  of  registration,  by  virtue  of 
signet  letters,  it  being  enacted  that  the  de- 
cree itself  shall  contain  warrant  to  charge  the 
obligant  to  pay  or  perform  underpain  of  poind- 
ing and  imprisonment,  to  arrest  and  poind, 
and  to  open  shut  and  lockfast  places.  Upon 
such  warrant  it  is  declared  that  diligence 
shall  proceed  against  property  or  person  to 
the  same  effect  as  if  executed  by  virtue 
of  letters  of  homing,  or  of  caption,  or  as  if 
arrestments  and  poindings  had  been  exe- 
cuted under  the  forms  previously  in  use.  By 
19  and  20  Vict.,  c.  56,  similar  warrants  may 
be  inserted  in  the  extracts  of  Exchequer  de- 
-crees.  When  signet  letters  proceed  upon  a 
HU,  they  are  said  to  pass  ex  deliberatione 
Dominorum  Coneilii.  W  hen  bills  were  re- 
quired in  suspensions  and  advocations,  and 
also  in  loosing  arrestments  when  there  was 
any  pleading,  the  deliverance  passing  the 
bill  was  signed  by  the  judge  who  passed  it ; 
but  in  all  other  cases  the  signature  of  the 
Bill-Chamber  clerk  officiating  for  the  time 
is,  by  63  Geo.  III.,  c.  64,  §  17,  declared  to 
be  sufiicient.  In  cases  where  evidence  of  the 
statements  in  the  bill  is  required  to  be  pro- 
duced with  it,  the  deliverance  is  expressed, 
"Fiat  utpetitur,  because  the  Lords  have  seen 
the  precept"  or  other  document  produced  in 
evidence ;  and  the  reason,  as  expressed  in 
the^^o^  of  the  bill,  must  be  repeated  in  the 
signet  letters,  of  which  it  is  the  warrant 
In  cases  where  such  evidence  is  not  required ; 
and  where  the  bill  is  passed  of  course,  a 
simple  ^ot  ut  petitw  is  sufficient.  At  what- 
ever time  the  letters  are  signeted,  they  must 
always  bear  the  date  of  the  bill  on  which 
they  proceed.  Bills  bear  at  tho  end  the  name 
of  the  writer  to  the  signet ;  but  do  not  re- 
quire to  be  signed. 

By  the  Act  1  and  2  Vict.,  c.  869,  both 
bills  and  letters  of  advocation  and  of  suspen- 
sion are  abolished,  and  superseded  by  written 
notes.  See  Advocation;  Suspension.  Bills 
of  summonses  are  abolished  by  the  Court  of 
Session  Act,  13  and  14  Vict.,  c.  36,  §  18. 
See,  upon  the  subject  of  this  article,  BiU- 
Chamber.  Arrestment.  Loosing  of  Arrestment. 
Poinding.  Caption.  Homing.  Diligence.  Letters. 

In  the  Court  of  Justiciary,  when  the  pro- 
cess against  tho  accused  person  is  raised  by 
Criminal  Letters,  a  bill  is  presented  to  the 
Lords  Commissioners  of  Justiciary,  setting 
forth  at  large  the  teuor  of  tho  intended 


charge,  and  praying  for  criminal  Ictt^l(i(^ 
Where  the  Lord  Advocate  is  the  sole  prose- 
cutor, this  bill  is  signed  by  him,  or  by  some 
one  having  his  authority;  and  where  the 
prosecution  is  at  the  instance  of  a  private 
party,  the  Lord  Advocate  must  subjoin  his 
concourse  at  the  bottom  of  the  bill.  One  of 
the  clerks  of  Court  signs  the  deliverance  on 
the  bill,  which  is  as  effectual  for  passing  it 
as  if  the  deliverance  had  been  subscribed,  as 
formerly,  by  one  of  the  Judges  of  Justiciary ; 
11  and  12  Viet,  c.  79,  §  3.  This  is  the 
warrant  for  raising  criminal  letters,  which 
pass  the  signet  of  the  Court  of  Justiciary, 
and  proceed  in  the  sovereign's  name  in  the 
nsual  form,  fixing  a  diet  for  trial,  and  au- 
thorizing the  citation  of  the  party,  witnMses, 
and  jury.  Where  the  prosecution  is  insti- 
tuted by  indictment  at  the  Lord  Advocate's 
instance,  although  no  such  warrant  is  neces- 
sary to  authorize  the  indictment,  yet  an  ap- 
plication to  the  Lords  of  Justiciary,  io  the 
form  of  a  bill,  was,  till  lately,  required  as 
the  warrant  for  letters  of  diligence  for  citing 
the  party  indicted,  witnesses,  and  jury.  The 
statute  16  and  17  Vict.,  c.  79.  §  2,  dispenses 
now  with  such  bill,  and  ordains  that  letters 
of  diligence,  in  cases  both  before  the  High 
Court  and  Circuit  Courts  of  Justiciary,  shall 
be  issued  by  the  clerk  of  Court  to  the  Lord 
Advocate  on  exhibition  of  the  indictment  on 
which  such  letters  require  to  be  raised,  or  a 
copy  thereof  signed  by  the  Crown  agent ; 
and  it  is  not  necessary  that  such  letters  pas 
the  Signet.  See  Exculpation,  Letters  of.  See 
also  Hume,  ii.  153,  164 ;  BeU's  Notes,  169  ; 
Alr'ton's  Practice  ;  Dickson  on  Evidence,  943. 

Bill  of  Ezoeptions.     See  Exceptions. 

Bishops ;  the  higher  dignitaries  of  the 
Church  of  Rome  or  of  England.  When  the 
church  government  of  Scotland  was  Epis- 
copal, there  were  two  archbishops,  the  Arch- 
bishop of  St  Andrews  and  the  Archbishop  of 
Glasgow  ;  the  former  had  the  title  of  Primate 
of  all  Scotland,  the  latter  that  of  PrimtUe  of 
Scotland.  In  Scotland,  uuder  1540,  c.  125, 
the  nomination  of  bishops  was  in  the  sove- 
reign, who  sent  to  the  chapter  or  clergy  of 
the  cathedral  a  congS  d'ilire,  at  the  saaie 
time  recommending  a  particular  churchman, 
whom  they  were  bound  to  choose.  After  be- 
ing chosen  by  the  chapter,  he  was  called 
bishon-elect ;  and  the  king's  patent  under 
the  Great  Seal,  confirming  the  election, 
established  in  him  a  right  to  the  spirituality 
of  the  benefice.  The  king  then  granted  a 
mandate  for  the  consecration  of  the  bishop, 
at  which  it  was  requisite  that  three  bishops 
should  officiate.  The  last  step  was  that  of 
doing  homage,  and  swearing  obedience  to 
the  king.  These  ceremonies  being  gone 
through,  the  bishop  acquired  full  right  to 

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the  frnits  of  his  benefice  from  the  day  of  his 
election.  Stair,  B.  ii.  tit.  8,  §  35  ;  Ersk.  B. 
i.  tit.  5,  §  3,  «<  seq. ;  Bank,  vol.  i.  pp.  53, 
660;  Bnmt'sSynop.  pp.  794,  2570 ;  Shaufs 
Diaat,  p.  696. 

Blue  Act ;  in  English  law,  an  Act  (9 
Gto.II.,c  21.)  for  the  punishment  of  persons 
committing  devastations  in  disguise.  Be- 
pealed  by  7  and  8  Geo.  IV.,  c.  27. 

Black  Aota ;  are  the  Acts  of  the  Parlia- 
neats  of  the  five  Jameses,  with  those  of 
Utrj's  reign,  and  of  James  VI.  down  to 
1586  or  1587.  They  were  called  the  Black 
Acts,  from  the  circumstance  of  their  being 
printed  in  the  Saxon  character.  Ersk.  B.  i. 
1. 1,  §  37. 

Buek  Maill ;  was  a  yearly  payment  for 
teesrity  and  protection  made  to  those  bands 
of  armed  men  who,  about  the  middle  of  the 
16ft  eeatory,  laid  many  parts  of  the  country 
uder  contribution.  The  Legislature,  in 
•rder  to  put  a  stop  to  this  unlawful  violence, 
enacted  that,  whoever,  under  pretence  of 
Hcnring  his  lands  against  "  rievers,"  should 
pay  to  them  a  yearly  contribution  in  money, 
thonid  suffer  death ;  1567,  c.  21 ;  1578, 
e.  102.  It  does  not  appear,  however,  that 
tie  punishment  of  death  was  ever  inflicted, 
either  on  the  payer  or  the  taker  of  this  exac- 
tion. jr«m«,  vol.  i.  p.  476.  See  a  singular 
example  of  a  contract  of  black  maill  of  so 
late  a  date  as  1741 ;  Hume,  vol.  ii.,  App. 
No.  9,  p.  531.  See  also  Ersk.  B.  iv.  tit.  4, 
\  64 ;  Bank.  vol.  i.  p.  70  ;  Kama^  SUU.  Law 
Ahridf.  k.  t. 

Haek  Sod.  The  gentleman  usher  of 
the  black  rod  is  chief  gentleman  usher  to  the 
Sovereign,  and  has  his  title  from  the  rod 
which  he  carries  as  the  badge  of  his  office. 
Hi)  duty  is  to  keep  the  Chapterhouse  door, 
vhen  a  chapter  of  the  Order  of  the  Garter 
is  atting ;  and  during  the  sitting  of  Parlia- 
■neat  he  attends  on  the  House  of  Lords. 
To  bis  custody  all  Peers  called  in  question 
for  any  crime  are  first  committed.    His  de- 

Ety  is  called  the  yeoman  usher.  See  T<m- 
*,  k.  t.,  and  May's  Parliamentary  Practice. 
KanehrHoldiii^ ;  is  one  of  the  tenures  of 
the  Uw  of  Scotland.  The  duty  payable  to 
the  superior  in  blanch-bolding  is  in  general 
trifling,  as  a  penny  Scots ;  or  merely  elusory, 
as  a  peppercorn,  <i  petatur  tantum.  It  may 
happen,  however,  that  the  duty  is  of  greater 
TUM ;  and  then  the  distinction  received  in 
pnetiee  is  founded  on  the  nature  of  the 
daty.  Where  it  is  of  yearly  growth,  if  it  be 
Mt  asked  within  the  year,  the  right  to  exact 
it  is  ndentood  to  be  lost ;  whereas,  if  it  be 
■•t  of  yearly  growth,  it  founds  a  claim  at 
•ay  time  within  the  years  of  prescription. 
!■  Bzehequer,  the  blanch-duty  is  always 
existed ;  and  where  it  is  not  converted  into 


money  in  the  investiture,  it  is  valued  and 
ascertained.  The  casualties  common  to  this 
and  to  feu-holding  are  non-entry,  relief,  dis- 
clamation, purpresture,  and  liferent  escheat. 
See  these  titles,  and  also  Feu-holding.  This 
manner  of  holding  was  anciently  in  use ;  and 
many  estates  were  held  both  of  the  Crown 
and  of  the  subjects-superior  in  blanch. 
On  the  abolition  of  ward-holding,  by  20 
Geo.  II.,  c  50,  all  the  lands  which  held  for- 
merly of  the  Crown  were  converted  into 
blanch-holding ;  and  by  the  Act  25  Geo.  II., 
c.  20,  and  the  royal  warrant  under  the  Privy- 
Seal,  January  1753,  all  lands  held  ward  of 
the  Prince  were  declared  in  future  to  be 
held  blanch ;  whereby  the  extent  of  land  held 
by  this  tenure  was  much  increased.  But 
the  tenure  is  now  seldom  adopted  in  the  con- 
stitution of  what  is  termed  an  original  right. 
See  Charter.  Besides  the  estates  held  blanch 
in  one  or  another  of  those  ways,'  there  is  an 
alternative  blanch-holding  inserted  in  every 
disposition  of  sale,  so  as  to  enable  the  pur- 
chaser to  constitute  a  base  right,  holding  of 
the  seller,  capable  of  carrying  the  property 
of  the  subject  sold  as  it  stood  in  the  seller. 
Infeftment  on  the  precept  of  sasine,  in  a  dis- 
position containing  the  alternative  holding, 
completes  a  feudal  title  in  the  person  of  the 
purchaser,  who  may  afterwards  complete  his 
title  with  the  superior,  so  as  to  come  pre- 
cisely into  the  seller's  place.  Stair,  B.  iii. 
tit.  3,  §  83 ;  Ersk.  B.  ii.  tit.  4,  §  7 ;  Bank. 
vol.  ii.  p.  556,  et  seq. ;  BelN  Prine.U  682, 
693,  4th  edit. ;  Sivint.  Mridg.  voce  Tenures  ; 
Jwrid.  Styles,  4th  edit.  vol.  i.  pp.  3,  26.  See 
Base  Right  and  Public  Right. 

Blank  Bonds ;  were  bonds,  formerly  known 
in  practice,  blank  in  the  name  of  the  credi- 
tor. They  passed,  like  bills,  by  mere  delivery, 
the  bearer  being  at  any  time  at  liberty  to  fill 
up  his  name  aud  pursue  for  payment.  The 
ostensible  reason,  and  perhaps  the  original 
one,  for  introducing  these  bonds  into  practice, 
was  to  save  the  expense  of  conveyances,  and 
to  facilitate  the  transmission  of  the  right. 
Experience,  however,  having  proved  that 
they  were  capable  of  being  easily  converted 
to  fraudulent  purposes,  the  act  1696,  c.  25, 
declared  all  deeds  in  which  the  creditor's 
name  is  left  blank  to  be  null.  But  the 
insertion  of  the  creditor's  name,  posterior  to 
the  delivery  of  the  deed  by  the  grantor,  must 
be  proved  in  order  to  found  the  objection 
under  the  statute ;  Sinclair,  18th  June  1746, 
Mor.  p.  11559 ;  Ruddiman,  80th  July  1746, 
Mor.  p.  11562.  The  statute  excepts  the  notes 
of  trading  companies,  and  indorsations  of 
bills  of  exchange.  Ersk.  B.  ii.  tit  2,  $  6 ; 
Stair,  B.  i.  tit.  4,  §  17  ;  B.  iii.  tit.  1,  §  6 ; 
Bank.  vol.  ii.  p.  194;  Beirs  Com.  vol.  ii. 
p.  1 6, 5th  edit. ;  BdPs  Princ.  §  1 459 ;  Brom's 


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(S'yndp.  voce  Blank  Writ;  Shaw's  Digest;  Thom- 
son on  Bills,  pp.  37,  68,  75. 
Blasphemy ;  is  the  denying  or  Tilifying  of 

.the  Deity,  by  speech  or  writing.  This  is 
termed  divine  lese  majesty,  or  treason  against 
the -Deity.    A  distinction  is  made  between 

.  ascribing  anything    inconsistent  with  the 

.  divine  attributes  of  Qod,  and  oaths  and  im* 
precations  tending  to  throw  contempt  on  reli> 
gion.    The  former  crime  was,  under  the  old 

.  law,  punishable  with  death ;  the  latter  by  an 
arbitrary  punishment,  proportioned  to  the 

•  circumstances  of  the  offence.  The  acts  1661, 
c.  21,  and  1695,  c.  11,  which  provided  capi- 
tal  punishment  for  offences  of  this  description, 
were  repealed  by  53  Geo.  III.,  c.  160.  The 
punishment  is  now  arbitrary  at  common  law ; 

-  and  by  6  Geo.  IV.,  c.  47,  the  publication  of 
.  blasphemy,  or  of  statements  denying  the  ex- 
istence or  attributes  of  God,  or  the  authority 
of  the  Holy  Scriptures,  is  declared  a  cog- 
nisable offence,  and  punishable  with  fine  and 
imprisonment.  That  statute  also  declares 
the  criminal  to  be  punishable  on  a  second 
offence  with  banishment,  a  provision  which 
is,  however,  repealed  by  7  Will.  IV.,  c.  5.  As 
to  offences  against  religion,  see  Sums,  i.  568, 
et  sea. ;  Shaw's  Digest. 

Biaion  of  a  messenger-at-arms ;  the  badge 
of  his  office  displayed  by  a  messenger  in  the 

-  act  of  apprehending  a  debtor.    Stair,  B.  iv. 
.  tit.  47,  §  14 ;  Bank.  ii.  503 ;  Bell's  Com.  ii. 
.  644  ;  Hume,  i.  389,  17  D.  292.    See  Appre- 
hending of  a  Debtor.    Deforcement.. 

Bleacaing.  The  bleaching  of  linen  cloth 
is  the  subject  of  various  statutory  regulations. 
See  Hutch,  Justice  of  Peace,  vol.  iii.  p.  223. 
The  bleacher  has  a  lien  upon  the  cloth  in  his 
hands  for  the  price  of  bleaching,  not  only  that 

.  particular  parcel,  but  also  former  parcels, 
when  there  hasbeen  a  regular  course  of  dealing 
between  him  and  his  debtor.  BelFs  Com.  ii. 
109;  Beirs  P«n.§1435, 4th edit.; BelTs lUust. 
lb. ;  Brown's  St/nop.  pj  1253 ;  Hume,  i.  108. 
Blind  Persons.  The  deeds  of  blind  per- 
sons require  to  be  executed  notarially,  in  the 
manner  explained,  voce  Testing  Clause. 

Blockaae.  Neither  neutrals  nor  any  other 
vessels  can  trade  with  a  port  under  blockade, 
without  danger  of  capture.  Bell's  Com. 
vol.  i.  p.  305 ;  Bell's  Princ.  4th  edit.  §  43, 
and  auUwrities  there  cited. 

Blood-Wits ;  riots  in  which  blood  is  spilt. 
The  Sheriff  of  the  county  and  Justices  of  the 

.  Peace  have  a  cumulative  jurisdiction  in  judg- 
ing of  these  offences.  Ersk.  B.  L  tit,  4,  §  4 ; 
Stair,  B,  ii.  t.  3,  §  62 ;  Bank,  i.  567. 

Bloody-Hand ;  in  English  law,  one  of  the 
four,  circumstances    taken  as  presumptive 

.  proof  that  the  offender  has  killed  deer  in  the 
King's  forest.  Tomlins'  Diet.  h.  t.;  and 
]Vharton's  Lex.  v.  Backberinde, 


Blndneit ;  an  unlaw  or  fine  for  wrobg  or 
injury,  such  as  blood.  A  party  infeft  in  the 
ancient  law  with  bludueit,  was  entitled  to 
hold  courts  and  recover  fines  for  effusion  «f 
blood.     Skene,  h.  t. 

Bona  Fides.  '  A  bona  fide  possessor  is  a 
person  who  possesses  a  subject  upon  a  title 
which  he  honestly  believes  to  be  good.  A 
bona  fide  possessor,  from  whom  the  subjeet 
has  been  evicted  by  a  person  having  a  better 
title,  will  be  entitled  to  retain  the  fruits  or 
profits  which  he  has  reaped  or  received 
during  his  bona  fide  possession.  This  is  to 
equitable  rule  founded  not  only  on  the  hard- 
ship of  subjecting  a  person  who  has  lived 
in  the  belief  that  the  property  was  his  owp, 
to  a  claim  for  repetition  of  what  he  has 
drawn  from  it,  but  also  on  the  negligence  «f 
the  real  proprietor,  who  has  himself  to  blame 
for  his  delay  to  vindicate  his  property.  A 
crop  of  corn  belongs  to  the  person  by  whom 
it  has  been  bona  fide  sown ;  and  where  the 
bona  fides  continues,  until  after  the  legal 
terms  of  payment  of  rent,  the  rent,  althou^ 
still  in  the  tenant's  hands  unuplifled,  will 
belong  to  the  bona  fide  possessor.  Erskine 
(B.  ii.  tit.  1,  §  26)  is  of  opinion  that  .interest 
of  money  erroneously  paid  to  a  person  bom 
fide  believing  himself  the  creditor,  is  in  the 
same  situation  with  fruits  and  rents.  In 
regard  to  the  case  of  Oliphant  against  Smitb, 
30th  Nov.  1790,  Mor.  p.  1721.  Mr  Ivoiy 
observes,  "  The  judgment  seems  to  have  prth 
ceeded,  not  on  any  general  denial  of  the  dot- 
trine  in  the  text,  but  on  a  sort  of  speciaify, 
viz.,  that  the  particular  action  before  the 
Court — as  being  a  eordictio  indebiti  admitted 
no  claim  for  annualrents,  bona  fide  percepta." 

Bona  fides  ends  when  the  possessor  becomes 
aware  of  the  insufficiency  of  his  title,  whether 
by  private  knowledge  or  otherwise.  But 
this  is  obviously  a  point  which  there  mn^ 
be  considerable  difficulty  in  fixing.  When 
the  defect  of  title  is  apparent  at  once,  the 
execution  of  a  summons  for  trying  its  validily 
will  be  held  as  a  sufficient  interruption  ef 
the  bona  fides.  Where^  however,  the  ques- 
tion of  right  is  attended  with  difficulty,  the 
interruption  of  the  bona  fides  may  not  be  heVl 
to  have  taken  place  until  after  litis  amtest^ 
tioux  or  even  until  a  final  decree  in  the  action 
has  been  pronounced.  The  question,  indeed, 
is  evidently  one  which  must  depend  on  the 
special  circumstances  of  the  particular  case. 
The  (alioving  Roman  law  maxims  are  appli- 
cable to,  this  subject :  Bofta  fides  non  patitur 
ut  idem  bis  exigiatur.  Bona  fide  possessor  fiacit 
fructus  consumptos  suos.  Contracts  and  actions 
in  the  Roman  law,  termed  bonwfiflei,  in  con- 
tradistinction to  stricti  juris,  are  those  ia 
which  the  interpretation  is  not  con^ned,  to 
the  express  terms  of  the  covTegtion,  but  tuiyy 


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be  extended  according  to  equity  and  tlie  pre- 
mmed  intention  of  the  parties.  Ersk.  B.  ii. 
tit.  !,§§  28  and  29  ;  Stair,  B.  i.  tit.  7,  §  11 ; 
B.ii.tit.  1,  §  23;  tit.  12,  §  5;  Mr  Move's 
}f«te*,  pp.  XT.  xlviii.  Ixx.  cli. ;  BeB's  Prim. 
f  561;  Karnes'  Stat.  Law  abridg.h.  t. ;  Bell 
«  Imus,  vol.  i.  p.  393  ;  vol.  ii.  p.  127,  4th 
edit.;  Hunter's  Landlord  and  Tenant,  pp.  732, 
785 ;  Brown's  Synop.  h.  t. ;  Shafo's  Digest,  h.  t. ; 
Maefarlane's  Jury  Practice,  p.  222;  12  S. 
pp.  22,  1 ;  Kames'  Print,  of  Equity  (1825), 
94,  306,  349-60,  368,  372-3-8 ;  Hume,  i. 
25, 72-3,  448,  453-8.  See  Mala  Fides ;  see 
iiso  Adjunction. 

■  Bonagium,  or  Villena^m;  slavery  or 
•erritode.  In  the  ancient  law -language  of 
Scotland,  bondi,  nativi,  and  villani  are  synony- 
moBs.    Skene,  h.  t. 

Bona  Patria ;  in  oar  older  law,  an  assize  of 
wnntrymen,  or  of  good  neighbours.  Skene,  A.  t. 
Bond.  A  bond  is  a  written  obligation  to 
piy  or  perform ;  and  is,  of  course,  as  various 
is  its  nature  as  the  circumstances  vary  rela- 
tively to  which  it  may  be  granted.  The 
iM*t  important  bonds,  in  Scotch  practice,  are 
dKw  of  an  heritable  kind ;  but  these,  as 
*ell  as  the  varieties  of  the  personal  bond, 
ill  be  explained  under  other  titles  (see 
Heritable  Bond.  Disposition  in  Security.  Bond 
tf  Corroboration,  &c.)  ;  and  the  present  ob- 
Knrations  shall  therefore  be  confined  to  the 
nnple  moveable  bond  for  repayment  of  bor- 
rowed money.  The  style  of  this  bond  com- 
Maees  with  an  acknowledgment  by  the 
graater  of  the  receipt  of  the  money.  The 
tOBmon  and  safe  form  in  this  part  of  the 
Imd  is  to  declare  that  the  money  has  been 
"initantly"  received.  Sometimes  the  money 
i«  stated  to  have  been  received  at  a  bygone  pe- 
riod ;  bat  it  is  expedient,  if  possible,  to  avoid 
tkis  iferm  of  expression,  as  it  may  expose  the 
bend  to  reduction  under  the  act  1696,  c.  5;  in 
ttftr  as  it  is  a  security  for  a  prior  debt.  The 
itjie  then  takes  the  borrower,  his  heirs,  exe- 
oiton,  and  snccessors,  bound  to  repay  to  the 
haitr  and  his  executors  or  assignees  (and 
waetimes  to  nominatim  substitutes)  the  snm 
l«Bt  at  a  definito  period,  generally  at  One  of 
tlw  terras  of  Candlemas,  Whitsunday,  Lam- 
OHi  or  Martinmas,  with  interest  at  such  rato 
H  Bay  be  agreed  on,  from  the  time  of  advance 
■otil  repajtnent,  and  a  fifth  part  more  of  the 
priadpal  snm  of  penalty  in  case  of  failure. 
Ob  thii  part  of  the  deed,  it  may  be  observed, 
tkat  w  the  g^anter  may  be  succeeded  by 
^'•rieoa  deacriptions  of  heirs,  some  of  whom 
wmU,  by  law,  be  liable  subsidiarie  only,  and 
t>  a-eertain  order,  it  is  not  unusual  to  add 
t*  ike  terms  "  heirs,  executors,  and  succes- 
on,*  the  words,-  "  renouncing  the  benefit  of 
diteanon,"  which  have  the  effect  of  render- 
ing ail  the  borrower'a  snccessors  liable,  con- 


junctly and  severally,  to  the  creditor,  reserv- 
ing, of  course,  to  the  person  who  pays,  his 
relief  against  the  heir  primarily  liable. 
Under  the  penalty  in  the  bond,  the  creditor 
on  the  debtor's  failure  in  pfinctual  payment 
is  not  entitled  to  recover  more  than  the 
actual  expense  incurred  in  making  the  bond 
effectual;  and  it  is  not  usual  in  moveable, 
as  is  in  heritable  bonds,  to  annex  any  penalty 
to  a  failure  in  the  termly  payments  of  inte- 
rest. The  form  of  the  bond  concludes  with 
a  consent  to  registration,  in  order  that  letters 
of  homing,  on  a  charge  of  six  days,  may  pro- 
ceed against  the  debtor  if  he  should  fail  to 
pay ;  and  the  deed  is  closed  with  the  usual 
testing  clause ;  see  the  form,  Jurid.  Styles, 
vol.  ii.  p.  21.  Moveable  bonds,  like  other 
deeds,  may  be  granted  by  one  or  more  obli- 
gants,  who  may  bind  themselves,  either  jointly 
and  severally,  or  prorata  only ;  or  they  may 
be  granted  by  bodies  politic  ;  and,  like  every 
other  liquid  obligation,  may  be  ntade  the 
ground  of  the  diligence  of  adjudication  against 
the  debtor's  heritage.  Moveable  bonds  are 
transferred  by  assignation.  Since  the  date 
of  the  act  1661,  c.  32,  they  descend  in  all 
cases  to  executors,  and  are  taken  up  by  con- 
'firmation.  Prior  to  the  passing  of  that  ict, 
Wvhen  a  bond  bore  interest,  it  was  regarded 
as  a  quasi  feudum,  and  held  to  be  heritable 
in  questions  of  succession.  The  statute,  how- 
ever, altered  that-rule,  except  only  in  so  ^ 
as  regards  the  rights  of  husband  and  wife, 
and  the  fisk;  that  is  to  say,  the  principal 
sums  in  moveable  bonds,  in  questions  as  to 
the  legal  rights  of  husband  and  wife,  do  not 
form  part  of  the  goods  in  communion ;-  and  did 
not  fall  under  the  single  escheat  before  the 
abolition  of  that  casualty.  It  is  always  prac- 
ticable, however,  to  confer  an  heritable  cha- 
racter on  the  bond,  though  it  have  no  rela- 
tion to  a  particular  heritable  subject,  by 
merely  making  it  payable  to  heirs,  secluding 
executors ;  in  which-  case,  it  necessarily  be- 
comes heritable  by  its  own  terms,  and  not 
because  any  heritable  subject  is  impledged 
for  the  repayment.  See  Ersk.  B.  ii.  tit.  2, 
§  9,  et  seq. ;  Bell's  Princ.  §  63,  910,  4th  edit. ; 
Bell's  Illust.  §  68;  Jurid.  Styles;  Kame^ 
Princ.  of  Equity  (1825),  45,  281 ;  Ross's  Lec- 
tures, i.  1,  et  seq. 

Bond  of  Cantion ;  is  an  obligation  by  one 
person  as  surety  for  another,  either  that  he 
shall  pay  a-  certain  sum,  or  perform  a  certain 
act.  The  terms  of  this  bond  must  necessarily 
depend  upon  those  of  the  principal  obligation 
to  which  it  is  an  accessary.  In  the  ordinary 
case,  the  principal  debtor  and  the  cautioner 
are  taken  bound  in  the  same  deed;  but  it 
may  happen  that  the  obligation  by  the  cau- 
tioner is  undertaken  in  a  separate  -deed. 
Sepsu'ate  bonds  of  eautiob  are  necessary^ia 


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vwrioni  steps  of  judicial  procedui^, — as  in 
processes  of  suspension,  in  which,  in  the  ordi- 
nary case,  before  the  letters  are  expede,  the 
suspender  must  lodge  in  the  Bill-Chamber 
a  bond  of  caution  to  the  satisfaction  of  the 
opposite  party,  and  of  the  clerk  of  the  bills, 
containing  an  obligation  on  the  cautioner  to 
fulfil  the  decree  to  be  pronounced  in  the  cause, 
and  to  pay  whatever  damages  or  expenses 
may  be  awarded.  (See  SuspeHtion  and  Advo- 
eoHon,  also  CaiUioH.)  Judicial  caution  is  also 
required  to  be  found  in  loosing  arrestments, 
in  law-burrows,  by  tutors  and  curators  for 
the  faithful  discharge  of  their  duty,  and  in 
many  other  instances  which  need  not  be  enu- 
merated here,  Beir$  Com,  vol.  i.  p.  362,  et 
*eq. ;  ToL  ii.  pp.  69,  372,  5th  edit ;  BeU  on 
tMuet,  Tol.  ii.  pp.  312,  347,  355,  4th  edit ; 
Hutitei's  Landlord  and  Tenant;  Jurid.  Stylet; 
Dov't  Apptal  Case*,  i.  247, 272 ;  Mmut*  Con- 
IMfandng.     See  Cautioniy. 

Bond  of  Belief ;  is  a  bond  by  the  princi- 
pal debtor,  granted  in  favour  of  a  cautioner, 
declaring  the  nature  of  the  cautioner's  obli- 
gation, and  that  it  was  undertaken  solely  for 
behoof  of  the  grantor  of  the  bond  of  relief, — 
who  binds  himself  to  relieve  the  cautioner 
from  the  consequences  of  his  obligation. 
Sometimes  heritable  security  is  granted  to 
the  cautioner  for  his  relief,  or  the  friends  of 
the  principal  debtor  become  bound  along  with 
him  in  the  bond  of  relief.  See  examples 
of  such  bonds,  Jurid.  Stjilu ;  see  also  Memia' 
Convtjfandng. 

Bond  for  a  Caah-Credit  in  a  Bank. 
Where  heritable  security  is  not  granted  to 
the  bank,  this  is  a  simple  person^  bond  by 
the  person  in  whose  favour  the  credit  is 
granted,  and  his  cautioners,  who  are  in  the 
ordinary  case  bound  along  with  him  as  prin- 
cipal debtors  to  the  bank.  See  an  example 
of  such  a  bond,  Jvrid,  Style*.  As  to  the  man- 
ner of  granting  heritable  security  for  such 
credits,  see  Bank  Credits.  See  also  Menzie^ 
Convet/ancing. 

B<md  of  Corroboration.  A  bond  of  cor- 
roboration is  an  additional  obligation  granted 
by  the  debtor  in  a  bond,  by  which  he  cor- 
roborates the  original  obligation.  This  deed 
may  be  used,  1.  For  the  purpose  of  accumu- 
lating arrears  of  interest  into  a  principal 
sum,  and  adding  it  to  the  original  debt,  so 
as  to  make  the  whole  bear  interest.  2.  Where 
the  debtor  in  a  bond  dies,  his  heir  may 
grant  a  bond  of  corroboration  of  his  ancestor's 
debt,  which  will  save  the  expense  of  consti- 
tuting the  debt  against  the  heir.  3.  AVhere 
the  creditor  in  a  bond  dies,  the  debtor  may 
grant  a  bond  of  corroboration  to  his  heir, 
which  will  save  the  expense  of  a  confirma- 
tion, or  of  completing  a  title  in  the  person 
of  the  heir.    It  may  be  thooght  that,  in 


those  cases,  the  transaction  would  be  simpli- 
fied by  cancelling  or  discharging  the  old  bond 
and  taking  a  new  one  ;  but  it  is  to  be  ob- 
served, 1.  That  an  inhibition  which  might 
strike  at  a  new  bond,  of  the  date  of  the  bond 
of  corroboration,  may  have  no  effect  against 
the  original  bond ;  and,  2.  That  a  bond  of 
corroboration  may  fall  under  the  act  1696, 
c.  5,  in  case  the  grantor  should  become  bank- 
rupt within  the  sixty  days;  in  which  case,  the 
original  bond  must  be  resorted  to,  or  the  debt 
must  be  constituted  precisely  as  if  no  bond  of 
corroboration  had  been  granted.  See  ex- 
amples of  this  deed,  Jurid.  Styles,  See  alio 
Ersk.  B.  iii.  tit.  3,  §  60 ;  BeU's  Com.  vol.  i. 
pp.  531,  671 ;  vol.  ii.  pp.  5,  212,  5th  edit.; 
Brown's  Synop.  pp.  1064,  2569. 

Bond  of  Bottomry;  is  a  real  security 
ovei  a  ship,  granted  by  the  owner  or  by 
the  master,  for  payment  of  the  money  ad> 
vanced  for  the  outfit  of  the  vessel,  or  for  re- 
pairs. This  form  of  security  is  of  the  na- 
ture of  a  contract  of  hazard,  for  the  loan  is 
repayable  only  in  the  event  of  the  ship's  safe 
arrival  at  the  port  of  destination ;  and,  in 
consideration  of  this  risk,  the  lender  exacts 
a  certain  rate  of  premium,  greater  or  less, 
according  to  the  risk.  When  bonds  of  bot- 
tomry are  granted  by  the  owner  to  raise 
money  for  the  outfit  of  the  vessel,  they  are 
preferable,  according  to  the  priority  of  their 
dates.  But  when  they  are  granted  by  the 
master  in  foreign  ports  for  repairs  at  differ- 
ent periods  of  the  voyage,  the  last  in  date  is 
entitled  to  priority  in  payment.  It  is  pro- 
per to  attend  particularly  to  the  description 
of  the  voyage,  and  to  specify  the  ports  at 
which  the  vessel  is  to  touch,  so  as  to  avoid 
disputes  as  to  the  nature  of  the  risk.  See 
examples  of  this  bond,  Jurid,  Styles.  See 
also,  Ersk.  B.  iii.  tit.  3,  §  17 ;  BaiUc  vol.  i.p. 
399 ;  BeWs  Com.  vol.  i.  p.  630,  et  seq.  6th 
edit.;  Bell's  Princ.  §  452,  et  seq.  4th.  edit; 
BelPs  lUust, ;  Karnes"  Stat.  Law  Ahridg.  voce 
Bottomtree;  Shaw's  Digest;  Smith's  Maritime 
Prac,  129,  163;  Menzies'  C-onveyancinff. 

Bondof  Beapondentia;  is  a  bond  precisely 
similar  in  its  nature  to  a  bond  of  bottomry, 
except  that  the  security  is  given  over  the 
goo<u  on  board  of  the  vessel  instead  of  the 
vessel  itself.  See  Jurid.  Styles ;  BdPs  Com. 
i.  535,  5th  edit ;  Smith's  Prac.  136  ;  Menzies' 
Conveyancing.    See  Respondentia, 

Bond  of  Freientation;  is  an  obligation 
granted  for  behoof  of  a  person  in  custody  on 
a  legal  warrant,  in  order  to  obtain  his  tem- 
porary liberation.  The  obligant  in  such  a 
bond  becomes  bound  to  present  the  person  so 
liberated,  to  the  ofBcer  holding  the  warrant, 
at  a  particnlar  day  and  place.  A  failure  to 
produce  the  debtor  in  terms  of  this  obliga- 
tion will  subject  the  grantor  of  the  bond  in 


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falfilment  of  the  obligation,  for  tlie  non-per- 
formsDce  of  which  the  apprehension  had 
Ukm  place ;  «.  g.,  to  pay  the  debt  where  the 
debtor  has  been  relieved  from  custody  under 
a  caption,  or  to  produce  the  debtor  at  all 
diets  of  Court,  where  he  has  been  freed  from 
an  arrest  under  a  meditatio  fugee  warrant. 
Bot,  although  independently  of  express  sti- 
poktion,  this  is  the  legal  consequence  of  un- 
dertaking such  an  obligation,  it  is  usual,  in 
fornal  bonds  of  presentation,  to  insert  an 
expraes  clause  to  that  effect.  It  will  afford 
the  obligant  in  a  bond  of  presentation  no 
defeoce,  for  his  failure  to  implement  his  ob- 
ligation, to  allege  that  the  debtor,  during  his 
temporary  liberation,  has  obtained  a  sist  on 
« bill  of  suspension ;  or  has  retired  to  the 
Sanetaary ;  or  has  done  any  thing  to  evade 
the  presentation,  which  he  could  legally  have 
SToided  doing,  it  being  the  vei7  object  of  the 
bond  to  provide  against  acts  of  that  descrip- 
tioB.  On  the  other  hand,  it  is  equally  clear 
that  the  obligant  is  freed  by  the  intermediate 
death  of  the  debtor,  and  that  he  is  entitled 
to  have  implement  postponed  on  account  of 
the  debtor's  sickness,  or  any  other  inevi- 
table accident.  It  appears  also  to  be  clear, 
that  he  is  liberated,  by  the  debtor's  imprison- 
nent,  previoosly  to  the  time  of  presentation, 
OB  another  warrant,  for  by  that  means  the 
object  of  the  bond  is  accomplished,  and  the 
creditor  cannot  possibly  allege  detriment. 
There  is  an  old  case,  indeed  (Potstead  against 
&»<,  7th  July  1681,  Mot.  p.  1807),  in  which 
the  contrary  was  found  ;  but  the  ratio  of 
that  decision,  as  stated  in  the  rubric,  viz., 
"that  the  being  imprisoned  for  another 
debt  was  considered  to  be  the  act  of  the 
debtor,"  is  eridently  unsound  both  in  law 
ttd  in  reason ;  and  the  judgment  seems  to 
be  disapproved  of  by  later  authorities, 
(foff*  Com.  i.  385.)  The  most  effectual  form 
of  the  bond  of  presentation  is  a  deed  regu- 
larly tested  and  executed  on  a  proper  stamp, 
containing,  besides  the  clause  of  presenta- 
tion, a  specific  obligation  on  tho  granter  to 
pay  the  debt  in  case  of  failure  to  present, 
sad  a  clause  of  registration,  on  which  the 
ebligant  may  be  immediately  charged  with 
honing,  should  he  not  duly  implement  the 
pnneipal  obligation.  It  is  not  uncommon 
ia  practice,  however,  to  accept  of  a  simple 
letter  of  presentation  with  a  similar  clause ; 
h«t  Nch  a  letter  can  afford  a  ground  of  ac- 
^  enly,  and  is  no  warrant  tor  summary 
^igmee.  The  letter  ought  to  be  regu- 
"riy  tected ;  bot  an  informality  in  this  re- 
•peet  will  seldom  affect  its  validity ;  for  if 
the  debtor  has  been  liberated  on  the  faith 
«f  the  letter,  that  will  be  held  a  sufficient 
f"  i»ien«nbu;  and  the  objection  that  it 
is  Bst  regolarly  tested  will  not  avail ;  Dun- 


more  Cod  Company  against  Young,  1st  Feb. 
1811 ;  Foe.  CoU.;  Bdl's  Com.  i.  385  ;  BeU's 
Princ.  4th  edit.  §  277  ;  Bdl'$  Jllust.  ib. ; 
Broien's  Synop.  pp.  289,  341 ;  Shaw's  Digest ; 
Jurid.  Styles ;  Memies"  Conveyancing.  By  the 
Mercantile  Law  Amendment  Act  (1856),  it 
is  enacted  that  all  guarantees  or  cautionary 
obligations  shall  be  in  writing,  and  subscribed 
by  the  person  undertaking  the  guarantee  or 
cautionary  obligation. 

Bondlngp  of  Goods ;  is  the  depositing  of 
imported  goods  in  the  King's  cellars,  where 
they  remain  impledged  for  payment  of  the 
duties.  The  bonding  system  is  regulated  by 
the  statute,  43  Geo.  III.,  c.  132,  under  which 
the  King's  warehouse  may  be  regarded  »s 
the  warehouse  also  of  the  importer  of  the 
goods,  where  they  lie  at  his  risk  and  at  his 
disposal,  subject  only  to  the  King's  pledge. 
It  was  at  one  time  doubted  in  the  Court  of 
Session  whether  it  was  not  necessary  that  tho 
duties  should  be  paid  and  the  goods  actually 
taken  out  of  bond  and  delivered  to  the  buyer, 
in  order  to  complete  the  transfer.  But  it  is 
now  settled,  that  whether  the  duties  are  paid 
or  not,  an  order  of  delivery,  addressed  to  the 
keeper  of  the  King's  cellar,  accompanied  by 
notice  to  the  keeper  and  a  transfer  in  the 
cellar  books,  amounts  to  complete  delivery. 
See  BelVs  Com.  i.  186 ;  Shaufs  Digest. 

Bononun,  Cessio.    See  Cessio  Bonorum. 

Book  Debts ;  are  debts  by  open  account. 
Tho  proof  of  debts  of  this  description  may 
sometimes  be  attended  with  difficulty.  Tho 
evidence  of  furnishings  made  by  merchants 
and  retail  dealers  is  generally  parole ;  and 
the  creditor's  books,  together  with  the  evi- 
dence of  the  delivery  by  his  clerks  or  porters, 
will,  in  the  ordinary  case,  be  held  sufficient. 
If  delivery  cannot  be  proved,  it  would  seem 
that  circumstantial  evidence  of  various  kinds 
will  be  admitted  on  the  part  of  the  creditor ; 
and  it  has  been  held  that  the  books  of  a  re- 
gular merchant  afford  a  semiplena  probatio, 
to  the  effect  of  allowing  the  claim  to  be  sup- 
ported by  the  evidence  of  a  single  witness 
and  the  oath  of  the  merchant  in  supplement. 
Beirs  Com.  vol.  i.  p.  330 ;  BdN  Princ.  §  629  ; 
lUust,  ib.  For  the  steps  to  be  taken  by  a 
party  in  Scotland,  desirous  to  recover  a  debt 
due  to  him  in  England,  see  English  Debt. 
Claim. 

BooUjig  of  a  Prisoner  for  Bebt.  When 
a  debtor  has  been  apprehended  and  removed 
to  prison,  the  amount  of  the  debt  for  which 
he  is  incarcerated,  and  the  prisoner's  name, 
are  recorded  in  the  jail  books,  which  is  termed 
booking  the  prisoner.  This  record  was  origi- 
nally introduced  by  the  magistrates,  who 
were  formerly  keepers  of  the  prisons,  in  or- 
der to  inform  themselves  of  the  amount  of 
their  responsibility ;  and  it  is  the  jailer's,  not 


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the  creditor's,  duty  to  see  the  proper  entry 
made.  It  is  the  practice  to  enter  the  whole 
sum  of  debt ;  though  formerly  the  creditor  was 
safe  in  only  entering  a  part  of  it,  and  arrest- 
ing the  debtor  iu  prison  for  the  remainder. 
Formerly,  too,  it  was  necessary  to  pay  the 
jailer  a  fee  proportionate  to  the  sum  booked ; 
but  by  2  and  3  Vict.,  c.  42,  §  19,  all  jail  fees, 
of  every  description,  payable  to  the  keeper  or 
officers  of  prisons,  are  aJ>olished.  By  the  for- 
Itter  practice,  a  debtor,  after  being  once  en- 
tered, could  not  be  liberated  without  obtain- 
ing letters  of  relaxation  and  liberation  from 
the  King,  after  intimation  to  the  creditor, 
and  a  charge  to  the  magistrates  to  set  him  at 
liberty ;  but  now,  if  the  debtor  pay  the  debt 
as  it  stands  in  the  prison  books,  he  is  free. 
BeWs  Com.  ii.  554 ;  Ross's  Led.  i.  334,  343. 
See  Act  of  Grace ;  Breaking  of  Prison. 

Books  of  A^onrnaL  The  records  of  the 
Court  of  Justiciary.  In  these  books  are  en- 
grossed the  acts  and  regulations  of  the  Court 
qf  Justiciary,  and  the  relative  procedure ; 
and  in  other  respects,  the  books  of  Adjournal 
are  analogous  to  the  books  of  Sederunt  of  the 
Court  of  Session.  The  power  of  the  Court 
of  Justiciary  to  pass  acts  of  ac^ouroal  regu- 
lating the  procedure  of  the  court  is  conferred 
by  1672,  c.  16.  By  11  and  12  Vict.,  c,  79, 
§  7,  record  copies  of  proceedings,  instead  of 
being  transcribed  in  the  books  of  adjournal, 
may  be  inserted  therein. 

Books  of  Sedenmt.  The  books  in  which 
the  Acts  of  Sederunt  of  the  Court  of  Session 
are  recorded.  Besides  the  Acts  of  Sederunt, 
these  books  contain  the  names  of  the  judges 
present  at  each  meeting  of  the  court,  the 
dates  of  the  admission  of  the  judges,  clerks 
of  session,  and  other  officers  of  the  court,  ad- 
vocates, &c.  Formerly,  indeed,  most  of  the 
public  papers  of  importance  were  recorded 
in  these  books ;  and  even  matters  totally  un- 
connected witii  the  business  of  the  court, 
such  as  eclipses  and  other  remarkable  events. 
See  M'Kenzie's  Obs.  on  Stats,  p.  164.  See 
Acts  of  Sederunt. 

Boroh ;  in  old  law  language,  a  cautioner, 
pledge,  or  surety,  Skene,  h.  t. 

Border  Warrant ;  is  a  warrant  issued  by 
the  Judge  Ordinary,  on  the  borders  between 
Scotland  and  England,  on  the  application  of 
a  creditor,  for  arresting  the  person  or  effects 
of  a  debtor  residing  on  the  English  side  of 
the  border,  and  detaining  him  until  he  find 
caution  Jwlicio  sitti  {i.e.  that  he  shall  sist 
himself  in  judgment),  in  any  action  which 
may  be  brought  for  the  debt  within  six 
months.  The  creditor  applying  for  such  a 
warrant  must  swear  to  the  verity  of  the 
debt ;  and,  as  in  meditatio  fugw  warrants,  to 
which  these  warrants  are  analogous,  it  is  ne- 
cjBssary  to  examine  the.  debtor  as  to  tho.  ftiga 


before  warrant  to  incarcerate  is  granted ;  so 
in  border  warrants  it  is  proper  to  examine 
the  debtor  as  to  his  domicile,  &c.,  before  is- 
suing a  warrant  for  incarceration.  Very 
important  information  on  the  subject  of  bor- 
der warrants  will  be  found  in  LandeU,  26th 
January  1838,  16  S.,  388 ;  in  which  ease 
the  warrant  was  held  to  be  illegal,  and  the 
procedure  under  it  such  as  could  not  be  sanc- 
tioned, even  by  the  most  inveterate  usage. 
The  alleged  debtor  afterwards  brought  ac- 
tion of  damages  against  the  party  by  whom 
the  warrant  was  obtained,  and  the  party  (a 
Sheriff  clerk)  by  whom  it  was  granted,  and 
obtained  £500  damages  against  the  former, 
and  £300  against  the  latter ;  3  Z>.  819 ;  7 
D,  810.  In  the  House  of  Lords,  however, 
this  action  was  aftwwards  held  irrelevant,  in 
respect  that  the  summons  did  not  expressly 
aver  want  of  reasonable  skill  or  gross  negli- 
gence, or  show  facts  necessarily  raising  suck 
an  inference;  4  BeU,  App.  46.  See  Bar- 
clay's M'Glash.  Sher.  Court  Prae.  405  ;  ErA. 
B.  i.  tit.  ii.  §  21  ;  Bdl't  Com.  vol.  ii.  p.  658, 
5th  edit.    See  also  Meditatio  Fuga. 

Borongh-English  ;  in  English  law,  is  a  cus- 
tomary descent  of  lands  or  tenements,  whereby 
in  all  places  where  this  custom  holds,  lands, 
and  tenements  descend  to  the  youngest  son  ; 
or  if  the  owner  of  the  land  have  no  issue,  to- 
the  younger  brother.    Tomlini^  Diet.  h.  t. 

Borough  Laws.  This  name  is  given  to  a- 
collection  of  ancient  laws  relative  to  burghs. 
These  laws  are  not  considered  as  obligatory, 
but  are  useful  in  tracing  ancient  mannere 
and  customs.  Ersk.  B.  i.  tit.  i.  §  36.  See 
Reqiam  Majestatem. 

Borrowing ;  is  the  act  of  receiviag  in  loan. ' 
Contracts  of  loan  are  of  two  kinds,  viz.  mn- 
tuum  and  of  commodate.  The  former  of 
these  comprehends  the  loan  of  such  subjects 
as  are  consumed  in  the  act  of  using  them— 
such  as  corn,  wine,  money,  &c. ;  the  latter- 
is  that  kind  of  loan  in  which  the  borrower 
is  bound  to  restore  the  individual  subject' 
lent.    See  Mutimm.     Commodate. 

Bote ;  an  old  Saxon  word,  signilyii^  com- 
pensation or  satisfaction.    Skene^  h.  t. 

Bothna ;  according  to  Skene,  is  a  park ' 
where  cattle  are  fed  and  inclosed.     Skene,  h.  L 

Bottomry ;  Bond  of.   See  Bond  (fBottonuy. 

Bonght  and  Sold  Hole ;  in  English  law, 
where  a  note  of  sale  is  signed  by  a  broker  > 
employed  to  sell  a  parcel  oi  goods,  the  bar- 
gain  is  completed.    Bdl'*  Princ.  $  89. 

Boundii^  Charter  or  Infeftment ;  a  char- ' 
ter  or  infeftment  which  describes  the  lands 
by  their  meaths  or  marches.  Such  a  de- 
scription confers  right  to  all  within  the 
bounds,  and,  on  the  other  hand,  excludes 
what  lies  beyond.  No  prescription  can  con- ' 
fer  right  to  that  which  is  without  the  boon-' 


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iarj,  as  part  and  pertinent.  In  describing 
boundaries,  the  walls  surrounding  the  subject 
will  be  held  as  conveyed,  if  the  subject  be 
coo'ejed  with  the  walls  by  which  it  is  sur- 
ronnded.  If  it  be  described  as  bounded  by 
certain  walls,  the  walls  will  not  be  held  as 
eooveyed  ;  and  where  it  is  intended  that  the 
wall  is  to  be  mutual,  this  must  be  expressed. 
Stair,  B.  ii.  tit.  3,  §§  26  and  73 ;  Ersk.  B.  ii. 
tit.  6,  §  2,  «( seq.;  Bank.  i.  552  ;  BelPs  Prine. 
^136;  Bdlm  Purchaser's  Title,  35 ;  Dvff  on 
D(td* ;  Mtnzies  on  Conveyancing. 

Borata  Terra ;  an  oxengate  of  land;  some- 
times erroneously  written  davata  terrw,  Skene, 
Lt. 

Box-Day.  In  the  Court  of  Session,  box- 
days  are  two  days  appointed  by  the  Judges, 
in  aaeh  of  the  spring  and  autumn  vacations, 
and  one  day  in  the  Christmas  recess,  on  one 
or  other  of  which  days  papers  ordered  by  the 
Coort,  or  by  the  Lords  Ordinary,  towards  the 
(lose  of  the  preceding  session,  are  usually 
appointed  to  be  lodged.  The  first  box-day 
is  abo  the  day  on  which  interlocutors  pro- 
noonced  by  any  of  the  Lords  Ordinary, 
within  fewer  than  twenty-one  days  of  the 
close  of  the  session,  become  final,  unless  a 
reclaiming  note  be  boxed,  as  it  is  termed,  on 
.  tiie  first  box-day.  See  Reclaiming  Note.  In 
terms  of  2  and  3  Vict.,  c.  36,  §  13,  and 
A.  S.  8th  August  1839,  §§  6, 7,  summonses 
may  be  called  at  either  of  the  box-days  in 
the  autumn  vacation,  the  defences  being 
retamed  at  the  second  box-day,  or  at  the 
meeting  of  the  Court  in  November  respec- 
tirely;  and  by  13  and  14  Vict,  c.  36, 
{ 54,  the  Court  is  empowered  to  make  re- 
gulations by  Act  of  Sederunt  for  allowing 
ummonses  and  notes  of  advocation  and 
nupension,  &&,  to  be  called  at  any  box-day 
in  raeation  or  recess,  and  making  defences 
retomable  at  such  box-days,  or  on  the 
meeting  of  th«  Lords  Ordinary,  or  of  the 
.Conrt.  after  vacation  or  recess.  The  same 
«tat«te,  by  §  8,  allows  the  production  in  re- 
ductions to  be  satisfied  on  any  of  the  box- 
dajs  in  vacation  or  recess  ;  and  by  §  27,  di- 
ligences inay  be  reported  on  any  of  the  box- 
daya.  In  the  inferior  courts,  also,  it  is 
enacted  by  16  and  17  Vict^  c.  80,  §  46,  that 
the  Sheriff  shall,  before  the  termination 
of  each  session,  appoint  at  least  one  court- 
day  during  each  vacation  for  the  despatch  of 
all  ordinary  civil  busbess,  including  the  call- 
ing of  new  causes,  and  the  receipt  of  conde- 
Keodences,  defences,  and  other  papers,  whi<A, 
if  the  Court  had  not  been  in  vacation,  would 
hare  required  to  be  previously  lodged.  See 
Sherif-Court. 

Breach  of  Arrestnunt ;  is  the  contempt  of 
the  law,  committed  by  an  arrestee  who  dis- 
/tgards  the  arrestment  used  in  bis  hands,  and 


pays  the  sum,  or  delivers  the  goods  arrested, 
to  the  common  debtor.  The  person  guilty  of 
breach  of  arrestment  was  formerly  liable  to 
a  prosecution  both  civil  and  criminal.  The 
criminal  action  was  competent  either  before 
the  Court  of  Session  or  the  Court  of  Justi- 
ciary ;  the  punishment  was  arbitrary,  with 
escheat  of  moveables,  out  of  which  the  debt 
of  the  arrestee  and  damages  were  given. 
There  is  no  example  in  modern  times  of  such 
a  prosecution.  The  civil  action  is  for  pay- 
ment of  the  debt  a  second  time  by  the  ar- 
restee, and  for  damages  to  the  arrester, 
though  even  this  rigour  is  not  now  counte- 
nanced ;  and  at  present  the  only  conse- 
quence of  breach  of  arrestment  is,  that  the 
person  guilty  of  it  is  liable  in  damages  to 
the  extent  of  the  funds  paid  away,  and  the 
expenses  ;  Grant,  27th  Feb.  1792  ;  Mor.  p, 
786.  Where  goods  are  arrested,  and  the 
arrestment  loosed  on  caution,  if  the  goods 
themselves  cannot  be  restored,  or  their  value 
cannot  be  clearly  ascertained,  the  cautioner 
is  held  to  be  liable  for  the  debt.  Stair,  B.  i. 
tit.  9,  §  29  ;  B.  iv.  tit.  49,  §§  3,  7  ;  Move's 
Notes,  p.  ccxc ;  Ersk.  B.  iii.  tit.  6,  §  14 ;  B. 
iv.  tit.  4,  §  36  ;  Bank.  vol.  i.  p.  290  ;  Bar- 
clays M'Glash.  Sher.  Court  Prac.  380  ;  Jurid, 
Styles,  2d  edit.  vol.  iii.  p.  101 ;  Menzie^  Con- 
veyancing, 307.     See  Arrutment. 

Breach  of  Trust.  The  distinction  between 
{heft  SLaAhr each  oftrust,\a  often  exceedingly  nar- 
row ;  Climie,  21st  May  1838,2  Swinton,  118  ; 
but  of  late  years  the  tendency  of  the  Court 
has  been  to  bring  under  the  category  of  theft 
various  offences,  the  species  facti  in  which  ap- 
peal's to  have  been  held  by  our  earlier  con- 
stitutional writers  to  amount  only  to  breach 
of  trust.  See  Hume,  i.  58,  et  seq. ;  Alison's 
Pnnc.  354 ;  Burnett,  112 ;  Steele,  114.  Ac- 
cordingly, in  the  case  of  Brown,  3d  July  1839, 
2  Swinton,  394,  the  principle  was  adopted 
and  enforced,  that  where  a  person  holding 
property  is  the  mere  hand  for  detaining  or 
transmitting  it,  without  any  permanent  man- 
date or  right  of  administration,  and  is  bound 
to  give  over  such  property  in  forma  specifica, 
appropriation  by  that  holder  is  theft ;  while, 
on  the  other  hand,  where  the  holder  has  a  right 
of  management,  or  a  power  to  exchange,  or  to 
account  for  the  property  or  an  equivalent, 
the  appropriation  of  the  property  or  its  pro- 
ceeds falls  under  the  nomen  juris  of  breach  of 
trust.  In  Brown's  case,  therefore,  the  appro- 
priation by  a  watchmaker  of  a  watch  left  with 
him  to  be  cleaned  or  repaired,  was  held  to  be 
tA^jLord  Mbadowbawk  observing: — "  When 
a  party  puts  his  watch  into  the  hands  of  a 
watchmaker  to  be  cleaned  or  repaired,  he 
only  parts  with  the  custody, — the  possession  of 
the  watch  is  the  possession  of  the  owner, — 
and  the  watchmaker,  in  appropriating  il^, 


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takes  it  out  of  the  lawful  posiessiou  of  the 
owner,  and  so  is  guilty  of  theft."  On  the 
other  hand,  it  is  not  theft,  but  breach  of  trust, 
where  a  pawnbroker  appropriates  arUcles 
pledged  with  him.  In  this  case,  the  posses- 
sion of  the  pawnbroker  is  not  a  limited  and 
temporary  custody ;  but  the  act  of  pledging 
gives  him  a  title  to  the  articles  themselves, 
which  by  lapse  of  time  becomes  absolute,  and 
enables  him  to  sell  and  to  give  a  valid  right 
to  all  the  world ;  Groigrove  or  Bradla/,  6th 
Feb.  1850  ;  Skato't  Just.  Cases,  301.  Re- 
ference may  be  also  made  to  the  following 
cases  -.—Field,  Jan.  22,  1838,  2  SwinUm,  24, 
where  a  clerk,  who  had  appropriated  money 
delivered  to  bo  paid  to  a  particular  person, 
was  held  guilty  of  th^. — Michie,  Jan.  28, 
1839,  2  Swint.,  319,  where  it  was  held  that 
a  person  who  had  received  a  bank-note  to  get 
change,  and  who  ampropriated  the  note,  com- 
mitt«d  th^t.—SmiA  v.  lftsA<ir<,May  18, 1842, 
Broun,  342 ;  where  the  appropriation  by  a 
bank-teller  of  monev  intrusted  to  him  in  that 
capacity,  was  unanimously  held  to  be  ik4fl. 
Such  a  person  has  no  power  of  administration, 
his  duty  being  simply  to  pay  and  receive  the 
money  of  the  bank,  in  the  bank's  possession, 
and  within  their  premises.  He  has  no  right 
to  alter  the  form  or  condition  of  the  money 
intrusted  to  him,  and  he  is,  in  fact,  trusted  no 
farther  than  he  has  access  to  it.  Again,  in 
Watt  r.  Home,  8th  Dec.  1851 ;  Shaw's  Just. 
Rep.  519,  it  was  held,  that  where  yam  is 
given  to  a  workman,  for  the  purpose  of  his 
weaving  it  into  a  web,  he  is  guilty,  not  of 
breach  of  trust,  bnt  of  theft,  if  he  appropriate 
the  yam  to  his  own  use.  In  thia  ease,  the 
LoBD  Jvstick-Clbrk  Hopb  observed — "  I 
hare  ever  been  of  opinion  that  theft  under 
trast  was  a  known  crime,  and  that  the  pro- 
perty being  under  trust  constituted  the  offence 
an  aggravated  charge  of  theft,  and  the  distinc- 
tion was  again  pointed  out  between  such  a  case 
and  one  of  pledge.  The  weaver  holds  the  yam 
for  a  special  purpose  as  his  employer's  servant, 
and  has  no  separate  possession  of  his  own.  The 
pledger,  on  the  other  hand,  parts  with  a  pro- 
perty in  the  goods,  and  the  broker  acquires, 
by  force  of  special  contract,  jus  proprium  in 
them ;  so  that  not  only  cannot  the  pledger 
rcdemand  them,  bnt  he  may  even  steal  them 
from  the  pawnbroker.  See  also,  BeWs  Supp. 
to  Hume,  pp.  8-17. 

Breach  of  trust  may  be  committed  by  a 
person  in  whom  no  trust  is  reposed,  if  he  be 
art  and  part  in  the  crime  of  one  who  is  trusted. 
The  punishment  of  breach  of  trust  varies 
from  imprisonment  for  a  few  months  to  penal 
servitude.    See  Theft. 

Breaking  Bulk ;  or  making  use  of  an  ar- 
ticle, debars  a  buyer  from  afterwards  object- 
ing to  it,  and  returning  it  to  the  seller. 


BeWs  Prine.  3d  edit,  §  99,  andaaAcrities&ere 
cited ;  lUust.  ib. 

Brealdiig  Indorares.  There  are  several 
statute  for  the  encouragement  of  plantiogand 
inclosing,  which  provide  for  the  punishment 
of  those  who  destroy  planting  or  break  indo- 
snres,  or  who  allow  their  catUe  to  do  so.  The 
penalties  are  pecuniary,  with  right  to  detaia 
cattle  found  trespassing,  until  the  fine  is  psid, 
along  with  the  damage  and  expense.  The 
chief  statutes  are  1661,  e.  41,  and  1685,  c 
49.  Ersk.  B.  iv.  tit.  4,  §  39  ;  Hume,  i.  82, 
124.    See  Planting  and  Inmsing. 

Breakiiig  of  Priioa ;  is  the  crime  of  es- 
caping out  of  prison.  In  order  to  constitnte 
this  crime,  it  is  necessary  that  the  perwn 
guilty  of  it  shall  have  escaped  out  of  a  lawfil 
prison,  in  which  he  was  confined  on  a  legal 
warrant,  whether  as  a  criminal,  or  as  a  per> 
son  accused  of  a  crime,  or  as  a  debtor.  It 
makes  no  diflferenc«  whether  the  offence  has 
been  committed  by  violence  or  by  corrupting 
the  jailor.  The  punishateat  is  arbitrary,  and 
must  neceasarily  be  regulated  by  the  circum- 
stances attending  the  commission  of  the  crime; 
Hume,  i.401 ;  B^s  Notes;  Alison's Prin. 555. 
Where  a  debtor  made  his  escape,  the  magit- 
tratesof  the  burgh  were  formerly  liable  for  the 
debt,  whether  the  insnfiSciency  of  the  prisoa, 
or  the  carelessness  of  the  jailor  had  led  to  the 
escape.  But  if  the  debtor  escape  in  the  night- 
time by  the  use  of  instruments,  or  by  open  force, 
or  byany  accident  which  could  not  be  justlyia- 
puted  to  the  magistrates  or  the  jailor,  Erdiine 
holds  that  the  magistrates  were  not  liable,  if 
they  could  prove  that,  immediately  on  the 
escape  being  discovered,  they  made  all  neces- 
sary search  for  the  debtor ;  Ersk.  B.  iv.  tit.  3, 
§  1 4.  It  follows  that  the  magistrates  were  not 
liable  if  the  escape  had  been  effected  by  supe- 
rior external  force,  but  the  onusprtbandi  lay 
with  the  magistrates  to  prove  such  force,  as 
well  as  their  own  vigilance,  and  their  prompt 
pursuit  of  the  debtor  .-^airs  Cbm.  vol.ii.p.551. 
By  the  act  2  and  3  Vict.,  c.  42,  passed  to 
improve  prisons  and  prison  discipline  in  Scot- 
land, the  magistrates  are  now  relieved  of  all 
obligations  respecting  prisons  and  prisoners ; 
and  the  funds  authorised  to  be  levied  under 
the  act,  are  declared  not  to  be  liable  for  the 
escape  of  prisoners,  reserving  action,  however, 
against  the  jailor  for  any  neglect  on  his  part 
touching  their  custody.  An  attempt  to  break 
prison  is  a  relevant  point  of  dittay. 

Breve ;  a  word  used  in  theold  law  language 
of  Scotland,  and  also  in  the  civil  law,  signify- 
ing a  short  compendious  writ.  Breve  testatum 
is  a  writ  or  instrument  subscribed  by  a  notary 
public.    See  Skene,  k.  t.    See  Brieves. 

Breve  de  morte  anteeessoris ;  the  brieve  of 
moriancestrie.  It  is  from  this  ancient  brieve 
that  the  modem  law  concerning  the  service 


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of  heirs  u  derived.  See  a  full  account  of  the 
more  ancient  form,  which  in  all  essential  par- 
ticalsn  reumbles  and  illustrates  the  prevail- 
ing practice,  in  Skene,  h,  t.    See  also  Service. 

Breve  de  recto;  the  brieve  of  right  was 
anciently  used  before  the  Jastice-Qeneral  on 
the  decision  of  the  gronnd-right  and  property 
of  knds,  and  the  reduction  of  infeftmeuts ; 
transferred  to  the  Lords  of  Conncil  and 
Session  as  early  as  the  period  of  the  Regiam 
MiuetUUem.    Skene,  h.  t. 

Brere  de  wna  dissasina ;  in  the  Regiam 
Majatalem  this  means  the  brieve  or  summous 
of  ejection  or  spulzie.    Sketu,h.t. 

Snre  de  divitis  faeiendis ;  the  brieve  of 
dirisioD.    Skene,  h.  t. 

Snv«  Tettatnm.  The  hreve  teetaium  was 
so  acknowledgment  in  writing,  which,  by  the 
ancient  practice,  was  made  out  on  the  lands, 
at  the  time  of  giving  possession  to  the  vassal, 
and  attested  by  the  seals  of  the  superior,  and 
p»a  atria ;  afterwards  the  breve  teiiatum  was 
ligned  by  the  superior  wherever  he  happened 
to  be,  and  possession  was  given  separately  by 
the  uperior's  bailie ;  Erek.  B.  ii.  tit.  3,  §  17 ; 
Mt  Prmc  4th  edit.  §  757 ;  Bell  on  Pur- 
dmei'e  Title,  p.  3,  2d  edit. ;  Ross's  Lect.  ii. 
121,  et  teq. ;  Menziea  on  Conveyancing. 

SravM  Pleadable ;  are  all  snch  breves  as 
art  pnrsued  and  defended  by  an  ordinary 
form  of  process  before  a  competent  judge, 
■here  there  may  be  a  pursuer  and  defender. 
SMe,h.t. 

Brevi  Xaaa ;  is  an  expression  used  to  sig- 
nifj  the  performance  of  an  act  by  a  party  on 
his  own  authority.  Thus,  for  example,  it 
vai  anciently  the  practice  in  Scotland  for  an 
heritable  pr(^>rietor,  on  his  own  authority, 
to  poind  his  tenant's  moveables  for  payment 
of  his  rent,  without  applying  to  any  other 
jadge.  The  landlord,  in  like  manner,  exer- 
eind  the  power  of  hrevi  uuxnu  removal  when 
his  tenant  refused  to  remove  at  the  stipulated 
term.  The  practice  of  poinding  or  detaining 
cattle  found  trespassing  seems  to  be  a  re- 
mainder of  the  brevi  manu  poinding.  Brevi 
MRK  in  the  Roman  law  is  usually  applied  to 
a  kind  of  constructive  delivery.  A  thing  is 
aid  to  be  transferred  by  brevi  mamu  tradition, 
<rhen  it  has  been  previously  in  the  buyer's 
poaesBion  on  some  other  title,  as  pledge  or 
lean.  Some  interesting  historical  details 
connected  with  tliis  subject  will  be  found  in 
Rat^t  Leetura,  vol.  i.  p.  385.  See  also 
Kamtf  Stat.  Law  abridg.  Lu;  Bell  on  Leases, 
»oL  i.  p.  367  ;  ii.  28 ;  Hmtet's  Landlord  and 
Tenant,  p.  719  ;  Broum's  Si/nop.  h.  L ;  Shaufs 
Diee^t;  Ross's  Lett  ii.  610. 

Brewing.  Anciently  the  right  of  brewing 
was  given  by  a  license  from  the  superior,  and 
tliere  was  generally  a  clause  in  the  charter 
aim  Imurits.    But  neither  this  clause  nor  a 


license  is  now  held  to  be  necessary  to  entitle 
a  feuar  to  brew  for  his  own  use.  A  person, 
however,  with  a  right  of  barony  may  prevent 
a  feuar  or  a  stranger  from  importing  and 
vending  ale  within  the  barony  without  his' 
license.  Ersk.  B.  ii.  tit.  6,  §  8  ;  Stair,  B.  ii. 
tit.  3,  §  72  ;  Bank.  vol.  i.  p.  592 ;  Broum's 
Synop.  pp.  3,  371,  2356. 

Bribery ;  is  the  offering  or  taking  of  a  re- 
ward, unduly  to  influence  the  conduct  of  the 
person  receiving  it  in  the  exercise  of  his  duty. 
This  is  an  offence  of  peculiar  atrocity,  when 
it  extends  to  the  administration  of  justice. 
The  punishment  of  the  crime,  when  committed 
by  a  Judge  of  the  Court  of  Session,  is  infamy, 
loss  of  ofllce,  confiscation  of  moveables,  and  an 
arbitrary  punishment  in  the  prison  ;  1579,  c. 
93.  And  there  are  many  enactments  directed 
against  inferior  judges  who  may  be  guilty  of 
this  offence.  See  Hume,  i.  407  ',  Bank.  vol.  ii. 
p.  480  ;  Bdrs  Princ.  §§  36,  37  ;  Karnes'  Stat. 
Law  abridg.  h.  t ;  Mac/arlan^s  Jury  Practice, 
p.  156  ;  Jurid  Styles,  2d  edit.  vol.  iii.  p.  235  ; 
Karnes'  Print,  of  E^ity  (1825),  311.  As  to 
bribery  at  parliamentary  elections,  see  17 
and  18  Vict.,  c.  102 ;  the  "  Corrupt  Prac- 
tices Prevention  Act,  1854."  See  also  Elec- 
tion Law.   Baratry. 

Bribery  OatlL ;  an  oath  formerly  required 
from  any  parliamentary  elector  when  attend- 
ing to  vote  in  the  election  of  a  member  of 
Parliament.  If  required  on  the  part  of  a 
candidate,  the  polling  Sheriff  will  put  the 
oath  or  affirmation  of  bribery  to  any  regis- 
tered voter  before  he  poll ;  3  WilL  IV.  c. 
66,  §  26.  It  was  in  these  terms : — "  I,  A.  B. 
do  solemnly  swear  (or  affirm  if  a  Quaker), 
that  I  have  not  received  or  had,  by  myself,  or 
any  person  for  my  use  or  benefit,  any  sum  or 
sums  of  money,  office,  place,  or  employment, 
gift  or  reward,  or  any  promise  or  security  for 
any  money,  office,  or  gift,  in  order  to  give  my 
vote  at  this  election." 

This  oath  is  now  abolished  by  the  "  Cor- 
rupt Practices  Prevention  Act,  1854,"  17 
and  18  Vict.,  c.  102,  Schedule  A.  See  Re- 
form Act.    Affirmaiion. 

Briere.  A  brieve  is  a  writ  issuing  from 
Chancery,  in  the  name  of  the  king,  addressed 
to  a  judge,  ordering  trial  to  be  made  by  a 
jury  of  certain  points  stated  in  the  brieve. 
These  writs  seem  at  one  time  to  have  been 
the  foundation  of  almost  all  civil  actions  in 
Scotland  {Stair,  B.  iv.  tit.  1,  §  2) ;  but  it  is 
in  the  election  of  tutors  to  minors,  the  cog- 
noscing of  lunatics  or  of  idiots,  and  the  ascer- 
taining the  widow's  terce,  and  sometimes  in 
dividing  the  property  belonging  to  heirs-por- 
tioners,  that  brieves  are  now  in  use.  The 
brieve  of  perambulation,  which  was  in  use 
long  after  the  institution  of  the  Court  of 
Session,  by  which  all  questions  relative  to 


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inarches  were  settled,  is  now  supplied  by  a  de- 
claratory action  ;  and  the  apprising  of  land, 
which  proceeded  before  a  jury,  was  conrerted 
into  an  action  before  the  Court  by  the  sum- 
Dions  of  adjudication.  {See  Adjudication.)  The 
.brieve  of  inquest,  till  lately  in  use  in  all 
cases  of  service  of  heirs,  was  abolished  by  10 
and  11  Yict^  c.  47,  and  is  now  superseded  by 
the  petition  of  service.  (See  Service.)  Bank. 
vol.  ii.  p.  554 ;  BeWs  Com.  vol.  i.  p.  4,  5th 
«dit. ;  Belts  Prin. ;  Karnes'  Stat.  Law  Ahridg. 
h.  t;  Hutch,  Justice  of  Peace,  vol.  i.  p.  165, 
2d  edit. ;  Watson's  Stat.  Law,  h.  t. ;  Jurid. 
jS(yfe»,  4th  edit.  vol.  i.  p.  278,  et  seq. ;  vol.  iii. 
p.  1 ;  Kames'  Prine.  of  Equity  (1825),  94. 

Brieve  of  Inquest.— The  principal  object 
of  this  brieve  was  to  reqoire  the  Judge  to 
whom  it  was  directed  to  ascertain,  by  a  jury, 
whether  the  pei'son  who  applied  for  it  was  heir 
to  a  person  deceased.  It  was  executed  edict- 
ally  by  the  officer  or  the  Judge  to  whom  it  was 
directed;  and  fifteen  days  elapsed  between 
the  date  of  executing,  or  proclaiming  the 
brieve,  and  the  service.  The  jury  was  not 
summoned  :  it  might  be  taken  without  any 
'previous  intimation,  and  consisted,  in  modern 
practice,  of  fifteen  persons.  The  inquest 
being  set,  in  presence  of  the  Judge,  the 
blaim  of  the  heir  was  presented  along  with 
the  brieve  and  executions.  The  heir  also 
produced  the  necessary  evidence  of  those 
heads  of  the  brieve  which  he  was  called  on 
to  prove.  Having  proved  or  verified  his 
claim,  the  inquest  or  jury  served  the  claimant 
Jieir  in  the  particular  claimed  and  proved; 
and  their  sentence  was  attested  by  the  Judge, 
and  retoured  by  the  clerk  of  the  Court  to 
Chancery,  from  which  an  extract,  properly 
authenticated,  was  obtained,  termed  an  cx- 
tract-retour  of  the  service.  The  brieve  re- 
mained in  every  case  the  same,  excepting  in 
the  description  of  the  character  of  heir ;  but 
the  points  or  heads  of  the  brieve  were  dif- 
ferently answered  in  the  general  and  in  the 
special  service.  A  petition  of  service  is  now 
substituted  for  the  brieve  of  inquest,  and  the 
former  procedure  is  repealed  by  10  and  11 
Vict,,  c.  47  (1847).     See  Service. 

Brieve  of  Tutory. — The  object  of  this  brieve 
is  to  serve  the  nearest  agnate  tutor-at- 
Jaw.  It  is  issued  from  Chancery  in  the 
king's  name,  and  is  directed  to  any  Judge. 
The  heads  of  it  are,  1.  Who  is  the  next  male 
agnate  of  the  full  age  of  twenty-five  years, 
«nd  entitled  to  succeed  to  the  pupil  on  his 
death  ?  2.  Whether  the  agnate  be  attentive 
to  his  own  affairs  ?  3.  Whether  he  be  next 
in  succession  to  the  pupil,  in  the  event  of  his 
death  ?  4.  Who  is  the  next  cognate  ?  The 
first  of  these  heads  only  is  inquired  into. 
After  the  brieve  is  taken  out  of  Chancery,  it 
is  executed,  upon  fifteen  days'  warning,  at  the 


market-cross  of  the  head-  borough  of  the 
Judge's  jurisdiction  to  whom  it  is  directed, 
against  all  and  sundry.  After  the  service  is 
returned,  a  letter  of  tutory  is  expede  under  th» 
quarter  seal  in  favour  of  the  tutor,  and  is  his 
title  to  act.  Stair,  B.  iv.  tit.  3,  §  6  ;  Morit 
Notes,  p.  xliv.;  Ersk.  B.  i.  tit.  7,  §  6  ;  Mt 
Princ.  §  2079 ;  Jurid.  Styles,  4th  edit.  vol.  i. 
p.  303.     See  Tutor. 

Brieves  ofldiotry  and  Furiosfty.— The  forms 
of  these  two  brieves  are  very  much  alike.  They 
are  directed  to  thejudge-ordinary  of  thebonndi 
within  which  the  person  to  be  cognosced  re- 
sides, orto^the  Sheriff  of  Edinburgh,  consti- 
tuted a  commissioner  for  that  purpose  as  She- 
riff in  that  part ;  and  the  jury  are  directed  to 
inquire — 1.  Into  the  state  of  the  person.  2. 
Who  is  the  next  male  agnate  on  whom  the 
office  of  curatory  may  be  conferred  ?  In  the 
brieve  of  idiotry,  the  direction  is,  to  inquire 
Whether  the  person  be  of  an  unsound  miod, 
furious,  and  naturally  an  idiot?  In  the 
brieve  of  furiosity  it  is.  Whether  he  be  of 
an  unsound  mind,  prodigal,  and  furious  %  viz., 
who  has  neither  time  nor  measure  in  his  ex- 
penses, but  squanders  his  estate  by  profusion; 
"  Qui  neque  tempus  nee  modum  impensarm 
hahet,  std  hona  dilacerando  profunda."  The  ver- 
dict of  the  jnry  is  returaed  to  Chancery,  and 
becomes  the  warrant  for  letters  of  curatory. 
Stair,  B.  i V.  tit.  3,  §  7  ;  Ersk.  B.  i .  tit  7,  §  49 ; 
BdPs  Prine.  §  2107;  Brown's  Syn<^.  p.  W9; 
Jurid,  Styles,  4th  edit.  vol.  i.  p.  308,  rf  teq. , 

Brieve  of  Teree. — The  object  of  this  brieve 
is  to  cognosce  the  widow  to  her  terce.  It  is 
directed  to  the  Sheriff  of  the  county  where  the 
lands  lie ;  and  the  jury  are  directed  to  in- 
quire—1.  Whether  the  claimant  was  the  kw- 
ful  wife  of  the  deceased?  and  this  is  presnmed, 
if  she  was  habit  and  repute  his  wife.  2. 
Whether  the  husband  died  infeft  in  the  lands? 
which  is  proved  by  production  of  the  hns- 
band's  sasines.  This  is  not  a  retouraWe 
brieve.  The  sentence  of  the  jury  serves  the 
widow  to  her  terce  ;  and  it  is  the  duty  of  the 
Judge  to  "ken"  her  to  it,  by  dividing' the 
lands  between  her  and  the  heir.  Stair,  B.  iv. 
tit.  3,  §  11 ;  Sandford  on  Heritable  Suecestim, 
vol.  ii.  p.  114 ;  Jurid.  Styles,  4th  edit.  vol.  i. 
p.  325,  et  seq.     See  Terce. 

Brieve  of  Division  amongst  Heirs- Portimers. 
— An  heir-portioner  who  wishes  to  separate 
her  share  of  the  lands  to  which  she  succeeds, 
from  that  belonging  toanotherheir-portioner, 
must  apply  to  Chancery  for  a  brieve,  directed 
to  the  Sheriff  of  the  county  in  which  the  lands 
lie.  This  brieve  is  proclaimed  at  the  mar- 
ket-cross, and  also  served  upon  the  parties 
concerned;  and,  at  the  diet  appointed,  the 
rights  and  allegations  of  the  parties  being 
settled,  the  Judge  remits  to  an  inquest  of  fif- 
teen persons  to  measure  the  land  and  make  a 


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^risioo.  The  jury  report  to  the  Judge ;  and 
lots  being  cast  for  the  different  shares,  the 
Judge  decerns  in  the  division,  and  ordains 
possession  to  follow  in  terms  of  it.  An  ex- 
tract of  the  decree  is  held  conclusive,  and 
maj  be  inforced  by  the  authority  of  the  Judge. 
Tbls  form  is  now  but  seldom  resorted  to,  the 
parties,  in  general,  settling  the  matter  extra- 
jadieiallybyarbitration,  or  otherwise byaction 
de  cemmuni  dividundo.  Jurid.  Styles,  vol.  i.  p. 
22i;  Stair,  B.  iv.  t.  3,  §  12 ;  BeU's  Princ. 
\  1081 ;  Skand's  Frac.  605  ;  Sand/ord  on 
HeritabU  Sttccestion,  vol.  i.  p.  21,  et  seq. 

Briere,  Advocation  of.  See  Advocation  of 
Briaa ;  Jurid.  Styles,  i.  313,  4th  edit. 

Biitish  Statatos ;  are  the  statutes  of  the 
British  Parliament.  Formerly,  all  British 
{tatutes  were  held  to  be  of  the  date  of 
the  first  day  of  that  session  of  Parliament 
in  which  they  were  made  ;  but  now,  by  33 
Geo.  III.,  c  13,  it  is  enacted,  that  from  and 
after  April  8,  1793,  the  Clerk  of  Parliament 
thall  endorse  in  English,  on  every  act,  the 
time  when  it  receives  theroyal  assent ;  which 
is  declared  to  be  the  date  of  its  commence- 
sKot,  unless  another  period  of  commencement 
be  mentioned  in  the  body  of  the  act.  Ersk. 
B.i.tl,§37.  See  Assent  Ro»^.  ActofPar- 
Ument. 

,  Brocage ;  is  properly  the  hire  or  commis* 
sion  due  to  a  broker  .for  managing  a  trans- 
aetion.  Brocage  contracte(as  they  are  termed), 
bj  which  a  reward  is  stipulated  for  the  pro- 
motion of  a  particular  marriage,  by  means  of 
inSaence  to  be  exerted  over  one  of  the  par- 
ties, are  held  to  be  contra  honos  mores,  and  can 
afford  no  ground  of  action.  BeWs  Com.  vol. 
i.p.302;  Bank.  I.  114. 

Brooards ;  law  maxims,  founded  on  inve- 
terate custom,  or  borrowed  from  the  Roman 
law,  and  accoiuted  part  of  our  common  law  ; 
ssch  is  the  maxim.  Jus  superveniens  auctori 
tecraeit  suecessori ;  and  many  others.  Bank. 
i.  24.    See  Maxims. 

Broccarii  In  the  ancient  law  language 
of  Scotland,  these  are  described  as  lockers, 
brokers,  mediators,  or  intercessors  in  any 
transaction,  paction,  or  contract,  as  in  buying 
and  selling,  or  in  contracting  marriage.  In 
tb«  civil  law,  they  are  called  Proxenetce. 
Skene,  k.t. 

Broker.  A  broker  is  a  person  who  nego- 
tiates sales  of  goods  and  other  mercantile 
transactions,  as  agent  for  another,  for  which 
he  exacts  a  certain  fee  or  reward  from  the 
party  for  whom  he  acts.  BeU's  Com.  vol.  i. 
p.  599,  el  teq. ;  vol.  ii.  p.  120,  et  seq.  6th  edit. ; 
MtPrine.  2d  edit.  §  89, 1461 ;  BeU's  Blust. 
§  1451 ;  Smini.  Ahridg.  h.  t. ;  Brown's  Synop. 
p.  1251.    See  Factor. 

Bubble  Act.  By  the  statute  which  went 
under  this  name,  and  which  was  passed  in 


1720,  joint-stock  companies  were  prohibited 
as  prejudicial  to  the  public ;  but  there  were 
difficulties  attending  the  construction  of  the 
act,  and  it  does  not  seem  to  have  been  obser- 
ved. .  It  was  repealed  in  1825.  Bell's  Princ. 
3d  edit.  S  399  ;  Bell's  Illust.  ib. ;  Shaw's  Digest, 
p.  325,  §  18.     See  Joint-stock  Companies. 

Bull ;  a  brief  or  mandate  by  the  Pope. 
By  13  Eliz.  c.  2,  the  procuring,  using,  or 
publishing  bulls  is  declared  to  be  high  trea- 
son ;  and  by  7  Anne,  c.  21,  §§  1-3,  the  Eng- 
lish treason  laws  are  extended  ;to  Scotland. 
Ros^s  Lect.  ii.  102. 

Bullion;  uncoined  silver  or  gold.  See 
Regulations  of  the  Scots  Parliament  as  to  Bul- 
lion.    Skene,  h,  t. 

Burdens.  In  a  general  acceptation  the 
word  burden  may  signify  any  restriction, 
limitation,  or  encumbrance  affecting  either 
person  or  property.  In  the  present  article, 
however,  the  term  is  to  be  considered  as  ap- 
plicable solely  to  burdens  in  money,  imposed 
either  on  the  receiver  of  a  right  or  on  the 
subject  of  the  right  itself,  in  the  deed  by 
which  the  right  is  constituted.  Burdens  in 
this  sense  are  said  to  be  either  personal  or  reoL 
Where  the  grantee  is  taken  bound  by  accept* 
ance  of  the  right  to  pay  a  certain  sum  either 
to  the  grantor  t)r  to  a  third  party ;  but  where 
there  is  no  clause  charging  the  subject  con- 
veyed with  the  sum,  the  burden  is  said  to  be 
personal ;  that  is,  it  will  be  binding  upon  the 
receiver  and  his  representatives,  but  will  con- 
stitute no  real  incumbrance  on  the  lands,  or 
other  subject  conveyed,nor  amount,  indeed,  to 
anything  more  than  a  mere  personal  obliga- 
tion on  the  grantee.  But  where  the  right  is 
expressly  granted  under  the  burden  of  a  spe- 
cific sum  which  is  declared  a  burden  on  the 
lands  themselves,  or  where  the  right  is  de- 
clared null  if  the  sum  bo  not  paid,  and  where 
the  amount  of  the  sum  and  the  name  of  the 
creditor  in  it  can  be  discovered  from  the  re- 
cords by  having  entered  the  instrument  of 
sasine,  the  burden  is  said  to  be  real.  Where 
the  burden  amounts  to  nothing  more  than  a 
mere  personal  obligation  on  the  receiver  of 
the  right,  there  can  be  little  difficulty  either 
as  to  the  mode  of  constituting  or  of  exercis- 
ing it.  But  there  are  several  points  in  re- 
gard to  the '  constitution  and  effect  of  real 
burdens  which  deserve  attention.  In  order 
to  create  a  real  burden,  it  is  necessary,  1st, 
To  declare  the  debt  imposed,  or  to  be  im- 
posed, to  be  a  burden  on  the  lauds  themselves. 
Where  the  burden  is  laid  upon  the  dispones 
merely,  and  not  upon  the  lands,  even  although 
the  conveyance  should  bear  expressly  to  be 
granted  and  accepted  under  that  condition ; 
or,  although  the  condition  should  be  appoint- 
ed to  be  engrossed  in  the  infeftments,  the 
debt  will  form  no  real  burden.    But  where 


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the  right  is  declared  void  in  case  the  sum  be 
uot  paid,  it  is  held  to  be  a  real  burden.  2d, 
The  next  essential  is,  that  the  debt  be  pro- 
perly expressed  as  a  burden  on  the  lands,  in 
the  diiposilive  clause  of  the  conveyance.  This 
clause  is  the  criterion  for  determining  the 
character  of  the  burden,  and  it  is  only  in  case 
of  ambiguity  in  the  dispositive  clause,  that 
other  clauses,  or  particular  expressions  in  the 
deed,  will  be  admitted  to  explain  the  nature 
of  the  burden.  3<i,  In  order  to  render  the 
burden  effectual  against  the  creditors  of  the 
disponec,  it  must  be  expressed  and  incor- 
porated in  the  sasiue,  so  as  to  enter  the  re- 
cord. A  general  reference  in  tho  sasine  to 
the  burdens  as  appearing  in  the  disposition, 
or  other  conveyance,  was  at  one  time  held 
sufficient ;  buta  contrary  rule  has  been  estAb- 
lished  by  more  recent  decisions.  While  the 
disponee  remains  uninfeft,  however,  the  bur- 
den, if  properly  expressed  as  a  real  burden, 
will  be  effoctuad  against  him  and  his  credi- 
tors as  a  qualiftcation  of  the  personal  right. 
Lattiif,  As  no  indefinite  and  unknown  encum- 
brance can  be  created  on  land,  it  is  necessary 
that,  both  in  the  disposition  and  in  the  sasine, 
the  burden  should  be  specific  in  its  amount, 
and  in  the  name  of  the  creditor,  in  order  that 
creditors  contracting  with  the  disponee  may 
know  the  extent  of  the  burden,  and  whether 
or  not  it  has  been  paid  or  extinguished.  A 
clause  charging  the  lands  disponed  with  the 
disponer's  debts  in  gencml  terms  was  for- 
merly held  snfficient  to  constitute  the  debts 
real  burdens ;  but  the  contrary  is  now  settled, 
although  it  seed  hardly  be  added,  that  such 
a  clause  lays  the  disponee,  who  accepts  the 
right  so  qualified,  under  a  personal  oUiga- 
tion  to  pay  tho  disponer's  debts. 

The  terms  in  which  a  real  burden  may  be 
imposed  are  various.  Thus,  the  disponer  may 
expressly  burden  the  lands  conveyed  with  a 
sura  payable  to  himself,— or  he  may  create  a 
burden  in  favour  of  a  third  party, — or  he 
may  reserve  either  to  himself,  or  delegate  to 
a  third  party,  a  power  or  faculty,  as  it  is 
termed,  to  impose  a  real  burden  on  the  lands. 
(See  Faculty  to  bwrden.)  And  with  regard  to 
reserved  burdens  generally,  it  may  be  ob- 
served that  the  real  security  which  thoy 
afford  depends  on  the  disponee's  sasine.  A 
distinction  has  been  sometimes  made  between 
burdens  reserved  in  favour  of  the  disponer, 
and  those  created  by  him  in  favour  of  a  third 
party ;  and  it  has  been  said,  that,  in  the  for- 
mer case,  the  disponer's  original  infeftment 
constitutes  the  security.  But  there  seems  to 
be  no  good  ground  for  such  a  distinction. 
The  right  uuder  the  burden  is  not  a  right  of 
property,  but  in  security  merely,  depending 
for  its  existence  on  the  existence  of  the  debt. 
A  general  service  has  been  held  a  sufllcient 


title  in  the  heir  of  the  disponer  to  dischargg 
such  a  burden;  (Cuthbertson,  7th  Marcii 
1806,  Foe.  CoU.,  Mor.  App.  title  Service  ad 
GonfirmatioH,  No.  2) ;  and  the  principle  w 
which  the  secnrity  depends,  applies  eqntllj 
to  the  case  where  the  burden  is  merved  in 
favour  of  the  disponer  and  to  that  in  wiiicb 
a  third  party  is  made  the  creditor.  In  neither 
case  is  it  necessary  to  complete  the  transfer- 
ence of  the  real  security,  as  in  the  case  of  u 
heritable  bond  by  sasiue.  It  seems  also  now 
to  be  understood  in  practice,  that  a  simple 
assignation  intimated  to  the  holder  of  the 
burdened  infeftment  is  a  proper  transference 
of  the  burden  to  the  assignee ;  and  although 
such  assignations  are  frequently  recorded  in 
the  register  of  sasines  and  reversions,  there 
does  not  appear  to  be  any  ground  for  pre- 
ferring an  assignation  so  recorded  to  a  irrt 
assignation  duly  intimated,  although  not  re- 
corded. Whether  the  burden  be  reserved  in 
favour  of  the  disponer,  or  of  a  third  party, 
a  general  service  transmits  the  burden  to  the 
heir  of  the  creditor. 

The  creditor  in  a  real  harden  may  niske 
his  right  effectual,  1st,  By  poinding  of  the 
ground  (see  Poinding  of  the  Ground).  2d,  By 
adjudication,  without  which  the  creditor  \m 
no  means  of  entering  into  possession,  and  no 
title  to  pursue  an  action  of  maills  and  dnties. 
Stair,  B.  ii.  tit.  10,  §  I.  Although  the  bur- 
dened land  have  been  sold  to  another,  and 
although  the  purchaser  be  not  personally 
liable  for  the  debt,  yet  the  creditor  may  ad- 
judge the  lands  to  the  extent  of  the  burden. 
With  regard  to  the  ranking  of  debts  secared 
by  real  burdens,  the  rules  are,  1st,  That  if 
the  burden  is  properly  laid  on  the  lands,  the 
creditor  in  it  is  preferable  to  the  creditors 
of  the  disponee,  whether  the  disponee  be  in- 
feft  or  not.  2d,  Where  the  creditor  in  the 
burden  ia  a  third  party,  he  is  preferable  to 
all  posterior  debts  of  the  disponer,  from  the 
date  of  the  infeftment  in  the  di^onee's  fa- 
vour ;  and  this  although  the  disponer  nay 
have  given  heritable  securities  to  the  poste- 
rior creditors  ;  because  no  debt  posterior  to 
the  disposition  and  infeftment  can  compete 
with  a  debt  made  real  by  them.  Sd,  In 
a  competition  between  the  creditors  of  the 
disponer,  who  creates  the  real  burden,  the 
preference  of  the  creditor  in  the  burden  vill 
depend  on  the  date  of  the  disponee's  sasine, 
seeing  that  the  disponer  is  not  fully  divested, 
until  the  infeftment  of  the  disponee.  Ath, 
In  a  competition  between  the  creditor  in  the 
real  burden,  and  the  creditors  of  the  disponee, 
the  preference  of  the  creditor  in  the  burden 
will  be  complete,  whether  infeftment  has  fol- 
lowed on  the  disposition  or  not ;  the  burden 
being  a  qualification  of  the  right,  whether 
it  remains  personal,  or  is  made  real  by  infefU 


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aeDt  5&,  In  questions  of  preference  amongst 
one  another,  on  a  shortcoming  of  funds,  tbe 
creditors  in  real  burdens  will  be  preferable 
aeeording  to  the  date  of  the  diligences  which 
thej  have  nsed  to  make  the  burdens  effectual. 
The  proper  diligence  to  aiford  a  title  in  such 
competition  seems  to  be  adjudication ;  and 
those  hardens  npon  which  adjudication  has 
been  used  will  be  preferred  to  those  which 
hare  not  been  adjudged  for;  Creditors  cf  Rots, 
Mh  June,  1714,  Mor.  p.  10243. 

The  creditor  in  a  real  burden  may  ralidly 
traosfer  it  by  assignation  intimated  to  the 
debtor ;  and  snch  an  assignation  of  the  per- 
Mnal  claim  of  debt  will  carry  with  it  the  real 
bordea  as  an  accessary.  In  one  case,  the 
Goort  held  that  "  the  real  burden  or  security 
lot  being  followed  by  infeftment,  nor  capable 
^ii,  eoiUd  be  validly  transferred  by  disposi- 
tioB  and  assignation  duly  intimated  and  re- 
corded in  the  register  of  sasines."  But  al- 
though the  recording  of  the  assignation  in 
the  register  of  sasines  is  mentioned  in  that 
partieoiar  ease,  it  does  not  appear  to  have 
been  held  essential ;  and  certainly  this  is  not 
a  deed  which  the  act  1617,  c.  16,  requires  to 
be  recorded  in  the  register  of  sasines ;  Miller 
T.  Brnim,  7th  March  1820,  Rost't  L.  G.  vol. 
iii.,p.  29.  The  proper  diligence  for  attaching 
the  right  of  the  creditor  in  tbe  real  burden 
seems  to  be  abjudication.  And  when  the 
burden  is  paid  off,  the  proper  evidence  of  its 
extinction  is  a  discharge  and  renunciation  by 
the  creditor  in  the  burden,  recorded  in  the 
rejptter  of  sasines,  &c.  Personal  burdens, 
which  resolve  into  mere  personal  obligations 
00  the  disponee,  may  be  validly  conveyed  by 
an  intimated  assignation,  and  the  creditor's 
right  in  them  may  be  attached  by  arrestment. 
See  on  the  subject  of  this  article,  Stair,  B.  ii. 
til.  3,  $  54,  e(  teq.  and  tit.  10,  §  1 ;  Ersk.  B. 
ii-tit.  3,  §  49,  a  teq. ;  BarJc.  vol.  i.  p.  579; 
Bdf$Con.i.  685,  et  $eq. ;  BeWs  Prine.  §  892, 
915,1767,  3d  edit;  Shaw's  Digest;  BeUon 
P»dum's  Title,  p.  93,  et  seq.  2d  edit. ;  Jurid. 
Stjkt;  Kames'Princ.  of  Equity  (1826),  281 ; 
Rotf*  Leet.  ii.  363,  495 ;  Duff  on  Deeds ; 
Meuies  on  Conveyancing. 

By  the  act  10  and  11  Vict.,  cap.  48,  real 
Ixirdens  need  not  be  inserted  in  full  in  con- 
wysBces  if  they  have  already  been  set  forth 
»i  foil  length  in  a  recorded  instrument  of 
•Mine  or  resignation  ad  remanentiam,  in  which 
owe  they  may  be  referred  to  in  the  terms,  or  as 
"early  as  maybe  in  the  term8,set  forth  in  Sche- 
dale  C  annexed  to  the  act.  A  similar  provi- 
•ion  is  made  in  regard  to  lands  held  in  burgage 
tenure,  by  the  act  10  and  11  Vict.,  cap.  49. 

Bardens,  Public.    See  Public  Burdens. 

Bnideiuedc ;  is  the  name  given  to  the  pro- 
riaon  of  our  ancient  law,  by  which  it  is  said 
tbat  a  man  waa  not  pnnishable  for  the  theft 
I 


of  as  much  meat  as  he  could  carry  on  his 
back  ;  provided  the  theft  was  committed  to 
satisfy  the  cravings  of  hunger.  There  is 
some  difference  amongst  authorities  both  as 
to  the  justice  of  this  rule  and  the  extent  of 
its  application  ;  and  it  is  not  now  recognised 
in  the  law  of  Scotland.  Hume,  vol.  i.  p.  56 ; 
Karnes'  Stat.  Law,  h.  t. 

Bnrgagre- Holding;  is  that  tenure  by 
which  the  property  in  royal  burghs  is  held 
under  the  Crown.  It  is  originally  consti- 
tuted by  a  charter  from  the  Crown  in  favour 
of  the  burgh  ;  the  effect  of  which  is  to  make 
every  proprietor  of  property  situated  within 
the  burgh  hold  that  property  directly  under 
the  Crown  as  superior,  for  the  reddendo  (now 
merely  nominal),  of  watching  and  warding ; 
or,  as  it  is  commonly  termed,  "service  of 
burgh,  nsed  and  wont."  The  title  of  a  dis- 
ponee to  burgage  property  formerly  proceeded 
on  a  resignation  made  by  delivery  of  staff 
and  baton  (see  Act  of  Sederunt,  11th  Feb- 
ruary 1708),  in  the  hands  of  the  magistrates, 
in  virtue  of  a  procuratory  granted  by  the 
vassal  last  infeft,  and  followed  by  an  imme- 
diate infeftment  given  by  the  magistrates  in 
favour  of  the  disponee,  without  the  interven- 
tion of  any  precept  or  charter  by  progress. 
By  the  statute  10  and  11  Vict.,  cap.  49 
(1847),  it  is  now  no  longer  necessary  towards 
obtaining  infeftment  in  lands  hold  in  bur- 
gage upon  a  disposition  or  other  deed  of  con- 
veyance, or  upon  a  decree  of  adjudication  or 
decree  of  sale,  that  the  party  in  right  of 
the  conveyance  or  decree,  or  his  procurator 
should  appear  before  the  provost  or  one  of  the 
bailies  of  the  burgh,  in  which  the  lands  are 
situated,  and  resign  into  his  hands,  or  into 
the  hands  of  the  Crown,  and  for  the  provost 
or  bailie  to  give  sasine  to  such  party  or  his 
procurator.  Neither  is  it  necessary  for  the 
party  or  his  procurator  to  proceed  to  the 
grouud  of  the  lands, or  to  the  council-chamber 
of  the  burgh,  or  to  use  any  symbol  of  resig- 
nation or  sasine ;  it  being  now  competent  to 
resign  and  obtain  infeftment  in  the  lands  by 
presenting  to  the  town-clerk  of  the  burgh, 
being  a  notary  public,  the  deed  of  convey- 
ance or  decree  of  adjudication,  or  of  sale  and 
other  necessary  warrants ;  and  by  the  town- 
clerk  giving  sasine  therein  by  subscribing 
and  recording  an  instrument,  expressed  in 
the  form  given  in  the  statute,  or  as  nearly  as 
may  be  in  that  form.  Instruments  of  re- 
signation or  sasine  expressed  in  such  form 
may  be  recorded  in  the  burgh  register  at  any 
time  during  the  life  of  the  party  in  whose 
favour  the  instrument  was  expede;  and  the 
date  of  presentment  and  entry  set  forth  in  the 
instrument  is  taken  to  be  the  date  of  the  in- 
strument ;  and  in  case  of  any  error  or  defect 
in  the  iustrument,it  is  competent  to  make,  and 


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record  of  new,  another  instniment,  as  if  no 
preTioug  one  had  been  made  or  recorded. 
The  title  of  an  heir  in  burgage  subjecte  is 
eompleted  sometimes  by  a  precept  of  dare 
comtat  and  infeftment,  bat  much  more  fre- 
quently by  a  single  act,  called  a  cognition 
and  sasine ;  the  magistrate  appearing  on  the 
ground,  and  taking  a  proof  of  the  heir's  pro- 
pinquity, and  afterwards  giving  him  infeft- 
ment as  heir,  under  the  usual  salvo  jure  cu- 
jiulibet.  The  serrice  and  entry  of  heirs 
mort  bwyi,  in  burghs,  in  tenements  holden 
in  burgage,  is  not  altered  by  the  act  10  and 
11  Vict,  cap.  49  (1849).  An  adjudging 
creditor  ia  infeft  at  once  in  burgage  property 
on  producing  his  decree  of  adjudication. 
When  the  title  is  merely  personal  (i.e.,  an 
unexecuted  proouratory  of  resignation),  the 
disponee,  heir,  or  adjudger,  obtains  right  to 
it  in  the  ordinary  form  used  in  similar  cases, 
and  infeftment  is  then  given  to  him  in  the 
manner  above  explained.  As  these  infeft- 
ments  are  of  the  nature  of  charters,  and  are 
the  only  evidence  of  the  interposition  of  the 
superior,  it  is  properly  the  duty  of  the  town- 
clerk  to  expede  them ;  and  this  is  enjoined 
by  the  act  1567, 0. 27.  And  by  1661,  c.  11, 
these  sasines  are  ordained  to  be  recorded 
within  sixty  days  of  their  dates,  in  a  particu- 
lar register  kept  by  the  town-clerk  for  the 
burgh.  The  proper  vassal  in  burgage- 
holding  being  the  whole  community,  which, 
in  a  legal  sense,  never  dies,  the  casualties  of 
non-entry,  relief,  &c.,  are  not  known  in  this 
holding.  There  is  no  widow's  terce  due  from 
burgage  subjects.  The  nature  of  the  holding 
also  properly  excludes  subinfeudations,  al- 
though a  base  infeftment  in  an  annual  rent 
out  of  burgage  property,  given  by  a  bailie 
of  the  burgh,  as  bailie  in  that  part,  and  the 
town-clerk,  as  a  common  notary,  has  been 
held  effectual ;  Beimel,  5th  July  1711,  Mor. 
p.  6895.  The  Crown,  in  granting  the 
charter  of  the  burgh,  cannot  prejudice  the 
rights  of  other  superiors,  so  that  it  some- 
times happens  that  property  situated  within 
the  limits  of  the  burgh  is  not  held  by  this 
tenure ;  nor  does  property  acquired  by  the 
burgh,  subsequently  to  the  date  of  the  char- 
ter, fall  under  this  holding,  except  by  a  new 
erection.  Stair,  B.  ii.  tit.  3,  §  38 ;  Erdc.  B. 
ii.  tit.  3,  §  38,  et  seq.;  Bank.  vol.  i.  p.  561 ; 
BeU't  Com.  vol.  i.  p.  680,  760,  5th  edit. ; 
BeWtPrinc.  4ih  edit,  §  685,  838;  Bell  on 
Leaset,  vol.  i.  p.  32, 4th  edit ;  Hunter's  Land- 
lordand  Tenant,  pp.  479, 4S0;  Brown's  Synop. 
pp.  373, 1039,  2363 ;  Shaw's  Digest,  pp.  96, 
691 ;  Sand/ord  on  Eeritable  Succession,  vol.  ii. 
p.  no ;  Bell  on  Purchaser's  Title,  p.  131,  et 
seq.  2d  edit. ;  Jurid.  Styles,  3d  edit.  vol.  i.  p. 
653,  et  seq.;  vol.  iii.  p.  906;  Ross's  Lect,  ii. 
604, 660. 


BnrgeM ;  is  a  member  of  the  eorpontum 
of  a  burgh,  admitted  either  by  the  charter  of 
erection,  or  by  birth,  as  being  the  son  of  t 
burgess,  or  by  serving  an  apprenticeship  to  s 
burgess,  or  by  marrying  the  daughter  of  % 
burgess,  or  by  election  by  the  magistrates  A 
the  burgh.    The  oath  taken  by  a  bnrgsat  oo 
admission  is  to  the  following  effect :"  I  con- 
fess and  allow,  with  my  heart,  the  true  re- 
ligion presently  professed  within  this  reslm, 
&c.     I  shall  be  leal  and  true  to  our  soTereigi 
lord  (or  lady)  the  King's  (or  Queen's)  M»- 
jesty,  and  to  the  provost  and  bailies  of  tin 
burgh ;   I  shall  obey  the  ofQcers  tbertof, 
fortify,  maintain,  and  defend  them  ii  tbe 
execution  of  their  offices  with  my  body  uA 
goods;  and  I  shall  not  colour  unfreeBes's 
goods  under  colour  of  my  own  :  In  all  tau- 
tions,  watchings,  and  wardings  to  be  laid  on 
the  burgh,  I  shall  willingly  bear  my  put 
thereof,  as  I  am  commanded  by  the  magitr 
trates  :  I  shall  not  purchase  nor  use  exemp- 
tions to  be  free  thereof,  renouncing  the  beneit 
of  the  same  for  ever :  I  shall  do  nothing 
hurtful  to  the  liberties  and  comraonveal  of 
the  burgh :  I  shall  give  the  best  eoauel  I 
can,  and  conceal  the  counsel  shown  to  me: 
I  shall  not  consent  to  dispone  the  eomnioa 
goods  of  the  burgh,  but  for  a  common  esaw 
and  a  common  profit :  I  shall  make  cooookI 
where  discord  is,  to  the  utmost  of  my  power: 
In  all  lineations  and  neighbourhoods  I  shsU 
give  my  leal  and  true  judgment,  bot  pnjer 
or  reward."    On  making  this  oath,  aad  psj- 
ing  the  dues  of  admission,  the  burgess  re- 
ceives an  extract  of  the  act  of  his  admiatiw 
under  the  hand  of  the  town-clerk.    Tbe  Iieir 
of  a  burgess  has  a  right  to  heir^ip  more- 
ables.    Ersk.  B.  iu.  tit.  8,  §  17 ;  B.  L  tit  i 
§  20,  et  seq.,  notes  btf  Mr  Ivory;  BanL  T<d.i. 
p.  56 ;  Shato's  Digest,  pp.  99,  617 ;  *««'< 
Lect.  ii.  560. 

Bnrgfh  Acres ;  are  acres,  or  small  patcli» 
of  land,  lying  in  the  neighbourhood  of  rojal 
burghs ;  usually  feued  out  to,  and  occupieil 
by,  burgesses,  or  persons  resident  within  tlie 
burgh.  The  statute  1695,  c.  23,  conoemisg 
runridge  lands,  excepts  burgh  and  incorpo- 
rate acres  from  the  provisions  of  the  act.  It 
has  been  held  that  this  exception  relates  ool} 
to  the  case  of  royal  burghs,  and  not  td 
burghs  of  barony  or  others;  Douglas, 22<l 
Jan.  1777,  Broian's  Sup.  v.  581 ;  Belts  /Vik 
§  1099.     See  Runridge. 

Bnrg^h,  RoyaL  A  royal  burgh  is  a  cor 
porate  body  erected  by  a  charter  from  th 
Crown.  The  corporation  consists  of  tb( 
magistrates  and  burgesses  of  the  terriior] 
erected  into  the  burgh.  The  magistrates sr 
generally  a  provost  and  bailies,  dean  of  gnil^i 
treasurer,  and  common  council.  By  tt*^ 
1663,  c.  6,  the  provost  and  bailie  of  roji 


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bargltf  We  power  to  valae  and  sell  ruinous 
hooiee  when  the  proprietors  refuse  to  rebuild 
or  repair  them ;  and  many  enactmento  are 
to  be  fonnd  in  the  acts  of  the  Scotch  Farlia- 
meots,  reflating  the  trade  in  royal  burghs, 
ud  defining  the  privileges  of  the  magistrates 
ind  burgesses ;  see  Katnea^  Stat.  Law  abridged, 
art.  Burgh  Royal.  The  criminal  jurisdiction 
ef  Digutrates  of  royal  burghs  is  now  very 
Bineh  limited.  They  may  judge  in  petty 
riots;  and  Edinburgh,  Stirling,  Perth,  and 
lome  other  royal  burghs,  hare,  by  their 
grants,  a  cumulative  jurisdiction  along  with 
^e  sheriff  in  blood-wit&  The  eldest  magis- 
trate of  every  royal  burgh  has,  since  the 
Union,  been  named  in  all  the  commissions 
of  the  peace.  The  magistrates  have  right, 
with  eonsent  of  the  minority  of  the  burgesses, 
to  ifflpon  certain  small  taxations  or  duties 
on  the  inhabitants,  for  the  use  of  the  burgh ; 
sod  ihey  have  also  the  power  of  proportion- 
ing some  of  the  taxes  imposed  by  Parlia- 
meot ;  ErA.  B.  i.  tit.  4,  §  22,  Mr  Ivory's  edit., 
Mte  104.  A  convention,  composed  of  com- 
misioners  from  each  of  the  royal  burghs, 
meets  annually  at  Edinburgh,  with  power  to 
make  regulations  for  promoting  the  trade 
tod  commonweal  of  the  burghs,  and  to  in- 
quire how  their  annual  revenues  have  been 
applied.  Bat  the  care  of  the  revenues  of 
royal  burghs  belongs  properly  to  the  Crown ; 
aad  neither  the  convention,  nor  any  private 
burgess,  or  number  of  burgesses,  have  any 
title  to  call  the  magistrates  to  account  for 
tbeir  administration  of  the  revenue  of  the 
bargh,  or  even,  it  would  seem,  to  complain 
gainst  special  acts  of  mismanagement  or 
pecabition  ;  Ertk.  lb.  §  23,  Ivory's  edit., 
*6le  105.  There  are  sixty-six  royal  burghs 
in  Scotland ;  and,  by  2  and  3  WilL  IV.,  c. 
6o,  it  is  provided  that  twenty-three  of  the 
fi%-three  representatives  of  Scotland  in 
Parliament  shall  be  returned  by  the  royal 
bnrghs.  For  the  provisions  regulating  these 
parliamentary  elections,  see  R^orm  Act. 

The  right  of  appointing  their  successors 
formerly  belonged  to  the  old  councils,  in 
temu  of  the  statute  1469,  c.  5,  by  which  it 
vasalso  directed,  that  when  the  new  council 
vas  chosen,  the  members  of  it,  along  with 
tboK  of  the  old  council,  should  choose  all  the 
office-bearers  of  the  town,  as  aldermen,  bailies, 
deao  of  guild,  &c ;  and  that  each  craft  should 
cbooce  a  person  of  the  same  craft  .to  have  a 
voice  in  the  said  election  of  office-bearers. 
This  simple  and  uniform  plan  of  election  was 
not  miiversally  adopted ;  and  from  local  in- 
laooees,  the  setts  of  the  burghs  exhibited  an 
^oet  endless  variety  in  their  details ;  agree- 
ing, however,  with  scarcely  an  exception,  in 
the  principle  of  self-election.  This  diversity 
lui  now  b«en  put  an  end  to,  iud  the  "  close 
i2 


system,"  as  it  has  been  called,  abolished  by 
3  and  4  Will.  IV.,  c.  76,  by  which  the  elec- 
tion of  councillors  is  rendered  popular,  aqd 
given  to  male  residenters  in  the  burgh  or  its 
vicinity,  possessing  certain  qualifications  men- 
tioned in  the  act.  The  particular  provisions 
of  this  act  are  the  following :  Every  one  is 
entitled  to  vote  in  the  election  of  councillors 
who  has  resided  for  six  calendar  months  next 
previous  to  the  last  day  of  June,  within  the 
royalty,  or  within  seven  miles  of  it,  and  who 
is,  by  2  and  3  Will.  IV.,  c.  66,  qualified,  in 
respect  of  the  property  or  occupancy  of  .pre- 
mises within  the  burgh,  to  vote  in  the  elec- 
tion of  the  member  of  Parliament.  In  such 
burghs  as  do  not  now  send  members  to  Par- 
liament, property  of  the  same  value  is  te- 
quired  for  the  qualification,  and  claims  for 
this  privilege  must  be  lodged  with  the  town- 
clerk  on  or  before  the  21st  July  in  a  parti- 
cular form  given  in  schedule  (A)  appended 
to  the  act,  which  claims,  and  the  objections 
to  them,  are  disposed  of  in  accordance  with 
various  regulations  laid  down  in  the  act. 
The  councillors  are  chosen  from  amon|;  th^ 
electors  residing,  or  personally  carrying  on 
business  within  the  royalty ;  and  where  there 
is  a  body  of  burgesses  in  thd  burgh,  each 
councUlor,  before  his  induction,  must  be  en- 
tered a  burgess ;  but  it  is  at  present  in  con- 
templation to  do  away  with  this  requisite. 
The  number  of  councillors  in  each  burgh  is 
such  as,  by  the  sett  existing  at  the  passing 
of  the  act,  constituted  the  common  council, 
or,  where  this  was  variable,  the  smallest  num- 
ber constituting  a  full  council.  The  electors 
of  Edinburgh,  Glasgow,  Aberdeen,  Dundee, 
Perth,  Dunfermline,  Dumfries,  and  Inver- 
ness, are  divided  into  wards  or  districts.  At 
the  election  (1833)  immediately  succeeding 
the  passing  of  the  act,  each  ward  elected  six 
councillors;  but  as  every  year  the  third  part 
of  the  council  goes  out  of  office,  in  the  order 
prescribed  by  the  act,  two  councillors  are 
now  annually  chosen  by  each  ward,  there 
being  no  bar,  however,  to  the  re-election 
of  an  outgoing  councillor.  The  electors  in 
burghs  not  contained  in  schedule  (C)  choose 
the  whole  council  exactly  as  these  wards  do 
their  proportion  of  it,  and  consequently  elect 
each  year  a  third  part  in  place  of  that  which 
has  retired.  Upon  the  third  lawful  day  after 
the  election  succeeding  the  passing  of  the 
act,  the  councillors  met  and  chose,  by  a  plu- 
rality of  voices,  a  provost,  bailies,  treasurer, 
and  other  ofBce-bearers,  as  existing  in  the 
council  by  the  sett  or  usage  of  the  burgh ;  and 
vacancies  occurring  among  such  office-bearers, 
in  consequence  of  the  annual  retirement  of 
the  third  part  of  the  council,  are  directed  to 
be  supplied  from  the  councillors  in  like  man- 
ner, as  soon  as  the  election  of  the  new  third 


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bag  taken  place,  the  first  attending  magis- 
trate havinga  casting  rote  in  cases  of  equality. 
Yacancies  taking  place  during  the  year  by 
death  or  resignation  are  supplied,  ad  interim, 
by  the  remaining  members  of  the  council, 
And  the  persons  so  elected  by  the  councillors 
retire  at  the  succeeding  election.  The  rights 
of  the  gnildry,  trades,  Ac.,  to  elect  their  own 
dean  of  guild,  Ac,  are  still  preserved ;  but 
they  are  now  no  longer  recognised  as  official 
or  constituent  members  of  the  council,  their 
functions  being  performed  by  a  member  of 
th*  council,  elected  by  the  majority  of  the 
councillors.  In  Aberdeen,  Dundee,  and 
Perth,  however,  the  dean  of  guild,  and  in 
Edinburgh  and  Glasgow,  the  convener  of 
tradesand  the  dean  of  guild,  are  exoffieio  mem- 
bers of  council ;  and  the  electors  in  all  the 
above-named  burghs  chooee  such  a  number 
of  councillors  as,  together  with  the  officers, 
makes  np  the  proper  number  above  specified. 
No  magistrate  or  councillor  can  be  town- 
clerk.  The  magistrates  and  council  possess 
the  same  powers  of  administration  and  juris- 
diction as  was  enjoyed  by  the  magistrates  and 
town-council  before  the  passing  of  the  act ; 
and  none  of  them  is  responsible  for  the  debts 
of  the  burgh,  or  the  acts  of  his  predecessors, 
otherwise  than  as  a  citizen  or  burgess.  The 
existing  council  in  all  burghs  royal  must 
every  year  make  up,  on  or  before  the  15th 
of  October,  a  state  of  their  affairs,  to  be  kept 
in  the  town-clerk's  or  treasurer's  office. 

In  schedule  (F)  appended  to  the  act,  nine 
of  the  ancient  royal  bnrghs  are  enumerated, 
which,  on  account  of  the  smaHness  of  their 
population,  are  excepted  from  all  the  provi- 
sions of  this  act ;  and  in  which  the  election 
is  conducted  just  as  it  was  before  the  act  was 
passed.  These  excepted  burghs  are  Dornoch, 
New  Galloway,  Culross,  Lochraaben,  Bervie, 
Wester  Anstruther,  Eilrenny,  Kinghorn, 
and  Kintore.  The  election  of  magistrates 
and  councillors  for  burghs  which  return  or 
contribute  to  return  members  of  Parliament, 
and  are  not  royal  burghs,  is  regulated  by  the 
act  3  and  4  Will.  IV.,  c.  77  (1833),  and  4 
and  5  Will.  IV.,  c.  86  (1834).  The  act 
16  and  17  Vict.,  c.  26  (1853),  provides  for 
the  supplying  of  vacancies  in  town-councils 
of  burghs,  consequent  on  null  and  irregular 
elections.    The  police  of  towns  and  populous 

f)ltM^es,  and  the  paving,  draining,  cleaning, 
ighting,  and  improving  the  same,  is  regu- 
lated by  13  and  14  Vict.,  c.  33  (1850);  and 
the  act  16  and  17  Vict.,  c.  93  (1853),  enables 
bnrghs  to  maintain  and  improve  their  har- 
bours. The  exclusive  privilege  of  trading 
in  bnrghs  is  abolished  by  the  act  9  and  10 
Vict,  c.  17  (1846).  On  the  subject  of  burgh 
royal  generally,  consult  the  following  autho- 
rities -.—Stair,  B.  iv.  tit  47.  ^19;  Mr  Mor^t 


Notes,  p.  clxxi. ;  Bank.  vol.  ii.pp.  562, 577; 
Belts Princ.  §  2173,  et  seq.Ath  edit;  Smi. 
Abridg.  h.  t. ;  Kame^  Stat.  Law  Abridg.  kt.; 
Hunter's  Landlord  and  Tenant;  Brovn't  Sjtcp, 
h.  t.;  and  pp.  366,  392,  1104,  1154, 23«0, 
2665;  Shaw's,  Digest,  h.  U;  Watson's  Sttl. 
Law,  h.  t. ;  Jurid.  Styles ;  Ross's  Led.  i.  90, 
390,  et  seq. 

Burgh  of  Barony  and  Burgh  of  Bcgalily. 
A  burgh  of  barony,  or  a  burgh  of  regali^, 
is  a  corporation  analogous  to  a  royal  burgh, 
consisting  of  the  inhabitants  of  a  determi- 
nate track  of  ground  within  the  baronj 
erected  by  the  King,  and  subjected  to  tbt 
government  of  the  magistrates.  The  right 
of  electing  magistrates  is  vested  by  the  charter 
of  erection  sometimes  in  the  baron  or  the 
lord  of  regality,  the  superior  of  the  baronj, 
and  sometimes  in  the  inhabitants  themselTei; 
and  whatever  jurisdiction  belongs  to  the  ma- 
gistrates, the  superior's  jurisdiction  is  eomn- 
lative  with  it.  The  same  rnle  holds  in  barghi 
of  regality,  both  in  regard  to  the  manner  of 
incorporating  them,  and  as  to  the  soperior's 
cumulative  jurisdiction.  See  Ersk.,  a.  \.  tit 
4,  5  30,  Mr  Ivory's  edit,  note  108. 

Burglary;  is  an  English  law  term,  rigni- 
fying  the  breaking  and  entering  the  duMnf- 
house  of  another  tn  the  night-time  with  the  in- 
tention to  commit  theft  or  any  other  felon j, 
whether  the  felony  be  completed  or  not  See 
TomUns"  Law  Diet. ;  Wharton's  Lex.;  Rwull 
on  Grimes;  Hume,  i.  102.  See  Houtebredi*}. 
Theft.    SUmthrief. 

Burlaw,  ByrUiw.  Burlaw  laws  are  made 
and  determined  by  consent  of  neigblwors, 
chosen  by  common  consent  in  the  byrlaw 
courts.  Hence  byrlaw-men  or  birley-men,  a 
species  of  rustic  judges  for  determining  dis- 
putes in  their  neighbourhood.  This  eeemi 
to  have  been  a  very  ancient  institution.  Skat, 
h.  t. 

Bnrsary ;  is  the  name  given  to  an  endow- 
ment or  exhibition  in  a  Scotch  uniTerait7,for 
the  support  of  a  student.  Ersk.  B.  i.  tit.  5, 
§  12 ;  Arid.  Styles,  2d  edit  vol.  ii.  pp,  290, 
482. 

Bnrying-Plaoe.  The  right  to  a  bnryiM- 
place  in  a  parish  chnrchyarf,  is  a  right  of » 
peculiar  description,  which,  in  the  ordinarj 
case,  is  attached  as  part  and  pertinent  of  the 
lauds  of  the  several  heritors  in  the  parish. 
But  there  is  no  proper  right  in  the  silw  of 
the  churchyard,  vested  in  the  heritor  nsing 
it  as  a  family  burying-place,  entitling  him  to 
exclude  the  management  and  control  of  the 
whole  heritors  of  the  parish,  to  whom  the 
entire  churchyard  belongs,  in  the  same  sense 
in  which  the  area  of  the  parish-church  be- 
longs to  them.  This  general  rule,  howerer, 
even  in  rural  parishes,  is  liable  to  exceptions; 
and  in  burghs  the  same  sort  of  property  in  > 


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barTiog-pIace,  which  is  admitted  as  to  church* 
se&te,  seems  to  be  recognised ;  although  the 
extent  of  the  right  of  alienation  does  not  ap- 
pear to  be  distinctly  ascertained.  In  Edin- 
burgh, the  right  to  special  burying-places  in 
the  ebnrchyards  is  recognised,  and  the  right 
tnuaferred  by  conveyances,  which  are  re- 
corded in  the  town-conncil  or  kirk-session 
records;  and  there  can  be  no  doubt,  that 
where  the  magistrates  of  a  town  hare  ac- 
qnired  a  piece  of  ground,  whether  adjacent 
to  the  churchyard  or  elsewhere,  and  hare 
inclosed  and  laid  it  out  as  a  barying-ground, 
the  fen  of  a  special  allotment  in  this  inclo- 
nre  may  be  acquired,  inherited,  or  transfer- 
red, as  a  burial-place,  according  to  the  or- 
dinary rules  of  law,  and  always  consistently 
with  this  special  use  of  the  subject.  Ersk.  6. 
i.  tit  5,  §  13 ;  B.  ii.  tit.  2,  §  8 ;  BeU's  Princ. 
4th  edit  §  836 ;  Hutch,  Justice  of  Peace,  vol. 
ii.  p.  375,  2d  edit. ;  Dunhp's  Parish  Law,  26, 
58,  et  $eq.;  and  authorities  there  cited.  See 
CktrckyaTtU 

Butchers.  By  the  present  practice  but- 
chers are  not  summoned  to  act  as  jurymen  in 
criminal  trials ;  Hume,  vol.  ii.  p.  314.  By 
the  set  1703,  c.  7,  butchers  are  prohibited 
from  possessing,  on  lease  or  otherwise,  either 
directly  or  indirectly,  more  than  one  acre  for 
the  pnrpose  of  grazing  cattle,  &c.  The  ob- 
ject of  this  act  seems  to  have  been  to  pre- 
Tent  monopolies ;  but  there  is  no  evidence  of 
its  ever  having  been  enforced.  BeU  on 
Imet,  vol.  i.  p.  144, 4th  edit. ;  Hunter's  Land- 
W  and  Tenant,  179;  Broum's  Synop.  h.  U; 
Skiufs  Digest,  h.  U 

Saying  of  Pleas.    By  the  act  1594,  c. 


216,  it  is  enacted,  that  it  shall  not  be  law- 
ful  for  members  of  the  College  of  Justice, 
or  for  any  inferior  judges,  their  deputies, 
clerks,  or  "  advocates,"  directly  or  indi- 
rectly, by  themselves,  or  others,  for  theit  be- 
hoof, to  buy  any  lands,  teinds,  rowms  or 
possessions,  extended  by  judicial  construc- 
tion to  all  debateable  rights,  whether  heri- 
table or  moveable,  which  are  or  have  been 
in  dependence  and  remain  undecided.  The 
penalty  is  loss  of  office,  place,  and  privilege. 
The  object  appears  to  have  been  to  prevent 
parties  connected  with  the  court  from  pur- 
chasing depending  suits,  and  using  their  in- 
fluence in  the  court  in  promoting  their  suc- 
cess :  and  hence  it  seems  to  be  held  that  the 
purchaser  of  the  plea  most  be  a  practitioner 
in  the  court  before  which  it  depends,  other- 
wise he  will  not  be  affected  by  the  statute. 
Although  the  act  does  not  mention  procu- 
rators before  inferior  courts,  Mackenzie  holds 
that  the  word  "  advocates"  before  these  courts 
extends  to  procurators.  Mackenzie's  Observ. 
on  Stat.  p.  289 ;  Stair,  B.  i.  tit.  10,  §  8,  and 
tit.  14,  52,  and  tit.  17,  §  14;  Karnes' Equity, 
335,  8th  edit. ;  Mentiet'  Conveyancing,  p.  51. 
See  Pactum  de  quota  litis. 

Bye-Laws.  Every  corporation  lawfully 
erected  has  power  to  make  bye-laws  or  pri- 
vate statutes  for  the  government  of  the  cor- 
poration, which  are  bindbg  on  themselves, 
unless  contrary  to  the  laws  of  the  land,  or 
to  the  terms  of  their  charter.  In  burghs, 
the  town-council  ip  now  the  only  authority 
for  making  bye-laws.  5  and  6  WiU.  IV.,  c. 
76,  §  90 ;  Brown's  Syn.  p.  404 ;  Wharton's 
Lex.  h.  t. 


c 


Oadrow;  erroneously  printed  in  the  act 
1434,  c  41,  for  Gadzow  or  Hamilton.  Skene, 
k.t. 

Cakadar.  The  statute  altering  the  calen- 
dar, and  introducing  what  was  called  the 
vw  rfyfe,  is  24  Geo.  II.,  c.  23,  which  enacted, 
that  from  and  after  31st  December  1751, 
1st  January,  and  not  25th  March,  shall  be 
reckoned  the  first  day  of  the  year ;  as  also, 
that  the  day  after  2d  September  1752  should 
he  reckoned  14th  September.  The  statute 
provides  for  all  the  other  changes  connected 
with  the  alteration  in  the  calendar.  A  calen- 
dar month  consists  of  thirty  or  thirty-one 
days,  except  February,  which  has  twenty- 
eight,  and  in  leap-years  twenty-nine  days. 
See  Siei«t.  Abridg.  h.  t. ;  Wharton's  Lex,  h.  t. 

Csll,  Ecclesiastical.  After  a  clergyman 
haa  received  a  presentation  to  a  living,  and 


has  preached  his  trial  sermons,  a  day  is  fixed, 
within  six  weeks,,  for  moderating  in  his  call ; 
notice  being  given  from  the  pulpit  at  least 
ten  free  days  before  the  day  appointed,  and 
not  later  than  the  second  Sabbath  after  the 
meeting  of  presbytery.  On  that  day,  after 
sermon,  the  people  are  informed  of  the  pre- 
sentation which  has  been  lodged,  and  are  in- 
vited to  subscribe  a  written  call  to  the  pre- 
sentee to  be  their  minister.  The  admission 
of  ministers  to  benefices  is  now  regulated  by 
the  act  6  and  7  Vict.,  c.  61  (1843).  Upon  a 
presentation  to  a  benefice  being  laid  before 
the  presbytery  of  the  bounds,  they  appoint 
the  presentee  to  preach  in  the  paririi  church, 
and  thereafter  they  meet,  and,  after  due 
notice,  receive  such  reasons  or  objections 
against  the  presentation  which  do  not  infer 
matter  of  charge  against  him  requiring  to 

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be  profeeented  sccording  to  the  forms  and 
discipline  of  the  Church.  The  Reasons  and 
Objections  so  received  are  determined  judi- 
cially by  the  presbytery,  or  are  referred  by 
them  to  the  superior  judicatory  of  the  Church 
for  decision  as  they  may  see  cause.  In 
either  case  the  pre^ntee  and  all  parties  hav- 
ing interest  are  heard  on  the  objections  and 
reasons ;  and  in  cognoscing  and  determining 
on  the  same  judicially,  the  presbytery  or 
.other  judicatory  must  have  regard  only  to 
Buch  objections  and  reasons  as  are  personal 
to  the  presentee  in  regard  to  his  ministerial 
gifts  and  qualities,  either  in  general  or  with 
respect  to  the  particular  parish  to  which  he 
has  been  presented.  They  are  entitled, 
however,  to  have  regard  to  the  whole  cir- 
-cnmstances  and  conditions  of  the  parish,  to 
.the  spiritual  welfare  and  edification  of  the 
people,  and  to  the  character  and  number  of 
the  persons  by  whom  the  objections  and 
reasons  have  been  preferred.  If  the  presby- 
ters or  ether  judicatory  shall  decide  that  the 
objections  or  reasons,  or  any  of  them,  are 
well  founded,  and  that,  in  req>ect  thereof, 
the  presentee  is  not  a  qualified  and  suitable 
person  for  the  functions  of  the  ministry  in 
tiiat  particular  parish,  and  ought  not  to  be 
-aettled  in  the  same,  they  pronounce  a  deliver- 
ance to  that  effect, — setting  forth  and  specify- 
ing in  the  deliverance  the  special  ground  or 
grounds  on  which  it  is  founded,  and  in  re- 
spect of  which  they  fiad  the  presentee  not 
qualified  for  the  charge.  In  this  event  the 
presbytery  must  intimate  the  deliverance  to 
the  patron,  who  is  then  entitled  to  issue  another 
presentation  within  six  months  after  the  date 
of  such  deliverance,  if  no  appeal  is  taken  to  a 
superior  judicatory  of  the  Church;  but  if  such 
appeal  is  taken,  then  within  lix  months  after 
the  date  of  the  judgment  of  the  superior 
judicatory,  affirming  the  deliverance  of  the 
inferior  judicatory,  and  dismissing  the  appeal. 
If  the  reasons  or  objections  are  not  sustained 
by  the  presbjrtery,  they  proceed  to  the  trial 
of  the  presentee,  and  admit  him,  if  found 
qualified  for  the  ministry  of  that  parish.  A 
presentee  cannot  be  rejected  npon  the  ground 
of  any  mere  dissent  or  dislike  expressed  by 
•ny  part  of  the  congregation  of  the  parish 
to  which  he  is  presented,  and  which  dissent 
or  dislike  is  not  founded  upon  objections  or 
reasons  to  be  fully  cognosced,  judged  of,  and 
determined  judicially  by  the  presbytery  or 
other  judicatory  of  the  Church.  It  is  in  the 
power  of  the  presentee,  patron,  or  objectors 
to  appeal  from  any  deliverance  of  a  presby- 
tery to  the  superior  judicatoriesof  the  Church. 
CaUing  of  a  Snmmoiu.  After  a  summons 
has  been  executed,  and  the  diet  of  appearance 
has  arrived,  the  first  step  taken  by  the  pur- 
•ner  in  order  to  bring  the  case  into  Court  is 


to  call  the  summons.  In  the  Court  of  Set- 
sion  this  was  formerly  done  by  the  clerks  of 
Court  reading  over  the  names  of  the  pur- 
suer and  defender  from  a  partUnu  written  og 
the  margin  of  the  summons.  This  duty  vu 
performed  every  Thursday  and  Satordsj 
morning  during  the  sitting  of  the  Coart, 
and  on  each  of  the  nine  last  sederunt-daji  of 
the  summer  and  winter  Bessions ;  and  ap- 
pearance was  made  for  the  defender,  by  the 
clerk  of  the  counsel  who  was  to  act  for  him 
appearing  at  this  ccMing,  and  stating  tie 
names  of  the  defender's  counsel  and  agent, 
which  were  marked  upon  the  margin  of  the 
summons  by  the  clerk  of  Court.  The  asm- 
mens  thus  marked  was  then  given  by  the 
pursuer's  agent  to  the  agent  for  the  defen- 
der to  prepare  defences.  At  the  expiration 
of  six  days  it  was  necessary  to  return  it,  and 
the  cause  was  then  enrolled  in  the  OrdituTj 
Action  Roll,  and  debated  and  disposed  of  ac- 
cording to  the  former  practice.  If  no  ap- 
pearance was  made  for  the  defender  at  these 
callings,  the  cause  was  enrolled  in  the  Re^ 
lation  Roll ;  and  if^  when  it  came  to  be  called 
before  the  Lord  Ordinary  in  the  conneof 
that  roll,  the  defender  still  failed  to  aj^iear, 
decree  in  absence  was  pronounced. 

By  Act  of  Sederunt,  11th  March,  1820, 
these  callings  before  the  Clerks  of  Court 
were  abolished,  and  calling  lists  subetitated, 
containing  the  names  of  the  pursuer  and  de- 
fender, and  of  the  pursuer's  counsel  and  agent, 
as  in  the  partibut ;  which  lists  were  thereby 
appointed  to  remain  exhibited  on  the  valla 
of  the  Outer-House  during  the  forenoon  of 
the  calling  da}^,  so  as  to  admit  of  the  defend- 
er's agent  entering  appearance  for  him  at 
the  clerk's  office  in  the  course  of  the  evening. 
In  addition  to  being  thus  exhibited  on  the 
walls,  these  lists  are  now  printed  for  cirenla- 
tion  among  practitioners,  so  that  full  intinis- 
tion  is  given  to  all  concerned.  When  ap- 
pearance is  entered  for  a  defender,  it  is  done 
by  his  agent  going  to  the  Clerk's  office  in  the 
evening  of  the  calling  day,  or  of  the  day  fol- 
lowing, and  getting  the  name  of  the  defend- 
er's counsel  and  agent  marked  on  the  parti- 
bus,  and  borrowing  the  summons  and  pro- 
ductions, in  order  to  prepare  defences.  The 
calling  day  in  time  of  session  is  Thursday, 
except  during  the  last  nine  days  of  ^  win- 
ter session,  and  the  last  seven  days  of  the 
summer  session,  when  a  calling  list  is  daily 
exhibited  ;  and  if  appearance  bie  not  entered 
for  the  defender,  the  summons  is  returned  to 
the  pursuer's  agent,  with  a  marking  that 
the  defender  is  absent ;  upon  which  the  som- 
mons  may  be  enrolled  in  the  roll  of  unde- 
fended causes;  and  decree  in  absence  will 
ensue.  No  defences  can  be  received  sfler 
this,  except  of  consent,  or  by  reclaiming  note 

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to  tbe  Inner-Hoiue  after  decree  in  absence  I 
bu  bees  pronounced  (See  Regulation  RoU. 
Dtent.  Rqfoumg.)  If  appearance  be  entered, 
the  defender  (except  in  summonses  of  cesiio) 
iisllowed  thirteen  days  to  prepare  his  de- 
feoees,  counting  ft'om  the  calling  day ;  and  if 
theee  thirteen  da}^  expire  daring  vacation  or 
recess,  tbe  defences  are  not  required  until 
tbe  box-day.  There  are  many  minute  re- 
gslations  abont  the  fortibus,  and  the  pro- 
ductions to  be  made  with  the  summons ;  the 
fee-fiuiding,  without  which  it  cannot  be  call- 
ed ;  the  printing  of  the  Summons  in  certain 
cstei,  and  the  like,  as  to  which,  see  for  tbe 
older  practice,  Ivory's  Form  of  Process,  i.  425, 
It  stq„  and  A.  S.  llih  March  1820 ;  and  for 
the  preeent  practice,  50  Geo.  III.,  c.  112,  § 
20;  A.  SAia  Jttjy  1828,  §§  23,  24,  25,  26, 
27, 29,  31,  32  ;  A.  S.  8th  July  1831 ;  1  and 
2  Viet,  c.  118 ;  13  and  14  Vict,  c.  36 ; 
Skemfi  Prae.  264,  et  teg. 

In  tbe  inferior  courts  the  calling  was  for- 
merij  made  by  the  clerk  reading  the  partibns 
is  court,  and  marking  appearance  for  the  de- 
feoder,  where  appearance  was  entered ;  fail- 
ing which  decree  in  absence  was  then  pro- 
noBnc«d.  Thisprocedure  is  now  superseded 
by  16  and  17  Vict.,  c.  80,  which  enacts  in 
§  3,  that  where  a  defender  in  the  Sheriff- 
coart  intends  to  state  a  defence,  he  must  enter 
appearance  by  lodging  with  the  sheriff-clerk, 
at  latest  on  the  day  of  compearance,  a  notice 
is  the  form  printed  in  a  schedule.  On  the 
first  court-day  thereafter,  or  on  any  other 
ceart-day  to  which  the  diet  may  be  adjourned, 
not  being  later  than  eight  days  thereafter,  the 
ihtriff  must  hear  the  parties ;  and  for  this 
pirpoae  the  pursuer's  procurator  must  enrol 
the  canse  for  the  first  court-day  after  the  day 
of  compearance.  Where  no  appearance  has 
been  entered,  the  Sheriff  may,  at  any  court 
held  after  the  day  of  compearance,  give  decree 
in  terms  of  the  summons,  which  decree  is  de- 
ckred  (§  2)  to  be  in  all  respects  equivalent 
to  a  decree  in  absence  obtained  under  the 
preriouily  existing  forms.  See  Stair,  B.  iv., 
tit.  2,  §  2  ;  tit.  38,  §  2 ;  Hwne,  ii.  263  ; 
Jmi.  Styles,  ill.  973;  M'Glashan's  Sher. 
Go«rt  Prae.  194.  See  also  Partibus.  Protes- 
tatim. 

A  summons  may  be  thus  called  on  the  day 
of  compearance ;  and  where  the  last  day  of 
the  legal  indttcice  of  any  summons,  suspension, 
«r  adToeation,  is  not  a  sederunt  day,  the  day 
of  compearance  was  fixed,  by  A.  S.  8th  July 
1831,  )  3,  to  be  the  first  sederunt-day  there- 
after. Now,  in  terms  of  2  and  3  Vict.,  c.  36, 
and  relative  Act  of  Sederunt,  8th  August 
1839,  summonses  may  be  called  at  either  of 
the  box-days  in  the  autumn  vacation,  the 
4efeDe«8  being  returned  at  the  second  box- 
day,  or  on  the  meeting  of  the  Court  in  No- 


vember respectively ;  and  the  act  13  and  14 
Vict,  c.  36,  §  54,  authorizes  the  Court  to 
make  regulations  for  allowing  summonses 
and  notes  of  suspension,  advocation,  Sio.,  to 
be  called  at  any  box-day  in  vacation  or  re- 
cess, and  making  defences  returnable  at  such 
box-days,  or  on  the  meeting  of  the  Lords  Or- 
dinary, or  of  the  Court,  after  vacation  or  re- 
cess. (See  Box-day.)  In  the  case  of  a  sum- 
mons, the  instance  falls  unless  it  is  executed 
within  year  and  day  of  its  stgneting,  and 
called  within  year  and  day  of  the  day  of  com- 
pearance; A.  S.  8<A  July  1831.  If  by  mis- 
take a  summons  has  been  prematurely  call- 
ed, the  proceedings  which  have  followed  such 
erroneous  calling  may  be  held  pro  non  scriptie, 
and  the  summons  may  be  called  of  now  at 
the  proper  time.  The  calling  being  held  as 
a  judicial  step,  a  summons  once  called,  though 
not  enrolled,  if  not  taken  out  of  court  by  pro- 
testation, may  be  wakened  at  any  time  within 
forty  years ;  and  it  would  also  appear  thai; 
the  calling  renders  the  subject  in  dispute  li- 
tigious in  those  actions  in  which  a  mere  cita- 
tion has  not  that  effect.  Shandi's  Prac.,  p.  276, 
and  authorities  there  cited;  2  Bell's  Com.  153. 
See  Litigiosity.     Citation.    Diet, 

Calling  of  a  Snspeiuion  or  Advocation. 
Previous  to  the  statute  of  1838,  the  calling 
of  letters  of  .suspension  or  advocation  was  in 
all  respects  analogous  to  the  calling  of  a  sum- 
mons. But  in  suspensions,  where  the  charger 
had  made  appearance  in  the  Bill-Chamber, 
or  where  intimation  of  the  bill  or  sist  had 
been  made  to  him  by  a  notary  or  messenger- 
at-arms,  and  a  certificate  or  execution  re- 
turned ;  and  in  all  advocations  where  the 
respondent  had  made  appearance  in  the  Bill- 
Chamber,  or  where  intimation  of  the  pre- 
senting or  passing  of  the  bill  had  been  made 
to  the  respondent  or  his  agent  in  tbe  in- 
ferior court,  the  suspender  or  advocator  was 
entitled,  at  the  expiry  of  ten  days  after  the 
pRSsing  of  the  bill,  to  call  and  insist  in 
the  letters  of  advocation  or  suspension  with- 
out executing  them;   the  charger  or  res- 
pondent being  entitled,  at  the  end  of  six 
days  after  the  lapse  of  the  period  allowed  for 
expeding  the  letters,  to  put  up  protestation 
in  order  to  force  on  the  discussion  of  the  ex- 
pede  letters,  whether  executed  or  not.    All 
letters  of  suspension  or  advocation  not  exe- 
cuted, or,  where  execution  was  unnecessary, 
not  called,  within  year  and  day  of  the  date 
of  signeting,  or  though  duly  executed  within 
that  period,  if  not  called  within  year  and  day 
of  the  day  of  compearance,  fell  asleep ;  but 
the  instance  did  not  fall  as  in  the  case  of  a 
summons ;  and  it  was  competent,  without  a 
wakening,  to  revive  the  proceedings  in  a  bill 
of  advocation  or  suspension  which  had  lain 
over,  by  a  written  note  to  the  Lord  Ordinary 


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on  the  Bills,  duly  iDtimated  fifteen  days  at 
least  before  presenting  such  note.  See  A.  S. 
8th  July  1831 ;  Stair,  B.  iv.,  tit.  52,  35,  tt 
teq. ;  Jurid.  Styles,  2d  edit.,  vol,  iii.  pp.  980-4. 
Since  31st  December  1838,  the  calling  of 
advocations  and  suspensions  has  been  regu- 
lated by  the  act  1  and  2  Vict.,  c.  86,  and 
relative  Act  of  Sederunt,  24th  Dec.  1838, 
superseding  the  use  of  bills  and  letters  of  sus- 
pension or  advocation,  and  substituting  a 
short  note,  presented,  except  in  the  case  of 
advocations  of  final  judgments,  in  the  Bill- 
Chamber.  The  note  of  advocation  of  a  final 
judgment  must  be  lodged  with  one  of  the 
depute-elerks  of  the  Court  of  Session,  or  his 
assistant.  The  lodging  of  the  note  must  then 
be  intimated  to  the  opposite  party  by  deliver- 
ing a  copy  to  him  or  bis  known  agent ;  and 
within  fii^een  days  after  the  date  of  the  inti- 
mation it  is  competent  to  call,  and  thereafter 
to  enrol,  the  cause  in  the  weekly  printed  roll, 
when  it  proceeds  in  the  same  manner  as  ex- 
pede  letters  of  advocation  did  formerly  (§  1). 
In  advocations  of  interlocutory  judgments  the 
written  note,  which  must  in  this  case  have 
articulate  reasons  of  advocation  annexed,  is 
lodged  in  the  Bill-Chamber,  and  forthwith 
laid  before  the  Lord  Ordinary  on  the  Bills. 
If  he  pass  it,  the  cause  may,  after  the  expiry 
of  fifteen  days  from  the  passing,  be  called, 
and  thereafter  enrolled  (§  3).  A  decree 
in  foro  of  an  inferior  court,  and  any  dili- 
gence thereon,  is  now  suspended  by  lodging 
in  the  Bill-Chamber  a  written  note  of  sus- 
pension, the  presentment  of  which  being  cer- 
tified, operates  as  an  interim  sist  of  diligence. 
On  the  requisite  caution  being  found,  the 
note  is  forthwith  passed.  The  note  and  in- 
terlocutor passing  it  must  be  served  on  the 
opposite  party  by  a  messenger ;  and  after 
the  expiry  of  fifteen  days  from  the  date  of 
service  it  is  competent  to  call,  and  there- 
after to  enrol,  the  cause  (§  4).  In  suspen- 
sions without  caution,  or  on  juratory  cau- 
tion,and  of  decrees  of  removing,  an  articulate 
statement  of  facts  must  be  annexed  to  the 
note ;  and  if  the  note  is  passed,  the  same 
procedure  takes  place  as  is  provided  in  advo- 
cations of  interlocutory  judgments  (§  4).  A 
decree  in  absence  of  the  Court  of  Session  is 
suspended  by  lodging  in  the  Bill-Chamber  a 
note,  as  above,  which,  upon  consignation  of 
the  expenses  decerned  for,  is  passed.  The 
note  and  interlocutor  passing  it  must  be  ser- 
ved on  the  opposite  party  by  a  messenger ; 
and  fifteen  days  thereafter  the  cause  may  be 
called,  and  thereafter  enrolled  (§  5).  All 
suspensions  and  interdicts,  and  advocations 
or  suspensions  not  specially  provided  for,  are 
bronght  by  lodging  a  note  in  the  Bill-Cham- 
ber, as  above,  with  an  articulate  statement 
of  facts  annexed.    It  is  forthwith  laid  before 


the  Lord  Ordinary,  who  pronounces  upon  it; 
and  the  note  and  order,  or  interlocutor  npon 
it,  must  be  served  upon  the  opposite  party 
by  a  messenger.  If  the  note  is  pasted,  the 
same  procedure  takes  place  as  in  advoeatioot 
of  interlocutory  judgment  (§  6).  The  re- 
spondent or  charger,  in  all  notes  of  adroci- 
tion  or  suspension,  may  put  up  proteststieg 
after  the  expiry  of  fifteen  days  after  the  is* 
terlocutor  passing  the  note  shall  have  tskeo 
effect.  A.  a.  §  12.  See  SutpensioiL  Aitt- 
cation.    Protatation.     Wakening. 

Calumny,  Oafh  of.  The  act  1429,  c.  125, 
in  order  to  prevent  calumnious  and  nnneoei- 
sary  suits,  ordains  both  parties,  at  the  begin- 
ning of  a  cause,  to  swear,  either  by  them- 
selves or  their  counsel,  that  the  facts  set  fortk 
by  them  are  true.  This  oath  of  calamity,  as 
it  is  termed,  was  in  practice  never  put,  nnleti 
the  adverse  party  required  it ;  and,  when 
made,  it  was  held  as  an  oath  of  credulity  or 
opinion  merely.  The  party  putting  it  wu 
not  thereby  understood  to  renounce  all  other 
probation ;  and  the  consequence  of  a  party 
deponing  against  his  allegations  was  to  ex- 
clude him  from  insisting  in  them.  A  party 
was  not  bound  to  give  oath  upon  each  alle- 
gation separately,  but  only  upon  the  whole 
generally  and  collectively.  The  practice  of 
making  counsel  emit  an  oath  of  cuumny  be- 
came obsolete.  The  terms  of  the  oath  are 
prescribed  in  the  Act  of  Sederunt,  13th  Jan. 
1 692.  Oaths  of  calumny  have  been  little  in 
use  since  the  Act  of  Sederunt  1st  Feb.  1715, 
by  which  it  is  provided  (§  6),  that  a  party 
or  his  counsel  may  be  called  upon  to  eonfea 
or  deny  (but  not  on  oath)  any  relevant  mat- 
ter of  fact  founded  upon  by  him  ;  and  if  he 
shall  deny  what  shall  afterwards  be  proved  to 
have  been  known  to  him,  he  shall  be  found  lia- 
ble, without  modification,  to  all  the  expenees 
to  which  his  opponent  shall  have  been  pot  by 
such  calumnious  denial  (see  Er$k.  B.  iv.  tit. 
2,  §  16) ;  and  such  oaths  have  fallen  itill 
more  into  desuetude  under  the  modem  eye- 
tem  of  records  and  judicial  examinations,  and 
are  now  very  rare  in  practice,  at  least  in 
those  cases  in  which  a  party  may  examine  hit 
opponent  as  a  witness.  See  Dicksou  on  Eti- 
deiux,  p.  776  ;  and  the  case  of  Paul  v.  Laing$, 
7th  March  1856, 17  D.604,  where  there  was 
a  great  deal  of  discussion,  whether  this  oath 
(in  causes  not  consistorial)  still  exists  in  the 
law  of  Scotland.  An  oath  of  calumny,  how- 
ever, in  order  to  guard  against  collusion  be- 
tween spouses,  is  always  put  to  the  pursner 
in  actions  of  divorce,  and  of  declarator  of 
nnllity  of  marriage  on  the  ground  of  impo- 
tency.  See  opinions  of  the  Court  in  the  esse 
of  Paul  sup.  cit.;  11  Geo.  IV.,  and  1  WHL 
IV.,  c.  69  §  36  ;  Dickson  on  Evidence,  p.  779. 
See  also  Divorce. 


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In  the  inferior  courts  the  oatb  may  be  put, 
bnt  onlj  on  consignation  of  a  sum,  not  ex- 
ceeding 408.  and  not  under  5s.,  to  be  fixed  by 
ike  inferior  judge,  and,  if  he  see  cause,  to  be 
forfeited  to  the  other  party,  in  ease  the  oath 
is  passed  from,  or  is  negatived,  oTor  and 
sbore  the  party's  travelling  charges,  and  the 
expenses  occasioned  by  the  oath ;  A.  S.  12th 
Set.  1825 ;  A.  S.  1839,  §  92.  In  the  same 
Acts  of  Sederunt  for  regulating  the  inferior 
coorti,  there  is  an  analogous  provision,  where- 
Ij  the  inferior  judge  is  empowered,  at  any 
lUge  of  the  cause,  to  order  the  parties,  or 
either  of  them  (not  on  oath,  however),  to  con- 
feti  or  deny  such  facts,  or  to  answer  such  per- 
tiaent  interrogations  as  the  sheriff  or  commis- 
■ioner  shall  put ;  and  on  failure,  to  be  held  as 
coBfeased,  without  prejudice  to  his  being  re- 
posed on  cause  shown  ;  A.  S.  I2th  Nov.  1825; 
i.S.  1839, 6§  66, 67.  See  Shcmd's  Prac.  p.  385, 
421,433;  M'OUuhan's  Sher.  Court  Prac.  326. 
A  false  oath  of  calumny  will  not  subject  the 
maker  of  it  to  a  prosecution  for  the  crime  of 
peijoiy.  Stair,  B.  It.  tit.  44,  §  15,  el  teq. ;  Mr 
Mtr^M  Notet,  pp.  eccxcv.,  ccccxvi. ;  Ersk. 
Pme.  12th  edit.  481 ;  Brown's  Synop.  pp.  63, 
1924 ;  Skavfg  Digett ;  Hume,  vol.  i.  p.  368. 

CaapJOHM;  synonymous  with  Champion, 
ud  applied  to  the  champion  whom,  in  the 
dsyi  of  single  combat,  a  litigant  brought  to 
fgbt  for  him.     iSiib«n«,  h.  t. 

Cttdidate.  In  parliamentary  election  law, 
s  candidate  is  a  person  offering  himself,  or 
pnt  in  nomination,  for  the  suffrages  of  the 
ekctoTs.  By  the  Scotch  Reform  Act,  halls, 
rooms,  booths,  or  other  places  hired,  construct- 
ed or  prepared  for  taking  polls,  are  so,  by  con- 
tnet  with  the  candidates,  or  if  they  cannot 
sgree,  then  at  their  joint  expense  ;  the  ex- 
pense at  any  one  polling-place  in  a  county  not 
to  exceed  L.30,  and  in  a  burgh  L.20.  The 
cudidates  are  farther  bound  to  pay  a  guinea 
trixj  to  each  poll  clerk,  and  a  fee  not  ex- 
ceeding three  guineas  a-day  to  each  polling 
^riif.  Where  a  poll  has  been  demanded, 
the  candidates  are  also  bound  to  defray  the 
oecsmry  expense  incurred  by  sherifis,  or  she- 
riff^Ierka,  or  town-clerks,  in  the  transmis- 
lioa  of  precepts,  intimations,  poll-books,  or 
ether  communications  required  by  the  act ; 
the  proposer  to  be  liable,  if  the  candidate  has 
heen  proposed  without  his  own  consent ;  2 
ind  3  WiU.  IV.,  c.  65,  §  40.  On  the  requi- 
Btion  of  any  candidate,  the  booths,  &c.,  at 
«uh  polling-place  may  be  divided  (Stat.  § 
27) ;  the  candidate  or  elector  requiring  such 
division  to  pay  the  expenses  therewith  con- 
nected; 5  and  6  Witt.  /F.,c  78.  See  R^orm 
ilete.  See  also  Bribery  Act,  Vj  and  18  Vict., 
e.102. 

Candlemas-Day.  The  feast  of  the  parifi- 
eaticn  (February  2). 


Came.    See  Kain. 

Caaen-Law.  This  law  consists  of  the  dtcre- 
tum,  a  collection  made  after  the  middle  of  the 
12th  centnry,  drawn  from  the  opinions  of  the 
Fathers  and  Popes,  and  from  church  councils, 
in  imitation  of  the  Roman  Pandects, — of  the 
decretalia  collected  from  the  Epistles  of  the 
Popes.    Stair,  B.  i.  tit.  14 ;  Ross's  Leet.  i.  9. 

Camim,  Canna ;  used  in  old  charters  to 
signify  the  duty  paid,  chiefly  in  kirk-lands, 
in  kind,  as  wheat,  bear,  oate,  &c.  Skene, 
h.  i.    See  Kain. 

Capias ;  in  English  law,  a  term  applied  to 
certain  writs,  from  the  occurrence  of  the  word 
{capias)  in  the  ancient  Latin  forms.  Capias 
ad  respondendum,  is  a  judicial  writ,  by  which 
all  actions  not  relating  to  land  or  real  pro- 
perty are  commenced  against  any  one  not  in 
custody  whom  it  is  intended  to  arrest  or  hold 
to  bail.  Capias  ad  satisfaciendum,  usually  called 
a  ca  sa,  is  a  writ  of  execution  to  imprison  the 
person  of  the  defendant,  after  judgment  has 
been  pronounced  against  him,  until  he  make 
satisfaction  to  his  creditor.  Capias  utlaga- 
tun,  is  a  writ  against  a  person  outlawed. 
Tomlin's  Diet.  ft.  t. ;  Ros^s  Lect.  i.  244,  «t  seq. 

Ci^ita,  succession  per ;  in  contradistinction 
to  succession  per  stirpes,  is  when  each  indi- 
vidual succeeds  in  bis  own  right,  and  the 
right  of  representation  is  excluded.  See  Suc- 
cession Stirpes. 

Capital  Puushment.  The  following  re- 
cent statutes  have  been  enacted,  restricting 
the  punishment  of  death : — 4  and  6  Will.  IV., 
c.  67 ;  6  and  6  WiU.  IV.,  c.  81 ;  7  Will.  IV. 
and  1  Vict.,  c.  84  and  91.  By  these  acts  ca- 
pital punishment  is  abolished  throughout 
the  kingdom,  in  cases  of  returning  from 
transportation,  letter  stealing,  sacrilege,  and 
forgery ;  and  in  England  and  Ireland  in  cases 
of  riot,  rescue  of  murderers,  seduction  of  sol- 
diers or  sailors,  the  administering  of  unlaw- 
ful oaths,  breaking  of  prison,  slave-trade,  and 
smuggling.    See  these  several  articles. 

Capitis  Siminntio ;  in  the  Roman  law, 
signifies  a  loss  or  change  of  status.  It  was 
of  three  kinds,  answering  to  the  three  kinds 
of  status  which  might  be  lost.  Minima  was  a 
simple  change  in  the  individual's  situation 
in  reference  to  family,  as  from  being  sui  juris 
to  alieni,  or  from  alieni  juris  to  sui.  Media 
was  a  loss  of  civil  rights,  while  that  of  liberty 
was  retained.  Maxima  was  a  loss  of  both 
civil  rights  and  liberty. 

Captain  or  Master  of  a  Ship.  See  Ship- 
master. 

Caption.  A  caption  is  a  warrant  for  the 
apprehension  of  the  person  of  a  debtor  or  ob- 
ligant,  on  account  of  the  non-payment  of  a 
debt,  or  the  non-performance  of  an  obliga- 
tion. With  the  exception  of  the  act  of  ward- 
ing (see  Act  of  Warding),  which  can  be  exe- 


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cuted  within  burgh  only,  the  caption  wu, 
strictly  speaking,  till  lately,  the  only  ciril 
Tarrant  recognised  in  law  for  the  above 
purpose.  The  fiction  on  which  the  appre- 
hension under  a  caption  proceeds  is,  that  the 
debtor  in  the  obligation  haring  refused  obe- 
dience to  the.  Sovereign's  letters,  charging 
him  to  pay  or  perform,  is  imprisoned  as  a 
rebel.  A  caption  is  a  writ  which  passes  the 
signet,  and  which  is  prepared  by  a  writer  to 
the  signet.  It  proceeds  in  the  Sovereign's 
name,  and  is  addressed,  like  all  other  signet 
letters,  to  meesengers-at-arms,  as  sherifb  in 
that  part,  commanding  them  to  charge  she- 
riffs, magistrates,  and  messengers,  within 
three  days  after  the  charge,  to  apprehend  the 
person  against  whom  the  caption  is  directed, 
and  to  imprison  him  until  he  fulfil  the  charge 
in  the  letters  of  homing  which  he  has  dis- 
obeyed. In  practice,  however,  the  charge  to 
sheriflb,  Ac,  is  never  given,  unless  (which  will 
seldom  happen)  they  refuse  to  assist  the  mes- 
senger in  the  execution  of  his  duty;  and, 
by  long-established  custom,  the  messenger, 
on  receiving  possession  of  the  caption,  may, 
and  does,  apprehend  and  incarcerate  the  per- 
son against  whom  it  is  directed  de  piano,  and 
without  the  necessity  of  adopting  the  form 
which  its  style  apparently  requires.  In  ap- 
prehending the  debtor,  the  messenger  is  en- 
titled, of  course,  when  he  may  need  it,  to  de- 
mand the  assistance  of  the  civil  authorities ; 
and,  under  the  terms  of  the  caption,  he  has 
unlimited  power  to  open  doors  and  lockfast 
places  in  search  of  the  person  of  the  debtor. 
A  caption  must  proceed  on  proper  evidence 
of  the  failure  to  pay  or  implement ;  and  this 
evidence  consists  in  the  exhibition  at  the 
Bill-Chamber  of  letters  of  horning  against 
the  debtor,  executed,  denounced,  and  recorded 
(see  Homing,  Denunciation),  along  with  a  bill 
praying  for  letters  of  caption.  The  Bill- 
Chamber  clerk,  on  being  satisfied  with  the 
evidence  produced  to  him,  grants  a  deliver- 
ance on  the  bill,  which  is  the  warrant  to  the 
keeper  of  the  signet  to  impress  the  signet  on 
the  caption. 

The  caption,  though  still  competent,  has 
been  practically  superseded  by  the  forms  con- 
tained in  the  Personal  Diligence  Act,  1  and 
2  Vict.,  c.  114,  which  makes  it  competent  to 
insert  in  extract  decrees  of  the  Court  of  Ses- 
sion, Justiciary,  and  of  the  Teind-Conrt,  and 
also  in  decrees  of  registration,  a  warrant  to 
charge  the  debtor  or  obligant  to  pay  the 
debt,  or  perform  the  obligation,  within  the 
days  of  charge,  under  pain  of  poinding  and 
imprisonment ;  and  to  arrest  and  poind,  and 
for  that  purpose  to  open  shut  and  lock- 
fast places  (§  1).  Within  year  and  day  after 
the  charge  has  expired,  the  execution  is  re- 
eorded  in  the  general  register  of  horoings, 


snch  registration  being  dedared  to  have  tie 
same  effect  as  denunciation  in  virtue  of  lett«n 
of  homing,  and  recording  of  these  letten 
along  with  the  execution  of  charge  sod  de- 
nunciation (§  5).    The  keeper  of  the  register 
thereupon  gives  a  certificate  of  registration 
of  the  execution ;  and  thereafter  a  warrant  of 
imprisonment  can  be  obtained  by  presenting 
in  the  Bill-Chamber,  along  with  the  extract, 
execution,  and  certificate,  a  minute  (mdoned 
on  the  extract)  in  terms  of  the  schedule  tab- 
joined  to  the  act.    This  is  signed  by  a  writer 
to  the  signet,  and  craves  warrant  to  appre- 
hend and  imprison,  and,  if  necessary  for  the 
purpose  of  snch  apprehenuon,  to  openihst 
and  lockfast  places;  and  warrant  abo  to 
magistrates  and  keepers  of  prisons  to  reeeite 
and  detain  the  debtor  or  obligant.   Upon  tlie 
extract  the  Bill-Chamber  clerk  writes  hiijiot, 
dating  and  subscribing  it ;   aai  then  such 
extract  and  deliverapce  can  be  used  fw  the 
same  purpose,  and  impose  the  same  obliga- 
tions upon  magistrates  and  keepers  of  prisont, 
as  if  letters  of  caption  had  been  issued  under 
the  signet  (§  6).     The  same  act  extendi  to 
sheriffs  the  power  of  imprisonment  for  ciril 
debt ;  the  sheriff-clerk,  in  the  case  of  impri- 
sonment following  upon  the  decree  of  a  ^e- 
riff,  being,  by  §  11 ,  empowered  to  issue  warrant 
therefor  in  similar  terms  to  that  granted  in 
the  Bill-Chamber,   which  warrant  ii  alto 
declared  to  have  the  same  effect  as  letten  of 
caption  issued  under  the  signet.    By  §  S3  of 
the  Court  of  Bxcbeqner  Act,  19  and  20  Vict, 
c.  56,  it  is  competent  for  the  sheriff  to  csan 
extracts  ofdecrees  for  debts  due  to  theCrevn, 
and  execution  of  charge  thereon,  to  be  pre- 
sented to  the  sheriff-clerk  of  the  county  where 
the  charge  was  given,  and  the  sheriff-clerii  is 
to  record  the  execution  in  the  register  of 
hornings,  such  registration  being  declared  to 
have  the  same  effect  as  the  registration  of 
any  expired  charge  given  in  terms  of  1  and  2 
Vict.,  c.  114.  The  sheriff-clerk  then  indones 
a  certificate  of  registration  ;  and  it  is  there- 
after competent  for  the  sheriff  to  issue  his 
warrant  of  imprisonment,  which  mutt  be  in 
terms  of  a  schedule  annexed  to  the  act  (§  34). 
No  minute  is  necessary,  such  as  is  reoairei 
by  the  Personal  Diligence  Act.     See,  on  the 
subject  of  this  article.  Stair,  B.  iv.  tit.  47,  § 
13  ;  Mr  MoreU  Notet,  p.  ccocxxz ;  ErtL  B. 
iv.  tit.  3,  §  12,  et  teq. ;  Ersk.  Princ.  12th  edit. 
105,  496-7,  501;  BeWt  Com.  vol.  ii.  pp.  51, 
169,  543,  6th  edit.;  BeWt  Princ.  art.  2398; 
Jitrid.  SU)les,  2d  edit.  vol.  iii.  pp.  573,  740, 
et  teq.,  989;  Sbato't  Digest.    Ros^s  Leet.i. 
312,  et  seq. ;  Menzia's  Lect.  i.  p.  288,  et  teq.; 
Thorn  V.  Black,  10th  Dec.  1828, 7  S.  158 ;  16 
and  17  Vict.,  c.  79,  §  3.    See  also  Apprehefulr 
ing  of  a  Debtor.    Booking  <^  a  Pritomer.    Imr 
prisonment.    Earning. 


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Cl]itioa  Proo«n.  A  process  caption  is  a 
lammAry  warrant  of  incarceration,  granted 
on  the  application  of  the  clerk  of  court,  for 
the  parpose  of  forcing  back  a  process  which 
has  ))een  andnl j  and  contamaciously  retained 
by  the  party  whose  receipt  stands  for  it  in 
the  court  books.  In  the  Court  of  Session 
these  warrants,  which  may  be  executed  by 
macers  or  meesengers-at-arms,  are  issued  by 
the  Lord  Ordinary  on  the  Bills,  on  the  ap- 
plication of  the  clerk  to  the  process.  They 
sre  directed  against  the  agent  and  his  clerk 
whose  receipt  stands  for  the  process,  and 
authorize  their  incarceration  and  detention 
nntil  it  is  returned.  The  application  is 
asaally  made  at  the  request  of  the  opposite 
party,  who,  at  the  time  must  be  entitled  to 
force  back  the  process  from  his  antagonist ; 
and  as  this  compulsitor  is  understood  to  rest 
on  a  presumed  contempt  of  court,  so  it  would 
aeem  that  it  is  not  the  appropriate  remedy 
There  the  process  has  been  actually  lost,  or 
where,  from  some  other  inevitable  accident, 
it  cannot  be  returned.  In  such  cases,  the 
t«nedy  is  aa  action  of  damages  at  the  instance 
of  the  party  prejadieed  against  the  party  by 
whose  fSanlt  or  negligence  the  process  has 
gone  amissing.  Where  an  attempt  is  made 
to  enforce  a  process  caption  under  such  cir- 
cnmEtances,  relief  may  be  applied  for  by  note 
of  suspension.  In  the  inferior  courts  process 
captions  are  issued  by  the  inferior  judge,  on 
the  application  of  the  clerk  of  court.  In  many 
ioferior  eonrls,  however,  an  order  of  court, 
making  it  imperative  on  a  procurator  to  re- 
tora  the  process  under  an  award,  has  in  most 
cases  superseded  recourse  to  a  caption  ;  Bar- 
tkft  Sker.  Court  Prac.  p.  331 ;  Bardaft 
Justice  «f  Peace,  h.  t.  See  also  A.S.  llih  Jult) 
1828,  «  34,  104 ;  A.S.  lOth  July  1839,  § 
159 ;  Pagm,  v.  Honhurgh,  1835, 13  S.  471. 

OiftiTe.  All  actions  against  a  prisoner 
taken  l^  the  enemy  stop  till  his  return  ;  but 
eieeition  by  homing  may  proceed  against 
him.  A  ransomed  hostage  is  entitled  to  the 
wages  during  his  captivity  which  he  would 
have  been  receiving  on  board  ship;  and 
even  a  sailor  who  receives  no  wages  is  en- 
titled to  a  sum  as  tclatiwn.  The  owners  of 
the  ship  are  bound  in  every  case  to  procure 
the  immediate  release  of  a  hostage,  and  in- 
demnify him  for  his  losses.  Brown't  Syn.  h.  t. 

Captue.  The  jurisdiction  in  all  matters 
relative  to  prize  and  capture  in  war,  and  the 
condemnation  of  ships,  is  now  exclusively 
vested  in  the  High  Court  of  Admiralty  of 
Bngland.  The  principles  of  capture  were, 
that  two  powers  at  war  had  a  right  to  make 
prises  of  the  ships,  goods,  andeffects  of  each 
other  upon  the  high  seas.  The  goods  of  an 
enemy  on  board  the  ship  of  a  friend  might  be 
taken.    The  goods  of  a  friend  on  board  the 


ship  of  an  enemy  ought  to  be  restored.  Con- 
traband goods  going  to  the  enemy,  though  the 
property  of  a  friend,  might  be  taken.  StaW, 
B.  ii.  t.  2.  In  Mr  Mor7s  Notes,  p.  olii.,  will 
be  found  cited  a  number  of  authorities  upon 
this  point,  and  a  view  of  the  principles  of  re- 
prisals, extracted  from  the  Report  of  Sir 
Q-eorge  Lee. 

On  the  28th  of  March  1854  war  was  de- 
clared against  Russia,  and  the  London  Ga- 
zette of  that  date  contained  a  declaration 
stating  that  it  was  impossible  for  Her  Majesty 
to  forego  the  exercise  of  her  right  of  seizing 
articles  contraband  of  war,  and  of  prevent- 
ing neutrals  from  bearing  the  enemy's  des- 
patches, and  that  she  must  maintain  the 
right  of  a  belligerent  to  prevent  neutrals 
from  breaking  any  effectual  blockade  which 
might  be  established  with  an  adequate  force 
against  the  enemy's  forts,  harbours,  and 
coasts,  but  that  Her  Majesty  would  waive  the 
right  of  seizing  enemy's  property  laden  on 
board  a  neutral  vessel  unless  it  be  contraband 
of  war.  The  declaration  further  stated,  that 
it  was  not  Her  Majesty's  intention  to  cltum 
the  confiscation  of  neutral  property  not  being 
contraband  of  war  found  on  board  enemy's 
ships,  and  that  being  anxious  to  lessen  as 
much  as  possible  the  evils  of  war,  and  to  re- 
strict its  operations  to  the  regularly  orga- 
nized forces  of  the  country,  it  was  not  Her 
Majesty's  present  intention  to  issue  letters  of 
marque  for  the  commissioning  of  privateers. 
The  right  of  seizing  enemy's  property  on 
board  a  neutral  vessel  had  always  before  been 
uniformly  maintained  by  England.  The 
Treaty  for  the  re-establishment  of  Peace  was 
signed  on  March  30, 1866.  After  the  Treaty 
was  signed,  additional  conferences  were  held 
at  Paris  by  the  plenipotentiaries  of  the  dif- 
ferent countries,  and  at  the  meeting  of  April 
14, 1866,  they  adopted  the  following  declara- 
tion : — "  1.  Privateering  is  and  remains  abo- 
lished. 2.  A  neutral  flag  covers  an  enemy's 
goods,  with  the  exception  of  contraband  of 
war.  3.  Neutral  goods,  with  the  exception 
of  contraband  of  war,  are  not  liable  to  capture 
under  an  enemy's  flag.  4.  Blockades,  in 
order  to  be  binding,  must  be  effectual, — that  is 
to  say,  maintained  by  force  sufldcient  to  pre- 
vent effectually  access  to  the  coast  of  the 
enemy."  This  declaration  was  adopted  on 
the  consideration  "  that  maritime  law  in 
time  of  war  had  long  been  the  subject  of 
deplorable  disputes,  and  that  the  uncertainty 
of  the  law,  and  of  the  duties  in  such  a  matter, 
gave  rise  to  differences  of  opinion  between 
neutrals  and  belligerents  which  might  occa- 
sion serious  difficulties  and  even  conflicts." 

Carrier;  a  person  who  holds  himself  out 
to  the  public  as  willing  to  undertake  for  hire 
the  conveyance  of  goods  from  one  place  to 


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another.  The  Roman  edict,  Nauke,  eaupo- 
na,  ttabttlarii,  which  imposed  a  liability  on 
shipmasters,  innkeepers,  and  stablers,  for 
goods  intrusted  to  them,  may  be  considered 
as  part  of  the  common  lair  of  Scotland ;  and 
the  principle  of  the  edict  has  been  extended 
to  the  case  of  carriers  by  land  as  well  as  by 
water.  No  distinction  will  be  made  on  ac- 
count of  the  description  of  vehicle  employed; 
and  the  owners,  whether  of  waggons,  carts, 
mail-coaches,  or  stage-coaches,  will  be  liable 
to  make  good  any  losses  happening  to  the 
goods  while  in  their  custody,  and  until  they 
are  delivered  agreeably  to  their  address ;  the 
rule,  founded  ou  considerations  of  public 
policy,  being,  that  a  person  who  holds  him- 
self out  as  willing  to  perform,  for  hire,  this 
sort  of  service,  thereby  incurs  an  universal 
responsibility.  Such  persons  are  liable  to  the 
fullest  extent  for  their  servants  and  others 
employed  by  them.  The  carrier's  engage- 
ment, however,  is  not  understood  to  bind  him 
to  deliver  the  goods  beyond  the  place  to 
which  he  plies,  unless  he  undertakes  to  do 
so ;  and,  at  common  law,  he  is  not  responsible 
for  losses  arising  from  the  act  of  dod,  or  of 
the  King's  enemies.  See  Stair,  B.  i.  tit.  9, 
5 ;  Jfr  Monf$  Notes,  p.  Ivii ;  Er$k.  B.  iii. 
tit.  1,  §  29 ;  and  BeU's  Oom.  i.  p.  203,  445. 
461,  et  ttq. ;  BeWs  Princ.  4th  edit  arts.  158, 
«t  ieq.  235,  369 ;  Bligk's  Appeal  Cases,  i.  580  ; 
Broum  <m  Salt,  pp.  367,  467,  493,  542 ; 
Brown's  S)/ncp.  pp.  1411,  1621 ;  Shaw's 
Digest;  Jurid.  Styles,  2d.  edit.  vol.  iii.  p. 
82  ;  Eume,  i.  57,  65;  15  S.  693.  See  also 
Public  Carriages. 

The  act  11  Geo.  IV.,  and  1  Will.  FV.,  cap. 
68  (1830),  was  passed  for  the  more  effec- 
tual protection  of  mail-contractors,  stage- 
coach proprietors,  and  other  common  carriers 
for  hire,  against  the  loss  of  or  injury  to  par- 
cels or  packages  delivered  to  them  for  con" 
veyance  or  custody,  the  value  and  contents  of 
which  had  not  been  declared  to  them  by  the 
owners.  By  this  act  common  carriers  are 
not  liable  for  the  loss  of  gold  and  silver  coin, 
or  gold  or  silver  in  a  manufactured  or  un- 
manufactured state,  precious  stones,  jewellery, 
bank-notes,  iic,  die,  above  the  value  of  L.  10, 
unless  their  nature  and  value  is  declared 
when  delivered,  and  an  increased  charge  ac- 
cepted by  the  owner.  See  act  for  its  various 
provisions.  The  act  17  and  18  Vict.,  c.  31 
(1854),  provides  for  the  better  regulation  of 
the  trafiBc  on  railways  and  canals.  By  this 
act  a  railway  or  canal  company  is  declared 
to  be  liable  for  neglect  or  default  in  the  car- 
riage of  goods,  notwithstanding  any  notice, 
condition,  or  declaration  made  by  the  com- 
pany to  the  contrary,  or  anywise  limiting 
their  liability.  A  company,  however,  is  not 
to  be  liable  for  loss  of  or  isgury  to  a  hone 


beyond  L.50,  or  for  any  neat  cattle  bejond 
L.15  per  head,  or  for  any  sheep  or  pigs  be- 
yond L.2  per  head,  unless  the  value  is  de- 
clared, and  extra  payment  made.  The  proof 
of  the  value  of  the  animals,  articles,  or  goods 
lost  or  injured,  lies  on  the  person  clauiing 
compensation.  No  special  contract  betweea 
a  company  and  other  party  is  binding  nnlea 
the  same  be  signed  by  such  party,  or  tiie 
person  delivering  the  articles  for  carriage. 

Carmcata ;  a  ploughgate,  as  much  ludu 
may  be  ploughed  and  laboured  withm  yeu 
and  day  by  one  plough,  synonymous  with  s 
hide  of  land.     Skene,  h.  t. 

Carta,  extensa,  or  exienta ;  a  charter  con. 
taining  a  disposition  of  lands  with  certsii 
meithes  and  marches, otherwise  calledabonnd- 
ing  charter.    Skene,  h.  t. 

Caaea.  In  the  Court  of  Seasion  a  ease  i> 
a  written  argument  on  the  merits  of  a  came. 
According  to  the  judicature  act,  the  can 
must  commence  with  a  copy  of  the  closed  re- 
cord ;  and  each  ground  or  law,  or  plea  stated 
in  the  record,  must  be  separately  argned  ii 
the  case ;  6  Geo.  77.,  c.  120,  §  22 ;  but  this 
regulation  has  not  been  strictly  observed  in 
practice.  Cases  could  formerly  be  ordered 
either  by  the  Lord  Ordinary,  or  by  the  Inner- 
House;  and  in  practice  they  usually  vere 
ordered  in  all  causes  of  intricacy  or  difficulty. 
Now  it  is  no  longer  competent  to  a  Lord 
Ordinary  to  direct  cases,  or  minutes  of  de- 
bate, or  other  written  argument,  to  be  pre- 
pared by  the  parties,  whether  for  the  ow  of 
himself  or  of  the  Inner- House ;  but  he  may, 
at  any  time  after  hearing  parties  on  a  closed 
record,  take  such  cause  on  report  to  the  In- 
ner-House without  cases  or  minutes  of  de- 
bate;  13  and  14  Vict.,  c.  36,  §  14.  The 
interlocutor  making  the  order  for  eases  iqt- 
points  the  mutual  cases  to  be  lodged,  inter- 
changed, revised,  and  re-lodged  within  a 
certain  limited  time.  The  cause  most  be 
argued  in  the  case  strictly  aa  it  appean  in 
the  closed  record ;  and  if  facts  not  set  forth 
in  the  record  are  founded  on  in  the  argument, 
the  case  will  be  ordered  to  be  withdrawn, 
and  a  proper  one  lodged.  The  cases  are 
printed  and  boxed  to  the  Court  in  the  nnal 
way.  See  6  Geo.  IV.,  c.  120,  §§  16, 22 ;  A.  S. 
im  Jrtly  1828,  §§  62, 63,  64, 107,  65;  -SaamTi 
Prac.  pp.  339,  et  seq.,  and  960.  See  Recori- 
Redaimina  Note.    Default.    Appeal. 

Caah-Aeeonnt    See  Batik  Credit. 

Caatlei.    See  Fortalices. 

Casualties  of  Saperiority.  The  casnaltiei 
of  superiorityare  certain  emoluments  arising  to 
the  superior,  which,  as  they  depend  on  uncer- 
tain events,  are  termed  CMuiaJftM.  The  casual- 
ties proper  to  ward-holding,  while  it  subsitted, 
were  Ward,  Recognition,  and  Marriage  (see 
tiiese  titles,  also  Ward-holding).    The  casual- 


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tfei  eommon  to  all  holdings  are  Non-entry, 
Rdiff,  Dudamation,  Purpresture,  and  Liferent 
ttduat.  (See  these  titles.)  The  superior  is 
geeored  in  his  duties  and  casualties  bj  his 
own  charter  and  sasine.  They  form  a  debitum 
fmii  preferable  to  the  vassal's  creditors,  and 
Bisj  be  made  effectual  by  poinding  of  the 
groond.  They  form  also  a  personal  claim 
tgainst  the  vassal.  This  preference  is  not 
coofined  to  arrears  or  current  fen-duties,  but 
extends  to  non-entry  and  relief  duties,  and  to 
the  composition  for  singular  successors.  Stair, 
B.ii.  tit  4,  §  1,  rf  seq.  ;  ErdcPrinc.  12th  edit 
157,  270;  BeWs  Com.  i.  23,  26;  ii.  p.  27; 
M$  Pfine.  4th  edit.,  arts.  703,  et  seq.,  729, 
862;  Smdfvrd  on  Entaih,  p.  359 ;  Sand/ord 
n  BeritabU  Suceestion,  vol.  ii.  p.  188 ;  Brown's 
/SyMp.pp.  955,  1538;  Ros^s  Led.  ii.  255, 
302, 377 ;  Menzie^  Leetwres. 

Ounal  Homicide ;  takes  place  when  death 
b  accidentally  occasioned  by  a  person  lawfully 
employed,  meaning  harm  to  no  one,  and  using 
til  ordinary  and  reasonable  caution.  Hume, 
i.  191;  Alison,  144 ;  Steele,  70.  See  Homi- 
die. 

Cuds  Ami««imii»  In  an  action  for  prov- 
iog  the  tenor  of  a  deed  or  other  writing  which 
bas  been  lost,  it  is  necessary  to  condesisend 
npon  the  particular  accident  by  which  the 
docunent  was  loet  or  destroyed,  or  at  least  to 
give  some  satisfactory  explanation  of  the 
nuner  in  which  the  loss  has  happened.  In 
tedinical  language  this  accident  is  termed  the 
am  amistioHis.  The  general  rules  as  to  the 
oecesity  of  libelling  and  proving  the  easu* 
MtMMMt  are  the  following : — When  the 
vrit  is  such,  that,  upon  payment  or  satisfac- 
ti<»,  the  debtor  is  usually  content  with  its 
re^ielivery,  e.g.,  a  bill  or  promissory  note,  a 
■peeial  casus  amissionis  must  be  clearly  estab- 
lished. But  where,  on  the  other  hand,  the 
writ  is  not  of  a  mere  temporary  nature,  but 
intended  for  preservation,  as  a  right  to  lands, 
or  where  it  is  usual  to  take  a  separate  dis- 
charge of  an  obligation,  the  Court  will  sus- 
tain a  more  general  statement  of  the  casus 
tmitsionis ;  see  Walker  v.  Block;  1852,  14  D. 
362 ;  Dickson  on  Evidence,  p.  653 ;  Stair,  B. 
ir.  tit.  32,  §  4,  <<  seq.;  Mr  More's  Notes,  p. 
eedixxvi. ;  BantUm,  iv.  29  ;  Shand's  Practice, 
p.  832.    See  Tenor,  Action  for  proving  of, 

Gatels;  when  used  in  the  old  law-books 
of  Scotland,  this  word  is  synonymous  with 
the  English  law  term  chattel,  and  is  applied 
to  all  moveable  goods  and  gear.     Skene,  h.  t. 

Citelqiole.  In  England,  sheriff's  officers 
are  to  called.    TomliM'  Diet.  h.  t. 

GathedraL  The  church  where  the  bishop 
had  his  «ee  was  styled  the  cathedral. 

Catholiei.     See  Roman  Catholic. 

Cathfllic  Creditor.  A  catholic  or  universal 
creditor  u  a  creditor  whose  debt  is  secured 


over  several  subjects,  or  over  the  whole  sub- 
jects belonging  to  his  debtor ;  as,  for  example, 
one  who  has  heritable  securities  over  two  or 
more  estates  for  the  same  debt.  Such  a  cre- 
ditor is  bound  to  claim  his  debt  according  to 
certain  equitable  rules,  and  is  not  entitl^  to 
exercise  his  right  so  as  to  injure  unneces- 
sarily the  claims  of  secondary  creditors.  Thus, 
if,  as  he  may,  he  draw  his  whole  debt  from 
one  of  the  subjects,  he  must  assign  his  security 
to  the  secondary  creditors  on  the  subject  from 
which  he  has  drawn  payment,  to  the  effect  of 
enabling  them  to  draw  a  proportional  part  of 
the  debt  from  the  other  subjects  over  which 
the  catholic  security  extended.  But  where 
a  catholic  creditor,  secured  over  two  estates, 
on  each  of  which  there  is  a  secondary  secu- 
rity, has  bona  fide  purchased,  or  otherwise 
acquired,  right  to  one  of  these  secondary  secu- 
rities, it  is  held  (although  the  soundness  of 
the  opinion  has  been  doubted)  that  the  ca^ 
tholio  creditor,  in  these  circumstances,  is  not 
bound  to  assign  to  the  prejudice  of  the  se- 
condary security  he  has  thus  acquired,  but 
that  he  may  draw  payment  from  one  of  the  sub- 
jects over  whichthecatholic  securityextends,  so 
as  to  leave  the  other  free  to  the  operation  of 
the  secondary  security  over  the  other  to  which 
he  has  acquired  right.  It  has  also  been  held 
that  a  catholic  creditor,  before  the  bank- 
ruptcy of  his  debtor,  may  renounce  his  se- 
curity over  one  of  the  subjects,  reserving  his 
claim  for  the  whole  debt  against  the  other, 
although  it  should  happen  that  the  subject 
to  which  he  has  so  restricted  hif  security  is 
burdened  with  a  secondary  security,  the  cre- 
ditor in  which,  of  course,  suffers  by  the  re- 
striction ;  Edie  and  Laird,  ttc,  29th  June 
1793,  Fac.  CoU.,  Mor.  p.  3403.  Where  the 
subjects  over  which  the  catholic  security  ex- 
tends belong  to  two  different  persons,  one  of 
whom  is  principal  and  the  other  cautioner, 
the  catholic  creditor,  who  has  drawn  payment 
from  the  subject  of  the  principal  debtor,  can- 
not be  required  to  assign  so  as  to  enable  a 
secondary  creditor  on  the  principal's  estate  to 
claim  upon  that  of  the  cautioner  ;  and  if  the 
catholic  creditor  has  drawn  his  debts  from 
the  cautioner's  estate,  the  cautioner  is  entitled 
to  an  assignation,  so  as  to  enable  him  to 
operate  full  relief  from  the  estate  of  the  prin- 
cipal debtor.  See  Ersk.  B.  ii.  tit.  12,  §66  ; 
Bell's  Com.  ii.  523,  «<  seq. ;  Karnes^  Print,  of 
Equity,  vol.  i.  p.  124,  et  seq.;  Ibid.  (1825), 
80-2 ;  Brown's  Synop.  h.  t. ;  Shaw's  Digest. 

In  the  case  of  Littl^ohn  v.  Black,  13th  Dec. 
1855 ;  18  D.  207,  part  of  the  sequestrated 
estate  of  a  bankrupt  consisted  of  some  heri- 
table property  and  three  ships.  One  credi- 
tor had  a  primary  security  over  both  the  he- 
ritage and  the  ships.  Another  creditor  had 
a  secondary  security  over  the  heritage  only ; 


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and  the  qnestion  raised  wai,  vhetber  the  se- 
condary creditor  was  entitled  to  insist  that 
the  catholic  creditor  should  make  good  his 
debt,  in  the  first  instance,  oot  of  the  price  of 
the  ships,  and  should  not  except  under  de- 
duction of  what  say  thus  be  realized,  attempt 
to  make  good  any  portion  of  his  debt  out  of 
the  heritage,  so  as  to  leave  the  latter,  in  so 
far  aa  not,  required  for  payment  of  the  ca- 
tholic creditor,  available  for  the  claims  of  the 
secondary  creditor.  The  Court  decided  in 
favour  of  the  claim  of  the  secondary  creditor, 
and  further  held  that  the  attachment  effected 
by  the  sequestration  in  favour  of  the  trustee 
did  not  disturb  the  respective  relations  and 
rights,  legal  and  equitable,  of  the  catholic 
and  secondary  creditors,  but  that  these  re- 
mained as  they  stood  at  the  date  of  the  se- 
questration, and  that  the  trustee  took  the 
bankrupt  estate  tantum  et  tale  as  it  stood  in 
the  bankrupt  himself  at  the  date  of  the  seques- 
tration. LoBo  J(;8TioB-GBiriRi.L  observed, 
"  In  the  ordinary  case  of  a  Catholic  creditor, 
M.,  a  creditor  holding  security  over  two 
subjects,  and  another  croditor  holding  a  post- 
poned security  over  one  of  them,  there  can 
be  no  doubt  that  the  catholic  creditor  is  entit- 
led to  operate  payment  out  of  the  two  subjects 
as  he  best  can  for  his  own  interest ;  but  he  is 
not  entitled,  arbitrarily  or  nimiously,  to  pro- 
ceed in  such  a  manner  as  to  injure  the  second- 
ary creditor  without  benefiting  himself,  as, 
for  instance,  capricioudy  to  take  his  pay- 
ment entirely  out  of  the  subjects  over  which 
there  is  a  second  security,  and  thereby  to  ex- 
haust that  subject  to  the  detriment  of  the  se- 
cond creditor,  leaving  the  other  subject  of  his 
own  security  unaffected  or  unexhausted.  The 
second  creditor  will  be  protected  against  a 
proceeding  so  contrary  to  equity,  and  the  pri- 
mary creditor  will  be  compelled  either  to 
take  his  payment  out  of  that  one  of  the  sub- 
jects in  which  no  other  creditor  holds  a  spe- 
cial interest,  or  to  assign  his  right  to  the  se- 
cond creditor  from  whom  he  has  wrested  the 
only  subject  of  his  security.  But  other  inte- 
rests may  come  into  play  so  as  to  affect  ma- 
terially the  right  of  this  secondary  creditor 
to  control  the  primary  creditor.  These  other 
interests  may  be  brought  into  existence  by 
the  voluntary  act  of  the  common  debtor.  He 
may  grant  to  a  third  creditor  a  second  secu- 
rity over  that  one  of  the  subjects  which  is 
not  already  conveyed  directly  to  the  second 
creditor ;  and  if  he  does  so,  the  security  so 
given  to  that  third  creditor  acting  in  bond 
fide  will  be  valid.  There  will  then  be  three 
creditors  interested  in  Uie  two  subjects,  the 
rule  in  such  a  case  is,  that  the  catholic  cre- 
ditor must  use  his  right  fairly  as  between 
the  two  secondary  creditors,  and  not  use  it 
■0  as  to  benefit  unfairly  one  of  them  to  the 


prejudice  of  the  other.  His  debt  mast  W 
paid  proportionally  out  of  the  two  (objeeli. 
Priority  of  date  is  of  no  consequence  u  W 
tween  the  two  secondary  creditors.  The  ef- 
fect, then,  of  another  secondary  creditor  beiag 
brought  into  the  field  is  to  diminish,  or  it 
may  be  to  destroy,  in  great  measure,  the  va- 
lue of  the  control  which  the  earliest  second- 
ary creditor  at  one  time  had  over  the  pro- 
ceedinp  of  the  catholic  creditor.  The  eqoitj 
which  supported  him  when  there  was  m 
other  interest  in  the  way  is  no  longer  free  t« 
act  to  the  same  extent  in  his  fisvour.  The 
granting  to  a  third  creditor  a  second  secarity 
over  that  one  of  the  subjects  which  was  con- 
veyed and  directed  to  the  second  creditor  ii 
a  voluntary  act  of  the  common  debtor,  bjr 
which  the  position  of  the  secondary  creditor 
may  be  materially  affected.  Whetherthetsnw 
result  would  be  brought  about  by  the  hos- 
tile act  of  another  creditor  adjudging  th« 
subjects  for  debt,  has  not,  I  believe,  been  de- 
cided ;  but  I  see  strong  grounds  for  conteod- 
ing  that  the  same  results  might  follow  is 
that  case.  In  the  present  case,  nothing  vo- 
luntary was  done  by  the  common  debtor  to 
affect  the  right  of  the  secondary  creditor,  nor 
did  any  third  creditor,  by  diligence,  attach 
the  ships  so  as  to  acquire  for  himself  a  secu- 
rity over  them.  But  the  bankruptcy  occur- 
red ;  and  the  question  comes  to  be,  Whether 
the  statutory  right  and  interest  which  the 
trustee  so  acquired  in  the  ships  is  such  as  to 
interfere  with  the  right  which,  but  for  that 
statutory  interest,  would  have  unqnesUooablj 
belonged  to  the  secondary  security  over  the 
land.  In  other  words,  has  the  bankrupt  statnto 
placed  the  trustee,  as  regards  the  matter  in 
question,  in  the  same  favourable  position  that 
would  have  been  occupied  by  tiie  holder  of  a 
second  security  over  the  ships.  In  this  qnes- 
tion I  have  given  all  the  consideration  I 
could,  and  I  have  come  to  the  conclusion  that 
the  trustee  does  not  occupy  that  position  vith 
reference  to  the  subjects  of  the  securities  is 
question.  The  general  object  of  the  statute 
was  to  preserve,  as  far  as  possible,  all  righta 
and  interests  in  the  position  in  which  thej 
stood  the  moment  before  bankruptcy,  and  to 
give  them  the  same  effect  to  which  they  vere 
then  entitled.  To  effectuate  that  object  the 
statute  ousted  the  bankrupt,  and  transferred 
the  estate  to  a  trustee.  It  put  a  stop  to  all 
races  to  diligence  then  in  process;  but  it  ab- 
stained from  disturbing  any  securities  or  pre- 
ferences honestly  obtained  and  lawfully  com- 
pleted. According  to  the  nature  of  such  se- 
curities or  preferences,  it  expressly  aaved 
them.  I  think  it  follows  from  this,  that  the 
same  event  which  in  this  case  disabled  and 
ousted  the  bankrupt,  and  called  into  existence 
the  trustee,  gave  stability  and  permanency  to 


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ibe  aateeedent  aecnrities  and  interests  affeot- 
iog  the  land  and  the  ships,  with  all  the  rights 
and  qualities  belonging  to  these  securities 
■8  they  then  stood.  I  do  not  see  in  the  sta- 
tute anything  which  gives  to  the  trustee  the 
character  of  the  holder  of  a  second  secnrity 
«Ter  the  ships,  or  which  gives  to  him  the 
character  of  the  holder  of  a  security  at  all. 
He  is  a  statutory  transferee  for  a  particular 
purpose.  His  title  is  nnirersal,  and  he  takes 
the  estate,  subject  to  all  qualities  and  condi- 
tioBS,  as  at  the  moment  of  bankruptcy.  The 
taring  words  at  the  end  of  the  78th  section  ap- 
pear  importaat :  '  subject  always  to  such  pre- 
ferable securities  as  existed  at  the  date  of  the 
sequestration,  and  are  not  null  or  reducible.' 
The  trustee  in  the  present  case  took  the  es- 
tate of  the  bankrupt  subject  to  the  debts  and 
eecurities,  with  all  their  qualities,  as  they 
stood  at  the  date  of  the  sequestration.  The 
deniand  of  ^e  secondary  creditor  is  nothing 
■Mre  than  that  effect  shall  be  given  to  this 
quality  of  his  security  in  the  distribution  of 
the  esUte." 

Catharins,  Catheriiu ;  a  word  used  in  an- 
eieat  legal  phraseology,  the  precise  import 
of  which  seems  to  be  unknown.  A  fine  of 
one  talhoriut  was  equivalent  in  value  to  nine 
cows.    SI^eiM,  h.  t. 

Oanpes,  Galfti,  and  Carriet ;  a  word  used  in 
old  acts  of  Parliament  to  signify  a  gift,  such 
as  a  horse  or  any  other  article,  given  to  a 
powerful  neighbour  or  chief,  in  return  for 
his  protection.  It  seesis  to  have  been  some- 
thing of  the  nature  of  black  maiU.  Skene,  k.  <. 

Omim  Scientis.  Where  a  witness  testifies 
to  a  fiict  which  is  the  result  of  reason  exer- 
cised upon  particular  circumstances,  his  rea- 
sons for  drawing  that  conclusion  are  of  im- 
portance for  the  purpose  of  ascertaining  whe- 
ther his  conclusion  was  correct.  This  is  par- 
tieolarly  true  with  regard  to  all  questions  of 
skill  and  science.  Starlae  on  Evidence  ;  Didc- 
ttnon  Evidence. 

Oantumaiy ;  is  that  obligation  by  which  a 
party  becomes  surety  for  another;  or,  ac- 
eording  to  Stair's  definition,  it  is  "  the  pro- 
mise or  contract  of  one,  not  for  himself,  but 
for  aaother."  A  probative  writing  is  essen- 
tial to  the  constitution  of  a  cautionary  obli- 
gation. Where,  however,  r«i  inierventus  has 
followed  on  an  improbative  document,  and 
matters  are  no  longer  entire,  the  improbative 
d«eament  will  be  held  sufficient  to  constitute 
the  oblieation ;  Brown  v.  Campbell,  28th  Nov. 
1794,  IfL  17058,  and  Sinclair  v.  Sinclair,  3d 
Feb.  1795 ;  BtU,  140.  See  also,  Ross's  L.  C, 
Tol.  iii.  p.  20,  and  the'case  of  Churdi  of  Eng- 
laati  Lift  Assurance  Co.  v.  Hodges,  12th  Feb. 
1857, 19  D.  414.  Formerly  it  was  the  law, 
that,  although  a  cautionary  obligation  must 
^  emstituted  by  a  probative  document,  that 


role  snfi^ered  an  exception  when  the  caution- 
ary obligation  was  undertaken  at  the  same 
time  with  a  principal  obligation,  which  ob- 
ligation was  itself  one  tJbat  could  be  estab- 
lished by  witnesses.  In  such  a  case  it  was 
held  that  the  cautionary  obligation  might  be 
proved  by  witnesses  also.  See  Carrutiiers  v. 
BeU,  13th  Nov,  1812,  and  Rhynd  v.  Macktauie, 
20th  Feb.  1616.  Ahso  Ros^,  L.  C.  v.  3,  p.  20. 
The  law  in  this  respect,  however,  has  been 
altered  by  the  Mercantile  Law  Amendment 
Act  for  Scotland,  19  and  20  Viet-.c.  60, 1866, 
which  enacts,  that  all  cautionary  obligations 
diall  be  in  writing,  and  subscribed  by  the 
person  undertaking  them,  or  by  some  person 
dnlv  authorized  by  him. 

A  simple  cautioner,  or  adpromissor,  as  be 
was  termed  in  the  Roman  law,  is  one  who 
binds  himself  as  cautioner  with  the  principal, 
for  the  greater  security  of  the  creditor.  Such 
a  cautioner  was  formerly  entitled  to  the  be- 
nefit of  discussion ;  that  is,  he  was  entitled 
to  insist  that  the  principal  debtor  be  discussed, 
by  the  execution  of  diligence  both  against  his 
person  and  property,  before  the  cautioner 
was  called  upon  to  satisfy  the  debt  or  obli- 
gation (see  Benejkium  Ordinis).  This,  how- 
ever, has  been  altered  by  the  Mercantile  Law 
Amendment  Act,  which  declares  that  it  shall 
not  be  necessary  for  the  creditor,  to  whom  a 
cautionary  obligation  has  been  granted,  to 
discuss  or  do  diligence  against  the  principal 
debtor  before  calling  on  the  cautioner  for 
payment  of  the  debt  to  which  the  cautionary 
obligation  refers,  but  that  it  shall  be  compe- 
tent for  him  to  proceed  against  the  principal 
debtor  and  the  cautioner,  or  against  either 
of  them,  and  to  use  all  action  or  diligence 
against  both  or  either  of  them,  which  may 
be  competent.  There  is  nothing,  however, 
to  prevent  a  cautioner  from  stipulating  in 
the  document  constituting  his  cautionary 
obligation,  that  the  creditor  shall  be  bound, 
before  proceeding  against  him,  to  discuss  and 
do  diligence  against  the  principal  debtor; 
and  a  provision  to  this  effect  is  contained  in 
the  statute.  There  is  another  description  of 
cautioner,  who  was  termed  in  the  Roman  law 
expromissor.  Such  a  cautioner  comes  under 
a  distinct  and  separate  obligation,  in  which 
he  is  himself  the  principal,  having,  however, 
claim  of  relief,  as  mandatory  or  negotiator 
for  another.  A  cautioner  of  this  description 
had  not  the  benefit  of  discussion.  Cautioners 
are  frequently  taken  bound,  conjunctly  and 
severally,  or  as  full  debtors,  with  the  princi- 
pal, in  which  case  both  parties  are  liable  in 
solidvm.  Where  there  is  more  than  one 
cautioner,  bound  simply  as  such,  and  not 
jointly,  each  of  them  is  liable,  in  the  first 
instance,  only  for  his  own  share,  if  the  sub- 
ject of  the  obligation  be  divisible,  unless. 


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from  the  insolTency  of  the  other  eaation- 
ers,  the  creditor  cannot  recover  from  them. 
See  Benejicium  Divisionit. 

It  follows,  from  the  nature  of  the  ohliga- 
tion,  that  a  cautioner  who  has  paid  the  debt 
has  an  action  ex  mandato  against  the  princi- 
pal for  relief;  and  for  this  purpose  he  is  en- 
titled  to  demand  an  assignation  from  the  cre- 
ditor, not  only  of  the  debt  and  whole  dili- 
gence, bat  also  of  any  other  securities  held 
by  the  creditor ;  and  should  this  claim  of  re- 
lief be  cut  off  by  any  proceeding  on  the  part 
of  the  creditor,  the  cautioner  is  thereby  libe- 
rated from  his  obligation.  The  cautioner's 
claim  is  for  relief  from  the  principal  obliga- 
tion, with  the  interest  and  expenses  paid  by 
him ;  but  nnder  this  claim  he  is  not  entitled 
to  include  the  expense  of  diligence  against 
himself,  because  he  ought  to  have  paid  with- 
out diligence.  The  cautioner  is  entitled  to 
sue  the  principal  debtor  for  relief  from  the 
cautionary  obligation,  even  before  payment : 
1«<,  Where  the  debtor  is  taken  bound  to 
deliver  the  cautionary  obligation,  cancelled 
at  the  same  term  at  which  he  is  bound  to  pay 
the  creditor,  and  where  the  term  of  payment 
is  past,  because  in  that  case  the  cautioner  is 
as  fully  entitled  to  insist  for  implement  of  the 
obligation  as  the  creditor  himself  is.  2d,. 
Where  the  principal  debtor  is  vergeia  ad  ino- 

K'  m,  the  cautioner  may  attach  his  funds  for 
relief,  before  either  payment  or  distress. 
Sd,  If  the  cautionary  obligation  be  condi- 
tional, and  may  be  long  pendent,  the  cau- 
tioner will  be  allowed  to  adjudge  in  security, 
although  there  have  been  no  previous  distress, 
under  the  qualification  that  no  execution 
shall  follow  on  the  decree  until  distress. 
Where  an  additional  cautioner  is  interposed, 
and  becomes  bound  in  a  separate  deed,  as  in 
a  bond  of  corroboration,  it  has  been  ques- 
tioned whether  the  new  cautioner  has  a  total 
relief  against  the  original  cautioners,  or  a 
proportional  relief  only.  The  rule  seems  to 
be,  that  if  the  new  cautioner  have  become 
bound  on  behalf  of  the  former  cautioners,  be 
will  be  entitled  to  claim  a  total  relief  fi-om 
them.  If  he  is  interponed  solely  on  account 
of  the  principal  debtor,  he  will  be  entitled 
to  a  proportional  relief  only,  precisely  as  if 
he  had  become  bound  along  with  the  original 
cautioners.  Smiton  v.  Millar,  16th  Nov.  1792, 
Foe.  Coll.,  Mor.  p.  2138.  See  3  Ross,  L.  C. 
28. 

Extrajudicial  cautioners  have  the  benefit 
of  a  limitation  or  prescription  of  their  obli- 
gation. This  was  introduced  by  the  act 
1695,  c.  5,  which  provides  that  no  person 
binding  and  engaging  for,  and  with  another, 
conjunctly  and  severally,  in  any  bond  or  con- 
tract for  sums  of  money,  shall  be  bound  for 
the  said  sums  longer  than  seven  years  after  | 


the  date  of  the  bond ;  but  that,  from  and  aft«r 
the  said  seven  years,  the  said  cautioner  abaU 
be  eo  ipso  free  of  his  caution  ;  and  that,  who- 
ever is  bound  for  another,  either  as  expren 
cautioner,  or  as  principal,  or  as  co-principal, 
shall  be  understood  to  be  a  cautioner,  and  to 
have  the  benefit  of  this  act,  provided  that  lie 
have  either  clause  of  relief  in  the  bond,  or  s 
bondof  relief  apart  intimated  personally  to  the 
creditor  at  his  receiving  of  the  bond,  withoat 
prejudice  to  the  tme  principals  being  bonod 
in  the  whole  contents  of  the  bond  or  contract ; 
as  also  of  the  said  cautioners  being  still  boand 
conform  to  the  terms  of  the  bond,  within  the 
said  seven  years,  as  before  the  making  of  thii 
act :  As  also,  providing  that  what  legal  dili- 
gence by  inhibition,  homing,  arrestment,  ad- 
judication, or  any  other  way,  shaU  be  done 
within  the  said  seven  years,  by  erediton 
against  their  cautioners,  for  what  fell  doe  in 
that  time,  shall  stand  good,  and  have  course 
and  effect  after  the  expiring  of  the  seven 
years,  as  if  this  act  had  not  Iwen  made.  The 
limitation  introduced  by  this  statute  does  not 
extend. — 1st,  To  a  letter  of  credit  or  of  gu»- 
rantee  in  a  mercantile  transaction,  when  it 
is  not  accompanied  with  any  obligation  of 
relief  by  the  principal  debtor ;  2d,  To  an  ob- 
ligation for  an  annual  payment ;  3J,  To  sa 
obligation  ad  factum  prcestandum  ;  4th,  To  s 
cautioner  in  a  bond  of  relief;  5th,  To  a  eso- 
tioner  in  a  bond  of  corroboration ;  6(A,  To 
the  case  where  the  term  of  payment  of  the 
debt  is  beyond  the  seven  years  from  the  date 
of  the  bond  ;  7th,  To  a  cautioner  in  a  contract 
of  marriage,  or  for  the  discharge  of  an  office ; 
8th,  To  an  engagement,  by  letter  or  other- 
wise, to  pay,  or  see  paid,  a  sum  already  lent; 
9th,  To  the  case  of  a  bill  of  exchange  wherein 
one  signs  as  cautioner ;  or,  lastly.  To  judicial 
cautionary. 

Where  the  cautioner  has  a  separate  bond 
of  relief,  in  order  to  secure  the  benefit  of  the 
act,  it  must  be  intimated  either  notarially  or 
judicially  to  the  creditor ;  mere  private  know- 
ledge is  not  sufficient.  The  cautioner's  ob- 
ligation will  be  extended  beyond  the  seven 
years,  provided^  1st,  That  the  bond  has  been 
renewed,  or  a  corroboration  granted  by  the 
cautioner,  or  negotiations  carried  on  for  pay- 
ing the  debt,  so  as  to  bar  the  cautioner,  ptr- 
smali  exceptione,  from  founding  on  the  act; 
2d,  That  the  creditor  shall  have  raised  dili- 
gence against  the  cautioner,  or  shall  hare 
obtained  decree  against  him  within  the  seven 
years;  for  it  would  seem  that  mere  cita- 
tion in  an  action  is  not  sufficient  in  this,  as 
it  is  in  prescriptions.  It  is  also  to  be  ob- 
served, that  the  diligence  or  decree  within 
the  seven  years  does  not  operate  in  the  sep- 
tennial limitation  like  an  interruption  of  pre- 
scription in  the  ordinary  ease.    The  effect  of 


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tie  limitation  is  effectually  to  liberate  the 
aiBtioner  from  all  responsibility  beyond  the 
seven  years;  and  the  diligence  or  decree 
against  the  cautioner  can  extend  only  to  the 
urn  in  the  bond,  and  the  interest  falUng  due 
within  the  seven  years  ;  BdPs  Com.  i.  356. 
A  cautioner  who  has  by  mistake  paid  the 
debt  after  the  expiration  of  the  seven  years, 
Till  be  entitled  to  demand  repetition  from 
the  creditor,  Garrick  y.  Carse,  5th  Aug.  1778, 
Mor.  p.  2931. 

With  regard  to  the  discharge  of  extraju- 
dicial cautionary  obligations,  it  may  be  ob- 
served generally,  that  a  discbarge  of  the 
principal  is  a  discharge  of  the  cautioner,  for 
tlie  caotioner  has  become  bound,  relying  on 
im  relief  from  the  principal.  A  discharge 
ofaeo-eaotioner  was  formerly  a  discharge  to 
the  remaining  cautioners  to  the  extent  of  the 
share  which  the  discharged  co-cautioner  would 
hare  borne.  This,  however,  has  been  altered 
bjthe  MercantileLaw  Amendment  Act,  1856, 
Thieh  enacts  that  a  discharge  by  the  creditor 
ofoneco-cantioner  shall  operate  as  a  discharge 
to  all  the  cautioners.  See  Church  of  England 
Amrance  Cmpany,  1857, 19  i>.1079.  The  re- 
snneiation  by  the  creditor  of  any  security 
held  by  him  over  the  principal  debtor's  estate 
vill  also  discharge  the  cautioner.  Even  the 
diiehsrge  of  the  debtor  from  prison  by  the 
creditor  will  have  this  effect ;  as  will  the  ac- 
ceptance of  an  extrajudicial  composition  on 
the  debtor's  estate  by  the  creditor  indivi- 
daally,  without  the  consent  of  the  cautioner. 
So  ^so,  if  the  creditor  give  the  principal 
debtor  time,  without  the  cautioner's  consent, 
the  antioner  will  be  free.  But  mere  delay 
or  forbearance  to  enforce  payment  does  not 
amount  to  "giving  time."  The  creditor  must 
farther  have  bound  himself  to  delay  beyond 
the  term  of  payment  stipulated  in  the  obli- 
gation in  security  of  which  the  cautioner  in- 
terposed. The  arrangement  must  be  such, 
for  example,  that,  if  the  cautioner  were  to 
pay  the  debt  and  take  an  assignation,  he 
vould  be  barred  from  proceeding  against  the 
principal  debtor  by  the  creditor's  agreement 
to  give  time.  This,  or  any  other  agreement 
whereby  the  creditor  ties  up  his  own  hands 
snd  the  hands  of  the  cautioner  quoad  the 
principal  debtor,  without  the  cautioner's  con- 
sent, is  "  giving  time"  in  the  legal  accepta- 
tion of  that  expression  ;  BeWs  Princ.  §  262, 
oiui  authorities  there  cited.  In  like  manner, 
it  will  discharge  the  cautioner,  if  the  credi- 
tor, without  consulting  him,  ranks  on  the 
debtor's  bankrupt  estate,  or  consents  to  the 
acceptance  of  a  composition  under  the  bank- 
ruptcy statute,  BO  as  to  enable  the  principal 
debtor  to  get  bis  discharge ;  although  this 
general  doctrine  is  somewhat  affected  by  the 
decision,  Whitelati),  Ac.  v.  Steins,  20th  May 


1814,  Fac.  CoU.  But  see  Bell's  Com.  vol.  i.  p. 
359.  To  take  a  statutory  composition,  how- 
ever, where  the  creditor  was  not  a  concurring 
creditor,  will  not  liberate  the  cautioner ;  ^eM's 
Com.  ib.    See  19  and  20-Vict.,  c.  60,  §  9. 

Mere  negligence  on  the  part  of  the  credi- 
tor, unless  it  has  been  gross,  will  not  free  the 
cautioner  :  Thus,  the  creditor  is  under  no 
obligation  to  execute  diligence  when  the  teiin 
of  pa3nDient  arrives,  although,  if  he  has  com- 
pleted diligence,  he  cannot  himself  discharge 
it,  without  forfeiting  his  claim  against  the 
cautioner.  Unless  fraud  or  collusion  between 
the  creditor  and  the  principal  debtor  can  be 
proved,  it  will  not  avail  the  cautioner  to 
plead  that,  by  due  diligence,  the  debt  might 
have  been  recovered  from  the  principal ;  for 
the  cautioner  in  such  circumstances  has  in 
his  own  power  the  remedy  of  inhibition,  ad- 
judication, or  an'estment,  in  security.  The 
loss  of  recourse,  in  the  case  of  undue  nego- 
tiation of  a  bill  of  exchange,  seems  to  be  an  ' 
exception  to  this  general  rule  (see  Bill  of  Ex- 
change), and  some  cases  of  cautionary  for  the 
due  execution  of  an  office  may  afford  another 
exception.  See  Be^s  Com.  vol.  i.  p.  360,  5th 
edit.  See  also  on  the  subject  of  cautionary, 
Stair,  B.  i.  tit.  17,  §  3,  «<  seq.;  Mor^s  Notes, 
p.  civ.  cxiii.  et  seq. ;  Ersh  B.  iii.  tit.  8,  § 
61,  d  seq. ;  Bell's  Com.  ibid.  p.  347 ;  Bwi- 
tei's  Landlord  and  Ttmant,  i.  p.  360,  ii.  p.  150  ; 
Ersk.  Princ.  12th  edit.  330-1 ;  Shaw's  Digest, 
tit.  Cautioner;  Brown's  Synop.  h.  t.;  Belt's 
Princ.  §  246,  et  seq.  4th  edit. ;  lUust.  ib. ; 
Karnes'  Princ.  of  Equity  (1825),  74-7, 106 ; 
Ross's  Led.  ii.  499,  549 ;  i.  77,  et  seq.,  162, 
221,  354 ;  Menzies'  Lect.  208,  et  seq. 

Cautionary  for  the  faithful  Performance  of  an. 
Office. — The  cautionary  obligations  of  this 
description  are  various ;  but  it  is  unnecessary 
to  enumerate  them  particularly.  The  most 
important  are  : — 1.  Cautionary  obligations  for 
the  intromissions  of  a  bank-agent. — The  respon- 
sibility which  the  cautioner  in  such  a  case 
undertakes  is  very  serious ;  and  on  the  failure 
of  the  agent,  difficult  questions  of  equity  may 
arise,  as  to  the  degree  of  vigilance  which  the 
bank  ought  to  have  exercised  in  the  periodi- 
cal accountings  with  the  agent.  In  all  such 
questions  much  must  necessarily  depend  on 
the  terms  of  the  particular  bond ;  but  cases 
of  neglect  may  easily  be  figured  which  would 
bar  aJl  claim  against  the  cautioner.  The 
bonds  given  on  these  occasions  refer  to  past 
as  well  as  future  losses ;  and  any  improper 
concealment  by  the  bank  at  the  time  of  ar- 
ranging the  caution  might  also  have  the 
effect  of  liberating  the  cautioner.  It  may  be 
observed  here,  that  a  clause,  frequently  in- 
serted in  these  bonds,  providing  that  no  sus- 
pension shall  pass  except  on  consignation, 
will  not  receive  effect,  as  being  a  pactum  illi- 


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eitwn;  BdPi  Com.  vol.  i.  p.  364.  2.  Cbu- 
turners  for  a  meitenger-at-artm. — In  this  ease 
the  cautioners  are  taken  bound  to  make  good 
"  the  damage,  interest,  and  expenses  which 
the  lieges  shall  sustain  through  the  negli- 
gent, fraudnlent,  or  informal  execution  of 
the  messenger."  See  Darling'i  Messenger- 
at-arms.  Under  this  obligation  it  is  held, 
1.  That  the  cautioners  are  liable  only  for 
what  the  messenger  does  in  his  character  of 
messenger,  and  not  for  his  actings  as  agent, 
a  capacity  in  which  messengers  are  frequently 
employed :  2.  That  the  messenger,  as  such, 
has  no  discretionary  power :  3.  That  the 
cautioners  are  liable  not  merely  to  the  em- 
ployer of  the  messenger,  bat  to  those  against 
whom  he  has  committed  any  fanlt :  4.  That, 
in  estimating  the  damage  arising  from  the 
messenger's  neglect,  the  law  holds  the  damage 
to  be  the  amount  of  the  debt ;  nor  will  any 
proof  be  allowed  of  the  desperate  circum- 
stances of  the  debtor,  in  order  to  show  that 
due  execution  of  the  diligence  would  not  have 
secured  payment ;  Bell's  Com.  ib.  3.  Gatt- 
Uonerfor  a  notary. — 'The  responsibility  here 
is  similar  to  that  in  the  case  of  the  messenger. 
It  is  not  necessary  to  make  out  a  case  of 
fraud ;  for  the  cautioner  will  be  liable  for 
the  consequences  of  neglect,  or  error,  even 
though  it  should  arise  from  want  of  skill. 
BeWs  Com.  ib.  p.  366,  et  seq. 

It  may  be  observed  in  general,  with  regard 
to  cautioners  for  the  due  performance  of  an 
ofBce,  1.  That,  having  once  engaged  for  the 
oflBcer's  fidelity,  they  are  not  entitled  to  with- 
draw suddenly,  although  they  may  do  so  after 
a  reasonable  notice;  and,  2.  That,  on  the 
death  of  the  cautioner,  the  obligation  will 
subsist  against  his  representative,  until  he 
shall,  by  a  similar  withdrawal,  terminate  the 
obligation.  BelPt  Com.  ib.  p.  366.  See  also 
Wyllie  V.  Black's  Trustee,  13th  Dec.  1863, 16 
D.  180. 

Judicial  Cautionary. — ^There  are  several  de- 
scriptions of  cautionary  required  in  judicial 
procedure. 

1.  Ina  Suspension  or  Advocation. — In  advo- 
cations, caution  is  required  for  the  expenses 
incurred  in  the  inferior  court,  and  also  for 
such  expenses  as  may  be  incurred  in  the  Court 
of  Session  ;  A.  S.  11th  July  1828,  §  2  ;  and 
the  bond  of  caution  is  prepared  by  the  clerk 
in  the  inferior  court.  In  snspensions,  cau- 
tion is  found  in  the  Bill-Chamber ;  and  the 
cautioner,  by  the  form  of  his  bond,  becomes 
liable,  jointly  with  the  principal,  for  the  sums, 
with  interest  and  expenses  of  process,  which 
may  be  decerned  for  against  the  suspender 
upon  discussing  the  note.  But  although  such 
are  the  express  termsof  the  bond,  it  is  provided 
by  A.  S.  14tth  June  1799,  that,  in  case  of  a 
suspender  or  advocator  failing  to  expede  the 


letters,  or  in  case  of  the  respondent  obtain, 
ing  protestation,  the  cautioner  is  to  be  liable, 
as  well  as  the  principal,  for  the  expenses. 
And  by  the  Judicature  Act,  6  Geo.  IV.,c.  120, 
§  47,  a  still  farther  extension  of  the  cau- 
tioner's liability  has  been  effected.  It  is 
thereby  enacted,  that  "  cautioners  in  a  bill 
of  suspension  shall  be  liable  to  fulfil  the  ob- 
ligation in  their  bond,  although  the  letters 
of  suspension  shall  not  be  expede  before  the 
day  of  citation  mentioned  in  the  deliverance, 
and  also  in  case  of  the  charger's  obtaining 
and  duly  extracting  protestation  for  not  en- 
rolling, calling,  and  insisting."  The  obliga- 
tion on  the  cautioner  is  not  affected  by  the 
death  of  either  the  charger  or  the  suspen- 
der, during  the  dependence  of  the  process; 
A.  S.  29th  Jan.  1650.  An  attestor  is  liable 
only  subsidiarie,  and  is  consequently  en- 
titled not  only  to  insist  that  both  the  prin- 
cipal and  cautioner  shall  be  discussed  before 
himself,  but  he  may  also  claim  a  total  relief 
against  both  of  them.  It  has  been  held,  that 
a  person  who  has  signed  a  bond  of  caution  of 
this  nature,  which  has  been  retnmed  from 
the  Bill-Chamber  to  get  an  attestor,  may 
withdraw  his  obligation  at  any  time  before 
the  attested  bond  has  been  accepted  of  by 
the  opposite  party,  and  received  by  the  Bill- 
Chamber  clerk;  Stewart  v.  Mitchell,  1786; 
Mor.  p.  2157.  Afler  the  bond  has  been 
lodged  in  the  Bill-Chamber,  and  answers  put 
in  for  the  charger,  however,  although  no  ex- 
press acceptance  has  been  signified,  the  cau- 
tioner is  not  entitled  to  resile ;  Cravifori  t. 
Lynde,  26tt  May  1819,  Fac.  CoU.  Neither 
could  the  charger,  after  the  cautioner  had 
been  accepted,  and  the  letters  expede,  require 
a  new  cautioner  in  the  event  of  the  insol- 
vency of  the  cautioner  already  received ;  but 
this  was  altered  as  regards  suspensions  of 
liquid  obligations  by  A.  S.  lift  July  1828, 
§  18,  which  made  it  competent  for  the  Court, 
in  such  an  event,  to  order  new  caution  to  be 
found.  The  cautioner  in  a  suspension  is  not 
liberated  by  the  circumstance  of  the  decree 
under  suspension  being  converted  into  a 
libel.  A.  S.  27th  Dec.  1709 ;  Ersk.  B.  ill. 
tit.  3,  §  71  ;  BeU's  Com.  5th  edit.  vol.  i. 
p.385;  IIume,i.l4A;  Ross's Lectwes,i.f. 3^, 
et  seq.;  Shand's  Prac.  p.  476;  Beveridye  on BiU- 
Chamber ;  Barclay's  M'Glash.  Sher.  Court  Pm.; 
Juridical  Styles;  Dickson  on  Evidence,  p.  323,  et 
seq.  Forauthorities  on  caution  in  suspensions, 
see  the  authorities  under  the  general  word 
Caution.  See  also  Advocation.  Attestor.  Sits- 
pension. 

2.  Caution  in  Loosing  Arrestment — The  ob- 
ligation extends  no  farther  than  to  the  sums 
arrested.  The  cautioner  was  never  held  to 
be  entitled  to  the  benefit  of  discussion;  Rost's 
Lect.  i.p.  458;  A.  S.  Uth  July  1826;  Shaȣt 

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Prx.  p.  573 ;  Juridical  Stylet,  ii.  p.  90.    See 
Arraineat. 

3.  Caution  jvdieio  sisti  lays  the  cautioner 
under  an  obligation  to  produce  the  party  for 
whom  he  becomes  bound  at  all  diets  of  court, 
when  reqaired.  In  case  of  failure  to  do  so, 
the  bond  is  forfeited,  and  the  cautioner  in- 
cnn  the  penalty,  which  is  generally  the  debt 
sued  for,  vithout  the  benefit  of  discussion. 
A  eantioner  judicio  sisti  may  at  any  time  li- 
berate himself  by  producing  the  party  in 
Mort,  and  protesting  to  be  free  from  farther 
lisbility.  In  like  manner,  when  the  pursuer 
eitrscts  the  decree  without  calling  upon  the 
aationer  to  produce  the  party,  the  obliga- 
tion "  "      --   —   ---"-- 

ami 

Mt 

4th  edit.  §  274 ;  Shand's  Prae.  pp.  415, 504  ; 

HtUA.  Juttice  of-  Peace,  i.  p.  419  ;   Jurid. 

%&»,  3d  edit  p.  92 ;  Taift  Justice  of  Peace, 

toee  Bail ;  Erik.  Print.  12th  edit.  p.  18.    See 

ils»  UediUUio  fugce  ;  Gessio. 

Cmtion  jvdieio  sisti  in  maritime  causes  is 
aholished  by  13  and  14  Vict.,  c.  36,  §  24. 

4.  Caution  judicatum  solvi. — This  species  of 
oationary  was  required  only  in  maritime 
salts,  soch  as  were  formerly  pursued  before 
the  Court  of  Admiralty.  The  cautioner  be- 
esme  liable  for  the  solvency  of  the  party 
duriog  the  dependence  of  the  process,  and 
for  payment  of  the  debt  subsidiarie,  and  had, 
of  eoorse,  the  benefit  of  discussion.  Caution 
jadicaiun  solvi  in  the  Court  of  Session  was 
abolished  by  13  and  14  Vict.,  c.  36,  §  24  ; 
and  as  regards  the  Sheriff  Courts,  it  cannot 
be  required  from  any  party  domiciled  in 
Scotland,  unless  on  special  grounds  to  be 
sUted  by  the  judge ;  1  and  2  Vict.,  c.  119,  § 
22.  Ersk.  B.  i.  tit.  2,  §  19  and  21 ;  B.  iii. 
tit.  3, 5  73 ;  BeWs  Com.  i.  384 ;  Bdl's  Princ. 
4th  edit.  §  275  ;  Shand's  Prac.  p.  415,  314 ; 
Unteh.  Justice  of  Peace,  i.  p.  419 ;  Jurid. 
StyUs,  3d  edit.  ii.  p.  94 ;  Ersk.  Princ.  12th 
edit.  p.  340,  Barclay's  Sher.  Court  Prae.  p.  61. 
See  Admiralty. 

5.  Cautio  usufruetuaria ;  is  that  caution 
whieh  liferenters  may  be  required  to  give  for 
the  preservation  of  the  liferented  subjects 
*^OEt  waste  or  injury.  The  act  1491,  c. 
25,  anthorizes  such  caution  to  be  insisted  for 
>t  the  suit  of  any  party  interested ;  and  on 
re&sal,  the  act  1535,  c.  15,  imposes  the 
penalty  of  exclusion  from  the  profits  of  the 
wbjett  until  security  be  given.  Ersk.  B.  ii. 
tit.  9,  §59. 

6.  Juratory  caution;  is  a  description  of 
seemity  sometimes  received  in  advocations 
and  suspensions,  where  the  party  is  unable  to 
procure  other  caution.  It  consists  of  an  in- 
Tentory  of  his  effects  given  up  upon  oath,  and 
assigned  in  security  to  the  opposite  party. 


See  A.  S.  Uth  June,  1799 ;  A.  S.  Uth  July 
1828,  §§  2  and  3 ;  A.  S.  10th  July  1839, 
§  121 ;  and  13  and  14  Vict.,  c.  36,  §  34.  See 
also  Juratory  Caution. 

7.  Cautioner  in  bail. — This  cautionary  ia 
applicable  to  criminal  cases,  and  resembles 
the  c&ution  judicio  sisti.  The  cautioner  be- 
comes bound,  under  a  specific  penalty,  to 
produce  the  person  of  the  accused,  "  to 
answer  to  any  libel  that  shall  be  offered 
against  him  for  the  crime  or  offence  with 
which  he  is  charged,  at  any  time  within  the 
space  of  six  months."  The  six  months  will 
be  computed  from  the  date  of  the  bail-bond  ; 
and  unless  there  is  an  express  obligation  to 
produce  the  person  of  the  accused  "at  all 
diets  of  court,"  the  cautioner  will  be  dis- 
charged of  his  obligation,  by  producing  him 
on  the  first  diet ;  and  if  the  trial  is  then  de- 
layed, bail  must  be  applied  for  of  new.  Hume, 
vol.  ii.  p.  94;  Alison's  Prac.  174;  Jurid. 
Styles,  ii.  p.  93.  Upon  failure  to  implement 
the  obligation,  the  cautioner's  bond  will  be 
declared  forfeited,  and  the  penalty  will  be 
recovered  by  the  Exchequer.    See  Bail. 

8.  Caution  in  law-burrows. —  The  caution 
here  is,  that  the  complainer  shall  not  be 
molested  in  his  person  or  property  by  the 
party  complained  of,  under  a  certain  penalty, 
which,  on  contravention,  will  be  levied  from 
the  cautioner.  One-half  of  the  penalty  goes 
to  the  complainer,  the  other  to  the  public ; 
1581,  c.  117.  See  Jurid.  Styles,  ii.  pp.  91, 92. 
See  also  Law-burrows. 

Caveat ;  is  an  intimation  made  to  the 
proper  officer  to  prevent  the  taking  of  any 
step  (the  presenting  of  a  signature  for  in- 
stance) without  intimation  to  the  party  inter- 
ested, so  as  to  enable  him  to  appear  and 
object  to  it. 

Cellar,  King's.  See  Bonding  Acts,  and 
Kin^s  Cellar. 

Cepum  animalium ;  used  in  the  leges  bur- 
gorum;  the  fat  of  animals.    Skene,  h.  t. 

Certificate ;  a  declaration  of  a  fact  by  an 
officer  or  other  person  acting  in  a  public 
character.  A  certificate  of  baptism  is  signed 
by  the. session-clerk.  A  certificate  of  bad 
health  by  a  physician  or  surgeon  must 
bear  to  be  on  soul  and  conscience.  In  the 
Bill-chamber  proceedings,  an  attestation  by 
the  clerk  that  no  caution  has  been  received 
is  termed  a  certificate.  In  cases  of  homicide, 
and  other  crimes  against  the  person,  medical 
certificates  produced  respecting  the  nature  of 
the  injuries  must  be  verified  on  oath  by  the 
medical  persons  who  granted  them.  Stair,  B. 
iv.  tit.  42, 15,  and  tit.  43,  l,et.  seq.;  Burnett, 
486  ;  Dickson  on  Evidence,  pp.  959,  965. 

Certificate;  in  English  law,  a  writing 
made  in  any  court,  to  give  notice  to  another 
court  of  anything  done  therein,  usually  by 


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way  of  transcript.  Tomiinf  Diet.  h.  t;  Whar- 
Um's  Lex.  h.  L 

Certificate.    See  Attomof^s  CerU/kah. 

Certificate  of  Begutry  of  a  Ship ;  is  a 
copy  of  what  is  entered  in  the  register  of  the 
ship  in  the  hooks  of  the  Costoni-hoose.  It  is 
granted  hy  the  collector,  comptroller,  or  prin- 
cipal officer  of  the  customsatthe  port  of  registry 
of  the  ship,  and  delivered  to  the  captain  as  a 
voucher  of  the  character  and  privileges  of  the 
vessel  as  s  British  ship ;  BelCs  Com.  vol.  i. 
p.  158,  5th  edit.  See  the  form  of  this  cer- 
tificate, schedule  D,  17  and  18  Vict.,  c.  104, 
1854,  being  the  act  to  amend  and  consolidate 
the  acts  relating  to  merchant  shipping.  See 
also  the  Merchant  Shipping  Repeal  Act, 
1854, 17  and  18  Vict.,  c.  120.  Also  the  act 
18  and  19  Vict.,  c.  91, 1855.  Also,  Abbote$ 
Lavo  of  MereKant  Ships,  10th  edition,  1856. 

Certification. ;  in  judicial  procedure,  signi- 
fies properly  the  atsvranee  given  to  a  party 
of  the  course  to  be  followed  in  case  he  dis- 
obeys the  will  of  the  summons  or  other  writ, 
or  the  order  of  the  Court.  Erskine  defines 
it  to  be  "  the  penalty  to  be  inflicted  on  the 
defender  if  he  shall  neither  comply  with  the 
will  of  the  summons,  nor  show  a  resison  why 
he  is  not  bound  in  law  to  comply  with  it ;" 
B.  iv.  tit.  1,  §  7.  Certification  is  either  ex- 
pressed or  implied.  In  the  ordinary  sum- 
mons, the  defender  is  ordered  to  appear  in 
court  against  a  certain  day,  "  with  certifica- 
tion as  effeirs."  This  certification  was  at 
one  time  so  severe,  that  reiterated  contumacy 
on  the  part  of  the  defender  was  punished  with 
confiscation  of  his  pro^rty  (1449,  c.  29); 
but  now,  the  certification  in  the  summons 
amounts  to  nothing  more  than  an  absolute 
assurance  to  the  defender,  that  if  he  fails  to 
appear  in  the  usual  manner,  the  judge  will 
decern  in  his  absence.  The  certification  in 
the  general  charge  is,  that  in  default  of  the 
heir's  entry,  the  creditor  shall  have  the  same 
action  ag^ainst  the  heir  as  if  he  had  entered. 
In  the  n>ecial  charge,  the  certification  is,  that 
action  shall  be  had  not  only  against  the  heir, 
but  also  against  the  lands  belonging  to  the 
deceased ;  Ersk.  B.  ii.  tit  12,  f  12.  The 
most  important  certification  in  our  law,  how- 
ever, is  that  in  the  process  of  reduction-im- 
probation.  In  that  action  two  terms  are 
allowed  to  the  defender  for  the  production  of 
the  writ  sought  to  be  reduced,  and,  after  the 
expiration  of  these  terms,  ten  days  longer  are 
allowed ;  but  should  the  writ  not  then  be  pro- 
duced, decree  of  certification  may  be  pro- 
nounced by  the  judge,  the  effect  of  whicn  is 
to  hold  the  writ  as  forged  and  fabricated  ; 
and  such  a  decree,  once  pronounced,  can 
hardly  be  recalled,  even  although  it  has  been 
pronounced  in  absence.  Stair,  B.  iv.  tit.  3, 
§  31 ;  Mor^s  Notes,  p.  ccclxxvi. ;  Er^.  B. 


iv.  tit.  1,  §  21;  BeWt  Cm.  5th  edit  vol. 
ii.  p.  277,  et.  seq. ;  Jurid.  Stylet,  vol.  iii.  p. 
846.  In  the  simple  reduction,  the  certifica- 
tion is  merely,  that  the  deed  called  for  shall 
be  held  as  void  until  produced.  Ersk.  ib.  § 
24;  Ersk.  Prine,  12th  edit.  pp.  459,  489; 
ShancCs  Prae.  632,  641,  et.  pattim. 

Certiorari;  is  an  Englidi  writ,  analogous 
to  our  letters  of  advocation.  It  is  issued  ont 
of  the  common  law  jurisdiction  of  the  Court 
of  Chancery  in  civil  cases,  and  the  Crown 
side  of  the  Court  of  Queen's  Bench  in  crimi- 
nal cases,  and  is  directed  in  the  Queen's  name 
to  the  judges  or  officers  of  inferior  courts, 
commanding  them  to  certify,  or  to  return  the 
records  of  a  cause  depending  before  them,  to 
the  end  that  the  party  may  have,  more  sure 
and  speedy  justice  before  the  Queen,  or  such 
judges  as  she  shall  assign  to  try  the  cause. 
Tomlins'  Did. ;  Wharton's  Lex.  ft.  t. ;  2  flofe, 
p.  210 ;  4  Black.  Com.  p.  320. 

Ceu.    See  Lani-Tax. 

Cesdo  Bonomm.  The  process  of  ctstio 
hoMTum  may  be  teimed  an  equitable  relief 
from  the  severity  of  the  law  of 'imprison- 
ment for  debt.  This  process  was  formerly 
sued  out  exclusively  in  the  Court  of  SessioD, 
in  the  form  of  a  summons  at  the  instance  of 
the  imprisoned  and  insolvent  debtor,  in  which 
the  whole  of  the  creditors  were  called  st 
defenders.  When  the  process  came  into 
Court,  the  pursuer  was  bound  to  exhibit  a 
condescendence,  containing  a  full  statement 
of  his  affairs ;  and  to  satisfy  the  Court  that 
his  inability  to  pay  his  debts  had  arisen  from 
innocent  misfortunes.  This  process  is  still 
competent  before  the  Court  of  Session ;  and 
any  one  of  the  creditors  is  entitled  to  appear 
and  object  to  the  statement ;  and  the  pursuer 
will  not  be  allowed  the  benefit  of  the  proces, 
until  he  has  given  a  satisfactory  explanation 
of  the  state  of  his  affairs ;  the  oims  probandi, 
however,  of  all  objections,  lies  with  the  cre- 
ditor. When  the  objections  have  been  ob- 
viated, the  Court  pronounce  an  interlocutor, 
finding  the  debtor  entitled  to  the  benefit  of 
cessio ;  and  upon  his  lodging  in  the  hands  of 
the  clerk  of  Court  a  disposition  omnium  bono- 
rum  in  favour  of  his  creditors,  and  making 
oath  that  the  condescendence  contains  a  full 
and  true  state  of  his  affairs,  and  that  he  has 
made  no  conveyance  of  any  part  of  his  proper- 
ty, either  before  or  since  his  imprisonment,  to 
the  prejudice  of  his  creditors,  decree  of  cessio 
will  be  pronounced ;  the  effect  of  which  is  to 
liberate  the  debtor  from  imprisonment,  and 
to  protect  him  from  re-incarceration  for  any 
debts  due,  prior  to  the  decree,  to  the  creditors 
who  have  been  called  in  the  action.  The 
deci*ee  also  generally  contained  a  dispensation 
to  the  pursuer  from  the  necessity  of  wearing 
the  dyvour's  habit    See  Dyvour. 

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By  6  and  7  Will.  IV.,  c.  56,  the  jnriadic- 
tion  ia  eases  of  catio  is  extended  to  sherifis. 
The  principal  prorisions  of  that  statute  are, — 
1.  Any  debtor  in  prison,  or  who  has  been  in 
prison,  and  is  afterwards  liberated,  or  against 
vhom  a  warrant  of  imprisonment  has  been 
iasned.may  present  to  the  Sheriff  of  the  county 
in  which  he  lives  a  petition,  stating  his  ina- 
bility to  pay  his  debts,  and  willingness  ta  sur- 
render bis  estates,  and  praying  for  decree  of 
cmio  and  interim  protection ;  the  petition  to 
contain  a  list  of  his  creditors,  and  to  be  ac- 
companied by  the  warrant,  or  a  certificate  of 
imprisonment   2.  The  debtor  then,  on  a  war- 
rant from  the  Sheriff,  publishes  a  notice  in  the 
Edtnburffh  Gazette,  requiring  the  creditors  to 
appear  in  court  within  thirty  days,  and  sends 
letters  with  the  same  notice  to  each  of  the 
creditors,  or,  at  his  option,  cites  them  in  terms 
of  law.    He  then  lodges  a  state  of  his  affairs, 
ssbscribed  by  himself,  and  all  books,  papers, 
&c,  relating  to  his  affairs,  with  the  Sheriff- 
clerk.  The  jurisdiction  of  the  Sheriff  extends 
to  foreign  creditors;  Kennedy,  March  10, 1838. 
3.  On  the  day  appointed  for  compearance,  the 
Sheriff  may  examine  the  debtor  upon  oath ; 
after  which,  the  Sheriff,  if  necessary,  shall 
allow  parties  a  proof,  and  make  a  note  of  the 
creditors'  objections,  and  either  grant  decree, 
or  refuse  it  in  hoe  statu ;  or  grant  it,  subject  to 
s  declaration,  that  it  shall  not  be  extractable 
or  arailable  as  a  protection  to  the  debtor  for 
laeh  time  as  shall  appear  proper,  or  make 
tseh  other  orders  as  to  him  appear  just ;  and 
where  he  shall  grant  decree  under  such  limi- 
tations, or  refase  decree  in  hoc  statu,  he  shall 
state  the  grounds  of  his  decision,  and  his  note 
of  the  objections  shall  form  part  of  the  pro- 
cess.   4.  If  such  decree  be  pronounced  by  the 
Sheriff-substitute,   any  one  aggrieved  may 
lodge  a  reclaiming  petition  within  six  days ; 
sad  if  the  complainer  intimate  in  the  petition 
hit  desire  that,  if  the  Sheriff-substitute  be 
disposed  to  refuse  it,  the  petition  may  be  laid 
before  the  Sheriff,  it  shall  be  transmitted  to 
the  Sheriff.    6.  Any  person,  after  disposal  of 
siieh  petition,  or  without  presenting  one,  may, 
within  ten  days,  or  in  Orkney  within  twenty 
days,  afi«r  the  last  judgment  complained  of, 
lodge  with  any  of  the  clerks  of  Session  a  re- 
claiming note,  a  copy  of  which  shall  be  de- 
livered within  the  said  period  to  the  respon- 
dent, or  his  known  agent ;  and  a  copy,  certi- 
fied by  the  said  clerk  of  Session,  shall  be  a 
sufficient  warrant  to  the  Sheriff-clerk  to  trans- 
mit to  the  said  clerk  of  Session  the  proceedings 
in  process.    6,  If  the  Court  of  Session  be  sit- 
ting, the  Court  shall,  after  enrolment  of  the 
reclaiming  note,  pronounce  judgment,  or  re- 
mit to  the  Sheriff  with  instructions,  or  to  the 
Wd  Ordinary  on  the  Bills  during  vacation 
or  the  Christmas  recess.    If  the  Court  be  not 


sitting,  the  Lord  Ordinary  on  the  Bills  may  act 
as  judge  during  vacation  or  Christmas  recess, 
subject  to  review ;  but  if  the  proceedings  have 
not  been  brought  to  a  termination  before  the 
Lord  Ordinary  at  the  commencement  of  the 
ensuing  Session,  the  cause  shall  be  re-trans- 
mitted and  enrolled  before  the  Inner-House, 
which  may  give  judgment  therein,  as  if  it  had 
been  enrolled,  or  had  continued  without  in- 
terruption, before  the  Inner-House.  7.  In 
cases  originating  in  the  Court  of  Session,  the 
procedure  remains  as  before  ;  but  the  Court 
are,  in  addition,  empowered  to  remit  to  the 
Sheriff  to  examine  as  above  (3.),  and  report 
to  the  Inner-House,  who  grant  decree,  or  re- 
fuse hoc  statu,  or  grant  with  limitation.  8.  If 
the  Court  of  Session  be  not  sitting  when  the 
report  is  made,  the  Lord  Ordinary  on  the 
Bills  may  hear  parties  viva  voce,  and  pronounce 
judgment ;  or  if  the  Court  be  sitting,  but  the 
proceedings  cannot  be  terminated  before  va- 
cation or  Christmas  recess,  the  Inner-House 
may  remit  to  the  Lord  Ordinary.  And  if 
the  proceedings  be  not  terminated  before  the 
Lord  Ordinary  at  the  commencement  of  the 
ensuing  session,  the  Inner-House  takes  them 
up.  9.  The  Lord  Ordinary  shall  possess,  for 
the  purposes  of  the  act,  the  same  powers  dur- 
ing vacation  and  recess  as  the  Inner-House 
during  session ;  but  any  person  aggrieved  by 
his  judgment  may  lodge  a  reclaiming  note  to 
the  Inner-House  within  ten  days,  10.  The 
Inner-House,  the  Lord  Ordinary,  or  the 
Sheriff,  may  grant  interim  protection  or  libe- 
ration, provided  that,  before  the  issuing  of 
the  warrant,  the  debtor  lodge  a  bond  with  a 
sufficient  cautioner,  binding  themselves  under 
a  penalty,  to  be  divided  among  the  creditors, 
that  he  shall  attend  all  diets  when  required ; 
and  the  effect  of  such  warrant  of  liberation  or 
protection  shall  not  be  suspended  by  the  mere 
lodging  of  a  reclaiming  note ;  but  the  Inner- 
House  or  Sheriff  (as  the  case  may  be)  may, 
on  its  being  lodged,  and  parties  heard,  recal 
the  warrant  of  liberation  or  protection ;  and 
the  Inner-House,  Lord  Ordinary,  or  Sheriff, 
may  grant  warrant  to  bring  the  debtor  be- 
fore them  for  examination,  and  carry  him 
back  to  prison.  The  debtor  cannot  apply  for 
interim  protection  or  liberation  sooner  than 
the  day  of  compearance;  ShanePs  Prac.  p. 
803.  11.  The  decree  shall  operate  as  an  as- 
signation of  the  debtor's  moveables  for  be- 
hoof of  the  creditors,  in  favour  of  any  trustee 
mentioned  in  the  decree ;  but  it  shall  be  in 
their  option  to  require  a  disposition  omnium 
bonorvm.  12.  When  decree  is  refused  in  hoc 
statu,  the  debtor  may  at  any  time  thereafter 
apply  for  decree,  without  the  necessity  of  rais- 
ing a  new  summons  or  presenting  a  new  peti- 
tion. 13.  The  dyvour's  habit  is  abolished, 
and  the  act  1696,  c  5,  in  reference  to  it,  is 


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repealed.  14.  The  debtor  must  prove  bis 
insolvency,  and  take  oath  before  the  Sherilt 
as  before  the  Court  of  Session.  15.  Any  per- 
son may  lodge  a  petition  of  appeal  to  the 
House  of  Lords  against  the  judgment  of  the 
Inner-House  within  ton  days,  if  Parliament 
be  sitting  ;  but  if  not  sitting,  or  not  sitting 
long  enough,  within  six  days  after  it  next 
meets.  16.  No  fee-fund  or  government  du- 
ties are  exigible  in  any  of  the  proceedings. 
lY.  Court  of  Session  agents  may  practise  in 
the  Shoriflf-courts. 

This  act  of  6  and  7  Will.  IV.,  together 
with  two  explanatory  Acta  of  Sederunt, — that 
of  24th  December  1838,  applying  to  the  pro- 
cess of  cessio  in  the  Court  of  Session,  and  that 
of  6th  JuDel839,  applying  to  cessios  in  Sheriff- 
courts, — ^now  regulates  the  law  upon  the  sub- 
ject. By  §  3  of  the  recent  Bankrupt  Act, 
19  and  20  Vict.,  c.  79,  insolvency,  concurring 
with  an  application  for  eessio,  renders  a  debtor 
notour  bankrupt ;  and  by  §  167,  tho  trustee, 
for  behoof  of  the  creditors  of  the  pursuer  of 
a  ces»io,  is  placed  under  the  supervision  of 
the  Acconntant  in  Bankruptcy. 

The  effect  of  a  decree  of  cessio  being  not  to 
discharge  the  debtor,  but  merely  to  relieve 
him  from  the  operation  of  personal  diligence, 
it  affords  no  protection  against  the  attach- 
ment by  his  former  creditors  of  any  property 
which  he  may  subsequently  acquire,  either 
by  his  own  industry  or  otherwise.  The  cre- 
ditors, however,  before  proceeding  with  dili- 
gence against  the  new  acquisitions  of  the 
debtor,  are  bound  to  realize  the  property  con- 
veyed by  the  disposition  omnium  bonorum,  and 
to  apply  it,  aft  far  as  it  will  go,  in  extinction 
of  their  debts;  BdPs  Com,  vol.  ii.  p.  589, 
5th  edit.  In  surrendering  to  his  creditors 
cither  new  acquisitions  or  the  property  for- 
merly belonging  to  him,  the  debtor  is  not  en- 
titled to  retain  anything  but  his  working  tools, 
properly  so  called  (see  Beneficinm  Competcnr 
tice)  ;  and  where  the  debtor  has  a  fixed  salary 
or  fixed  wages,  it  is  settled  that  he  must  give 
up  all  that  exceeds  a  proper  aliment :  Thus 
clergymen  have  been  held  bound  to  give  up 
part  of  their  stipend,  and  officers  in  the  army 
a  proportion  of  their  half-pay;  BelPs  Com. 
ibid.  p.  594.  See  also  BeWs  Com.  on  the  re- 
cent Sequestration  Statutes,  pp.  25, 104 ;  Stair, 
B.  iv.  tit.  62,  17,  et  seq.;  Mor^s  Notes,  p. 
cccclxxxiv  ;  Ersk.  B.  iii.  tit.  3,  §  26,  et  seq. ; 
Shand's  Practice,  p.  795,  et  seq.  ;  Jurid.  Styles, 
3d  edit.  vol.  ii.  p.  251,  vol.  iii.  p.  305 ;  Wat- 
son's Stat.  Law,  voce  Bankrupt;  Shaw's  Digest, 
h,  t. ;  Brown's  Synop. ;  Bell's  Princ.  4th  edit, 
arts.  5232,  el  seq. ;  Karnes'  Princ.  of  Equity 
(1825),  296 ;  Burton  on  Bankniptcy,  p.  633,  et 
seq. ;  Barclay's  M'Glash.  Sheriff  Court  Prac. 
426,  et  seq. ;  1  Hume,  .371 ;  Baird  on  Cessio. 

Cestni  Que  Tnut;  in  the  law  of  England, 


is  the  party  beneficially  interested  under  s 
trust ;  or,  according  to  the  English  law  defi- 
nition, "  is  he  in  trust  for  whom  or  to  whose 
use  or  benefit  another  man  is  infeoffed  or 
seised  of  lands  or  tenements."  The  cestui  que 
trust,  if  in  possession,  votes  in  parliamentarr 
elections.  TomUns,k.  t.;  Chambers,  h.  t.;  Whar- 
ton, h.  t. ;  Lewin  on  Trusts;  Hill  on  Trusts. 

Chalder,  a  chalder  of  victual  consists  of 
16  bolls. 

ChaDdng  of  Door ;  a  mode  of  warning 
tenants  in  burgal  tenements  to  remove.  In 
Edinburgh  this  is  performed  by  a  town-officer, 
acting  ex  officio,  and  at  the  request  of  the 
landlord,  but  without  any  express  judicial 
warrant.  It  is  not  clear  that  the  oflSeer  need 
notify  to  the  tenant  the  purpose  of  his  visit : 
although  the  safe  course  is  to  do  so.  The 
chalking  consists  of  marking  the  principal 
door  of  the  tenement  with  chalk  forty  days 
before  Whitsunday  ;  and  a  certificate,  or  exe- 
cution of  chalking,  being  returned,  subscribed 
by  the  ofBcer  and  two  witnesses,  become  the 
warrant  for  a  summary  removing  before  the 
burgh  court,  under  which  decree  of  removal 
will  be  pronounced,  immediately  on  the  ar- 
rival of  the  removing  term ;  and  if  the  tenatst 
do  not  then  remove,  he  may  be  ejected  on  the 
expiration  of  a  charge  of  six  days.-  Bell  on 
Leases,  vol.  ii.  p.  118,  4th  edit. ;  Hunter's 
Landlord  and  Tenant,  ii,  85 ;  Rott's  LeeL  ii. 
551.     See  Removing, 

Challenge;  an  invitation  or  defiance  to 
fight  a  duel,  whether  given  verbally  or  in 
writing.  By  1696,  c.  35,  the  person,  whether 
principal  or  second,  or  other  interposed  per- 
son, concerned  in  giving  a  challenge,  was 
punishable  with  banishment  and  escheat  of 
moveables,  although  no  fighting  ensued.  This 
statute  was  repealed  by  59  Geo.  III.,  c.  70; 
but  both  the  sender  and  acceptor  of  a  chal- 
lenge, or  one  who  posts  a  person  as  a  coward 
for  not  fighting,  are  still  guilty  of  an  indict- 
able offence.  The  challenge  must  be  serious 
and  formal,  and  not  mere  intemperate  expres- 
sions or  words  of  defiance,  which,  though  im- 
porting a  design  to  fight,  are  not  followed  up 
by  more  deliberate  proceedings.  Hume,  i.  438, 
442 ;  Bellas  Notes,  p.  Ill ;  Hutch.  Justice  vj 
Peace,  vol.  i.  p.  386  ;  Alison's  Princ.  p.  580 ; 
Burn's  Justice  by  Chitty,  p.  586.    See  Dudling. 

Challenge  of  Jurors.  To  challenge  a 
juror,  is  to  object  to  his  acting  as  a  juryman. 
The  English  Treason  Laws,  which  were  ex- 
tended to  Scotland  by  7  Anne,  c.  21,  allow 
a  person  tried  for  that  crime  thirty-fve  per- 
emptory challenges,  «.«.,  challenges  without 
cause  assigned.  In  other  criminal  cases  the 
panel  had  not,  until  lately,  by  the  law  of 
Scotland,  any  right  of  peremptory  challenge; 
but  he  is  served  with  a  list  of  the  whole  forty- 
fivo  persons  from  which  tho  jury  is  to  be  se- 

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lected,  and  has  thns  an  opportunity  of  learn- 
isg  all  reasonable  objections  which  may  be 
stated  against  anr  of  them,  and,  on  cause 
gliovD,  he  may  object  without  limit.   The  law- 
ful grounds  of  objection  are, — 1.  That  the 
proposed  juryman  is  infamous  infamia  juris, 
or  an  outlaw ;  2.  That  he  has  hostile  feelings 
towards  the  panel,  or  that  he  has  expressed 
such  feelings ;  3.  That  he  is  insane,  or  deaf, 
or  domb,  or  a  minor ;  4.  Where  the  prose- 
(otioQ  is  at  the  instance  of  a  private  party,  it 
is  a  good  objection  that  the  juryman  is  near 
of  Lin  to  the  prosecutor,  or  that  be  is  depend- 
ent upon  him  in  such  a  manner  as  to  create 
an  undue  bias ;  Hume,  i.  5,  545  ;  ii.  p.  309. 
And  now,  by  the  statute  6  Geo.  IV.,  c.  22,  the 
prosecutor  and  panel  hare,  each  of  them, 
fire  peremptory  challenges  without  reason  as- 
sisted;  Alison's  Prac.  p.  383;  but  in  both 
criminal  and  civil  trials  only  two  in  the  spe- 
cial list  can  bo  peremptorily  challenged.    See 
Jury.  By  the  act  establishing  the  jury  court 
in  civil  canses  in  Scotland  (55  Geo.  III.,  c. 
42,  §  21),  peremptory  challenges  to  the  num- 
ber of  four  to  each  party  are  allowed ;  and 
clidlenges,  on  canse  shown,  are  of  course  un- 
limited.   The  act  69  Geo.  III.,  c.  35,  by 
which  the  jury  court  is  made  permanent, 
makes  no  alteration  in  regard  to  the  right  of 
ehillenge.     See  Jury  Trial.         , 

Chamberlain.  The  chamberlain  of  Scot- 
bnd  was  an  ofScer  of  high  dignity  and  of  su- 
preme jurisdiction.  He  had  the  inspection  of 
all  royal  bnrgfas,  and  power  to  inquire  into  the 
coodnet  of  the  magistrates,  and  to  apply  the 
bargh  revenues  to  their  proper  use.  He  de- 
cided disputes  betwixt  burgessand  burgess,  and 
beld  circuits  for  the  exercise  of  his  jurisdiction. 
He  judged  also  in  matters  of  public  police  with- 
in borghs,  a  power  now  exercised  by  the  Dean 
of  Guild.  The  office  of  chamberlain  of  Scot- 
land has  been  long  since  abolished.  Stair, 
B.  iv.  tit.  1,  §  4 ;  Ersk.  B.  i.  tit.  3,  §  38. 

The  Lord  Great  Chamberlain  of  England  is 
an  officer  of  considerable  importance.  He  is 
governor  of  the  Palace  of  Westminster ;  and, 
opon  all  solemn  occasions,  such  as  the  coro- 
nation of  the  King,  the  keys  of  Westminster 
Hall  are  delivered  to  him.  He  has  the  care 
of  providing  all  things  in  the  House  of  Lords 
daring  the  sittingof  Parliament.  The  Gentle- 
man Usher  of  the  Black  Rod,  Yeoman  Usher, 
Ac,  are  under  his  authority.  The  office  is 
hereditary.     Tomlin^  Diet. ;  Whartm's  Lex. 

The  Lord  Chamberlain  of  the  Household  has 
the  superintendence  and  government  of  all 
affairs  belonging  to  the  King's  chamber  (ex- 
cept the  bed-chamber),  and  also  of  the  ward- 
robe; of  artificers  in  the  King's  service, 
King's  messengers,  comedians,  die.  The  ser- 
geanta-at-arms  are  also  under  his  inspection, 
and  the  King's  chaplains,  physicians,  apothe- 


caries, surgeons,  &c  He  has  a  vice-chamber- 
lain under  him ;  and  both  are  Privy  Conn- 
cillors.     Tomlin^  Diet. ;  Wharton's  Lex. 

Champarty,  or  Champerty;  in  English  law, 
a  bargain  with  the  plaintiff  or  defendant  in 
any  suit,  to  have  part  of  the  land,  debt,  or 
other  things  sued  for,  if  the  party  that  under- 
takes it  prevails  therein ;  whereupon  the 
champertor  is  to  carry  on  the  party's  suit  at 
his  own  expense.  It  is  strictly  forbidden  by 
several  English  statutes,  being  a  species  of 
maintenance,  and  punished  in  the  same  man- 
ner. Tondin^  Diet.  h.  t. ;  Wharton's  Lex.  h.  t. ; 
Story's  Com.  ii.  289 ;  St^  on  Contracts,  §  208. 
See  Maintenance.    Buying  of  Pleas. 

Champert;  in  old  law  language,  a  gift 
taken  by  a  great  man  or  by  a  judge  for  de- 
laying a  just,  or  expediting  a  wrongous  action. 
In  England  it  is  used  where  the  judge  him- 
self, either  directly  or  indirectly,  maintains 
theplea.     Skene,  h.  t. 

CnanceUor  of  a  Jury;  is  the  preses  or 
foreman  of  the  jury,  who  announces  the  ver- 
dict when  it  is  a  verbal  one,  and  who  delivers 
it  in,  and,  along  with  the  clerk,  subscribes  it 
in  name  of  the  jury,  when  it  is  in  writing ; 
Hume,  vol.  ii.  p.  426;  Alison's  Profi,  639. 
By  the  Jury  Court  act,  55  Geo.  III.,  c.  42, 
§  33,  it  is  provided  that  the  chancellor  of  the 
jury  in  civil  causes  shall  be  elected  by  a  ma- 
jority of  the  jury  after  they  are  sworn,  and, 
in  case  of  an  equality  of  votes,  the  juror  first 
sworn  shall  have  a  double  vote.  See  Verdict. 
Chancellor,  Lord.  The  ofSce  of  Lord 
Chancellor  of  England  is  the  highest  under 
the  Crown.  The  Lord  Chancellor  is  ap- 
pointed to  the  office  by  the  mere  delivery  of 
the  King's  great  seal  into  bis  custody.  He 
is  a  Privy-Councillor  ex  officio,  and  Speaker 
of  the  House  of  Lords  by  prescription.  Ho 
has  the  appointment  of  all  justices  of  the 
peace  throughout  the  kingdom.  In  England 
he  is  the  guardian  of  all  infants,  idiots,  and 
lunatics,  and  has  the  general  superintendence 
of  all  charitable  institutions.  In  his  judicial 
capacity  he  exercises  the  very  extensive  juris- 
diction of  the  Court  of  Chancery.  He  not 
only  keeps  the  King's  great  seal,  but  all  pa- 
tents, commissions,  warrants,  &c.,  from  the 
King  are  perused  and  examined  by  him  be- 
fore being  signed.  The  highest  branch  of 
his  jurisdiction  is  that  of  cancelling  the  King's 
letters-patent  when  granted  contrary  to  law. 
Tho-Lord  Chancellor  is  superior  in  point  of 
precedency  to  every  temporal  Lord.  Tom- 
Jin's  Law  Diet. ;  Wharton's  Lex,  h.  t. 

The  office  of  Lord  Chancellor  in  Scotland 
was  abolished  at  the  Union  in  1707.  The 
Chancellor  of  Scotland  was  formerly  an  offi- 
cer of  very  great  importance.  He  presided 
in  the  Scots  Parliameut,  and  in  all  courts  of 
judicature  (1C61,  c.  1),  and  had  the  principal 


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direction  of  the  Chancenr.  He  had  the  cus- 
tody of  the  great  seal,  and  was  chief  counsellor 
to  the  King  {Bed/.  Practicks,  p.  15) ;  and  took 
precedence  of  all  others  ratione  officii.  On  the 
abolition  of  the  office,  a  keeper  of  the  great 
seal  for  Scotland  was  appointed ;  in  affixing 
the  seal,  however,  to  the  writs  passing  nnder 
it,  he  acts  merely  ministerially.    See  Great 

Chancery  or  Chanoellary.  The  Chancery 
in  Scotland  is  an  office  managed  by  the  Di- 
rector of  Chancery  and  his  deputies,  in  which 
are  recorded  all  charters,  patents  of  dignities, 
gifts  of  offices,  remissions,  legitimations,  pre- 
sentations, commissions,  brieves,  retours,  pre- 
cepts thereon,  and  all  other  writs  appointed 
to  pass  the  great  or  the  quarter  seals.  The 
Director  of  Chancery  is  keeper  of  the  quarter 
seal,  or  testimonial  of  the  great  seal  as  it  is 
also  termed ;  and  in  this  office  all  writs  pass- 
ing under  the  quarter  seal  are  written.  All 
writs  passing  through  Chancery  are  recorded 
before  they  are  given  out  to  be  sealed.  It  is 
from  Chancery  that  all  brieves  are  issued,  and 
to  it  all  retonrable  brieves  are  returned  to  be 
recorded.  Stair,  B.  iv.  tit.  1,  §  2 ;  tit  3,  §  1 ; 
tit.  48,  §  39 ;  Broum't  Stfnop.  h.  L  See  Brteve. 
Seals. 

Chancery ;  in  England,  the  highest  court 
of  judicature  next  to  the  Parliament.  Its 
juiisdiction  is  of  two  kinds,  ordinary  and  «x- 
traordinary,  in  the  former  of  which  the  Lord 
Chancellor,  Lord  Keeper,  &c.,  is  bound,  in 
his  proceedings  and  judgments,  to  observe  the 
order  and  method  of  the  common  law ;  the 
latter  is  that  which  the  court  exercises  in 
cases  of  equity.  Tomlins'  Diet.  h.  t. ;  Wkar- 
ton's  Lex,  h.  t. 

Chapels  and  Altarages.  Before  the  abo- 
lition of  Popery,  it  was  usual  for  pious  per- 
sons to  found  and  endow  chapels,  which  were 
served  by  a  chaplain ;  or  altarages,  which 
were  small  endowments  for  the  maintenance 
of  a  priest  to  perform  divine  service  at  an 
altar,  on  behalf  of  the  soul  of  the  founder,  or 
some  of  his  deceased  friends.  Erst.  B.  i.  tit. 
5,  §3.     See  Altarage. 

Chapter.  In  times  of  Popery  and  Epis- 
copacy the  chapter  was  the  bishop's  council, 
cousisting  of  an  archdeacon,  dean,  and  canons 
or  prebendaries,  who  were  generally  ministers 
within  the  diocese.  By  the  advice  of  this 
council,  the  bishop  managed  both  his  spirit- 
ual affaira  and  the  temporal  affairs  of  the  dio- 
cese. See  Stair,  B.  ii.  tit  8,  §  15 ;  Erdc. 
B.  ii.  tit.  10,  §  5. 

Character  of  Panel  Evidence  of  the 
prisoner's  general  bad  character  cannot  be 
brought  to  support  a  specific  charge.  The 
charge  of  habit  and  repute  in  theft  is  of 
course  excepted.  In  certain  cases  of  homi- 
cide, proof  of  a  vindictive  temper,  and  of  a 


series  of  cruelties  practised  towards  the  in- 
dividual killed,  is  competent ;  but  such  cruel- 
ties must  be  set  forth  in  the  libel.  Proof  of 
character  is  allowed  on  the  part  of  the  panel, 
both  as  evidence  in  his  favour,  and  in  miti- 
gation of  punishment,  as,  for  instance,  in  ho- 
micide on  sudden  quarrel,  that  he  is  of  a  mild 
temper,  and  that  the  deceased  was  the  re- 
verse. Such  evidence  of  character  must  be 
given  on  oath,  unless  when  offered  in  mitiga- 
tion of  punishment,  in  which  case  a  written  cer- 
tificate is  admitted,  valeat  gtMntum,  where  the 
case  has  not  gone  before  the  jury;  Didtot 
on  Evidence,  p.  965.  Where  the  character 
of  the  injured  person  is  impeached  by  s 
panel,  the  prosecutor  may  bring  evidence 
to  support  it.  In  cases  of  rape,  the  wo- 
man's general  loose  manners,  and  even  par- 
ticular acts  of  criminality,  may  be  proved ; 
but  the  prosecutor  must  have  notice  of  this 
line  of  defence,  unless  he  has  attempted  to 
set  up  her  previous  character.  Hume,  ii.  413 ; 
^/M<m'«  iVtn.  215  ;  Alis<m'sPrac.&2^;  Did- 
son  on  Evidence,  21.  In  charges  of  rape  also, 
the  prosecutor  may  uiticipate  the  ordinaiy 
defence,  that  the  connection  was  voluntary,  bj 
proving  the  woman's  good  character,  though 
not  impugned  on  record;  M'tVilliam,  1846; 
Arkley's  Rep.  p.  209. 

Character  of  Parties.  In  an  action  of 
damages  for  defamation,  it  is  competent  to 
the  pursuer  to  adduce  evidence  in  support  of 
his  general  character,  as  upon  that  the  amonot 
ofhis  damages  in  some  degree  depends.  When 
a  pursuer  leads  evidence  in  support  of  his  cha- 
racter, the  defender  is  entitled  to  attack  it 
and  lead  counter  evidence,  but  not  t«  impugn 
a  general  character  in  favour  of  which  evi- 
dence has  been  led,  by  questions  as  to  parti- 
cular acts.  Upon  the  question,  whether  the 
defender  is  entitled  to  attack  the  general  con- 
duct of  the  pursuer,  although  evidence  has 
not  been  led  in  support  of  it,  there  are  seve- 
ral conflicting  decisions  cited  by  Mr  Macfar- 
lane ;  Jury  Prac.  217.  In  the  most  recent 
of  these,  evidence  was  admitted  that  the 
pursuer  was  of  a  violent  and  quarrelsome 
disposition,  there  being  a  statement  to  that 
effect  in  the  record ;  and  the  principle  seems 
now  to  be  recognised,  that  general  evi- 
dence against  the  pursuer's  character  will 
be  rejected,  unless  the  defender  has  attacked 
it  on  record,  or  taken  an  issue  in  justifica- 
tion ;  Dickson  on  Evidence,  p.  18.  It  is  in- 
competent in  civil  cases  to  lead  evidence  as 
to  the  defender's  general  character,  either  pro 
or  contra.  See  Macfarlane^s  Jury  Prac.  2 16-8, 
and  authorities  there  cited  ;  Dickson,  vt  tupn. 

Character  to  Servant  There  is  no  le^ 
obligation  upon  a  master  to  give  his  servant 
a  character ;  but  if  he  give  a  false  one,  he  is 
liable  to  the  servant  in  damages.    BeWs  Pri»c. 

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4th  edit.  p.  53,  and  authorities  there  cited ;  lU 
but.f.U9. 

dttrdonei,  vd  Cardonet;  cards  with  which 
wool  is  carded  and  wronght.     Skene,  h.  t. 

Char^.  In  the  technical  language  of 
Scotch  law,  a  charge  is  the  command  of  the 
Sorereign's  letters  to  perform  some  act.  The 
iann  is  also  applied  to  the  messenger's  copy 
for  serriee,  requiring  the  person  to  ohey  the 
order  of  the  letters ;  as  a  charge  on  letters 
of  homiog,  or  a  charge  against  a  superior. 

Qtargt  to  enter  Heir. — General  Charge.: — This 
fonnerlj  was  a  writ  issued  in  the  sovereign's 
name,  and  passing  the  Signet,  ordering  the 
heir  within  forty  days  to  entier  heir  to  his 
predecessor,  under  certification  that,  if  he 
faded,  the  creditor  should  have  action  against 
him,  in  the  same  manner  as  if  he  had  entered. 
The  general  charge  was  intended  merely  as 
the  foundation  of  proceedings  against  the 
heir ;  and  although  such  a  charge  might  have 
been  given  during  the  currency  of  the  annus 
iMerandi,  yet  no  sammons  could  he  raised 
for  constituting  the  debt,  until  after  the  ex- 
piration of  the  year,  unless,  during  the  course 
of  it,  the  heir  had  intromitted  with  the  effects 
of  the  deceased,  and  so  incurred  a  passive 
title.  When  the  action  had  been  raised  on 
the  expiration  of  the  general  charge,  the  heir, 
if  he  chose,  might  appear  and  renounce  the 
soeeession;  in  which  case  decree  cognitionis 
<Mta  might  be  obtained  at  the  instance  of 
the  creditor.  This  decree  was  termed  a  de- 
cree of  cognition,  because  its  chief  object  was 
to  ascertain  the  amount  of  the  debt ;  hut  such 
a  decree,  proceeding  on  a  renunciation  by  the 
heir,  eonld  not  affect  either  his  person  or 
Kparate  property.  Where  no  appearance  was 
Blade  for  the  heir,  decree  was  pronounced 
against  him  as  lawfully  charged  to  enter  heir, 
which  had  the  effect  of  constituting  him 
debtor  personally,  and  gave  the  creditor  ac- 
tion against  him  and  his  estate,  as  well  as 
against  the  estate  of  the  ancestor.  Ersk.  B. 
ii.  tit.  12,  §  12,  et  seq. ;  BeU's  Com.  6th  edit, 
vol.  i.  p.  709 ;  Brown's  Synop.  h.  t. ;  Shaw's 
Difttt;  Jvrid.  Slyles,2i  edit.  vol.  iii.  p.  328; 
Sand/ord  on  Heritable  Succession,  vol.  ii.  p.  9, 
11,67 ;  Ross's  Led.  i.  498;  Menzies'  Lectures. 

The  debt  being  thus  constituted,  it  still  re- 
mained, that  the  heritable  rights  which  be- 
longed to  the  ancestor  should  be  vested  in  the 
heir,  or  made  liable  to  the  diligence  of  the 
creditor ;  and  for  this  purpose  the  heir  re- 
qoired  to  receive  either  a  special  or  a  general 
speciai  charge. 

The  Speetid  Charge  was  a  writ  also  issued  in 
the  Sovereign's  name,  and  passing  the  Signet 
It  narrated  the  general  charge  and  procedure 
for  constituting  the  debt,  and  that  the  heir 
woflld  not  enter  himself  heir  in  special  to  the 
heritage  in  which  his  ancestor  died  infeft,  so 


as  to  enable  the  creditor  to  adjudge  that  pro- 
perty ;  and  it  ordained  the  heir,  within  forty 
days,  to  enter  himself  heir  in  special  to  his 
ancestor,  under  certification  that,  if  he  failed, 
the  creditor  should  have  action  of  adjudica- 
tion against  him  and  the  lands,  precisely  as 
if  he  had  so  entered.  The  execution  of  this 
charge  was  by  1540,  c  160,  made  equivalent, 
fictions  juris,  to  the  heir's  actual  entry ;  and 
on  the  expiration  of  the  forty  days,  an  adju- 
dication at  the  instance  of  the  creditor  effect- 
ually carried  the  subjects  to  which  the  heir 
was  charged  to  enter.  Ersk.  B.  ii.  tit.  12, 
§13 ;  Bell's  Com.  ibid,  pp.712  and  740  ;  Jurid. 
Styles,  2d  edit.  vol.  iii.  pp.  376,  415, 763. 

The  General  Special  Charge. — The  only  differ- 
ence between  this  charge  and  the  special 
charge  was,  that  it  was  applicable  to  those 
heritable  subjects  to  which  the  ancestor  had 
personal  rights,  not  completed  by  sasine ;  and 
the  heir  was  charged  to  make  up  his  titles  tp 
the  unexecuted  procnratories  or  precept,  Ac. 
under  certification  that,  if  he  failed,  the  cre- 
ditor should  have  the  same  action  against  the 
heir  and  the  heritage,  that  he  would  have 
had  if  he  had  been  retoured  heir  in  general 
to  his  ancestor.  Ersk,  ib.  By  the  statute  54 
Geo.  III.,  c.  137,  5  8,  it  was  enacted,  that, 
after  one  charge,  wnether  general  or  special, 
had  been  given  on  inducim  of  forty  days,  every 
subsequent  charge  might  be  on  inducix  of 
twenty  days  only ;  and  by  the  same  section  of 
the  act,  these  inducice  were  declared  to  be  ap- 
plicable whether  the  heir  was  within  Scotland 
or  not.    Jurid.  Styles,  2d  edit.  vol.  iii.  p.  371. 

Where  the  heir  himself,  and  not  the  an- 
cestor, was  the  debtor,  there  was  no  occasion 
for  a  general  charge.  All  that  the  creditor 
had  in  view  in  such  a  case  was,  that  his  debtor 
should  complete  his  titles  to  the  property  to 
which  he  had  succeeded,  so  that  it  might  be 
attached  for  his  debt ;  and,  for  this  purpose, 
it  was  necessary  to  raise  letters  either  of  spe- 
cial or  of  general  special  charge,  according  to 
the  state  of  the  titles  to  the  subjects  of  the 
succession ;  and,  on  the  expiration  of  this 
charge,  whether  the  heir  entered  or  not,  the 
subjects  were  effectually  attached  by  adjudi- 
cation at  the  creditor's  instance.  1621,  c.  27 ; 
Ersk.  B.  ii.  tit.  12,  §  14.  But,  even  in  this 
case,  the  heir  was  not  obliged  to  answer  the 
charge  until  the  expiration  of  the  annus  de- 
liberandi; and  the  creditor  could  not  go  ou 
with  his  proceedings  during  the  year,  unless 
the  heir  chose  either  to  obey  the  charge,  or 
to  assume  possession  of  the  estate,  or  grant  con- 
veyances of  it.  It  has  been  doubted  whether 
the  heir,  when  he  was  himself  the  original 
debtor,  was  at  liberty  to  renounce  the  succes- 
sion which  had  opened  to  him,  and  which 
might  have  enabled  him  to  discharge  his 
debts ;  and  it  was  once  held  that  such  a  re- 


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ntinciation  was  competent ;  Carse,  23d  March 
1627,  Mor.  Supplement,  p.  40  ;  but  the  cor- 
rectness of  that  decision  has  been  questioned ; 
Bell's  Com.  vol.  i.  p.  709,  5th  edit. 

The  act  1540,  c.  lOG,  authorized  charges 
to  enter  to  be  given  only  where  the  heir  was 
of  perfect  age  ;  but,  by  immemorial  usage,  it 
was  the  practice  to  charge  minors.  It  has 
been  already  observed,  that  the  charge  might 
be  given  during  the  currency  of  the  annus 
deliberandi;  and  in  those  cases  where  the  ge- 
neral charge  was  meant  to  be  the  foundation 
of  an  ordinary  summons,  the  action  was  sus- 
tained if  the  summons  on  which  it  proceeded 
was  not  executed  until  a  year  after  the  ances- 
tor's death,  although  the  forty  days  of  the 
charge  were  not  elapsed  at  the  date  of  the 
execution.  But  where  a  special  charge  had 
been  given  with  a  view  to  an  adjudication, 
the  summons  of  adjudication,  according  to  the 
construction  put  on  the  statute,  could  not  bo 
raised  until  the  expiration  of  the  annus  ddibe- 
randi,  and  of  "  the  forty  days  next  ensuing 
that  year,  within  which  the  heir  is  charged 
to  enter."  Stair,  C.  iii.  tit.  4,  §  32 ;  tit.  5, 
§  22,  et  seq. ;  15.  iv.  tit.  51,  §  10  ;  ErsL  B.  ii. 
tit.  12,  §  15  ;  Bell's  Com.  5th  edit.  vol.  i.  p. 
743 ;  Bell's  Princ.  4th  edit.  art.  1855,  et  seq.; 
Memies'  Lectures.    See  Adjudication. 

By  the  act  10  and  11  Vict.,  c.48,  §  16, 
general,  special,  and  general  special  charges 
are  abolished.  Tiie  execution  of  a  summons 
of  constitution  of  an  ancestor's  debt  against 
an  unentered  heir  is  made  equivalent  to  a 
general  charge.  The  execution  of  a  summons 
of  adjudication  following  on  the  decree  ob- 
tained in  such  action  of  constitution  is  made 
equivalent  to  a  spvcial  charge,  or  general  spe- 
cial charge,  as  the  case  may  require.  The 
same  effect  is  given  to  the  execution  of  a 
summons  of  adjudication  against  an  unentered 
heir,  founded  on  his  own  debts.  See  on  this 
subject  the  article  Adjudication  contra  Hce- 
reditatem  Jaccntcm. 

Charge  on  Letters  of  Horning.  The  will 
of  letters  of  horning  commands  messengers- 
at-anus,  as  sheriffs  in  that  part,  to  order  the 
debtor  to  pay  the  debt  within  a  certain  num- 
ber of  days;  and  this  the  messenger  does  by 
leaving  for  the  debtor  what  is  termed  a  copy 
of  charge ;  by  which,  in  virtue  of  the  letters 
of  horning,  he  commands  and  charges  the 
debtor  to  make  payment  of  the  debt,  speci- 
fying the  sum,  and  describing  the  voucher  of 
debt  as  in  the  narrative  of  the  letters  of 
homing,  and  that  within  the  days  and  under 
the  pains  expressed  in  the  letters.  This  must 
be  signed  by  the  messenger  (1.592,  c.  141). 
The  date  must  be  in  writing  (1693,  c.  12), 
and  the  names  and  designations  of  the  wit- 
nesses inserted.  The  form  of  giving  this 
charge  is  regulated  by  the  act  1540,  c.  75 ; 


and  the  cases  provided  for  are, — 1.  Where  the 
charge  is  delivered  personally,  and  then  the 
form  is  simple.  2.  Where  the  debtor  is  not 
found,  and  the  charge  is  left  with  the  servant. 
In  this  case,  it  must  be  left  at  the  principal 
dwelling-place,  and  with  the  servant  within 
the  dwelling-place;  and  this  fact  must  b« 
stated  in  the  execution.  3.  The  other  case 
provided  for  by  the  act  is  where  the  party 
cannot  be  found,  and  access  cannot  be  got.  In 
that  case,  the  messenger  must  knock  six  aqdi- 
ble  knocks  on  the  door,  and  then  afBx  a  copj 
of  charge  on  the  most  patent  door  of  the 
house.  The  execution  returned  by  the  mes- 
senger is  a  certificate  of  his  having  gone 
through  the  form  of  delivering  the  charge ; 
which  execution  must  be  signed  by  him  and 
by  the  witnesses,  whose  names  and  designa- 
tions must  also  be  inserted.  1681,  c.  5.  When 
the  debtor  is  furth  of  thekingdom,  this  charge 
may  be  given  edictally,  provided  the  letters 
contain  a  proper  warrant  for  sucL  charge. 
See  Citation, 

Since  the  Personal  Diligence  Act,  1  and  2 
Vict.  c.  114,  the  use  of  letters  of  homing  as 
the  warrant  of  a  charge  is  almost  superseded. 
That  act  provides,  §  1,  that  extracts  of  de- 
crees of  the  Court  of  Session,  Teind  Court, 
and  Court  of  Justiciary,  and  of  decrees  pro- 
ceeding on  registered  deeds,  &c.,  may  contain 
a  warrant  to  charge  the  debtor  or  obligant 
to  pay  or  perform ;  in  virtue  of  which  extract 
the  charge  may  be  given ;  and  an  execution 
must  be  returned  in  terms  of  an  annexed  sche- 
dule, §  83.  A  similar  warrant  to  charge  may 
be  inserted  in  extracts  of  Sheriff  Coartdecrees, 
§  9.  Extract  decrees  in  Excheqner  causes 
also  may,  by  19  and  20  Viet.,  c  56,  contain 
warrant  to  charge.  See  6  Geo.  JK.,  c.  1 28,  §  31 ; 
Bill's  Com.  5th  edit.  vol.  ii.  p.  200  and  543 ; 
Shaw's  Digest;  Ross's  Leet.  i.  1 14, 237, 292,478, 
534  ;  Hunter's  Landlord  and  Tettani;  Darling'i 
Messcuijer-ai-arms ;  Menzie^' Lectures  on  Contn- 
ancing,  p.  282.    See  Homing,  Edictal  Citaim. 

Charge  against  Snperiors.  These  charge 
may  be  used  by  heirs,  by  adjudgers,  or  by 
purchasers. 

Cltarge  by  an  Heir. — The  charge  may  be 
used  against  a  superior,  or  against  the  heir 
of  a  superior.  1.  Against  the  superior.  By 
the  20  deo.  II.,  c.  50,  the  heir,  on  production 
of  his  special  retour,  may  obtain  a  warrant 
for  letters  of  charge,  to  charge  the  superior 
to  enter  him  on  fifteen  days'  notice,  which 
he  is  bound  to  do  on  receiving  the  non-entry 
and  relief  duties,  and  exhibition  of  the  an- 
cient titles ;  and  this  charge  may  be  enforced 
by  personal  diligence  against  the  superior ; 
Ersk.  B.  iii.  tit.  8,  §  79.  2.  Against  ike  heir 
of  the  superior.  When  the  superior  is  dead, 
and  the  heir  unentered,  the  superior's  heir 
must,  in  terms  of  the  act  1474,  c  58,  be 


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ehargetl  by  the  heir  of  the  vassal  to  infeft 
himself  within  forty  days,  under  certification 
that,  shoald  he  fail,  he  shall  lose  the  tenant 
for  his  lifetime ;  which  has  been  explained  to 
mean  the  casualties  arising  from  the  delin- 
quency of  the  vassal,  and  besides  be  liable  in 
damages ;  and  should  the  heir  fail  to  enter, 
the  vassal  may  proceed  to  charge  the  inter- 
mediate superiors,  until  ho  comes  to  the 
Crown,  from  whom  he  will  receive  a  title. 
Effi.  lb.  §  80. 

Charge  by  an  adjudger. — Where  an  adjudger 
wishes  to  render  his  debt  real,  and  capable  of 
competing  with  other  real  rights,  he  must 
obtain  infeflment ;  and,  with  this  view,  where 
the  superior  refuses  to  enter  him,  he  must 
raise  letters  of  homing  (the  warrant  of  which 
is  contained  in  the  decree  of  adjudication), 
mi  upon  these  charge  the  superior  to  enter 
him  within  twenty-one  days.  This  was  in- 
troduced by  tlie  act  1647,  c.  43 ;  and  although 
that  act  was  rescinded,  the  practice  has  con- 
tinned  ;  and  the  superior  is  bound  to  give  ap 
entry  on  payment  of  a  year's  rent  of  the  sub- 
ject Should  the  superior  neglect  the  charge, 
the  next  highest  superior  may  be  charged  to 
pre  an  entry  to  the  adjudging  creditor,  and 
so  on  up  to  the  Crown,  from  which  a  charter 
will  be  obtained,  which  will  vest  a  feudal 
right  in  the  adjudging  creditor.  Ersk.  B.  ii. 
tit.  12,  §  25.  As  to  the  mode  of  rendering 
ao  adjudication  the  first  effectual  one,  see 
Efeetval  Adjudication.    See  also  Adjudication, 

Charge  by  a  purchaser. — ^By  the  act  20  Geo. 
lU  c  50,  §  12,  every  purchaser  possessed  of 
a  disposition  with  a  procuratory  of  resigna- 
tion, may  demand  an  entry  from  the  superior, 
on  payment  of  the  entry-money  stipulated  in 
the  original  charter,  or  of  a  year's  rent.  On 
the  superior's  refusal,  the  purchaser  may  ap- 
ply to  the  Lord  Ordinary  on  the  Bills,  pray- 
ing a  warrant  for  letters  of  horning  to  charge 
the  snperior  to  receive  him ;  and  upon  pro- 
duction in  the  Bill-Chamber  of  the  disposi- 
tion or  other  conveyance,  containing  procu- 
ratory of  resignation  in  favour  of  the  pur- 
chaser, warrant  will  be  granted  for  letters  of 
homing,  on  fifteen  days'  inducice,  to  charge 
the  superior  to  ent«r  the  purchaser.  Should 
the  superior  be  himself  unentered,  the  pur- 
chaser may  proceed  and  charge  him  in  the 
manner  above  explained. 

This  formerly  was  the  only  way  in  which 
a  snperior  could  be  compelled  to  give  an  en- 
try; for  although  the  purchaser  might  be 
entered  by  confirmation,  that  entry  was  the 
Tolontary  act  of  the  superior,  and  admitted 
of  no  charge  at  the  instance  of  the  pursuer. 
Stair,  B.  iv.  tit.  3.  §  30 ;  BeWs  Com.  6th  edit. 
ToL  i.  p.  718 ;  BelVs  Princ.  4th  edit.  art.  823 ; 
Rm't  Lect.  ii.  301 ;  Menzies'  Lectures. 

By  the  act  10  and  11  Vict.,  c.  48,  §  6,  a 


superior  may  be  compelled  to  grant  a  charter 
of  confirmation  in  the  same  way  and  form  as 
he  might  have  been  compelled  to  grant  a 
charter  of  resignation.    See  Confirmation. 

Charity;  receipt  of  charity  or  parochial 
relief  disqualifies  to  vote  for  a  member  of 
Parliament.    See  Alms. 

Charter.  A  charter  is  the  written  evidence 
of  a  grant  of  heritable  property,  made  under 
the  condition  that  the  grantee  shall  annually 
pay  a  sum  of  money,  or  perform  certain  ser- 
vices to  the  grantor ;  and  by  our  law  it  must 
be  in  the  form  of  a  written  deed.  The  grantor 
of  a  charter  is  termed  the  superior, — the 
grantee  the  vassal, — the  vassal  is  said  to  hold 
the  subject  of  the  superior, — and  the  annual 
sum  or  service  stipulated  is  termed  the  duty. 
Charters  are  called  blench  or  feu,  from  the 
nature  of  the  stipulated  prestation, — a  me  or 
de  me,  from  the  kind  of  holding, — and  origi- 
nal, or  by  progress,  from  being  flrat  or  re- 
newed grants  of  the  same  subjects.  See  Meh- 
zies"  Lectures ;  Duff's  Feudal  Conveyancinff. 

Blench  and  Feu  Charters. — In  former  times, 
the  duty  which  superiors  almost  always  re- 
quired from  their  vassals  was  military  ser- 
vice, and  the  vassal  was  then  said  to  hold 
ward.  This  holding,  however,  was  abolished 
by  the  act  20  Geo.  III.  c.  50 ;  and  since  that 
act  took  effect,  the  only  duties  which  it  is 
lawful  to  insert  in  charters  are  blench  and 
feu  duties.  A  hlench-duty  is  a  more  nominal 
payment ;  as  a  penny  Scots,  or  a  red  rose,  si 
pctalur  iantum.  A  feu-duty  is  a  consideration 
of  some  value.  Charters  containing  these 
different  duties  aro  termed,  according  to  their 
nature,  blench  or  fen  charters.  Original 
blench-charters  are  not  very  common  in  mo- 
dern practice.  From  the  nature  of  the  duty 
stipulated  in  them,  superiors  can  derive  no 
advantage  from  granting  such  rights,  but, 
on  the  contrary,  subject  themselves  to  consi- 
derable inconvenience  and  expense,  in  so  far 
as  it  is  necessary  for  them  to  complete  titles 
to  the  superiority  in  favour  of  themselves  or 
their  heirs,  to  enable  them  to  renew  the 
blench  right  after  the  death  of  the  original 
vassal.  Jurid,  Styles,  3d  edit.  vol.  i.  pp. 
10,  ei  seq. ;  24,  et  seq. ;  4th  edit.,  p.  16,  et 
seg.;  41,  et  seq. , 

Charters  a  me  and  de  me. — All  charters  were 
originally  written  in  Latin,  and  one  of  the 
clauses  began  with  the  words,  "  Tenendas 
prcedietas  terras  de  me,"  to  show  that  the 
grantee  was  to  hold  the  lands  of  the  grantor, 
or  to  consider  him  as  his  snperior.  A  char- 
ter having  a  clause  in  these  terms  was  called 
a  charter  de  me.  It  often' occurred,  however, 
that  vassals  disponed  their  lands  to  a  third 
party,  to  be  held,  not  of  themselves  as  supe- 
riors, but  of  their  superiors ;  and,  for  this 
purpose,  they  granted  charters  conveying  the 


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lands,  to  be  held  a  me  de  tuperiore  neo;  and 
these  were  termed  charters  a  me.  As,  how- 
erer,  the  vassal  had  iio  authority  to  g^nt 
such  charters,  it  was  necessary  to  get  them 
ratified  by  the  superior,  in  order  to  render 
them  Talid.  A  charter  de  me,  then,  is  a 
grant  of  lands  to  he  held  of  the  granter ;  a 
charter  a  me,  is  one  to  he  held  of  the  grantor's 
superior.    Ertk.  Princ.  12th  edit.  143. 

Original  Charters,  and  Charters  by  Progress. 
— An  original  charter  is  one  by  which  the 
first  grant  of  the  subject  is  made :  a  char- 
ter by  progress  is  one  renewing  the  grant 
in  favour  of  the  heir  or  singular  successor 
of  the  first  or  succeeding  vassals. 

I.  Original  Charter.  —  According  to  its 
modern  form,  the  original  charter  contains 
the  following  clauses: — 1.  The  narrative, 
which  contains  the  name  and  designation  of 
the  granter  or  superior,  and  the  inductive 
cause  or  consideration,  onerous  or  gratuitous, 
which  may  have  induced  the  superior  to 
grant  the  right ;  and,  where  the  considera- 
tion is  pecuniary,  the  narrative  also  contains 
a  receipt  and  discharge  for  the  sum  paid. 

2.  The  dispositive  clause,  in  which  the  supe- 
rior declares  that  he  has  granted  and  dis- 
poned, and  thereby  grants  and  dispones,  the 
lands  to  the  vassal :  it  specifies  the  heirs  who 
are  to  succeed  to  them :  it  contains  a  minute 
description  of  the  lands,  stating  the  county, 
parish,  &c.,  in  which  they  are  situated ;  and 
when  the  superior  means  to  reserve  any  right 
in  the  subjects  to  himself  or  others,  or  to  make 
the  grant  under  any  peculiar  conditions,  such 
reservations  or  conditions  are  inserted  here. 

3.  The  tenendas,  stating  that  the  grantee  is 
to  hold  the  lands  of  the  granter  as  superior. 

4.  The  reddendo,  which  expresses  the  duty  in 
money  or  services  to  be  paid  by  the  vassal  to 
the  superior,  with  the  sum  which  an  heir,  and 
sometimes  a  singular  successor,  is  to  pay  for 
a  renewal  of  the  grant,  termed  relief  and 
entry-money.  5.  The  clause  of  registration, 
which  is  only  for  preservation,  and  in  the 
books  of  Council  and  Session.  6.  The  pre- 
cept of  sasine,  which,  now,  is  a  mandate  to  any 
notary,  to  give  symbolical  delivery  to  the 
vassal  of  the  subjects  conveyed.  And,  7.  The 
testing  clause.  Besides  these  clauses,  it  is 
usual  to  insert  a  clause  of  absolute  warran- 
dice, which  warrandice,  however,  is  implied ; 
and  an  assignation  to  the  rents,  which  is  only 
useful  before  infeftment  is  taken  on  the  pre- 
cept. Original  charters  are  now  seldom 
granted  by  the  Crown.  As  most  of  the  lands 
in  the  kingdom  have  already  been  inserted  in 
charters  from  the  Sovereign,  the  charters 
which  the  Crown  is  now  called  on  to  grant 
are  chiefly  renewals  of  former  rights.  Nevei^ 
theless,  when  property  has  fallen  to  the 
Crown  as  ultimus  hceres,  by  forfeiture  or  other- 


wise, there  is  no  other  mode  by  which  the 
donatary  to  whom  such  property  may  be 
gifted,  can  complete  his  right,  except  by  ob- 
taining an  original  charter  from  the  Crown. 
But  even  such  a  charter  is  assimilated  in  its 
form  more  to  a  charter  by  progress  than  to 
an  original  grant,  as  it  contains  the  clause 
termed  a  Quaequidem,  stating  to  whom  the 
property  last  belonged,  and  how  it  reverted 
to  the  Crown,  and  was  gifted  to  the  new 
grantee.  Ersk.  Princ.  12th  edit.  pp.  143-4-7; 
Jurid.  Styles,  4th  edit.  vol.  i,  pp.  1-71. 

II.  Charters  by  Progress. — After  an  origi- 
nal charter  has  once  been  granted,  and  the 
vassal  infeft  on  it,  no  person  daiming  either 
as  his  heir  or  singular  successor  can  obtain  a 
complete  title  to  the  subjects  as  they  stood  in 
his  person,  without  a  renewal  of  the  grant 
from  the  superior.  The  requisites  to  enable 
the  claimant  to  demand  such  a  renewal  from 
the  superior  differ,  according  as  he  is  an  heir 
or  a  singular  successor. 

1.  Precept  to  an  Heir. — "When  a  vassal  has 
died  infeft  in  lands,  his  heir,  in  order  to 
establish  his  right  to  them,  must  expede  a 
special  service ;  a  proceeding  by  which  it  is 
ascertained  judicially,  that  the  ancestor  was 
the  last  feudal  proprietor  of  the  lands  when 
he  died,  and  that  the  heir  is  now  entitled  to 
them.  On  the  production  of  the  retour  of 
such  a  service  the  superior  is  bound  to  issue 
a  warrant  for  infefting  the  heir,  which,  how- 
ever, is  not  in  practice  called  a  charter,  but 
a  precept  upon  a  retour.  In  its  form,  this 
precept  merely  relates  the  retour,  and  grants 
warrant  for  infeftment ;  and  it  contains,  of 
course,  the  usual  registration  and  testing 
clauses.  It  is  issued  for  the  purpose  of  in- 
fefting the  heir  only.  It  is  not,  therefore, 
granted  to  his  heirs  or  assignees ;  and  he  is 
not  entitled  to  convey  it,  so  as  to  enable 
another  person  to  infeft  himself  by  virtue  of 
it. 

When  a  subject  is  superior  of  the  lands, 
and  when  he  refuses  to  give  an  entry,  the 
vassal  may,  by  exhibiting  his  retour  to  the 
Court  of  Session,  obtain  a  warrant  for  letters 
of  horning,  to  charge  the  superior  to  grant 
the  precept  within  fifteen  days,  on  payment 
of  the  non-entry  and  relief  duties.  It  is  not 
usual,  however,  for  subject.superiors  to  re- 
quire the  heir  to  expede  a  special  service ; 
for,  if  they  be  satisfied,  from  other  sources,  of 
the  heir's  right,  they  may  legally  grant  war- 
rant for  his  infeftment  without  any  other 
authority.  The  precepts  issued  in  cases  of 
this  kind,  are  tei*med  precepts  of  Clare  conttaL 
See  Clare  constat    Also  Entry. 

When  the  ancestor  has  died  uninfeft,  hav- 
ing a  right  to  a  disposition  of  the  lands  con- 
taining a  procuratory  of  resignation  and  pre- 
cept of  sasine,  or  to  a  decree  of  adjudication 


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or  of  sale,  bis  heir,  by  expeding  a  general 
senrice,  may  place  himself  in  precisely  the 
same  sitnation,  and  enjoy  the  same  right  as 
his  predecessor ;  and  therefore,  like  him,  he 
may  obtain  from  the  superior  a  charter,  as  a 
sio^iilarsucceeBor,in  the  manner  about  to  be 
explained. 

2.  Charters  to  Singular  Succeseors. — These 
are  of  various  kinds. 

Charter  of  ResigruUion. — When  a  person  has 
purchased  lands  from  a  vassal,  to  be  held  of 
his  snperior,  and  when  he  wishes  to  be  placed 
in  precisely  the  same  situation  in  which  his 
aothor  stood,  by  becoming  immediate  vassal 
of  the  snperior,  this  can  only  be  accomplished 
with  the  superior's  consent.  To  obtain  this 
consent,  certain  forms  are  necessary.  One  of 
these  forms,  and  that  most  consistent  with 
feudal  principles,  is  for  the  original  vassal  to 
grant  a  procuratory  of  resignation  in  favour 
of  the  purchaser,  which  is  a  mandate  to  a 
procurator  to  appear  before  the  superior,  and 
there,  for  the  vaBsal,  to  resign  the  lands  into 
the  superior's  hands,  for  the  purpose  of  his 
granting  them  again  to  the  purchaser.  The 
resignation  is  made  symbolically,  by  the  pro- 
nmtor  delivering  a  staff  and  baton  to  the 
ioperior.  When  the  superior  is  thus  rein- 
mted  with  the  property,  he  makes  a  new 
grant  of  it  to  the  disponee ;  and,  in  evidence 
of  this  grant,  he  executes  a  charter  in  his 
farour.  This  charter,  as  being  preceded  by 
a  resignation  of  the  subjects,  is  called  a  charter 
of  resignation.  It  differs  from  an  original 
diarter,in  having  a  clause  called,  from  its  first 
word,  a  Qncequidem,  inserted  immediately  after 
the  dispositive  clause.  The  object  of  the 
QMqviidem  is  to  specify  that  the  subjects  be- 
longed formerly  to  the  granter  of  the  procu- 
ratory of  resignation,  and  were,  by  virtue  of 
that  procuratory,  resigned  for  new  infeftment 
in  favour  of  the  grantee,  as  having  right, 
either  as  the  disponee  named  in  the  procura- 
tory, or  as  the  heir  or  singular  successor  of 
ihii  disponee.  It  also  differs  from  an  ori- 
ginal charter,  in  having  a  clause  saving  and 
reserving  the  rights  of  all  parties,  so  that  the 
nperior  incurs  no  new  warrandice,  not  in- 
enmbent  on  him  already  by  the  original  grant. 
At  one  time,  no  superior  could  be  compelled, 
against  his  inclination,  to  receive,  as  vassal 
in  the  lands,  any  person  who  was  not  the  heir 
expressed  in  the  original  g^ant ;  but  by  the 
act  20  Geo.  II.,  c.  50,  superiors  are  bound  to 
enter  all  singular  successors  who  have  got 
from  the  vassal  dispositions  containing  pro- 
cnratories  of  resignation, — they  receiving  the 
fees  or  casualties  to  which  law  entitles  them 
on  a  vassal's  entry,  viz.,  a  year's  rent  of  the 
lands,  and,  if  they  refuse,  such  disponees  are 
entitled  to  apply  for  lettera  of  homing  to 
charge  the  superiors  to  receive  them.    Supe- 


riors are  also  bound  to  give  the  new  grant 
under  all  the  conditions  specified  in  the  pro- 
curatory of  resignation,  in  so  far  as  they  do 
not  alter  or  impair  their  own  rights.  Jurid, 
Styles,  4th  edit.  vol.  i.  pp.  344,  406 ;  Ross's 
Lect.  ii.  285.     See  Entrff. 

Charter  of  Confirmation. — ^Besides  the  mode 
just  explained,  there  is  another  by  which  a 
disponee  may  be  received  as  vassal  in  the 
lands,  in  place  of  the  disponer.  In  its  modern 
form,  the  disposition  includes  the  clauses  of  a 
charter  a  me ,-  and  when  the  disponee  has  taken 
infeftment  on  the  precept  it  contains,  the  supe- 
rior may  declare  that  infeftment  to  be  equiva- 
lent to  sasine  on  a  precept  granted  by^himself. 
This  is  accomplished  by  means  of  a  charter 
of  confirmation,  so  called  because  it  ratifies 
and  confirms  the  otherwise  invalid  title  of  the 
grantee.  The  clauses  of  this  charter  are  all 
similar  to  those  of  an  original  grant,  except 
the  dispositive,  which  in  this  case  narrates 
and  confirms  the  title-deeds  in  favour  of  the 
disponee  ;  and,  as  the  infeftment  has  already 
been  taken,  it  contains  no  precept  of  sasine. 
Formerly  superiors  could  not  be  compelled  to 
g^ant  charters  of  this  description,  but  this  was 
altered  by  the  act  10  and  11  Vict.,  c.  48,  § 
6.  See  Confirmation;  Jurid.  Styles,  vol.  i.  p. 
521 ;  Ross's  Lect.  ii.  294.     See  Entry. 

Charters  of  Adjudication  and  of  Sale. — The 
mode  of  entering  adjudgers  and  purchasers  at 
judicial  sales  differs  from  that  of  entering  a 
disponee  who  has  right  to  a  procuratory  of 
resignation,  only  in  so  far  as  it  is  not  neces- 
sary to  resign  the  lands  into  the  superior's 
hands,  to  entitle  him  to  grant  the  charter  in 
their  favour.  The  charter  of  adjudication, 
therefore,  or  of  sale,  is  almost  precisely  simi- 
lar to  that  of  resignation,  only  the  Quaquidem 
omits  the  mention  of  the  resignation,  and  re- 
cites merely  the  decree  and  other  deeds,  by 
which  the  lands  are  transferred  to  the  new 
vassal.  Superiors  were  compelled  to  enter 
apprisers,  on  payment  of  a  year's  rent,  by  the 
statute  1469,  c.  37 ;  and  this  rule  was  ex- 
tended to  adjudgers  by  1672,  c.  19,  and  to 
purchasers  at  judicial  sales  by  1681,  c.  17, 
joined  with  1690,  c.  20.  Beirs  Com.  6th  edit, 
vol.  i.  p.  705,  et  seq.    See  Adjudication. 

Charter  of  Novodamus. — It  sometimes  hap- 
pened that  an  heir  orsingularsuccessorapplies 
for  a  charter,  when  he  cannot  exhibit  a  suffi- 
cient legal  title  to  require  the  superior  to 
grant  one,  though,  at  the  same  time,  from 
immemorial  possession  of  the  lands,  or  other 
circumstances,  there  can  be  no  doubt  of  his 
right.  In  such  cases,  superiors  are  in  the 
practice  of  giving  new  grants  of  the  subjects, 
under  the  reservation,  however,  of  their  own 
rights,  and  the  rights  of  all  others,  as  accords 
of  law.  As  such  charters  are  not  granted 
upon  the  resignation  of  a  vassal,  or  in  obe- 

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dienco  to  a  decree,  thoy  proceed  a  non  habente 
potestatem,  and  therefore  they  are  ineffectual 
till  prescription  has  followed  on  them.  Jurid. 
Sti/les,  vol.  i.  p.  520  ;  Ersk.  Princ.  12th  edit. 
151. 

III.  Mode  of  Expeding  Croim  Charters. — To 
authorize  the  issuing  of  a  Crown  charter  in 
favour  of  a  singular  successor,  certain  pre- 
vious warrants  wore  formerly  necessary.  The 
first  and  most  important  of  these  was  the  sig- 
nature. This  was  a  writ  prepared  by  a  writer 
to  the  Signet,  containing  all  the  clauses  of  the 
charter  which  it  was  wished  to  expede.  It 
was  presented  to  the  Baron  of  Exchequer, 
who  hold  a  commission  from  the  Crown  for 
this  purpose,  and  was  revised  by  him,  to  as- 
certain if  it  was  correct.  When  the  charter 
was  a  charter  of  resignation,  the  lands  were 
resigned  in  the  hands  of  the  Crown,  which 
was  done  by  one  of  the  officers  of  the  Court 
of  Exchequer,  as  attorney  under  the  procura- 
tory  of  resignation,  delivering  a  baton  to  the 
Baron;  and  instruments  were  taken  by  a 
notary  upon  the  act  of  resignation.  The  sig- 
nature was  then  signed  by  the  Baron ;  and 
the  cachet,  which  is  a  stamp  containing  a  fac- 
jtmi^of  the  royal  sign-manual,  was  adhibited. 
When  the  charter  was  one  of  novodamut,  or 
if  it  created  a  barony  or  the  like,  the  signa- 
ture was  superscribed  by  the  Sovereign.  At 
one  timd  the  signature  was  the  warrant  of  a 
precept  under  the  Signet,  directed  to  the 
Keeper  of  the  Privy  Seal.  The  precept  under 
the  Signet  was  prepared  by  the  writers  to  the 
Signet,  and  framed  in  Latin :  it  was  directed 
to  the  Keeper  of  the  Privy  Seal,  and  became 
the  warrant  of  a  new  precept,  under  that  seal, 
to  the  Keeper  of  the  Great  Seal,  authorizing 
a  charter  in  the  terms  of  the  warrant.  These 
warrants  were  recorded  at  the  respective 
offices,  and  retained  by  the  officer  giving  out 
the  new  warrant.  Thus,  the  signature,  which 
was  the  warrant  of  the  precept,  was  retained 
at  the  Signet ;  the  precept  was  retained  by 
the  Keeper  of  the  Privy  Seal ;  and  the  Privy 
Seal  precept  was  retained  by  the  Keeper  of 
the  Great  Seal,  by  whom  the  charter  was 
sealed,  and  given  out  to  the  Crown  vassal. 
But  these  forms  were  curtailed,  and  the  pre- 
cept under  the  Signet  became  the  warrant  of 
the  charter.  The  Great  Seal  completed  the 
charter,  and  rendered  it  equivalent  to  a  for- 
mally subscribed  private  deed.  In  giving  in- 
feftment  on  the  Crown  charter,  the  precept 
might  have  been  executed  by  any  one  as 
bailie,  and  any  notary  might  have  acted  as 
notary.  Stair,  B.  ii.  tit.  3,  §  14,  ct  seq.; 
More's  Notes,  ^.  clxvii.;  Ross's  Lect.  ii.  117, 
et  seq;  Jurid.  Styles,  2d  edit.  vol.  i.  p.  0,  «< 
seq.;  Bell's  Princ.  4th  edit.  art.  757,  etseq.; 
Brown's  Synop.  p.  2168. 

By  the  act  10  and  11  Vict.,  c.  61,  signa- 


tures and  precepts  to  Chancery  are  abolished, 
and  Crown  charters  are  now  obtained  at  an; 
time  by  lodging  in  the  office  of  the  Presenter 
of  Signatures  a  draft  of  the  proposed  charter, 
together  with  a  note  praying  for  a  charter  in 
terras  of  the  draft.  Along  with  the  note 
and  draft  there  must  also  be  lodged  the  last 
Crown  charter,  or  Prince's  charter,  or  retonr 
or  decree  of  service,  and  precept  from  Chan- 
cery, of  the  lands,  and  all  the  title-deeds  of 
the  lands  subsequent  thereto,  together  with 
evidence  of  the  valued  rent  when  nec«ssary, 
and  an  inventory  and  brief  of  the  titles.  The 
draft  charter  is  then  revised  by  the  Presenter 
of  Signatures.  Mistakes  in  former  titles  maj 
be  rectified  in  the  new  charter,  the  rectifica- 
tions being  first  reported  to  the  Judge  in  Ex- 
chequer by  the  Presenter  of  Signatures,  and 
approved  of  by  him.  The  amount  of  compo- 
sition, or  other  duties  payable  to  the  Crown, 
is  marked  on  the  draft,  and  certified  by  the 
signatures  of  tlio  Auditor  of  Exchequer  and 
of  the  Presenter  of  Signatures.  If  no  ohjec- 
tions  are  made  to  the  draft  as  revised  by  the 
Presenter  of  Signatures,  a  docqnet  is  pat 
upon  it,  signed  by  him,  and  also  by  the  a<!ent 
applying  for  the  charter.  The  draft  is  then 
officially  transmitted  by  the  Presenter  of  Sig- 
natures to  the  office  of  the  Director  of  Chan- 
cery, and  is  the  warrant  for  the  immediste 
preparation  of  a  charter  in  Chancery,  in  terms 
of  the  draft.  If  the  party  applying  for  a 
charter  is  dissatisfied  with  the  draft  as' re- 
vised, he  may  lodge  a  note  of  objections  to  it  or 
against  the  amount  of  duties  and  composition 
marked  on  it.  Such  note  of  objections  is  laid 
before  the  Judge  in  Exchequer,  and  disposed 
of  by  him.  A  similar  mode  of  procedure  is 
adopted  when  the  Presenter  of  Signatures 
refuses  to  revise  a  draft  charter  for  want  of  a 
sufficient  production  of  titles.  The  charter, 
when  engrossed,  has  affixed  to  it  the  seal  ap- 
pointed by  the  Treaty  of  Union  to  be  kept 
and  used  in  Scotland  in  place  of  the  Great 
Seal  thereof  formerly  in  use,  or  the  Seal  of 
the  Prince  if  the  charter  be  of  lands  holdenof 
the  Prince,  and  a  separate  seal  be  then  in 
use  for  such  charters,  and  is  recorded  in  Chan- 
cery. The  ceremony  of  resignation  is  now 
abolished,  resignation  being  held  to  be  made 
in  terms  of  the  procuratory  of  resignation,  by 
the  ingiving  of  the  note  applying  for  a  char- 
ter of  resignation,  and  to  be  of  the  date  of 
such  ingiving ;  and  the  charter  sets  forth  that 
resignation  was  made  of  the  date  of  applying 
for  it,  and  also  deduces  the  titles  according  to 
the  law  applicable  to  such  charters.  Where 
a  charter  of  novodamus,  or  a  charter  contain- 
ing any  new  or  original  grant,  is  applied  for, 
the  party  applying  must  first  obtain  the  con- 
sent of  the  Commissioners  of  Her  Majesty's 
Woods  and  Forests,  or  any  two  of  them,  and 


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written  evidence  of  snch  consent  must  bo  pro- 
dooed  aloog  with  the  note  applying  for  such 
charter  in  the  office  of  the  Presenter  of  Sig- 
oatores.  Soch  charter,  too,  after  being  re- 
TJsed  and  engrossed,  but  before  being  sealed, 
most  be  lodged  with  the  Queen's  and  Lord 
Treasarer's  Remembrancer,  and  transmitted 
by  him  for  the  sign-manual  of  the  Sovereign, 
and  the  signatures  of  the  Lord  High  Trea- 
surer, or  of  the  Commissioners  of  the  Trea- 
snty,  or  any  three  of  them.  If  the  charter 
be  of  lands  holden  of  the  Prince  and  Steward 
of  Scotland,  and  his  Royal  Highness  be  tben 
of  full  age,  it  must  be  transmitted  for  the  con- 
sent and  approbation  of  the  Prince,  signified 
Doder  bis  sign-manual.  On  this  being  done, 
the  proper  seal  is  attached  to  the  charter. 
In  competition  of  diligence,  and  in  all  other 
cases,  the  lodging  of  a  draft  charter  and  note 
is  held  equivalent  to  the  former  practice  of 
presenting  a  signature  in  Exchequer,  and  the 
recording  a  copy  of  the  note  and  an  abstract 
of  the  draft  charter  in  the  Register  of  Abbre- 
viate of  Adjudications  is  equivalent  to  the 
former  practice  of  recording  an  abstract  of  the 
signatnre  in  such  register.  All  Crown  char- 
ters are  now  expressed  in  the  English  lan- 
guage, and  may  be  in  the  form  given  in 
tthedale  0  annexed  to  the  act  11  and  12 
Tiet,  c.  51.  Conditions  of  entiiil  may  be  re- 
ferred to  as  set  forth  in  the  recorded  deed  of 
entail,  or  in  any  recorded  instrument  of  sasine 
forming  part  of  the  progress  of  title-deeds 
under  the  entail,  the  reference  being  made, 
or  as  nearly  as  may  be,  in  the  terms  directed 
in  the  schedule  C  annexed  to  the  said  act.  In 
the  tame  manner,  real  burdens  may  also  be 
referred  to  as  already  sot  forth  in  any  re- 
corded instrument  of  sasine  forming  part  of 
the  progress  of  titles  of  the  lands. 

IV.  Mode  of  Expeding  Crown  Precepts. — Un- 
der the  former  practice,  when  the  Crown  was 
niperior  of  the  lands,  the  heir  of  the  party 
last  infeft  obtained  a  precept  from  Chancery, 
as  a  matter  of  coarse,  on  producing  his  special 
•errice.  The  precept  was  directed  to  the 
sheriff  of  the  county  in  which  the  lands  were 
situated,  who  acted  as  bailie  for  the  Crown,  and 
gareinfeftment  accordingly ;  and  by  a  special 
flame  in  the  precept,  he  was  directed  to  take 
wearity  for  the  casualties  payable  on  such 
ao  occasion.  As  these  casualties  were  cal- 
culated to  a  particular  term,  the  precept  be- 
came null  in  consequence  of  a  declaration  in- 
serted to  that  effect,  if  the  infeflment  was 
Doteipede  before  the  term  of  Whitsunday  or 
Martinmas  immediately  posterior  to  its  date, 
and  if  infeflment  was  not  so  expede,  a  new 
prwept  required  to  be  obtained.  The  sheriff- 
clerk  had  the  exclusive  privilege  of  acting  as 
notary  in  expeding  infeftments,  or  such  pre- 
cept*. 


Under  the  act  10  and  11  Vict.,  c  51,  a 
precept  from  Chancery  is  obtained  by  an 
heir  specially  served,  by  his  lodging  the  ro- 
tour  or  decree  of  his  special  service,  and  a 
draft  of  the  proposed  precept  in  the  form,  or 
as  nearly  so  as  the  case  will  admit,  of  the 
schedule  B  annexed  to  the  said  act,  together 
with  a  note  praying  for  a  precept  in  terms  of 
the  draft,  and  lodging  also  the  last  chaHer 
or  retour  or  decree  of  service,  and  the  titles 
of  the  lands  subsequent  thereto.  In  revis- 
ing the  draft  precept  the  same  procedure  is 
adopted  as  in  revising  Crown  charters,  and 
when  revised,  it  is  officially  transmitted  to  the 
office  of  the  Director  of  Chancery,  and  is  the 
warrant  for  the  preparation  in  Chancery  of  a 
precept  in  terms  of  the  revised  draft.  The 
precept  is  then  engrossed  and  recorded  in 
Chancery,  and  delivered  to  the  heir  on  pay- 
ment of  the  usual  fees  and  charges,  and  also 
on  paying  the  amount  of  duties  payable  to. 
the  Crown  or  Prince.  A  precept  may  also  be 
granted  to  an  heir  holding  only  a  general 
service,  on  his  lodging  along  with  the  last 
charter  an  extract  retour  or  decree  of  general 
service,  duly  expede  and  recorded,  instruct- 
ing his  propinquity  to  the  party  who  died 
last  vest  and  seised  in  the  subjects,  or  the 
character  of  heir  otherwise  vested  in  him,  and 
establishing  his  right  to  succeed  to  the  lands. 
The  precept  granted  on  production  of  such 
extract  retour  or  decree  of  general  service  is 
expressed  in  the  form,  or  as  nearly  so  as  the 
case  will  admit,  of  the  schedule  B  annexed 
to  the  said  act.  Contrary  to  the  former  prac- 
tice, it  is  now  competent  to  obtain  a  Crown 
charter  of  confirmation,  combined  with  a  pre- 
cept for  infefting  the  heir  to  the  party  last 
seised  in  the  lands. 

Charter  Party ;  is  a  mutual  contract  be- 
tween the  owners  of  a  ship  and  the  freighter, 
by  which  the  freighter  hires  the  vessel,  either 
to  perform  a  particular  voyage,  or  for  a  cer- 
tain specified  time,  at  a  stipulated  hire  or 
freight.  Where  the  vessel  is  hired  by  time, 
the  commencement  and  termination  of  the 
time  must  be  accurately  stated ;  and  where 
hired  by  the  voyage,  the  voyage  must  be  pro- 
perly described,  and  provision  made  for  de-" 
viations  or  accidental  interruptions.  The 
charter  party  also  specifies  the  freight,  and 
whether  it  is  to  be  paid  by  the  voyage,  or  by 
the  day,  week,  or  month  ;  and  contains  va- 
rious other  regulations  and  provisions  arising 
out  of  the  nature  of  the  contract ;  and  it  ge- 
nerally contains  a  clause  of  registration,  which 
may  be  the  ground  of  summary  execution 
without  a  previous  action.  Writing  is  not 
absolutely  necessary  to  prove  this  contract. 
It  may  be  proved  by  the  oath  of  the  owners ; 
but  before  either  informal  missives  or  any 
other  writings  can  be  founded  on  in  Court  to 


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prore  the  contract,  such  writing  must  be 
stamped.  The  stamp  for  a  regular  charter 
party,  or  for  any  memorandum  or  other  writ- 
ing equivalent  to  it,  is,  by  5  and  6  Vict.,  c  79, 
§  21,  fire  shillings.  The  owners  are  bound, 
by  the  nature  of  this  contract,  that  the  vessel 
shall  be  seaworthy,  or  fit  for  the  stipulated 
purpose,  and  that  the  master  and  seamen  shall 
be  skilful ;  that  the  ship  shall  be  at  the  des- 
tined port  on  the  day  appointed,  and  shall 
sail  at  the  stipulated  time;  and  that  the  goods 
shall  be  delivered  according  to  the  bill  of 
lading,  and  in  good  condition,  unless  pre- 
vented by  the  act  of  God  or  the  Queen's  ene- 
mies. The  freighter,  on  the  other  hand,  is 
bound  to  furnish  the  cargo  and  pay  the  freight 
in  terms  of  the  bargain,  and,  in  case  of  delay 
occasioned  through  his  fault,  to  indemnify  the 
owners  for  the  lost  time.  These  conditions, 
which  may  be  termed  the  naturalia  of  the  con- 
tract, may,  of  course,  be  modified  or  varied 
by  express  stipulation.  Difficult  questions 
may  also  arise  as  to  the  owner's  right  to  de- 
mand freight  pro  rata  itineris ;  but  these  and 
all  other  questions  depending  upon  the  con- 
struction of  the  special  contract,  or  arising 
out  of  accidents  in  the  course  of  the  voyage, 
must  depend  so  much  on  the  circumstances 
under  which  they  occur,  that  they  can  hardly 
be  comprehended  under  any  general  rule.  See 
the  form  of  this  contract,  and  a  specification 
of  the  particulars  deserving  of  attention  in 
framing  it,  Jurid.  Styltt,  vol.  ii.  p.  564 ;  vol. 
iii.  p.  629,  2d  edit.  See  also  BeWs  Com.  vol. 
i.  p.  538,  et  seq.  5th  edit. ;  BeWs  Princ.  4th 
edit.  arts.  407,  et  $eq.,i20,  et  $eq.;  Smith's 
Maritime  Practice,  138  ;  Abbott's  Law  of  Meir- 
e&an<  Shifs,  10th  edition,  1856. 

Chartered  Compaaiet.  See  JoivX  Stock 
Companies. 

Chase.  In  the  older  law  of  England,  a 
chase  was  a  large  extent  of  ground,  open,  and 
privileged  for  wild  beasts  and  wild  fowl.  It 
differed  from  a  park  in  not  being  inclosed,  and 
also  in  this,  that  a  man  might  have  a  chase  in 
another  man's  ground.    Tomlins'  Diet.  h.  t. 

Chattels ;  is  an  English  law  term,  signi- 
fying all  goods  moveable  or  immoveable,  ex- 
cept such  as  are  in  nature  of  freehold,  or 
parcel  of  it.  Tomlins'  Diet. ;  Bell's  Com.  vol. 
i.  p.  249.  5th  edit. ;    Ross's  Lect.  i.  40. 

Chaud  Melle,  or  rixa;  is  a  term  in  our 
ancient  law,  applied  to  homicide  committed 
on  a  sudden,  and  in  heat  of  blood.  Skene 
defines  it,  a  hot,  sudden  "  tulzie,"  or  debate, 
contradistinguished  from  forethought  felony. 
Skene,  h.  t.  The  person  gnilty  of  this  of- 
fence had  the  benefit  of  sanctuary,  from  which, 
however,  he  might  have  been  taken  for  trial  ; 
but  if  he  proved  chaud  melle,  be  was  returned 
safe  in  life  and  limb.  The  privilege  of  sanc- 
tuary to  criminals  wag  abolished  at  the  Re- 


formation; but  the  act  1649  (re-enacted 
by  1664,  c.  22,)  seems  to  be  held  in  practice 
to  include  the  case  of  homicide  in  chaud  mdk. 
The  object  of  that  statute  is  to  fix  the  differ- 
ent degrees  of  casual  homicide,  and  to  re- 
move doubts  in  future.  The  cases  specified 
are — ^homicide  committed  in  lawful  defence,  or 
upon  thieves  or  robbers  breaking  houses  dar- 
ing the  night,  or  homicide  committed  in  tlie 
time  of  masterful  depredation,  or  in  pursuit 
of  denounced  rebels  for  capital  crimes,  in  none 
of  which  cases  is  a  capital  punishment  to  be 
inflicted.  But  as  homicide  in  chaud  melle  is 
not  specified,  it  has  been  doubted  whether  the 
benefit  of  the  statute  ought  to  be  extended  to 
that  offence.  Our  practice,  however,  has 
been  favourable  to  such  an  extension ;  and 
this  construction  of  the  statute  has  the  sanc- 
tion of  the  highest  authority  in  the  criminal 
law  of  Scotland.  See  Hume,  vol.  i.  p.  240,  d 
seq, ;  Alison's  Prin.  92.    See  also  Homicide. 

Checker ;  the  Exchequer.  See  Skene,  we 
Scaccarium. 

Chevisaace;  in  English  law,  an  agree- 
ment or  composition;  in  ancient  statutes, 
an  unlawful  contract.     Tomlins'  Diet.  h.  t. 

Chief  Baron ;  formerly  the  President  of 
the  Scotch  Court  of  Exchequer,  but  the  da- 
ties  of  that  Court  are  now  transferred  to  the 
Court  of  Session  by  the  Acts  19  and  20  Vict., 
c.  56,  which  declares  that  Court  to  be  also 
the  Court  of  Exchequer  in  Scotland.  See  Ex- 
chequer. 

Child-Mnrder.  The  trial  for  child-nnr- 
der  differs  from  that  of  other  cases  of  morder 
in  nothing,  except  that  stronger  evidence  of 
intentional  violence  is  required;  since,  in 
unassisted  births,  the  mother  is  sometimes  un- 
consciously the  cause  of  her  child's  deatb. 
The  exposure  and  desertion  of  infant  cliil- 
dren  may  amount  to  murder,  culpable  homi- 
cide, or  misdemeanour  merely,  according  to 
the  circumstances  attending  the  commission 
of  the  offence.  Hume,  i.  299  ;  Alison's  PitM. 
158;  Sted,  102;  Wesson's  Stat.  Law,  I.  t 
For  the  provisions  of  the  statute  regarding 
Concealment  of  Pregnancy,  see  that  article. 

Child-Stealing,  or  Plagium ;  is  a  crime 
punishable  by  our  law  with  death.  Hu«e, 
vol.  i.  p.  82,  et  seq.;  Alison's  Princ.  620. 
On  restriction  of  the  pains  of  law,  a  panel 
convicted  of  plagium  was  sentenced  to  7  yeap' 
transportation;  2  Broun's  Rep.  288;  while 
another  panel  found  guilty  of  the  same  of- 
fence, aggravated  by  previous  conviction  of 
theft,  was  sentenced  to  18  months  imprison- 
ment ;  Irvine's  Rep.  234. 

Children;  are  either  lawful  or  unlawful. 
Lawftd  (Aildren  are  those  children  who  are 
either  procreated  in  marriage,  or  afterwards 
legitimated  by  the  intermarriage  of  the  pa- 
rents.   The  legal  presumption  is,  that  all 

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children  bom  of  a  woman  who,  at  tbe  time  of 
conception,  was  lawfully  married,  are  legiti- 
mate ;  nor  can  this  presumption  be  defeated, 
except  bj  direct  evidence  that  the  husband 
cosld  not  possibly  be  the  father  of  the  child. 
Thus,  if  it  can  be  proved  that  the  husband  is 
impotent,  or  that  he  was  absent  from  his  wife 
at  the  time  of  conception,  the  presumption 
of  legitimacy  ceases.    It  seems  to  be  fixed  in 
onr  practice,  that  the  period  of  absence  ne- 
cessary to  elide  the  legal  presumption  must 
have  commenced  at  least  ten  months  before, 
and  that  it  must  have  continued  until  within 
sii  lunar  months  of  the  birth  of  the  child. 
The  legal  presumption.  Pater  est  qnem  n\tpti<B 
demoBstrant  is  now  held  to  be  overcome  by 
such  dear  evidence  as  will  satisfy  the  Court 
that  die  facto  the  husband  is  not  the  father 
of  his  wife's  child,  although  neither  impo- 
teney  nor  the  utter  impossibility  of  access 
be  established.     See  the  case  of  Mackay  v. 
Mddciy,  Feb.  24,   1855,  17  D.  494.     It 
most  always,  however,  be  difficult  to  estab- 
iiih  the  illegitimacy  of  a  child  born  in  wed- 
lock, without  evidence  either  of  the  husband's 
impoteney,  or  of  impossibility  of  access  be- 
tween the  spouses ;  but  neither  of  these  cir- 
cimitances  appears  to  be  indispensable  ele- 
neots  of  the  evidemse.     This  also  appears 
to  be  the  law  now  recognised  in  the  Courts 
io  England.     Children  legitimated  by  the 
sabeeqnent  intermarriage  of  their  parents  en- 
joy all  the  rights  of  lawful  children ;  and,  of 
toem,  an  eldest  son  thus  legitimated  will 
neeeedasheir  to  his  father's  heritage,  to  tiie 
eidssion  of  a  son  procreated  in  wedlock. 
Bnt  if  the  parents  are  domiciled,  and  inter- 
marry in  a  country  where  legitimation  per 
mbsejuens  matrimoniwn  is  not  recognised,  such 
nurriage  will  not  render  their  children,  bom 
before  their  marriage,  legitimate,  to  the  effect 
of  entitling  them  to  succeed  as  lawful  child- 
ren in  Scotland.   Sheddan,  1st  July  1803,  Foe. 
CoO^  Mer.  App.  voce  Foreign,  No.  6  ;  affirmed 
«n  appeal,  2d  March  1808.    See  Ersk.  B.  i. 
tit.  6,  §  49,  a  seq.;  Stair,  B.  i.  tit.  5,  &c. ; 
Mm'$  Notes,  p.  xxxi,  cxxix.  cxcvii. ;  BdPs 
C»>»-  ToL  i.  p.  632,  et  seq.,  5th  edit.;  Bell's 
Prm.  4th  edit.  arts.  1624,  et  seq.,  1961,  et 
«}-;  Fraser  on  Personal  Retations ;  Shaw's 
I>ijt»t,  tit  Parent  and  Child;  Hwne,  ii.  435; 
ioma^Princ.  of  Equity  (1825),  71.  See  Bos- 
tarA   Legitimacy.    Legitimation. 

ddldrea  of  a  Marriage.  In  marriage 
nttlementa  it  is  very  common  to  destine  lands, 
er  to  give  provisions,  to  the  children  of  a 
narriage,  or  to  the  bairns  of  a  marriage,  or 
to  the  heirs  and  bairns  of  a  marriage.  For 
the  construction  of  the  different  terms,  see 
ffars  and  Bairns.  Bairns  of  a  Marriage. 
Destination. 
(Mtern  Hundreds.    The  Steward  of  the 


Chiltem  Hundreds  was  formerly  an  officer 
to  protect  the  inhabitants  of  a  part  of  Buck- 
inghamshire from  banditti.  The  duties  have 
long  since  ceased ;  but  the  office  is  nominally 
retained,  and  any  member  of  the  House  of 
Commons,  wishing  to  resign  his  seat,  attains 
his  object  indirectly,  by  applying  for  the 
stewardship  of  the  Chilt«rn  Hundreds,  which 
is  granted  as  a  matter  of  course ;  and  being 
a  place  of  honour  and  of  nominal  profit 
under  the  Crown,  his  acceptance  of  it  vacates 
his  seat.  The  place  is  in  the  gift  of  the 
Chancellor  of  Exchequer.  This  practice  in 
vacating  seats  began  in  1750.  Chambers' 
Election  Law,  h.  t. 

Cliimney-Sweepers.  From  motives  of 
humanity,  chimney-sweepers  have  been  made 
the  subject  of  various  statutes,  the  latest 
of  which  is  3  and  4  Vict.,  c.  85, 1840.  Any 
one  who  shall  compel,  or  knowingly  allow, 
any  child  or  young  person  under  the  age  of 
twenty-one  years  to  ascend  or  descend  a 
chimney,  or  enter  a  flue,  for  the  purpose  of 
sweeping,  cleaning,  or  coving  the  same,  or  for 
extinguishing  fire  therein,  is  liable  to  a  pe- 
nalty of  not  more  than  L.IO  or  less  than  L.5. 
No  child  under  sixteen  years  of  age  can  be 
apprenticed  to  any  person  using  the  trade  or 
business  of  a  chimney-sweeper,  and  every  in- 
denture to  the  contrary  is  null  and  void. 
The  construction  of  chimneys  is  also  regu- 
lated by  the  same  act. 

Chiiograpliiuu  apud  dtbitorem  repertum 
prceswnitur  solutum.  The  written  voucher  of 
debt  being  found  in  the  possession  of  the 
debtor  affords  a  presumption  that  payment 
has  been  made  by  him.  This,  however,  is  not 
&  prcesumptio  juris  et  de  jure,  and  may  there- 
fore be  elided  by  an  express  proof  that  the 
voucher  did  not  come  into  the  hands  of  the 
debtor  by  the  consent  of  the  creditor.  Stair, 
B.  i.  tit.  18,  §  3;  B.  iv.  tit.  32,  §  3. 
Morel's  Notes,  p.  cxxv. ;  Ersk.  B.  iii.  tit.  4,  § 
5 ;  Bell's  Princ.  4th  edit.  art.  566 ;  BelPs  Ulust. 
art.  566. 

Chose  in  Action ;  in  the  English  law,  is  a 
thing  to  which  a  man  has  only  a  bare  rights 
or  jus  ad  rem,  as  distinguished  from  j««  in  re, 
without  any  occupation  or  enjoyment.  A 
thing  sold,  but  undelivered,  is  the  vendee's 
property,  but  only  a  chose  in  action.  BelPs 
Com.  i.  105,  5th  edit. ;  Bell's  Princ.  4th  edit. 
6  1338 ;  Tomlins'  Diet.  h.  t. ;  Wharton's  Lex. 
h.  1. 1  Brown  on  Sale,  p.  c.  6 ;  Ross's  Lect.  i.  39, 
177 ;  1  Hume,  79.  . 

Christian  ITame.  In  election  law,  the  in- 
sertion of  a  wrong  Christian  name  has  various 
effects,  according  to  circumstances.  In  the 
return,  an  error  in  the  Christian  name  of  a 
member  of  Parliament  has  been  corrected 
without  petition,  upon  motion.  Chambers 
Election  Law,  h.  t. 

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ChrirtntM  Day ;  is  a  dies  non  in  English 
election  law,  but  not  in  Scotland.  Chambers' 
Election  Law,  h.  t. 

Christmas  Beceu ;  a  vacation  at  Christ- 
mas,  formerlyof  three  weeks'  duration,  daring 
which  the  Court  of  Session  is  adjourned.  By 
the  Court  of  Session  Act,  20  and  21  Vict.,  c. 
56, 1857,  this  adjournment  cannot  now  be  for 
longer  than  fourteen  days ;  §  9.  The  Court 
rises  on  the  Saturday  before  Christmas. 
There  is  one  box-day  appointed  in  this  re- 
cess, and  three  or  four  days  of  it  are  usually 
devoted  to  the  trial  of  jury  causes.  A,  S. 
2\st  Dee.  1661 ;  A.  S.  Uih  My  1828,  8tt 
My  1831 ;  2  Geo.  III.  c.  27  ;  13  and  24  Vict. 
c  36,  §§  8,  27,  64 ;  Shanes  Prae.  pp.  122, 
250,  285,  945 ;  Beveridye's  Form  of  Process, 
p.  37.    See  also  Box-Day.    ReclaimingNote. 

Chnroh  of  Scotland.  The  Roman  Catholic 
religion  was  abolished  in  Scotland  by  the  Act 
1560,  ratified  by  the  Act  1567,  c.  2.  After 
the  Reformation,  the  form  of  church  govern- 
ment inclined  to  Episcopacy  or  to  Presbytery, 
as  the  influence  of  the  one  party  or  the  other 
predominated ;  until,  at  last,  by  the  Treaty 
of  Union  in  1707,  Presbytery  was  finally  es- 
tablished as  the  form  of  church  government 
in  Scotland,  Immediately  after  the  Refor- 
mation, the  government  of  the  church  was 
given  to  parochial  presbyters,  under  the  con- 
trol of  officers  termed  superintendents.  In 
1572,  the  titles  of  Bishops  and  Archbishops 
were  given  to  the  clergymen  who  were  then, 
or  should  thereafter,  be  ordained  ministers  of 
the  cathedral  churches.  They  had  also  the 
privilege  of  sitting  in  Parliament ;  but  by 
1692,  c.  116,  Presbyterian  church  govern- 
ment was  established  in  kirk-sessions,  pres- 
byteries, provincial  synods,  and  general  as- 
semblies. Episcopacy  was  restored  by  1606, 
e.  2,  and  gave  place  to  Presbytery  in  1638. 
Episcopacy  was  a  second  time  restored  in 
1662 ;  and  in  1689  was  again  succeeded  by 
Presbytery,  which,  from  that  time,  has  con- 
tinued to  be  the  established  religion  of  Scot- 
land. Presbytery  being  thus  established, 
those  Presbyterian  ministers  who  had  been 
expelled  from  their  churches  in  1661  were, 
by  the  act  1690,  c.  2,  ordered  to  be  replaced ; 
and  the  church  government  is  declared,  by 
1690,  c.  5,  to  be  in  their  hands,  and  in  the 
hands  of  the  ministers  and  elders  chosen  by 
them,  or  whom  they  may  thereafter  choose  : 
a  general  assembly  is  appointed,  with  direc- 
tions to  settle  all  the  duorders  of  the  late 
times,  and  a  confession  or  faith  is  recognised. 
This  act  is  confirmed  as  the  foundation  of 
the  Treaty  of  Union  betwixt  the  two  king- 
doms by  the  Act  1707,  c.  6,  and  the  confes- 
sion of  faith  and  form  of  church  government, 
as  established  in  Scotland  by  law,  are  declared 
to  be  a  fundamental  and  essential  condition  of 


the  Treaty  of  Union ;  Ersk.  B.  i.  tit  5,  { 5, 
et  seq.  Many  severe  laws  were  formerly  en- 
acted for  enforcing  conformity  to  the  estab- 
lished form  of  church  government.  See  C<x^s 
Church  Law  Styles.     See  also  Nonco^msib). 

Church  Lands.    See  Benefices. 

Church  Patronage.    See  Patronage. 

Church.  Churches,  and  other  things  des- 
tined to  sacred  purposes,  are  held  to  be  cilni 
commercium,  and  cannot  be  applied  to  uses  of 
private  property ;  yet,  from  expediency,  it  fre- 
quently happens  that  the  situation  of  chnrches 
is  chang^,  church  bells  and  communion  cops 
are  disposed  of,  and  new  ones  purchased  in 
their  place ;  and  the  parishioners  also  acquire 
a  qmsi  property  in  the  seats  or  area,  for  the 
special  purpose  of  attending  divine  serTiee. 
In  a  jndiciu  division  of  the  area  of  a  church 
amongst  the  heritors,  they  are  preferred,  both 
with  regard  to  priority  and  extent  of  choice, 
according  to  the  amount  of  their  valued  rents. 
The  burden  of  upholding  parish  churches  and 
the  walls  of  the  churchyard  is,  by  long  usage, 
imposed  on  the  heritors  of  the  parish ;  and 
where  the  parish  is  partly  within  burgh, 
and  partly  in  the  country,  the  expense  must 
be  borne  by  heritors  and  proprietors  of  houses, 
in  proportion  to  their  real  rent :  Ersk.  B.  iL 
tit.  1,  §  8,  and  tit.  10,  §  63.  But  although 
this  is  a  burden  which  attaches  to  the  lands, 
it  is  not  properly  a  debitam  fundi.  Singular 
successors  in  the  lands,  and  creditors,  are  uot 
liable  for  arrears,  but  only  for  that  part  of 
the  expense  applicable  to  the  years  of  their 
possession. 

The  transportation  of  churches  from  one 
part  of  a  parish  to  another  is  regulated  by 
statute,  1707,  c.  9.  Parliamentary  churches 
are  regulated  by  4  Geo.  IV.,  c.  79,  and  5 
Geo.  IV.,  c.  90.  5«K'«  Com.  voL  i.  p.  701, 
6th  edit.;  BelV s  Princ.  4%\i  edit  art  1164; 
Jurid.  Styles,  2d  edit  vol.  iii.  p.  929 ;  D«»- 
lop's  Parochial  Law,  p.  1,  «t  seq. ;  Sup.  to  Con- 
nell  on  Parishes;  Shaw's  Digest,  h.  t.  See 
Manse.    Glebe. 

Church,  by  voluntary  contribution.  By  4 
and  5  AVilL,c  41,  it  is  enacted,  that  minis- 
ters to  churches  in  Scotland,  built  by  volun- 
tary contribution,  and  erected  into  parochial 
churches,  shall  be  appointed  according  to  the 
mode  prescribed  by  the  church  courts,  and 
that  no  one  having  right  to  the  patronage  of 
the  parish  within  which  such  church  is  erected 
shall  have  claim  to  the  patronage  of  the  newly- 
established  church.  But  the  patron  of  a  paridi, 
building  and  endowing  a  church  therein,  shall 
retain  every  right  to  which  he  would  have 
been  legally  entitled  before  the  passing  of 
the  act ;  and  so,  in  the  case  of  churches  built 
by  the  patron  and  heritors,  unless  an  objec- 
tion shall  be  transmitted  in  writing  to  the 
moderator  of  the  presbytery,  signed  by  heri- 


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ion  who  liave  contributed  one-fourth  of  the 
(om  kid  oat  in  building  and  endowment,  in 
vbieh  case  the  said  church  shall  he  within 
the  prorisions  of  the  act.  None  of  the  ex- 
pensea  of  the  new  churches  shall  fall  upon  the 
teinds.  One-fifth  of  the  sittings  shall  he  at 
rents  fixed  by  the  church  courts. 

By  section  8  of  the  act  7  and  8  Vict.,  c.  44, 
eDtitnled  "  An  act  to  facilitate  the  di^oining 
or  diridingof  extensive  or  populous  parishes, 
sod  the  erectitag  of  new  parishes,"  it  is  pro- 
Tided  that  churches  built  or  acquired  at  the 
expeMe  of  private  persons  may  be  erected  by 
the  eoart,  on  the  application  of  such  persons, 
into  a  parish  church  in  connection  with  the 
Charcb  of  Scotland,  without  any  concurrence 
rf heritors;  districts  may  be  marked  out,  de- 
lignated,  and  attached  thereto  quumd  sacrcL, 
and  such  district  disjoined  quoad  sacra  from  the 
pwish  or  parishes  to  which  it  may  have  be- 
looged,  and  erected  into  a  parish  quoad  saera 
in  connection  witJi  the  Church  of  Scotland ; 
the  ainister  and  elders  whereof  are  to  have 
the  stahu,  and  all  the  powers,  rights,  and 
pnrileges  of  parish  ministers  and  elders,  pro- 
vided that  the  titles  to  the  church  shall  be  so 
taken  and  conceived  that  the  church  shall  be 
iotiienably  secured  as  the  church  of  the  new 
JM«{  taera  parish  in  connection  with   the 
Chnreh  of  Scotland,  and  that  due  provision 
•hall  be  made  for  the  maintenance  of  the 
&brie  of  the  church,  and  the  security  of  a 
cmpetent  stipend  to  the  minister  in  all  time 
coming.    The  9th  section  provides  for  a  por- 
tion of  the  sittings  in  such  churches,  not  ex- 
(Mding  one-tenth,  being  set  apart  as  free 
seats ;  and  for  another  portion,  not  exceeding 
one-fifth,  being  let  at  a  rent  to  be  fixed  by 
the  presbytery;  and  for  the  remaining  portion 
beings  ako  let  under  certain  conditions.     The 
noe  section  also  regulates  the  expenditure 
aod  application  of  the  pew  rents. 

Cnrdl  Oflioen.  In  Scotland  there  are 
BO  chnreh  officers,  properly  so  called,  except 
the  beadle  and  the  precentor.  The  appoint- 
nent  of  the  beadle  in  burghs  belongs  to  the 
Biagistratea,  and  in  landward  parishes,  it 
«o(Jd  seem,  to  the  heritors ;  unless  where  it 
i>  otherwise  provided  in  the  decree  of  erection 
of  a  new  parish ;  or  unless  there  has  been 
bag  contrary  practice.  The  beadlo  usually 
Iwldi  the  appointment  of  sexton  and  of  belU 
nao ;  but  where  the  offices  are  disjoined,  the 
una  rule  as  to  their  appointment  will  apply. 
It  does  not  seem  to  be  clear,  however,  that,  in 
w  far  as  the  beadle  acts  as  session  officer,  his 
appointment  is  not  in  the  kirk-session.  The 
ptteentor,  where  it  is  not  otherwise  provided 
^J  the  decree  erecting  the  parish,  is  in  the 
^f^tirj  ease  appointed  by  the  kirk-session. 
HsisreBovable  at  pleasure.  Dunlop's  Pa- 
~^''''  Ltm,  p.  6S,a$eq.    See  Elden. 


Chvrcli  Judicatories.  The  judicatories  of 
the  church  are  kirk-sessious,  presbyteries, 
provincial  synods,  and  general  assemblies. 
The  constitution  of  these  shall  be  explained 
in  their  order :  1.  Kirk-Session,  composed  of 
the  minister  of  the  parish  and  ruling  elders. 
2.  Preshyteriet,  which  include  a  certain  num- 
ber of  parishes,  varying  in  number,  according 
to  local  situation  and  other  circumstances, 
there  being  thirty  parishes  in  some  presby- 
teries and  no  more  than  four  in  others.  The 
presbytery  is  composed  of  a  minister  and 
ruling  elder  from  each  parish  within  its 
bounds.  With  regard  to  Professors  of  Di- 
vinity within  the  bounds  of  a  Presbytery  the 
practice  has  varied  exceedingly.  It  would 
appear  that  they  are  not  necessarily  members 
of  presbytery ;  but  the  matter  is  at  present 
being  investigated  by  a  committee  of  General 
Assembly.  The  number  of  presbyteries  in 
Scotland  is  at  present  eighty-four.  The  in- 
equality in  the  number  of  parishes  of  which 
presbyteries  are  composed  produces  this  ano- 
maly, that  in  those  cases  in  which  matters 
are  decided  in  the  General  Assembly  by  a  ma- 
jority of  presbyteries,  a  presbytery  consisting 
of  three  or  four  parishes  has  equal  power  and 
weight  with  one  which  is  composed  of  twenty 
or  thirty  parishes.  There  is  a  moderator  of 
the  presbytery  chosen  twice  a-year,  a  clerk  of 
the  presbytery,  and  an  officer  to  execute  its 
orders.  3.  Provincial  Synods.  These  are 
composed  of  three  or  more  presbyteries :  the 
number  of  provincial  synods  is  at  present  six- 
teen. Every  minister  within  the  bounds  of 
the  synod  is  a  member  of  court ;  and  the  same 
elder  who  last  represented  the  kirk-session  in 
the  presbytery  is  the  representative  of  the 
kirk-session  in  the  provincial  synod.  A  com- 
munication is  established  amongst  the  differ- 
ent provincial  synods,  by  sending  one  minister 
and  one  elder,  who  are  entitled  to  sit,  to  ' 
deliberate,  and  to  vote  with  the  original 
members  of  the  synod.  The  synod  has  a 
moderator,  clerk,  and  officers  of  its  own  choos- 
ing. 4.  General  Assembly.  This  is  the  su- 
preme ecclesiastical  court,  consisting  of  repre- 
sentatives from  the  presbyteries,  royal  burghs, 
and  universities  in  Scotland,  and  from  the 
churches  in  the  East  Indies  connected  with 
the  Church  of  Scotland.  The  representation 
is  regulated  by  the  5th  act  of  Assembly  1694, 
which  provides,  "  That  all  presbyteries  con- 
sisting of  twelve  parishes,  or  under  that  num- 
ber, shall  send  in  two  ministers  and  one  ruling 
elder:  That  all  presbyteries  consisting  of 
eighteen  parishes,  or  under  that  number,  but  ' 
above  twelve,  shall  send  in  three  ministers 
and  one  ruling  elder :  That  all  presbyteries 
consisting  of  twenty-four  parishes,  or  under 
that  number,  but  above  eighteen,  shall  send 
four  ministers  and  two  ruling  elders;  and 


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that  presbyteries  consiating  of  above  twenty- 
four  parishes  shali  send  five  ministers  and 
two  ruling  elders:  That  collegiate  kirks, 
vhere  there  are  two  or  more  minbters,  are, 
10  far  as  concerns  the  design  of  this  act,  un- 
derstood to  be  as  many  distinct  parishes ;  and 
no  persons  are  to  be  admitted  as  members  of 
assemblies  but  such  as  are  either  ministers 
or  ruling  elders."  And  by  a  subsequent  act 
(Assembly  1712,  c.  6),  it  is  provided,  that 
when  the  presbytery  exceeds  thirty  minis- 
terial charges,  it  shall  send  six  ministers  and 
three  ruling  elders.  The  sixty-six  royal 
burghs  of  Scotland  are  represented  in  the 
General  Assembly  by  ruling  elders ;  Edin- 
burgh sending  two,  and  every  other  burgh 
one.  Each  of  the  five  universities  in  Scotland 
is  represented  by  one  of  its  members. 

The  General  Assembly  of  the  Church  of 
Scotland  meets  by  the  joint  authority  of  the 
Church  and  of  the  Crown,  the  meeting  being 
appointed  both  by  the  moderator  and  of  the 
Sovereign's  commissioner.  See  Commissimxer. 
The  act  1592,  establishing  Presbjrterian  go- 
vernment, declares  "  it  lawful  to  th«  kirk  and 
ministers,  every  year  at  the  least,  and  oftener, 
pro  re  nata,  as  occasion  and  necessity  shall  re- 
quire, to  hold  and  keep  general  assemblies." 
And  the  act  1690,  by  which  Presbyterian  go- 
vernment was  restored  at  the  Revolution, 
allows  the  general  meeting  and  representation 
of  the  ministers  and  elders,  according  to  the 
custom  and  practice  of  Presbyterian  govern- 
ment throughout  the  whole  kingdom.  In 
pursuance  of  these  acts,  the  General  Assembly 
meets  annually  in  the  month  of  May,  and  con- 
tinues to  sit  for  ten  days.  The  Assembly  has 
a  moderator,  chosen  by  itself,  who  presides 
in  its  deliberations;  a  procurator  or  advo- 
cate; principal  and  depute  clerks,  agent, 
printer,  and  other  officers.  The  annual  meet- 
ing of  the  General  Assembly  is  honoured  with 
a  representative  of  the  Sovereign,  b  the  per- 
son of  a  Lord  High  Commissioner.  When 
the  Assembly  is  dissolved,  it  is  done  first  by 
the  moderator,  who  appoints  the  time  for 
holding  the  next  General  Assembly,  and  then 
by  the  Lord  High  Commissioner,  who,  in  the 
Sovereign's  name,  dissolves  the  present,  and 
appoints  another  Assembly  to  be  held  on  the 
same  day  named  by  tho  moderator;  thus  unit- 
ing the  civil  and  ecclesiastical  powers  of  the 
state,  which  indeed  seem  to  be  indispensably 
necessary  to  the  constitution  of  a  regular  As- 
•embly.    Ersk.  B.  L  tit.  5,  §  6. 

It  has  been  questioned  whether  the  Com- 
mission of  the  General  Assembly  is  net  also  a 
judicatory  of  the  Church,  established  and  re- 
cognised by  the  laws  and  constitution  of  the 
realm  ;  but  the  point,  although  fully  argued 
upon  one  occasion,  has  not  been  decided.  See 
the  case  of  Middl^on  v.  Andersen,  4  D.  957> 


The  jurisdiction  of  the  Church  inclndes  cer> 
tain  civil  as  well  as  ecclesiastical  powers.  The 
civil  powers  consist  in  the  right  which  pres- 
byteries have  of  pronouncing  decisions  with 
regard  to  manses  and  glebes,  and  the  qnalifi- 
cations  of  schoolmasters  (see  SAo«is).  The 
ecclesiastical  powers  of  the  Church  of  Scot- 
land are  legislative,  judicial,  and  executive. 

The  legislative  power  has  been  expUioel 
under  the  article  Acts  of  the  Gener<d  Astmi^. 
It  is  sufficient  here  to  mention,  that  the 
General  Assembly  has  no  power  to  pass  actt 
affecting  or  encroaching  upon  the  civil  rights 
or  patrimonial  interests  of  the  subjects,  sad 
altering  the  law  of  the  land,  and  that  the 
Court  of  Session  has  jurisdiction  to  afford  pro- 
tection and  redress  against  any  such  incom- 
petent Act  of  Assembly.  Earl  of  KinnonU  r. 
Presbytery  of  AudUerarder,  16  S.  661,  »ff. 
3d  May  1839 ;  M'L.  and  Rob,  App.  220 ;  and 
subsequent  cases  mentioned  in  Shaw's  Digest, 
hoe.  tit. 

The  judicial  pomer  of  the  Church  consists  in 
the  infliction  or  removal  of  those  censures 
which  belong  to  a  spiritual  society ;  and  ia 
regard  to  the  clergy,  a  judgment  of  deposi- 
tion will  have  the  effect  of  depriving  the  in- 
dividual of  the  emoluments  of  his  office  as 
minister  of  the  parish.    But  a  difference  takes 
place  in  the  origin  of  the  procedure,  where  it 
is  directed  against  a  layman,  from  what  itk» 
place  when  it  is  directed  against  a  clergynan. 
The  procedure  against  a  layman  of  the  es- 
tablished church  must  commence  in  the  kirk- 
session  of  his  own  parish  ;  and  the  judgment 
of  the  kirk-session  may  be  brought    under 
review  of  the  presbytery,  while  that  of  the 
presbytery  may  be  again  brought  before  the 
synod,  and  from  that  the  case  may  still  be  car- 
ried to  the  General  Assembly.     The  proce- 
dure against  a  clergyman  cannot  commence 
in  the  kirk-session,  because  the  clergyman  u 
the  moderator  of  that  court ;  and  ihv  other 
members  being  inferior,  he  cannot  be  tried 
there.    It  is  therefore  before  his  saperiom, 
the  presbytery,  that  the  procedure  against  a 
clergyman  must  commence;    and  the  judg- 
ment of  the  presbytery  may  be  reviewed  by 
the  synod,  that  of  the  synod  by  the  General 
Assembly.     It  is  by  this  gradual  progress, 
from  judicatory  to  judicatory,  that  the  in- 
justice of  inferior  courts  may  be  rectified  by 
the  more  unbiassed  and  enlarged  views  of  the 
supreme  ecclesiastical  court  of  the  ooontry. 
This  system  of  review  differs  from   that  in 
civil  causes,  from  the  situation  of  the  jndges; 
who  have  all  an  interest  equally  with  the 
parties,  to  have  the  doctrines  and  principles 
of  church  discipline  and  order  preserved  en- 
tire.    Although,  therefore,  in  civil  esnses, 
the  power  of  aj^peal  rests  in  the  parties,  yet, 
in  ecclesiastical  causes,  the  members  of  the 


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different  courts  have  an  interest  that  entitles 
them,  as  well  as  the  parties,  to  carry  the 
deeisioo  of  their  own  court  to  the  review  of  a 
saperior  one.  Thns,  a  point  may  be  brought 
before  a  superior  court,  1.  By  reference :  and 
tbeo,  in  place  of  deciding,  the  inferior  court 
refers  to  the  superior  court,  and  may  sit  and 
vote  in  that  superior  court ;  a  circumstance 
wiiich  is  an  objection  to  this  form  of  proce- 
dnre,  since  the  joining  of  so  many  members 
iDsy  gire  a  bias  to  the  decision  of  the  supe- 
rior court.  2.  By  appeal :  where  the  party  is 
»ititled  to  bring  the  whole  proceedings  of  the 
inferior  court  under  review  of  the  superior 
NNirt;  and  in  defending  the  judgment,  the 
members  of  the  inferior  court  are  entitled, 
ind  in  some  degree  bound,  to  defend  the  judg- 
ment which  they  have  pronounced.  3.  By 
tomplaitU:  where  a  decision  appears  to  the 
members  of  a  court  to  be  wrong,  the  minority 
Dtj  enter  their  grounds  of  dissent  in  the 
minntes;  and  they  may  also,  if  they  ^e  cause, 
cofflpUin  to  the  superior  court,  which  will 
Wng  all  the  members  of  the  inferior  court, 
u  veil  as  the  parties,  to  the  bar  of  the  supe- 
rior court,  which  may  decide  on  the  cause  in 
(he  lame  manner  as  if  the  cause  had  come 
before  them  by  appeal  of  the  parties.  In  the 
Iswfnl  exercise  of  their  judicial  powers,  the 
KBtences  of  church  courts,  in  matters  purely 
ecckeisstieal,  are  not  subject  to  the  review  of 
siy  ciril  court.  But  the  Court  of  Session,  at 
leait  io  eases  of  flagrant  wrong,  and  gross  ex- 
Maorabuseof  powers,  has  jurisdiction  to  afford 
'tdresB  against  an  illegal  sentence  of  a  church 
wwt  CT%idakank  v.  Gordon^  6  D.  909. 

The  exeaUive  power  of  the  church  is  exer- 
cised in  a  great  measure  by  the  presbyteries, 
tboagfa  the  supreme  executive  power  remains 
»ilh  the  Oeneral  Assembly.  The  most  im- 
portant occasions  of  exercising  this  power  are 
tbe  settlements  of  vacant  parishes,  in  which 
tie  General  Assembly  gives  directions  to  the 
presbytery  within  which  the  parish  lies  as  to 
tie  manner  in  which  they  are  to  proceed ;  or, 
when  any  reluctance  appears  on  the  part  of 
tie  presbytery,  the  whole  course  of  procedure 
i«  preeeribed  by  the  General  Assembly ;  and 
the  presbytery  act  in  a  ministerial  capacity, 
•ad  must  implicitly  obey  the  instructions  they 
wceive.  See  Hil^s  Theologieal  Institutions; 
BilfsPnc.  86. 

As  to  the  powers  of  the  church  judicatories, 
•••d  (he  jurisdiction  of  the  Court  of  Session, 
toeatertain  complaints  and  actions  relative 
to  the  legality  of  their  decrees,  reference  may 
^B  made  to  the  following  important  cases: — 
'wrqr  T.  Donaldson,  13  Sh.  128  (^Deposition 
f*ekidmet»terhyfn$bytery,  and  review  ofpres- 
Virfsiudgment  by  superior  eceUsiastical  courts) ; 
"<rf  tfKituumU  V.  Presbytery  of  Auchterarder, 
««  8k.  661 ;  M'L.  attd  Rob.,  220 ;  Clark  v. 


Stirling,  1  D.  955  ;  Mackintosh  v.  Rose,  2  D. 
263 ;  Presbytery  of  Strathbogie,  2  D.  258,  685, 
1047,  4  D.  1298;  Edwards  v.  Gruickshank,  3 
D.283;  Earl ofKinnoull v, Ferguson, 3 D. 778 ; 
affirmed  11th  July  1842 ;  MiddUton  v.  Aider- 
son,  4  D.  957 ;  Ounningham  v.  Presbytery  of 
Irvine,  5  D.  427;  Campbell  v.  Presbytery  of 
Kintyre,  5  D.  667 ;  Earl  of  KinnouU  v.  Fergus- 
son,  6  D.  1010 ;  Gruickshank  v.  Gordon,  5  D. 
909  ;  Sturrock  v.  Greig,ll  D.  1220  ;  Lockhart 
V.  Presbytery  of  Deer,  13  B.  1296. 

As  to  admission  of  ministers,  see  6  and  7 
Vict.,  c.  61.    See  also  CdM. 

Church  Sates ;  in  England,  a  taxation  or 
assessment  laid  on  the  parishioners  to  defray 
the  expense  of  upholding  and  repairing  the 
fabric  of  the  church.  The  rate  is  usually 
imposed  by  the  parishioners,  convened  by  the 
church-wardens  ;  and  the  vote  of  a  majority 
of  such  meeting  binds  the  whole  parishioners. 
See  Tomlins,  voce  Church-Warden;  Wharton's 
Lex.-h.  t.;  4  and  5  Vict.,  c.  36;  St^h.  Com. 
91.  In  Scotland,  the  burden  of  supporting 
the  fabric  of  the  church  is  laid  on  the  heri- 
tors of  the  parish.     See  Church.    Heritor. 

Church-Aoad.  It  frequently  happens  that 
there  are  in  the  country  bye-ways  or  paths, 
sometimes  mere  footpaths,  and  sometimes  foot 
and  horse  roads,  used  chiefly,  if  not  solely,  by 
the  parishioners  ingoing  to  the  parish  church. 
These  are  called  church-roads ;  and  although 
statute-labour  and  turnpike-road  trustees  have 
power  to  shut  up  useless  roads,  or  to  substi- 
tute others  for  them,  they  are  not  empowered 
to  shut  up  any  horse  or  foot  road  to  kirk 
or  mill.  Blair's  Justices  Manual,  122,  and 
authorities  there  cited.    See  Road.   Highway t. 

Church-Wardens ;  in  England,  are  eccle- 
siastical officers,  chosen  by  the  parishioners 
and  minister  jointly,  sometimesby  the  minister 
alone,  sometimes  by  the  parishionersassembled 
in  vestry,  as  custom  directs,  to  protect  the 
edifice  of  the  church ;  to  superintend  the  cere> 
monies  of  public  worship ;  to  promote  the  ob- 
servance of  religious  duties ;  to  form  and  exe- 
cute parochial  regulations ;  and  to  become, 
as  occasion  may  require,  the  legal  represen- 
tatives of  the  body  of  the  parish ;  they  are 
generally  two  in  number.  Tomlin's  Diet.  h.  t. ; 
Wharton's  Lex.  h.  t.;  3  St^h.  Com.  89. 

Churchyard.  The  parish  churchyard  is, 
generally  speaking,  subject  to  the  same  regu- 
lations with  the  area  of  the  church  ;.  and  in 
landward  parishes  belongs  to  the  heritors,  for 
the  special  purpose  of  interring  the  dead  of 
their  families,  and  those  resident  on  their  pro- 
perties. In  England,  a  churchyard  has  been 
descril)ed  as  "  a  consecrated  place  entitled  to 
public  protection ,  and  in  which  nothing  should 
be  done  but  under  the  direction  of  public  au- 
thority "  (per  Sir  W.  Scott,  Haggard's  Re. 
ports,  i,  19)-    In  Scotland,  a  churchyard  is 

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not  recognised  as  a  consecrated  place  ;  bnt  it  I 
is  a  place  which  considerations  of  pnblic  de- 
cency require  to  be  protected  against  outrage; 
and  which  the  heritors  will  be  entitled  to  pro- 
tect against  any  attempt  at  exclusive  appro- 
priation by  parties  using  it  as  the  place  of 
interment  of  their  family  or  friends.  See 
Jhtidop't  Parochial  Law,  p.  58,  et  teg, ;  Enkine, 
i.  §  13.     See  sAio  Burying -place,    tiravettone. 

Cinqne-ForU.  Those  havens  which  lie  to- 
wardsFrance,  and  have  therefore  been  thonght 
to  require  peculiar  vigilance.  They  have  an 
especial  governor,  called  Lord  Warden  of  the 
Cinque  PorU,  and  various  privileges  granted 
them,  as  a  peculiar  jurisdiction,  their  warden 
having  not  only  the  authority  of  an  admiral 
amongst  them,  but  sending  out  write  in  his 
own  name.  This  jurisdiction  was  preserved 
by  the  Municipal  Corporation  Act,  6  and  6 
Will.  IV.,  c.  76.  They  are  Dover,  Sand- 
wich,  Romney,  Hastings,  and  Hythe;  to  which 
are  now  added  Winchelsea  and  Rye.  The 
constable  of  Dover  Castle  is  Lord  Warden. 
Tomlin$'  Diet.  h.  t. ;  Wharton's  Lex.  h.  t. 

Circuit  Court  of  Justiciary.  The  act 
1672,  c.  16,  divides  the  kingdom  into  three 
districts,  and  appointo  circuits  to  be  made  by 
the  Justiciary  Judges.  This  regulation  is 
affected  by  different  statutes,  as  20  Geo.  II.,  c. 
43 ;  23  Geo.  III.,  c.  45 ;  30  Geo.  III.,  c.  17. 
The  circuit  courts  of  the  southern  district  are 
directed  to  be  held  at  Jedburgh,  Dumfries, 
and  Ayr  ;  the  western  at  Stirling,  Inverary, 
and  Glasgow ;  and  the  northern  at  Perth, 
Aberdeen,  and  Inverness.  The  court  must 
remain  at  each  place  not  less  than  three  days ; 
and  no  business  begun  at  any  of  the  places 
must  be  left  unfinished.  There  are  two  cir- 
cuits in  the  year ;  one  in  spring,  which  must 
be  held  between  the  12th  of  March  and  the 
12th  of  May,  and  another  in  harvest ;  and 
under  a  recent  statute  there  is  an  additional 
circuit  court  held  at  Glasgow,  for  criminal 
cases  only,  during  the  Christmas  recess  of  the 
Court  of  Session  ;  9  Geo.  IV.,  c.  29  ;  11  Geo. 
W.  and  1  Will.  IV.,  c.  37.  By  11  and  12 
Vict.,  c.  79,  §  8,  the  judges  on  circuit  in  Glas- 
gow are  anthorized  to  sit  separately  in  dif- 
ferent courte.  One  judge  may  proceed  to 
business  in  absence  of  his  colleague;  and, 
when  necessary,  the  circuit  court  may  certify 
a  case  commenced  before  it  to  the  whole 
Court  of  Justiciary  for  consideration ;  bnt 
there  is  no  right  of  appeal  from  the  circuit. 
See  Hume,  vol.  ii.  p.  19,  et  seq. ;  Bell's  Notes. 

With  regard  to  presentments  and  informa- 
tion, in  order  for  trial  before  the  circuit 
conrte,  it  is  enacted,  by  8  Anne,  c.  16,  that 
the  sheriff,  magistrates  of  burghs,  justices  of 
the  peace,  and  other  inferior  judges,  shall  hold 
conrte  at  their  usual  places  of  sitting,  on  the 
22d  February  and  22d  July  yearly,  to  receive 


information  of  matters  criminal  to  be  tried  at 
the  ensuing  circuit,  and  to  transmit  written 
abstracte  of  the  accusations  offered  before 
them,  and  the  evidence  by  which  they  are 
supported,  to  the  Lord  Justice-Clerk  and  his 
deputies,  forty  days  at  least  before  the  sittiDgs 
of  the  respective  circuit  courts,  so  that  indict- 
mente  may  be  raised  in  due  time.  In  prac- 
tice, however,  this  duty  has  devolved  on  the 
Sheriff,  who  is  bound  to  make  immediate  in- 
quiry into  the  circumstances  of  every  crime 
committed  within  the  sheriffdom,  as  soon  ts 
his  fiscal,  or  the  injured  party,  shall  lay  a 
complaint  before  him  ;  so  that  in  general  tlie 
offender  is  in  custody  or  under  bail,  and  the 
precognition  duly  transmitted  to  the  Lord 
Advocate,  before  the  days  mentioned  in  the 
statute  ;  Hume,  vol.  ii.  p.  23.  As  to  the  ja- 
risdiction  of  the  circuit  court  in  certain  ap- 
peals, civil  and  criminal,  see  Appeal.  Eric. 
Prine.  13th  edit.  32-3 ;  Brown's  Synop.  p. 
1155 ;  Shauft  Digest. 

Issues  in  civil  jury  cauSM  may  also  be  tried 
before  one  or  more  of  the  Justiciary  Judges 
on  circuit,  or  by  any  other  judge  of  the  Court 
of  Session,  at  any  circuit  town  ;  twenty-one 
days'  notice  of  such  sittings  being  given  by 
intimation  on  the  walls  of  the  Outer  Parlia- 
ment House,  and  in  the  lobby  of  the  Court  of 
Exchequer,  and  also  on  the  door  of  the  court- 
house  of  the  circuit  town,  and  the  door  of  the 
Sheriff's  court  in  the  other  county  towns  of 
the  circuit  55  Geo.  III.,  c.  42,  §  15  ;  A.  S. 
9th  Dee.  1615,  §  7 ;  69  Geo.  III.,  c.  35,  §  22; 
1  Will.  IV.,  c.  69,  §  11.    See  Jury  Trial. 

Circuit  Courts.  Circuit  courte  are  estab- 
lished in  Scotland,  for  the  trial  of  small  debt 
causes  by  the  sheriffs,  by  1  Vict.,  c.  41, 1847. 
See  M'Lawrin's  Digest,  and  Notes  of  Small 
Debt  Act.    See  also,  Small  Debts. 

Circumduction  of  the  Term ;  is  the  sen- 
tence of  a  judge  declaring  the  time  elapsed 
for  leading  a  proof ;  after  which  the  party  is 
precluded  from  adducing  farther  evidence. 
When  the  time  limited  for  leading  and  re- 
porting a  proof  or  a  diligence  for  the  recovery 
of  writings  has  expired,  the  opposite  party 
may  move  for  circumduction  ;  and  the  term 
will  be  circumduced,  unless  upon  cause  shown, 
when  a  prorogation  may  be  granted.  Cir- 
cumduction will  be  opened  up  upon  payment 
of  a  greater  or  less  sum  of  expenses,  where- 
ever  that  course  is  fair  and  reasonable  in  the 
circumstances,  Dickson  on  Evidence,  1017. 
Before  judgment  can  be  pronounced  on  the 
proof,  the  term  must  either  be  circumduced, 
or  the  parties  must  judicially  declare  their 
proof  concluded.  A  judgment  on  a  mere  cir- 
cumduction, not  followed  by  any  judgment  on 
the  merite  of  the  cause  or  proof,  is  not  a  res 
judicata,  but  a  mere  judgment  by  default, 
against  which  a  party  may  be  reponed. 

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h  the  Sheriff  courts,  npon  the  expiration 
«f  the  term  for  proving,  circumduction  is 
graoted,  unless  sufficient  cause  for  not  pro- 
ceeding be  shown  to  the  Sheriff,  who  may 
renew  the  diet,  on  payment  of  expenses  or 
not,  as  he  may  think  proper.  If  circumduct 
tien  be  granted,  the  party  will  not  be  repoued, 
except  on  cause  shown  to  excuse -his  former 
&ilare,  and  on  payment  of  an  indemnification 
to  the  other  party.  When  a  proof  has  been 
reported,  and  an  interlocutor  pronounced,  no 
farther  proof  wiil  be  allowed,  except  on  very 
weighty  reasons  shown,  and  on  payment  of 
expenses.  If  such  further  proof  is  applied 
for,  the  facts  and  the  witnesses  must  be  con- 
dsxended  on  in  the  petition  for  farther  proof; 
A.  S.  lOtt  July  1839,  §§  81,  82,  83.  Where 
the  proof  is  by  oath  of  party,  and  he  fails  to 
sppear,  and  no  satisfactory  reason  be  assigned, 
the  term  is  eircumduced,  and  he  is  held  as 
confessed,  and  decerned  against  accordingly. 
He  may  he  reponed,  however,  against  a  hold- 
mg  as  confessed,  in  indemnifying  the  other 
party  for  his  expense.  §  79.  See  Stair,  iv. 
46,  §  6 ;  Er$L  B.  iv.  tit.  2,  §  32 ;  Maclaurin't 
Fmtcf  Process,  32;  M'Glashan't  Sher.  Court 
Frse,  p.  287 ;  Shand's  Frac.  360.  See  Proof. 
Riming, 

(Sromiutaatial  Evidence ;  is  evidence  de- 
dneed  from  the  existence  of  a  fact,  or  of  a 
groap  of  facts,  bearing  immediately  upon,  and 
iofening  the  existence  of,  the  principal  fact 
which  is  sought  to  be  proved.  This  evidence, 
on  ssaperfteial  view,  is  often  thought  inferior 
to  direct  evidence ;  and  there  can  be  no  doubt 
that  it  is.  a  matter  of  considerable  difficulty 
to  draw  the  conclusion  which  the  evidence 
warrants.  But  when  that  conclusion  is  cor- 
rectly drawn,  and  every  other  hypothesis  by 
which  the  facts  may  be  accounted  for  is  ex- 
cinded,  or  shown  to  be  exceedingly  impro- 
bable, the  conviction  produced  upon  the  mind 
is,  sad  justly  ought  to  be,  as  strong  as  if  the 
<a<ne  fact  were  proved  by  the  most  direct  tes- 
timony. And  it  enjoys  this  decided  advantage 
over  direct  evidence,  that  there  is  less  chance 
«f  witnesses  combining  to  establish  a  false- 
hood, and  less  chance  of  their  escaping  detec- 
tion. In  criminal  cases  the  utmost  caution 
onght  to  be  employed  in  weighing  circum- 
itaatial  evidence  ;  and  until  every  other  sup- 
position, besides  the  pannel's  guilt,  which 
Bight  have  been  attended  with  the  same  cir- 
eoBistanees,  has  been  shown  to  be  morally 
impossible,  i.e.,  so  certainly  false,  that,  upon 
the  conviction  of  its  falsehood,  any  one  would 
basard  his  own  most  important  interests,  a 
verdict  of  guilty  is  not  warranted.  But  it  is 
no  reason  to  acquit  a  prisoner,  that  his  in- 
nocence is  not  absolutdy  impossible,  since  no 
evidence,  jiowever  direct  and  complete,  will 
establish  that.    When  the  probability  of  the 


prisoner's  goilt  bears  to  his  innocence  a  finite 
ratio,  however  great,  conviction  is  not  war- 
ranted, since  the  principle  of  sacrificing  one 
innocent  person,  for  the  sake  of  punishing 
ninety-nine  guilty  persons,  has  always  been 
repudiated.  "  When  the  proofe  of  a  crime 
are  dependent  on  each  other,  that  is,  when 
the  evidence  of  each  witness,  taken  separately, 
proves  nothing,  or  when  all  the  proofs  are 
dependent  upon  one,  the  number  of  proofii 
neither  increases  nor  diminishes  the  proba- 
bility of  the  fact ;  but  when  the  proofs  are  in- 
dependent on  each  other,  the  probability  of 
the  fact  increases  in  proportion  to  the  num- 
ber of  proofs"  {Beccaria,  c.  14).  Circum- 
stanlial  proof  of  a  civil  contract  is  little  fa- 
voured, as  the  party  can,  and  therefore  ought, 
to  provide  direct  evidence.  But  in  civil  ques- 
tions arising  from  delict,  it  is  freely  admis- 
sible ;  as  in  such  cases  it  is  not  usually  in  the 
party's  power  to  provide  direct  evidence. 
ErsL  B.  iv.  t.  2,  §  34 ;  Starkie  on  Evidence ; 
Taylor  on  Evidenise;  Greenleaf  on  Evidence; 
Dickson  on  Evidence ;  Wittes  on  Circumstantial 
Evidence;  Alison,  78 ;  Hwne,ii.  383;  Bwmett, 
524;  Tait,A2,9;  Stede,  52-63 ;  Shaw's  Digest, 
Huteh.  Justice  of  Peace,  i.  271 ;  Taylor  on  Evi- 
dence. See  Evidence. 

CiroTunTentioii ;  deceit  or  fraud.  AH  bar- 
gains, in  which  an  intention  to  take  undue 
advantage  by  either  of  the  parties  is  ap- 
parent, may  be  set  aside  on  the  ground  of 
dole  or  extortion,  without  proving  any  specif 
circumstance  of  fraud  or  circumvention.  But 
it  is  not  enough  that  the  deed  challenged  be 
merely  hurtful  and  irrational ;  for,  unless  it 
be  evidently  oppressive,  it  is  not  reducible 
without  an  actual  proof  of  dole,  even  although 
the  granter  of  it  be  of  a  facile  temper,  if  he 
be  not  absolutely  an  idiot.  If,  however,  there 
be  lesiou  in  the  deed  and  facility  in  the  granter, 
the  most  slender  circumstances  of  fraud  or 
circumvention  will  be  sufficient  to  set  it  aside. 
Stair.  B.  i.  tit.  9,  §  p.  9  ;  More's  Notes,  lix. ; 
Ersk.  B.  iv.  tit.  1,  §  27 ;  Ersk.  Prine.  12th  edit. 
455 ;  Bell's  Com.  voL  i.  p.  141,  5th  edit. 

Citatioii ;  is  the  act  of  calling  upon  a  party 
to  appear  in  Court  to  answer  to  an  action  ;  or 
to  give  evidence  ;  or  to  do  some  other  judicial 
act.  It  is  done  by  an  officer  of  Court,  or  by  a 
messenger-at-arms,  under  a  proper  warrant. 
Citations  in  the  Court  of  Session  are  given  by 
messengers-at-arms  under  authority  of  sum- 
monses passing  the  Signet,  or  under  warrants 
given  by  the  Court  on  petitions  and  com- 
plaints ;  and  in  inferior  courts  the  citations 
are  generally  given  by  the  officers  of  court,  on 
warrants  issuing  from  their  respective  conrts. 
In  the  ordinary  case,  the  citation  must  be 
given,  and  an  execution  returned,  agreeably 
to  the  rules  laid  down  for  regulating  charges. 
See  Charge  on  Letters  <f  Homing.    Execution. 


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The  copies  of  citation  delivered  to  the  party 
most  bear  at  length,  and  not  in  figures,  the  day 
and  date  of  the  delivery  thereof,  as  also  the 
names  and  designation  of  the  witness;  1693,  c. 
12;  A.  S. 8th  July  1831,8chedule  V.;  9 and  10 
Tict.,  c.  67.  They  must  he  signed  by  the  mes- 
senger. In  general  full  copies  of  summonses, 
down  to  the  hill,  require  to  be  served  on  the  de- 
fender; but  there  are  certain  summonses  which 
may  be  executed  by  short  copies.  See  Shand's 
Prac.  p.  231 ;  M'Glashan's  Skeriff  Gowt  Prac. 
p.  180,  both  of  which  authorities  are  very  full 
on  the  subject  of  citation  and  execution. 
Wherever  a  special  form  of  citation  is  pro- 
vided for  by  statute,  it  must  be  closely  fol- 
lowed, and  any  deviation  therefrom  is,  'as  a 
general  rule,  and  especially  in  cases  of  a  cri- 
minal or  penal  character,  fatal. 

Parties  may  also  be  cited  edictally ;  that  is, 
by  a  citation,  formerly  published  at  the  mar- 
ket-cross of  Edinburgh,  and  the  pier  and 
shore  of  Leith ;  but  now,  under  6  Geo.  IV.,  c. 
120,  §  51,  and  A.  S.  24(h  December  1838,  by 
copies  left  at  the  office  of  the  keeper  of  Edic- 
tal  Citations ;  and  lists  of  such  citations  are 
printed  and  published.  See  Edictal  Citation. 
This  form  of  citation  is  competent  and  neces- 
sary where  the  party  cited,  although  amen- 
able to  the  courts  of  this  country,  is  resident 
out  of  Scotland  ;  and  it  is  enacted  by  6  Geo. 
IV.,  c.  120,  §  53,  that  a  person,  not  having  a 
dwelling-house  in  Scotland  occupied  by  his 
servants  and  family,  who  has  been  absent 
from  his  usual  residence  forty  days  without 
leaving  notice  where  he  is  to  be  found,  is  to 
be  held  as  absent  from  Scotland,  and  cited 
edictally.  A  foreigner,  having  a  landed  estate 
in  Scotland  may  be  cited  in  this  manner  in 
any  action  relating  to  such  estate ;  hut  the 
Court  of  Session,  as  being  the  ammune  forum 
of  all  who  reside  abroad,  is  the  only  court  to 
which  he  can  be  competently  cited.  A  na- 
tive Scotchman,  having  no  property  in  Scot- 
land, cannot  be  cited  edictally  ratione  origi- 
nis ;  Pedie  v.  Grant,  as  reversed  in  House  of 
Lords,  1  W.  and  S.  716.  See  Stair,  B.  iv. 
tit.  3,  §  27,  tit.  38,  5  2 ;  Er$k.  B.  i.  tit.  2,  § 
18  and  19,  Ivory't  edit,  note  28 ;  Kcma^  Stat. 
Law  abridg.  App.  note  7;  Kamei'  Princ.  of 
Eiaity  (1826),  284-6;  Brovon's  Syn.  h.  «.; 
Shaw's  Digest,  h.  t.;  Hume,  ii.  60,  84,  242,  et 
$eq ;  Ross's  Lect.  i.  237,  292  ;  Dickson  on  Evi- 
d&Me,  p.  609,  et  seq.  See  also  Jurisdiction. 
Foreigner.  Forum.  Induciw.  Edictal  cita- 
tion is  necessary  in  several  other  instances : 
Thus,  when  a  minor  is  called  as  a  defender, 
his  tutors  and  curators  were  formerly  cited, 
not  by  name,  but  edictally  at  the  market- 
cross  of  the  head  burgh  of  the  county  where 
the  minor  resided ;  Ersi.  B.  iv.  tit.  1 ,  §  8 ; 
and  in  the  case  of  choosing  curators,  there 
was  a  similar  edictal  citation  of  all  having 


interest,  1565,  c.  35 ;  Jund.  Styles,  2d  edit 
vol.  iii.  pp.  5,  970.  Now,  by  13  and  14  Viet* 
c.  36,  §  22,  the  forms  of  edictal  citation,  charge, 
publication,  citation,  and  service  at  the  mar- 
ket-cross of  Edinburgh,  and  pier  and  shore 
of  Leith,  in  processes  of  ranking  and  sale,  aod 
all  other  processes ;  and  also  the  edictal  cits- 
tion  of  the  minor's  next  of  kin  at  the  market- 
cross  of  the  head  burgh,  and  the  similar  edic- 
tal citation  of  the  minor's  tutors  and  curators, 
are  abolbhed  ;  and  in  lien  thereof  such  edic- 
tal citations,  die,  are  performed  by  the  de- 
livery of  a  copy  thereof  at  the  office  of  the 
keeper  of  Edictal  Citations. 

W  here  a  party  is  net  found  personally,  but 
is  cited  at  his  principal  dwelling-place  in 
terms  of  1540,  c.  75  (see  Charge  on  LetUn-if 
Homing),  care  must  be  taken  that  it  is  trulj 
the  party's  dwelling-place.  Citation  at  an 
inn,  or  of  a  merchant  at  his  counting-house,  is 
inept.  When  a  party  has  both  a  town  and 
a  country  house,  the  one  at  which  he  k  k- 
siding  at  the  time  ought  to  be  preftrred. 
though  the  execution  of  citation  or  eharp  st  i 
the  other  seems  to  have  been  sustained.  A 
mercantile  company  is  properly  cited  stiti 
place  of  business;  but  whenever  it  is  neee«- 
sary  to  cite  the  individual  partners,  this  mwA 
be  done  personally,  or  at  their  respective 
dwelling-places,  or  edictally,  as  the  case  nnj 
require.  An  incwporation  may  be  cited  vben 
its  office-bearers  are  met  together,  l)y  delJTerj 
of  a  copy  of  citation  to  the  preses,  or  by  citis; 
each  of  the  representatives  personally  at  bis 
dwelling-place,  or  edictally  in  common  fenn. 
See  Menzies  on  Conveyancing,  p.  285 ;  Simit 
Prac.  239. 

In  the  inferior  courts,  the  authority  for 
citing  defenders  who  are  within  the  territory 
of  the  judge,  iS  the  warrant  contained  in  Uie 
note  of  the  summons,  according  to  the  sche- 
dule annexed  to  16  and  17  Vict.,  c.  80.  Bat 
it  may  be  necessary  to  cite  parties  not  t«  be 
found  within  the  judge's  territory,  but  aaeo- 
able  to  his  jurisdiction  reUioae  rei  sitas,  or  on 
some  other  ground.  This  may  he  done  either 
by  obtaining  letters  of  supplement  (see  ^p- 
plement)  from  the  Court  of  bession,  or  by  uin; 
the  Sheriff's  own  warrant  or  precept  after  it 
has  been  first  indorsed  by  the  Sheriff-clerk 
of  the  sheriffdom  wherein  the  parties  to  be 
cited  reside.  The  same  holds  in  the  citatioa 
of  witnesses  and  havers ;  1  and  2  Viet.,  c  119, 
§  24 ;  J.  S.  10th  July  1839,  §  16.  Short 
forms  of  citations  and  execution  in  civil  causes 
in  the  Sheriff-courts  are  provided  for  by  16 
and  17  Vict.,  c.  80. 

Citation  on  a  reference  to  Oath  of  Par^j— 
Where  a  party  is  cited  upon  a  reference  of 
the  matter  in  dispute  to  his  oath,  under  cer- 
tification that,  if  he  do  not  appear  and  de- 
pone, he  shall  be  held  as  confessed,  he  mint 


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be  dted  either  personally  by  a  messenger,  or 
^td  acta;  that  is,  the  day  of  appearance  must 
hare  been  notified  to  him  in  Court  by  the 
Jodge.  But  if  the  party  be  furth  of  Scotland, 
or  luTe  DO  fixed  or  known  residence,  an  edictal 
ciUtioo  Till  be  sufficient.  Ersk,  B.  iv.  tit.  2. 
§17. 

CHatm  m  Cnuunal  Cases. — In  eritninal  cases 
it  is  not  sufficient  that  the  party  appear  vo- 
Iintanly.  He  must  be  brought  into  Court 
in  regular  form,  and  can  plead  any  omission 
of  form,  the  want  of  which  cannot  be  ob- 
riated  of  consent.  Citation  in  criminal  cases 
is  regulated  by  Sir  William  Hae's  Act,  9 
Geo.  IT.,  c.  29.  There  must  be  served  on 
tbe  panel  a  full  and  correct  copy  of  the  libel, 
with  the  list  of  witnedses  and  the  assize,  to 
which  there  formerly  was  subjoined  a  short 
(opy  of  citation,  subscribed  by  the  messenger. 
Imtead  thereof,  the  copy  of  the  libel  must 
hare  marked  on  it  a  notice  (intimating  the 
daj  of  compearance),  subscribed  by  the  officer 
ud  a  witness,  in  the  form  contained  in  sche- 
dale  A.  It  is  not  necessary  for  the  officer  to 
nlaeribe  any  other  part  of  the  copy  of  the 
libeL  The  citation  must  proceed  on  a  re- 
gular warrant  issuing  from  the  court  before 
thich  the  panel  is  to  be  tried,  but  the  party 
eieenting  the  service  need  not  have  such  war- 
rant in  his  poaaession.  Criminal  writs  and 
warrants  may  be  executed  either  by  a  macer 
or  a  messenger-at-arms,  or  by  any  sheriff- 
oieer  of  the  county  within  which  the  service 
is  to  be  made  ;  11  and  12  Vict.,  c.  79,  §  6. 
Where  the  panel  can  be  found  personally,  the 
(itatioo  must  be  delivered  to  him.  Failing 
his  personal  apprehension,  the  copy  must  be 
left  at  his  dwelling-place  with  his  wife  or 
aerrants ;  or,  if  access  cannot  be  obtained,  the 
officer  must  affix  a  copy  to  the  principal  door 
of  tbe  house ;  1555,  c.  33.  In  all  cases  where 
the  panel  is  not  cited  personally,  an  edictal 
citation  is  also  required  by  the  act  1555,  t. «., 
I>7  ofen  proclamation  at  the  market-cross  of 
the  head  bnrgh  of  the  shire  where  the  pannel 
dvelh^  and  by  affixing  the  necessary  copies 
then.  If  no  domicile  can  be  found  for  the 
party,  he  may  be  cited  edictally  at  the  head 
bnrgh  of  the  shire  where  he  last  chiefly  re- 
■ortod,  by  special  authority  from  the  court. 
If  he  be  abroad,  he  must  be  cited  by  open 
proclamation  at  the  market-cross  of  Edin- 
bnrght  And  pier  and  shore  of  Leith.  An  os- 
ecntion  is  of  course  returned  by  the  officer. 
See  ifBSM,  ii.  p.  242,  et  seq. ;  BeWs  Notes,  p. 
222,  a  seq. ;  Alison's  Prac.  312,  et  seq.  See 
also  GrimineU  Prosecution. 

CUatioA  for  hUemipting  prescription. — The 
correney  of  either  the  positive  or  the  nega- 
tire  preaeription  may  be  interrupted  by  a  ci- 
t*iion  b  a  process.  Thus,  the  positive  pre- 
Kriptioa  may  be  interrupted  by  a  citation  in 


a  process  at  the  instance  of  the  party  in  right 
of  the  property,  against  the  pu^y  in  posses- 
sion, for  recovery  of  possession  ;  or  the  nega- 
tive prescription  may  be  interrupted  by  a  ci- 
tation in  a  process  at  tbe  creditor's  instance 
against  the  debtor  for  payment  of  the  debt. 
By  1669,  c.  10,  all  citations  for  interrupting 
prescription  are  directed  to  be  executed  by 
messengers-at-arms  against  the  defenders  per- 
sonally, or  at  their  dwelling-places,  and  at 
the  parish  church,  during,  or  immediately 
after,  divine  service ;  or  if  the  defenders  be 
furth  of  Scotland,  then,  at  the  market-cross 
of  Edinburgh,  and  pier  and  shore  of  Leith, 
upon  sixty  days :  but  in  practice  this  rule 
is  disregarded.  The  same  statute  enacts,  that 
all  citations  used  for  interrupting  prescrip- 
tion, whether  in  real  or  personal  rights,  shall 
be  renewed  every  seven  years,  otherwise  to 
prescribe,  unless  the  parties  be  minors ;  in 
which  case  the  act  is  not  to  extend  to  them 
daring  the  years  of  their  minority.  As  this 
statute  is  limited  to  citations,  if  it  should 
happen  that  the  citation  is  followed  by  the 
appearance  of  the  parties  in  court,  or  any 
other  judicial  step,  it  is  no  longer  to  be  ac- 
counted a  bare  citation,  but  becomes  a  de- 
pending action,  which  will  subsist  for  forty 
years  without  being  renewed,  unless  it  be  an 
action  limited  by  statute  to  a  shorter  period  ; . 
e.g.,  an  action  on  arrestment,  which  prescribes 
in  five  years.  For  the  security  of  purchasers 
and  other  singular  successors,  the  act  1696, 
c.  19,  ordains  that  all  summonses  used  for  in- 
terrupting the  prescription  of  real  rights  shall 
pass  upon  a  bill  under  the  signet,  and  specify 
all  the  grounds  on  which  they  proceed  ;  and 
that  the  summons  and  execution  shall  be  re- 
gistered within  sixty  days,  in  a  particular 
register  to  be  kept  at  Edinburgh  for  the 
purpose ;  otherwise  that  they  shall  be  of  no 
effect  in  interrupting  prescription  against  sin- 
gular successors.  See  Ersk.  B.  iv.  tit.  7,  §  38, 
et  seq. ;  Belfs  Princ.,  §  616,  et  teq.  2007.  See 
Prescription. 

Citation;  in  English  law,  a  summons  to 
appear,  applied  particularly  to  process  in  the 
spiritual  courts.     Tomlins'  Diet,  k.  t. 

CiTll  Law ;  from  Givitas,  is,  properly  speak- 
ing, the  law  of  a  state.  In  this  sense  it  is 
synonymous  with  positive  or  municipal  law. 
But  the  term  civil  law  is  generally  applied  to 
the  Roman  law.  The  Roman  law  consists  of 
the  Pandects,  and  an  abridgment  thereof 
called  the  Institute ;  and  of  the  Code,  con- 
taining the  constitutions  of  the  Emperors, 
from  Adrian  to  Justinian ;  and  the  Novels, 
consisting  of  the  later  constitutions  of  the 
Emperors.  This  law,  which  was  the  law  at 
one  time  of  all  Europe,  has  mat«rially  influ- 
enced the  jurisprudence  of  this,  as  well  as  of 
every  other  European  state.    But,  besides 


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this  general  influence  on  vhat  maj  be  termed 
the  common  or  traditionary  l&w  of  those 
countries,  the  Roman  law  is  directly  received 
as  legal  authority  in  all  of  tfaem,  to  a  certain 
extent  at  least.  In  this  country,  the  estab- 
lishment of  the  Court  of  Session,  and  the 
bias  towards  the  civil  lav  which  the  judges 
of  that  Court  (who  were  principally  ecclesi- 
astics) had  received,  produced  a  very  remark- 
able effect  on  the  municipal  law  of  Scotland. 
From  that  time  our  ancient  common  law  gave 
place  to  the  civil  law,  except  in  those  cases 
where  the  principles  of  feudality  were  op- 
posed to  it.  But,  gradually,  the  statutory 
law,  the  feudal  law,  the  mercantile  law,  and 
the  principles  recognised  and  established  by 
the  decisions  of  the  Court  of  Session,  have 
formed  a  system  of  wise  and  equitable  rales, 
which  leave  to  the  civil  or  Roman  law  nothing 
more  of  its  former  influence  than  what  natu- 
rally and  necessarily  arises  from  the  equity 
of  its  principles,  and  the  force  of  the  reason- 
ing on  which  its  decisions  are  established. 
Stair,  B.  i.  tit.  i.  §§  12  and  16;  Gibbon't 
Rome,  cap.  44  ;  Bmet't  Horac  SubteeiwB  ; 
Halifax's  AneUysit ;  Teyhr't  Ekwienls  of  Civil 
Law  ;  Irving' t  Introduction  ;  Cumin's  Manual ; 
1  BUck.  Com.  392;  1  Stt^hen'sCom.  8, 11, 15 ; 
Colqyhoun's  Summary ;  Bouyer's  Commentaries  ; 
Sanders  on  the  Institutes,    See  Roman  Law. 

Civil  Litt.  This  term  is  derived  from  the 
distinction  which  was,  at  the  Restoration, 
made  between  the  military  and  extraordinary 
expenses  of  government,  and  those  incurred 
in  the  maintenance  of  the  ordinary  establish- 
ments of  the  country ;  the  revenues  a^ro- 
priated  to  the  latter  being  called  the  heredi- 
tary or  civil  list  revenues.  The  term  came 
afterwards  to  be  much  restricted ;  and  by  1 
Will.  IV.,  c.  25,  the  civil  list  charges  were 
confined  to  expenses  proper  for  the  mainte- 
nance of  the  Sovereign's  household.  See 
Tondins,  voce  King,  §  5  ;   Wharton's  Lex.  h.  t. 

At  the  commencement  of  the  present  reign 
a  Civil  List  was  settled  upon  Her  Mi^esty  for 
life,  to  the  amount  of  £385,000  per  annum, 
of  which  £60,000  is  assigned  for  the  privy 
purse.  In  return  for  this  grant,  it  was  pro- 
vided that  the  hereditary  revenue  should  be 
carried  to  the  Consolidated  Fund. 

By  the  Civil  List  Act,  1  and  2  Vict,  c  2, 
Her  Majesty  is  empowered  to  grant  pensions 
to  the  amount  of  £1200  per  annum,  charge- 
able on  the  Civil  List  revenues,  and  intended 
for  the  remuneration  of  those  who  have  just 
claims  on  the  royal  beneficence,  or  by  their 
services  or  discoveries  have  earned  the  gra- 
titude of  their  country.  2  Stq>hens'  Com.  591. 

daim.  To  claim  is  used  STnonymously 
with  to  demand  what  is  due.  Where  a  pro- 
prietor insists  for  what  belongs  to  him  against 
the  person  withholding  it,  he  is  said  to  make 


a  claim.  But  the  term  has  also  a  teehnital 
meaning  in  Scotch  law,  as  applicable  to  the 
claim  in  a  service,  the  claim  of  enrohneut,  or 
the  claim  by  a  creditor  on  a  bankrupt  esttte. 

Claim  in  a  service;  was  the  petition  Ad- 
dressed by  the  heir  to  the  inquest,  in  which 
he  stated  his  relationship  to  the  deceased,  and 
prayed  to  be  served  heir  to  him,  either  in  ge- 
neral or  in  special,  or  of  provision,  as  the  can 
might  happen.  In  the  general  service,  the 
claim  stated  simply  that  the  heir  was  nearest 
and  lawful  heir  in  general  to  the  deceased. 
In  the  special  service,  the  claim  enumerated 
the  lands  in  which  the  ancestor  died  infeft, 
with  the  particular  tenure  by  which  they  were 
held,  the  new  and  old  extent,  &&,  and  stated 
the  claimant  to  be  heir  to  the  deceased  in 
these  lands,  and  prayed  the  jury  to  fiad  so. 
The  claim  in  the  service  of  an  heir  of  prori- 
sion  specified  the  particular  deed  contuning 
the  destination  under  which  the  claimaDt 
prayed  to  be  served  heir.  See  forms  of  thete 
claims.  Stair,  B.  iiL  tit.  5,  §  32  ;  BdCt  Prm. 
4th  edit.  art.  780  ;  Jurid.  Styles,  2d  edit  vol. 
i.  p.  337,  et  seq.  The  service  of  heirs  is  mw 
regulated  by  10  and  11  Vict.,  c  47, 1847. 
See  also  Service  of  an  ^«tr. 

Claim  of  enrdment  as  a  freeholder ;  wts  the 
application  made  to  the  freeholders  of  s 
county,  under  the  old  election  law,  by  s  per- 
son who  wished  to  be  put  upon  the  roll. 
This  claim  was  addressed  to  the  freeholders 
assembled  at  the  meeting  at  which  the  elain 
was  made.  It  stated  the  names  of  the  lands, 
the  titles  thereto,  and  their  dates,  with  the 
old  extent  or  valuation  on  which  the  claim- 
ant desired  to  be  enrolled,  and  required  the 
freeholders  to  admit  him,  as  being  duly  qua- 
lified. Before  a  freeholder  could  present  snch 
a  claim,  he  must  have  been  year  and  day  in- 
feft ;  and  the  only  meetings  at  which  enrol- 
ments could  be  made  were  the  Miehaelmis 
head-court,  and  the  meeting  for  election  ofa 
member  of  Parliament.  In  order  to  entitle 
the  claimant  to  be  enrolled  at  the  Michael- 
mas head-court,  his  claim  must  have  been 
lodged  with  the  sheriff-clerk  at  least  two  ca-. 
lendar  months  before  the  meeting.  Bat  at 
the  meeting  for  election,  the  production  of 
the  claim  and  titles  mentioned  in  it,  on  the 
very  day  of  the  meeting,  was  sufficient 
^ight  on  Elections,  B.  iii.  c.  1,  and  App.  ^ 
Cases,  p.  13 ;  Jurid.  Styles,  2d  edit  p.  153. 
See  Election  Laws.  For  the  mode  of  making 
claims  for  registration  under  the  Reform  Act, 
see  R^orm  Act. 

Claim  on  a  bankrupt  estate.  A  creditor 
claiming  to  be  ranked  on  a  sequestrated  es- 
tate must  describe  distinctly  the  g^xmnd  of 
his  debt,  and  accompany  his  claim  with  an 
oaUi  of  verity,  which  shall  specify  every  se- 
curity which  the  daimant  holds  for  the  debt, 


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vbetler  orer  tbe  estate  of  tbe  banlcrupt  or 
otherwise ;  and  where  he  holds  no  other  per- 
Mm  than  the  bankrupt  bound,  and  no  secu- 
rity, the  oath  must  contain  a  deposition  to 
that  effect.  See  19  and  20  Vict.,  c.  79, 1856. 
See  tiM  Bankrupt.  See  Bdl's  Com.  vol.  ii.  p. 
355  and  413,  et  seq.  5th  edit. 

(SaiBk,  tHukr  an  English  commission  of  batik- 
r^ky.  In  order  to  enable  a  Scotch  creditor 
to  prore  under  &Jiat  issued  against  an  English 
trader,  he  mast  forward  to  his  agent  in  £jng- 
lasd  an  affidavit,  setting  forth  fully  the  nature 
of  his  debt,  accompanied  by  the  securities,  if 
any,  held  by  the  creditor,  and  a  copy  of  the 
steoant,  if  any,  between  the  parties.  See 
inhbaWs  Law  and  Practice  of  Bankruptcy. 
See  EnfUsh  Debt. 

Clan  Acta ;  a  name  applied  to  certain  sta- 
totes  paaed  in  the  reign  of  George  I.  provid- 
ing for  the  bestowal  of  forfeited  estates.  See 
Smt.  Abridg.  voce  Forfeited  Estates ;  and  for 
decisions  upon  the  point,  see  Brown's Sm.m. 
732, 2357. 

(nan-Kacdiiff;  tbe  law  of  clan  Macduff 
was  a  barbarous  privilege,  anciently  enjoyed 
by  any  homicide  who  could  claim  kindred,  as 
sear  as  in  the  ninth  degree,  to  the  blood  of 
Macdnff,  Earl  of  Fife.  If  such  a  person  came 
to  Macduff's  cross,  at  the  line  of  march  be- 
tween Fife  and  Strathem,  above  Newburgh, 
and  near  Lindores,  and  gave  nine  kye  and  a 
colpindaeh  (a  young  cow),  he  was  free  of  the 
tlangbter  committed  by  him.    Skene,  h.  t. 

Clandeftine  Xarriage ;  is  a  marriage  con- 
tacted without  the  due  observance  of  the  cere- 
Bonies  which  the  law  has  prescribed,  viz.,  the 
ngaUr  proclamation  of  banns,  and  the  nup- 
ti^  benediction  pronounced  by  a  clergyman 
properly  qualified.  By  the  law  of  Scotland, 
cUndesUne  marriages  are  as  valid  and  effec- 
tual as  regular  marriages ;  but  the  parties, 
celebrator  and  witnesses,  are  liable  to  certain 
penalties.  By  1661,  c.  84,  the  parties  are 
liable  to  imprisonment  for  three  months,  and 
to  certain  fines  according  to  their  rank.  The 
act  1672,  c  9,  also  provides  a  forfeiture  of  the 
legal  rights  of  jus  mariti  smAjus  rdieta ;  but 
this  act  falls  under  the  general  repealing  sta- 
tute, 1690,  c.  27.  See  Carruthers  v.  Johnston, 
Utii  Dec  1705,  Diet.  2252 ;  Brown's  Synop. 
367.  Tbe  witnesses  to  such  irregular  mar- 
riages are  liable,  by  1698,  c.  6,  to  a  fine  of 
Ii.100  Scots  each.  The  celebrator,  by  1661, 
<•  34,  is  punishable  with  banishment  from 
Scotland,  under  pain  of  death  in  case  of  his 
retain ;  and  by  1698,  c.  6,  which  ratifies  the 
fiirmer  act,  he  is  liable  "  to  such  pecuniary  or 
corporal  pain  as  the  Lords  of  the  Vrivy  Coun- 
<il  sfaaU  think  fit  to  inflict."  But  this  discre- 
tioQary  power  has  never  been  exercised  by 
the  Court  of  Justiciary.  The  celebrator 
ferawrly  incurred  the  penalties  of  the  statutes. 


if  he  was  not  a  regularly  ordained  clergyman 
of  the  Church  of  Scotland,  or  an  episcopalian 
clergyman  admitted  to  orders  by  an  English 
or  Irish  bishop,  or  if  he  had  omitted  to  pro- 
duce and  record  his  orders,  or  to  take  the 
oaths  to  Government,  as  required  by  10  Anne, 
c.  7>  and  19  Geo.  II.,  e.  34.  So  also  a  Roman 
Catholic  priest  was  liable  to  the  penalties  if 
he  celebrated  a  marriage.  But  by  4  and  5 
Will.  IV.,  c.  28,  it  is  enacted,  that  after  the 
passing  of  that  act  (25th  July  1834),  it  shall 
be  lawful  for  all  persons  in  Scotland,  after  due 
proclamation  of  banns,  to  be  married  by  Ro- 
man Catholic  priests,  or  ministers  not  of  the 
established  church,  and  also  for  such  priests 
or  ministers  to  celebrate  marriages,  without 
being  subject  to  any  punishment,  pains,  or  pen- 
alty whatever,  anything  in  the  above-men- 
tioned acts  of  Parliament,  or  in  any  other 
act  or  acts  of  Parliament,  notwithstanding. 
The  penalties,  however,  are  still  incurred  by 
the  celebrator,  if  banns  have  not  been  duly 
proclaimed;  buta magistrate, before  whom  the 
parties  appear  to  declare  themselves  married 
persons,  so  as  to  complete  tbe  civil  contract, 
is  not  accounted  a  celebrator  in  the  sense  of 
the  statutes,  unless  be  takes  upon  him  to  pro- 
nounce the  nuptial  benediction  ;  the  statutes 
having  in  view  merely  the  religious  part  of 
the  ceremony.  The  penalties  are  recovered 
before  justices  of  tbe  peace  on  complaint  by 
the  fiscal ;  and  tbe  parties  appearing  and  con- 
ferring are  fined ;  and  the  conviction  is  re- 
ceived as  evidence  of  the  marriage.  In  pro- 
secutions before  the  civil  judge  for  the  re- 
covery of  penalties,  the  procurator  for  the 
church  is  made  joint  prosecutor  along  with 
the  Lord  Advocate.  By  7  Anne,  c.  6,  tbe 
right  of  action  is  limited  to  two  months  after 
the  transgression  ;  but  it  is  doubtful  whether 
this  limitation  relates  to  anything  but  the 
pecuniary  fines,  and  at  any  rate,  it  is  for  tbe 
benefit  of  the  clergy  of  the  episcopal  commu- 
nion only.  See  BeWs  Princ.,  4th  edit.,  art. 
1514 ;  Fraser  on  Personal  Rdations.  Kames' 
Stat.  Law  abridg.  h.  t. ;  Hume,  i.  463,  et  seq. ; 
Alison's  Prin.  643 ;  Gases  of  Dickson,  1844, 
2  Brown's  R^.  278 ;  and  Thorbum,  2  Broun. 
See  also  Marriage.    Banns, 

Clare  Constat,  Precept  ^;  is  a  deed  exe- 
cuted by  a  subject-superior,  for  the  purpose 
of  completing  the  title  of  his  vassal's  heir  to 
tbe  lands  held  by  the  deceased  vassal,  un- 
der the  grantor  of  the  precept.  The  deed 
was  formerly  addressed  to  the  superior's 
bailies  in  that  part,  whose  names  were  left 
blank,  so  that  the  office  of  bailie  might  be  ex- 
ercised by  any  one,  but  is  now  addressed  to 
any  notary  public.  It  then  sets  forth,  that, 
from  documents  shown  to  bim,  the  superior 
is  satisfied  that  bis  late  vassal  died  infeft  in 
the  lands,  which  are  described,  and  that  the 


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heir  in  whose  favour  the  precept  is  granted 
is  the  nearest  and  lawful  heir  of  the  deceased. 
The  holding  and  reddendo  are  then  mention- 
ed, and  the  deed  concludes  with  a  precept  of 
sasine,  directing  sasine  to  be  given  to  the 
heir.  Where  the  investiture  of  the  lands 
contains  a  destination  in  favour  of  heirs,  dif- 
ferent from  heirs-general,  the  precept  ought 
to  be  granted  to  the  heir  in  his  proper  cha- 
racter ;  for  although  a  reference  to  the  par- 
ticular investiture,  with  a  general  description 
of  the  heir  as  nearest  and  lawful  heir  t«  the 
ancestor  in  the  lands  described,  may  be  con- 
strued to  mean  the  precise  character  of  heir 
called  by  the  destination,  yet  it  is  better  to 
avoid  a  question  of  construction,  by  describ- 
ing the  heir  with  the  same  accuracy  which 
would  be  required  in  a  service.  The  precept 
of  elare  constat  may  proceed  on  any  evidence^ 
whether  judicial  or  not,  which  satisfies  the 
superior  that  the  person  claiming  the  entry 
is  heir  of  the  last  vassal.  Where,  however, 
extrajudicial  evidence  to  the  satisfaction  of 
the  superior  cannot  be  obtained,  a  service  of 
the  heir  in  the  proper  character  must  be  pro- 
duced before  the  superior  can  be  required  to 
grant  the  precept.  Where  the  title  is  at  all 
doubtful,  it  is  for  the  advantage  of  the  heir 
to  have  a  service ;  for  although  a  precept  of 
elare  constat  and  infeftment  form  a  goo<l  title 
of  prescription,  yet  the  title  thus  completed 
may  be  challenged  at  any  time  within  the 
period  of  the  long  prescription  of  forty  years ; 
whereas  a  special  service  cannot  be  chal- 
lenged after  the  lapse  of  twenty  years,  and  a 
precept  of  elare  constat,  when  proceeding  on  a 
service,  has  the  benefit  of  this  shorter  pre- 
scription. The  superior's  title  to  grant  a 
precept  of  elare  constat  is  limited  by  the  terms 
of  the  investiture.  He  can  renew  the  right 
in  the  person  of  the  heir  called  to  the  succes- 
sion by  the  investiture,  or,  where  there  is  no 
special  destiaation,  he  may  give  an  entry  in 
this  form  to  the  heir-at-law ;  but  he  cannot 
give  it  to  a  general  disponee,  nor  even  to  the 
heir  of  investiture  in  liferent,  and  to  bis  son 
in  fee.  In  order  to  authorize  any  such  va- 
riation, the  heir  must  first  complete  his  own 
title ;  after  which,  if  the  destination  does  not 
prevent  him,  he  may  transmit  the  property 
in  any  line  be  thinks  proper.  It  follows, 
from  the  nature  of  the  precept  of  dare  constat, 
that  the  heir  cannot  assign  the  unexecuted 
precept  of  sasine  contained  in  it,  so  as  to  be 
the  warrant  of  infeftment  in  favour  of  any 
other  person  than  himself.  Precepts  of  elare 
constat  are  also  excepted  from  the  act  1693, 
c.  35,  so  that  they  became  void  by  the  death 
of  the  grantors  or  receivers.  This,  however, 
has  been  altered  by  the  act  10  and  11  Vict., 
c.  48,  1847,  which  enacts  that  precepts  of 
elare  constat  shall  remain  in  full  force  during 


the  life  of  the  grantor.  See  Precept  «f  Satit^. 
The  heir,  by  taking  infeftment  on  the  pre- 
cept of  dare  constat,  becomes  liable  passive  for 
his  ancestor's  debts,  and  at  the  same  tine 
he  acquires  an  active  title  as  to  the  subject 
contained  in  the  precept,  in  questiona  with 
the  superior ;  but  it  gives  no  active  title  as  to 
any  other  subjects  belonging  to  the  deceased. 
Erakine  seems  to  think  that,  upon  principle, 
this  mode  of  entry  by  private  consent  onght 
to  have  conferred  no  active  title  whatscerer. 
An  entry  by  precept  of  dare  constat  can  be 
given  only  where  the  last  proprietor  stood 
publicly  infeft ;  but  where  the  infefLment  oi 
the  ancestor  was  base,  a  charter  of  confirma- 
tion and  precept  of  dare  constat  may  be  com- 
bined in  the  same  deed,  the  superior,  u  the 
first  place,  confirming  the  ancestor's  base  in- 
feftment, and  closing  the  deed  by  a  precept 
of  dare  constat  for  infefting  his  heir.  Stair, 
B.  ii.  tit.  iii.  §  14;  B.  iii.  tit.  5,  §  26; 
Jlfor«'«  Note*,  pp.  clx.  and  ccvi.  j  Ersk.  B.  iii. 
tit.  8,  §  71 ;  Bdl-s  Com.  vol.  i.  p.  697,  6th 
edit. ;  Bell's  Princ.  4th  edit.  §  777,  et  seq., 
ISJS,  et  teq.,  1916  ;  Ross's  Lect.  ii.  533;  J«- 
rid.  Styles,  2d  edit.  vol.  i.  p.  532,  et  teq. 
Brown's  Synop.  pp.  968,  1041,  2158,2242; 
Sand^ord  on  Heritable  Succession,  voL  i.  p. 
270  ;  vol.  ii.  p.  2.'   See  Confirmation. 

Claremethen.  The  law  of  claremethen  vm 
an  ancient  regulation  concerning  the  warran- 
dice of  stolen  cattle  or  goods,  as  to  which  see 
Skene,  h.  t. 

Clarifloatio;  the  clearance  given  by  the 
verdict  of  an  assize.  Clarijkatio  d^»ti  wa» 
synonymous,  apparently,  with  the  constitation 
of  the  debt  by  legal  evidence.  The  word  i» 
used  in  the  Regiam  Xajestatem.     Skene,  k.  t. 

Clanae  of  a  Deed ;  is  one  of  the  subdiri- 
sions  of  a. deed.  The  ordinary  clauses  in- 
serted in  deeds  are  expressed  according  to 
certain  technical  forms  which  have  been 
sanctioned  by  practice,  and  the  legal  import 
and  effect  of  many  of  which  have  been  set- 
tled by  adjudged  cases ;  so  that  it  is  at  all 
times  unsafe  to  vary  the  usual  form  d  ex- 
pression of  such  clauses.  Bdl  on  Leases,  vol. 
i.  p.  276,  4th  edit. ;  Hvmter't  Landlord  and 
Tenant, p.  289,  et  seq.;  Breton's  Synop.  k.U 
Ross's  Led.  ii.  141 ;  Shaufs  Digest,  h.  t.;  S. 
D.  vol.  xi.  pp.  220,  256,  362 ;  xii.  426 ;  xir. 
458.    See  Dispositive  Claiise.     Testing  Ckuue. 

Clauae  of  B^^tration.     See  Registration. 

Clanae  of  Union.    &w  Union. 

Clause  of  Warrandioe.    See  Warrandice. 

Clanae  of  Frp-£mption ;  is  a  clause  some- 
times inserted  in  a  feu-right,  stijpulatiog,  that 
if  the  vassal  shall  be  inclined  to  sell  the  lands 
he  shall  give  the  superior  the  first  ofbr,  or 
that  the  superior  shall  have  the  lands  at  a 
certain  price  fixed  in  the  clause.  It  is  settled 
that  a  clause  of  this  kind  is  not  struck  at  br 


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the  act  20  Qeo.  II.,  c.  50,  by  which  clauses 
it  mm  atmaudo  are  prohibited ;  but  Erskine 
holds  that,  without  a  clause  of  irritancy,  the 
clanse  of  pre-emption  will  be  unavailing 
•gtuDst  singular  successors.  This,  however, 
does  not  seem  to  be  well-founded.  See  Ersk. 
B.  ii.  tit.  5,  §  28,  and  BeU'i  Com.  vol.  i.  p.  26, 
5th  edit.  It  is  quite  dear,  however,  that  a 
dsnse  of  pre-emption  can  have  no  operation 
against  singular  successors,  unless  it  appear 
in  the  sasine.  BdPs  Com.  ib. ;  Belfs  Princ.  3d 
edit.  §  864. 

dame  de  non.  Alienando.  This  was  a 
tlaote  formerly  in  use  to  be  inserted  in  feu- 
righti,  by  which  the  vassal  was  taken  bound 
sot  to  alienate  the  feu  without  the  superior's 
consent.  But  by  the  statute  20  Geo.  II.,  c. 
50,  §  10,  all  such  clauses,  restraining  the 
power  of  alienation,  are  prohibited  and  de- 
clared of  no  force,  even  although  inserted  in 
deeds  before  the  date  of  the  statute ;  the 
Conrt  of  Session  being  empowered  to  modify 
an  additional  feu-duty  to  those  superiors  who 
tu/fer  by  the  retrospective  operation  of  the 
itatDte.  And  by  Act  of  Sederunt^  10th  March 
1756,  the  indemnification  is  fixed  at  a  feu- 
dntj  equal  to  a  fourth  of  one  per  cent,  of  the 
valued  rent  of  the  lands,  where  the  lands  are 
rained,  and  where  the  lands  are  not  valued, 
a  sixth  part  of  one  per  tent,  of  the  real  rent ; 
Enk.  B.  iL  tit  5,  §  28.  It  is  settled  that  a 
(laose  of  pre-emption  does  not  fall  under  the 
EUtnte.  Stair,  B.  ii.  tit.  3,  §  58 ;  More'i 
Xotet,  p.  elxxxiii. ;  BelPi  Com.  vol.  i.  p.  26, 
5th  edit. ;  BeU's  Princ.  3d  edit  §  1720.  See 
Claufe  <f  Pre-emption. 

(Sanse  of  Devolution.  A  clause  of  devo- 
lution may  be  defined  generally  to  be  a  clause 
derolving  some  office,  obligation,  or  duty,  on 
a  party  in  a  certain  event,  e.g.,  on  the  failure 
of  another  to  perform.  It  is  unnecessary  to 
qieetfy  the  various  deeds  in  which  such  a 
daose  may  occur.  By  much  the  most  im- 
portant instance  of  it,  however,  in  our  prac- 
tice, is  to  be  found  in  the  articles  of  roup  in 
a  judicial  sale,  and  in  other  articles  of  roup, 
in  which  a  dause  is  inserted,  binding  the 
highest  offerer  to  find  caution  for  the  price 
vithin  thirty  days,  and,  on  his  failure  to  do 
n,  devolving  the  purchase  on  the  next  high- 
est offerer,  under  a  similar  obligation,  and  so 
«n  downwards ;  intimation  of  the  devolution 
being  made  within  ten  days  of  the  offerer's 
failure  to  find  caution,  and  the  offerer  so  fail- 
ing being  bound  to  mak«  good  the  difi'erence 
between  his  offer  and  the  offer  taken.  This 
dauae,  which  has  been  introduced  solely  for 
the  benefit  of  the  exposers,  is  attended  with 
evident  hardship  to  the  bidders  at  a  sale ;  for 
even  the  second  highest  may  be  kept  in  a 
state  of  suspense  for  forty  days  after  the  sale, 
and  the  remaining  bidders  for  a  much  longer 


time.  In  construing  the  clause,  it  seems  to 
be  understood,  1st,  That  on  the  failure  of  the 
highest  offerer  to  find  cauUon,  it  is  optional 
to  the  exposers  either  to  re-expose  the  lands 
or  to  claim  against  the  second  offerer,although 
the  soundness  of  this  construction  has  been 
doubted.  2d,  That  where  the  exposers,  on 
the  highest  offerer's  failure  to  find  caution, 
have  made  their  election  to  abide  by  the  sale, 
without  re-exposing,  and  have  made  a  de- 
mand upon  the  second  offerer,  the  second 
offerer  has  full  right  to  the  purchase,  and 
cannot  be  deprived  of  it  by  any  subsequent 
attempt  on  the  part  of  the  highest  offerer  to 
implement  his  bargain.  8d,  It  is  now  settled 
that  the  exposer's  claim  against  the  highest 
offerer  for  the  difference  between  the  amount 
of  the  first  and  second  offer  is  not  of  the 
nature  of  a  penalty,  but  properly  a  debt  aris- 
ing ex  oowlractn.  BeWs  Com.  vol.  ii.  p.  274, 
5th  edit. 

Clause  of  Betnm ;  is  a  clause  by  which 
the  grauter  of  a  right  makes  a  particular 
destination  of  it,  and  provides  that,  in  a  cer- 
tain event,  it  shall  return  to  himself.  A 
clause  of  this  kind,  where  not  protected  by 
prohibitory,  or  by  irritant  and  resolutive 
clauses,  has  been  held  to  he  of  the  nature  of 
a  simple  substitution,  which  may  be  defeated 
by  the  gratuitous  act  of  the  grantee  or  any 
of  the  substitutes.  A  distinction,  however, 
has  been  attempted  to  be  drawn  between  a 
substitution  and  a  clause  of  return,  in  a  gra- 
tuitous deed  in  favour  of  a  stranger,  the  for- 
mer of  which,  it  is  said,  vests  the  right  abso- 
lutely in  the  disponee,  subject  to  his  power  of 
disposal,  whereas  a  clause  of  return  creates 
a  conditional  right,  which  is  not  defeasible,  at 
least  by  any  gratuitous  act,  on  the  part  of  the 
disponee  or  substitutes.  This  distinction, 
however,  does  not  seem  to  be  well-founded. 
See,  however,  the  case  otMackay  v.  CampielVs 
Trustees,  13  S.  246.  See  also  Ersk.  B.  iii.  tit. 
8,  §  45  ;  Duke  of  Hamilton  v.  Douglas,  9th 
Dec.  1762  ;  Mor.  p.  4853,  and  Mot.  Diet,  title 
Fiar  absolnte,  limited ;  Bell's  Princ.  art.  1705, 
4th  edit ;  See  also  Substitution.    Prohibitions. 

Clauses  Irritant  and  BesolntlTe.  These 
two  clauses  were  devised  for  limiting  the  right 
of  an  absolute  proprietor,  and  making  effec- 
tual the  conditions  imposed  on  him,  which 
otherwise  would  have  inferred  no  more  than 
a  personal  obligation,  ineffectual  against  cre- 
ditors or  singular  successors.  By  the  irri- 
tant clause,  the  deeds  done  by  the  proprietor, 
contrary  to  the  conditions  of  the  right,  are 
declared  to  be  void  and  null ;  and,  by  the  re- 
solutive clause,  the  right  of  the  person  contra- 
vening is  resolvedand  extinguished.  It  was  the 
union  of  the  two  clauses  which  accomplished 
what  neither  of  them  singly  could  attain  ; 
and  by  which,  in  practice,  the  conditions  of 


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an  heritable  right,  whether  an  entail  or  other 
coDvejance,  were  rendered  real  and  effectual 
sgaingt  the  singular  guccessors  and  creditors 
of  the  disponee,  as  well  as  against  himself  and 
his  heirs.  Stair,  B.  i.  tit.  13,  §  14,  et  seq.; 
B.  ii.  tit.  10,  $  6,  et  seq. ;  B.  iv.  tit.  5,  §  7, 
and  tit.  18 ;  Jfor«'<  Notes,  p.  Ixxx.  et  seq. ; 
Ersk.  B.  iii.  tit.  8,  §  25 ;  BeU's  Com.  vol.  i.  p. 
46, 4th  edit. ;  Bell's  Princ.  4lh  edit.,  art.  720. 
See  Irritancy.    Entail.    Conditions  in  Grants. 

Clay.  The  landlord  or  his  assignee,  and 
not  the  tenant,  has  aright  to  the  use  of  pipe- 
clay.   Bell  on  Leases,  i.  345,  4th  edit. 

Clep  and  Call ;  a  certain  formula  anciently 
used  in  petitions  and  libels,  especially  in  cri- 
minal matters.     Sketie,  h.  t. 

CiSTgj.  Before  the  Reformation,  the 
clergy  of  Scotland  were  divided  into  regular 
and  secular.  The  regular  clergy  had  no 
charge  of  any  congregation,  but  were  bound 
to  close  residence  in  their  monasteries :  they 
were  called  regular,  because  they  were  bound 
to  obey  certain  rules :  These  were  the  monks, 
under  the  direction  of  the  abbots  or  priors ; 
which  order  of  clergy  was  abolished  at  the 
Reformation.  The  secular  clergy  were  those 
who  discharged  the  pastoral  office  over  a  cer- 
tain district,  as  the  bishops,  presbyters,  and 
deacons.  But  the  introduction  of  presbyte- 
rian  church  government  has  reduced  this  order 
to  presbyters  alone.  Ersk.  B.  i.  tit.  5,  §  3,  «( 
seq.;  Ersk.  Print.  12th  edit.  60.  For  the 
form  of  admission  of  a  clergyman  of  the 
Church  of  Scotland,  see  Minister.  For  an 
account  of  their  provision,  see  Teinds. 

Clergy.  No  person  ordained  a  priest  or 
deacon,  or  a  member  of  the  Church  of  Scot- 
land, is  capable  of  being  elected  member  of 
Parliament ;  41  Geo.  III.,  c.  63.  Roman  Ca- 
tholic clergy  are  also  excluded  by  10  Geo. 
IV.,  c.  7,  §  9.  See  May's  Parliamentary  Prac- 
tice, p.  34 ;  Chambers'  Election  Law,  h.  t. 

Cler^,  Benefit  of.    See  Benefit  of  Clergy. 

Clerical  Error.  A  clerical  error  is  an  er- 
ror accidentally  committed  in  the  transcrip- 
tion of  a  deed  or  other  written  instrument ; 
and  where  such  an  error  is  obviously  acci- 
dental, not  in  suhslantialtims  of  the  instru- 
ment, it  will  not  be  fatal  to  its  validity  or 
efficacy.  In  judicial  proceedings  in  the  Court 
of  Session,  e.g.,  in  interlocutors  of  Court,  the 
general  rule  is,  that  after  an  interlocutor  has 
been  signed  it  cannot  be  varied  or  altered 
except  by  the  Inner-House  on  a  reclaiming- 
note,  when  it  is  the  interlocutor  of  a  Lord 
Ordinary,  or  by  appeal  to  the  House  of 
Lords,  where  the  judgment  has  been  pronoun- 
ced in  the  Inner-House.  But  where  a  cleri- 
cal error  has  been  committed,  even  although 
the  interlocutor  has  been  signed,  the  Court 
will  authorize  the  error  to  be  corrected.  The 
principle  seems  to  be,  that  the  erroneous  in- 


terlocutor does  not  express  and  embody  th* 
true  intent  and  meaning  of  the  Court  Such 
corrections,  however,  cannot  be  made  os  t 
motion  from  the  bar,  but  must  be  prayed  for 
by  incidental  petition.  Kerr,  17th  Dec.  1835, 
14  S.  <b  D.  180. 

Clerk  of  Sesrion ;  is  the  title  given  to  the 
clerks  of  the  Court  of  Session.    There  wen 
formerly  six  principal  clerks,  six  depute- 
clerks,  and   six    assistant-clerks  or  closet- 
keepers,  as  they  were  sometimes  called.  But 
by  the  statute  abolishing  the  Jury  Court  u 
a  separate  establishment,  and  uniting  jury 
trial  in  civil  causes  with  the  ordinary  juriv 
diction  of  the  Court  of  Session,  the  number 
of  the  principal  clerks  is  reduced  to  four, 
who,  in  addition  to  their  former  duties,  per- 
form the  duties  connected  with  trials  by  jury 
and  Bill-Chamber  proceedings  in  the  Inner- 
House.    11  Geo.  IV.,  and  1  WHL  IV.,  c69, 
§  13;  1  an(i  2  Viet,  e.  118,  §§  5,  6,  7;  13 
and  14  Vict,  c.  36,  §  37.    By  the  first  of 
these  acts,  the  appointment  of  the  depute  and 
assistant  clerks  of  Session  is  vested  in  the 
Crown ;  and  in  case  of  the  necessary  absence 
of  any  principal  clerk,  his  duties  may  be  di>- 
charged  by  any  of  the  remaining  priDcipsI 
clerks,  or  by  any  person  appointed  by  bis 
Division  of  the  Court  from  among  the  assist- 
ant clerks  in  the  Inner- House,  or  the  depute- 
clerks  in  the  Outer-House  ;  1  and  2  Fic(.,e. 
18,  §  8.    The  appointment  of  the  principal 
clerks  was  always  in  the  Crown ;  and  b;  set 
of  regulations,  1695,  to  qualify  them  for  the 
office,  they  must  be  either  advocates  or  writers 
to  the  signet  of  three  years'  standing.  Their 
appointment,  however,  disqualifies  them  from 
practising  as  advocates  or  agents  before  the 
Court  of  Session ;  1  and  2  Geo.  IV.,  c.  38,  § 
9.    Their  duty  is  to  attend  the  Judges  in  the 
Inner-House,  and,  under  their  direction,  to 
write  out  the  judgments  or  interlocutors,  or 
other  orders  pronounced  by  the  Court,  to 
keep  the  books  of  Sederunt,  and  to  receive 
bonds  of  caution  ordered  by  the  Inner-Home, 
not  in  the  Bill-Chamber.    Two  of  the  prin- 
cipal clerks  attend  each  division  of  the  Coort. 
The  depute-clerks  are  five  in  number,  one, 
with  his  assistant,  being  attached  to  the  bar 
of  each  of  the  Lords  Ordinary.  They  officisle 
in  the  Outer-House  before  the  Lords  Ordi- 
nary, whose  judgments  or  interlocutors  they 
write  out  \  land  2  Vict.,  c.  118,  §  12.    E«th 
principal  clerk  and  each  depute-clerk  has  s 
distinct  apartment,  or  closet  as  it  is  called, 
in  the  Register  Office,  in  which  he  keeps  the 
processes  to  which  he  is  clerk.    The  duty  of 
taking  charge  of  the  Outer-Honse  processes, 
of  transmitting  them  to  the  judges  to  be  con- 
sidered, and  of  attending  at  the  closets  of  the 
depute-clerks  to  lend  out  the  processes,  is  dis- 
charged by  the  assistant-clerks  or  eloset- 


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keepen,  who  abo  attend  in  the  Outer-House 
«hiJ<  the  Court  is  sitting.  The  principal 
clerks  have  also  assistants,  who  officiate  at 
tbeir  apartments  in  the  Register  Office,  and 
take  charge  of  the  processes  depending  be- 
fora  the  Inner-House ;  and,  by  the  act  50 
Oeo.  III.,  c.  112,  §  13,  the  duty  of  preparing 
the  extracts  of  the  decrees  of  the  Court  was 
eotrnsted  to  the  assistants  of  the  principal 
clerks ;  but  that  part  of  the  50  Geo.  III.  is 
repealed,  and  all  such  extracts  are  now  pre- 
pared by  the  extractor  of  Court  (]  and  2 
(?»./r.,c38,  §  17;  1  and  2  Viet.,  c.  118, 
^  19, 20),  who  is  placed  under  the  superin- 
tendence of  the  junior  principal  clerk  of  Ses- 
lion  for  the  time  being.  (See  Extractor).  The 
principal  clerks  and  depute-clerks  of  Session 
ve  entitled  to  no  fees,  but  have  fixed  sala- 
ries, the  former  L.IOOO  per  annum  each,  and 
the  Utter  L.400 ;  60  Geo.  III.,  c.  112 ;  1  and 
2  Vict,  e.  118.  The  emoluments  of  the  assist- 
uts  were  formerly  derived  from  fees  which 
they  exacted  for  lending  out  and  receiving 
back  processes,  &c. ;  now  each  assistant- 
clerk  has  a  salary  of  Ii.350  per  annum.  1  and 
2  Vkt.,  c.  lis,  §§  10, 13,  30.  See  Shand^s 
Pne.,  p.  102. 

Clerk  of  the  Bill*.  By  1  and  2  Vict.,  c. 
118,  §  14,  the  charge  of  the  Bill-Chamber 
department  of  the  Court  of  Session  was  en- 
tnuted  to  two  Clerks  of  the  Bills,  under  the 
principal  clerks  of  Session,  and  appointed  by 
(Ik  Crown.  Their  duty  was  to  receive  and  to 
present  to  the  Lord  Ordinary  all  notes  of 
adrocation  and  suspension,  and  all  bills  which 
required  to  be  laid  before  him  ;  1  and  2  Vict., 
<•  118,  §  14  ;  and  receive  bonds  of  caution, 
wkeo  such  are  required  in  the  Bill-Chamber. 
By  Act  of  Sederunt,  18th  Feb.  1686,  the 
Clerks  of  the  Bills  are  made  liable  for  the 
damage  arising  either  from  the  accepting  of 
an  inefficient  cautioner,  or  for  refusing  a  suf- 
fcient  one ;  but  by  the  Act  of  Sederunt  14th 
Jone  1799,  this  act  is  repealed,  and  it  is  de- 
clared that,  in  time  coming,  the  Clerks  of 
the  Bilk  shall  be  responsible  for  the  due  per- 
foraianee  of  their  duty  iu  "  receiving  or  re- 
jecting cautioners,  according  to  the  rules  of 
cenunon  law  and  justice,  applicable  to  the 
otes  that  may  hereafter  occur."  Formerly, 
tke  Clerka  of  the  Bills  had  also  to  present  to 
the  Lord  Ordinary  all  bills  for  summonses  or 
diligences.  Sic;  but,  by  53  Geo.  III.,  c.  64, 
f  17,  ihejiat  of  the  Clerk  of  the  Bills  officiat- 
lag  for  the  time  is  declared  to  be  a  sufficient 
warrant  for  passing  such  bills.  See  Bill- 
Ckamber.  They  write  the  fat  for  personal 
execBtion  under  1  and  2  Vict.,  c  1 14.  See 
•lie  Act  of  Sederunt  regulating  Bill-Cham- 
Wproeeedings,  14th  December  1838,  Beve- 
riifttm  tKe  Afl-Oaniier;  Shand's  Prac.  p. 
IW.  ^ 


By  20  and  21  Yict.,  c.  18,  the  office  of  one 
of  the  Clerks  of  the  Bills  is  abolished ;  and  It 
is  provided  that  there  shall  be  in  future  only 
one  Clerk  of  the  Bills,  who  shall  be  responsi- 
ble for  the  reputed  solvency  of  cautioners, 
and  for  consigned  money,  and  shall  discharge 
in  person  all  the  duties  attached  to  the  office. 
§  2.  There  are  an  Assistant-clerk  of  the 
Bills,  and  two  ordinary  clerks,  also  authorized 
(§  2)  to  be  appointed,  the  former  being  em- 
powered to  subscribe  and  authenticate  writs 
and  documents  in  the  necessary  absence  of  the 
principal  clerk.  All  these  clerks  are  paid 
wholly  by  salary  ;  and  the  fees  charged  and 
collected  in  the  Bill-Chamber  Office  are  ac- 
counted for  to  the  Treasury ;  §§  3,  4.  The 
clerks  in  the  Bill-Chamber  are  clerks  in  se- 
questrations (19  and  20  Vict.,  c.  79,  §  43), 
and  prepare  extracts  of  decrees  iu  sequestra- 
tion cases ;  A.  S.,  20th  Jul^  1842. 

Clerk  to  the  Court  of  Teinds.  There  was 
formerly  one  principal  clerk  in  the  Teind 
Court  appointed  by  the  Crown.  His  duty 
was  to  attend  the  Court,  and  write  out,  under 
its  direction,  the  whole  acts,  orders,  and  de- 
crees. There  were  also  a  depute  Teind-clerk 
and  extractor  for  that  Court. 

By  1  and  2  Vict.,  c.  118,  5  26,  the  office  of 
principal  Teind-clerk  is  abolished,  and  it  is 
declared,  that  the  business  formerly  per- 
formed by  the  Teind-clerks  shall  in  future  be 
discharged  by  the  first  and  second  Depute- 
clerks  of  Teinds,  the  former  being  styled  Clerk 
of  Teinds,  and  having  a  salary  of  L.300  per 
annum,  and  the  latter  being  styled  Depute- 
clerk of  Teinds,  with  a  salary  of  L.250.  Power 
is  reserved  to  the  Crown  to  appoint  a  person 
to  be  keeper  of  the  records  in  the  Teind- 
office,  whose  chief  duty  is  to  arrange  and  in- 
dex the  records  and  processes.  The  Depnte- 
clerk  of  Teinds  is  to  continue  to  discharge 
the  duty  of  extracting  acts  and  decreets  pro- 
nounced by  the  Commissioners  of  Teinds.  § 
27.   See  Teind  Court. 

Clerk  of  Jnaticiary ;  is  the  clerk  of  the 
Court  of  Justiciary.  There  are  a  principal 
and  two  assistant  clerks,  whose  duty  it 
is  to  attend  the  sittings  of  the  Justiciary 
Court  in  Edinburgh,  to  keep  the  books  of 
Adjournal,  and  to  write  out  the  interlo- 
cutors and  sentences  of  the  Court.  They 
have  also  an  apartment  in  the  Register  Office,  * 
where  they  transact  the  business  connected 
with  the  Justiciary  and  Circuit  Courts.  Be- 
sides the  principal  and  assistant  clerks  of 
Justiciary,  there  are  three  circuit-clerks,  one 
of  whom  attends  the  judges  on  each  of  the 
circuits  as  clerk  of  court.  The  clerks  of 
Justiciary  and  the  circuit-clerks  were  for- 
merly appointed  by  the  Lord  Justice-Clerk, 
but  are  now  appointed  by  the  Crown. 
Clerk  of  the  Peace ;  ia  the  clerk  to  the 


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jugtices  of  the  peace  for  the  county.  His 
duty  is  to  attend  the  Justice  of  Peace  Court, 
and  to  keep  the  books  of  record,  &c.  He 
must  not  practise  in  the  court  of  which  he  is 
clerk ;  A.  S.  6th  March  1783.  A  principal 
clerk  can  only  be  removed  or  suspended  by 
the  Court  of  Session ;  the  clerks  of  the  peace 
in  Scotland  are  appointed  by  the  Secretary 
of  State  (1685,  c.  16 ;  1686,  c.  20 ;  1690, 
c  28) ;  and  the  principal  clerk  of  the  county 
appoints  the  depute  and  district  clerks.  Tail^s 
Just,  of  Peace,  L  t. ;  Blait'e  Jutt.  of  Peace,  h, 
t. :  Barclay's  Digest,  h.  t.  By  7  Will.  IV., 
and  1  Vict.,  c.  83,  clerks  of  the  peace  and 
others  are  compelled  to  take  the  custody  of 
documents  directed  to  be  deposited  with  them 
under  the  standing  orders  of  either  Houses  of 
Parliament.  May's  Pari.  Prac.,  699.  In  Eng- 
land, the  Gustos  Rotulorum  of  the  county  has 
the  appointment  of  the  clerk  of  the  peace, 
who  may  execute  his  office  by  deputy,  to  be 
approved  of  by  the  Gustos  Rotolorum,  and  to 
hold  the  office  during  good  behaviour.  Tom- 
lins'  Did.,  h.  t. ;  Wharton's  Lex.  h.  t. 

Clerk  of  tlie  Pipe.  The  office  of  Recorder 
of  the  Great  Roll,  or  Clerk  of  the  Pipe,  was 
an  office  in  the  Scotch  Court  of  Exchequer, 
established  by  6  Anne,  c.  26  ;  but  as,  by  ^ 
and  3  Will.  iV.,  c.  103  and  112,  a  great  part 
of  the  duties  of  the  office  was  transferred  to 
offices  in  England,  it  was,  by  4  Will.  IV.,  c. 
16,  abolished,  and  its  powers  and  authorities 
transferred  to  the  Lord  Treasurer's  Remem- 
brancer of  the  Exchequer  of  Scotland.  Tom- 
lin's  Diet.,  h.  t. 

Clerk  of  the  Crown ;  an  officer  in  Chan- 
cery, whose  function  it  is  constantly  to  attend 
the  Lord  Chancellor.  Under  warrant  of  the 
Lord  Chancellor  (in  case  of  a  new  Parlia- 
ment), or  of  the  Speaker  on  casual  vacancies, 
he  makes  out  writs  for  the  election  of  Mem- 
bers of  Parliament.  All  returns  are  made  to 
the  Clerk  of  the  Crown,  which  he  cannot 
alter,  except  by  order  of  the  House,  under  a 
penalty  of  £500,  toties  quoties.  The  returns 
are  entered  in  a  book  kept  by  him,  accessible 
to  all,  on  payment  of  a  reasonable  fee.  True 
copies  and  the  book  are  evidence.  Tomlins' 
Diet.,  h.  t.;  Chambers'  Election  Lata,  h.  t.; 
Majfs  Parliamentary  Prac. 

Clerk  of  the  Parliament  Soils ;  an  officer 
who  records  all  things  done  in  the  High  Court 
of  Parliament,  and  engrosses  them  in  parch- 
ment rolls.     Tomlins'  Diet.,  h.  t. 

Clerks  of  Jnry  Canses,  The  duties  of 
clerks  of  Jury  Causes  are  now  performed  by 
the  clerks  of  Session ;  13  and  14  Vict.,  c. 
82^  37.     See  Issues.    Jury  Trial. 

Clerks  of  Court.  It  would  exceed  the  pro- 
per limits  of  this  work  to  enumerate  the  dif- 
ferent clerks  of  inferior  courts.  Every  court 
has  necessarily  a  clerk,  whose  duty  it  is  to 


write  out  the  judgments,  and  extract  tie 
decrees  of  the  court.  In  like  manner,  each 
royal  burgh  has  a  clerk  chosen  by  the  magis- 
trates, whose  duty  it  is  to  keep  a  record  of 
their  proceedings,  and  to  act  as  notary  in 
giving  sasine  in  burgage  property.  See  She- 
riff-Clerk. 

Clerks  to  the  Signet  The  clerks  or 
writers  to  the  Signet  are  said  to  hare  been 
anciently  cleiikS  in  the  office  of  the  Secretsrj 
of  State,  by  whom  writs  passing  the  King's 
Signet  were  prepared.  These  writs  were 
summonses  ordering  attendance  on  the  King"! 
court,  or  charging  the  party  to  obtemper  the 
decree  pronounced  against  him,  or  autho- 
rizing execution  against  his  person  or  estate. 
When  the  College  of  Justice  was  established, 
the  writers  to  the  Signet  were  in  the  exercise 
of  nearly  the  same  duties  in  which  they  are 
engaged  at  the  present  day ;  and  they  are 
recognised  as  members  of  that  college ;  1537, 
c.  5a.  The  duty  of  the  clerks,  or  writers  t« 
the  Signet,  now  is,  to  prepare  the  warrants  of 
charters  of  land  flowing  from  the  Crown ;  to 
sign  all  summonses  for  citing  parties  to  appear 
in  the  Court  of  Session  ;  and  almost  all  dili- 
gences of  the  law  for  affecting  the  person  or 
estate  of  a  debtor,  or  for  compelling  imple- 
ment of  the  decrees  of  the  Supreme  Conrt 
The  writers  to  the  Signet  have  further  the 
privilege  of  acting  as  agents  or  attorneys  in 
conducting  causes  before  the  Court  of  Session. 
Writers  to  the  Signet,  after  ten  years'  prac- 
tice, and  certain  probationary  examinations 
on  civil  law,  may  be  appointed  Judges  of  the 
Court  of  Session.  They  are  also  eligible  to 
several  other  important  offices  connected  with 
theCourt  of  Session.  The  Societyis  now  under 
the  Keeper  of  the  Signet,  who  usually  acts  by 
a  deputy-keeper ;  and  the  affairs  of  the  body 
are  conducted  by  this  deputy  and  certain  com- 
missioners named  by  the  keeper,  from  the 
members,  with  power  to  them  to  make  bye- 
laws  for  the  admiffiion  of  members,  and  the 
regulation  of  their  conduct.  By  the  existing 
rules,  a  person  applying  to  be  admitted  to 
enter  into  indenture  as  an  apprentice  must 
be  at  least  sixteen  years  of  age,  and  must 
produce  certificates  of  his  having  attended 
two  full  winter  courses  at  one  or  other  of 
the  universities ;  one  of  these  certificates  being 
from  a  professor  of  humanity ;  and  it  being 
understood  that  these  two  courses  are  exclu- 
sive of  medical,  divinity,  or  law  classes.  The 
apprenticeship  is  for  five  years ;  and  imme- 
diately on  expiration  of  the  indenture,  the 
apprentice  (having  attained  the  age  of  twentv- 
one  years  complete)  may  apply  to  be  admitted 
to  trial,  with  a  view  to  become  a  member. 
Every  candidate  for  admission  must  have  at- 
tended four  courses  of  the  kw  classes,  viz., 
one  of  civil  law,  one  of  Scotch  law,  and  one 


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of  cooTeyaneing,  with  a  second  conree  of  any 
ooe  of  these.    And  when  admitted  on  trial, 
the  candidate  is  first  examined  by  three  pri- 
vate examinators  on  his  knowledge  of  Scotch 
kir;  and  three  months  afterwards  is  ex- 
amioed  by  the  public  examinators  in  the  hall 
of  the  society,  and  in  presence  of  the  commis- 
iiooers,  as  to  his  knowledge  of  conveyancing. 
The  sppreotice-fee  to  the  master  is  L.200. 
The  payment  by  the  apprentice  to  the  widows' 
fond,  L.50,  Is.  6d. ;  to  the  general  fund  of 
the  society,  L.81. 23.  6d. ;  the  total  of  inden- 
tore  fees  being  L.331,  4s.     At  passing,  the 
feet  are,  for  the  commission,  L.25;  passing 
fees,  L51,  68. ;  perquisites  to  o£Scers,  L.3, 
9S.  6d.    Total  expense  of  entering  as  a  mem- 
ber of  this  body,  L.410,  ISs.  6d.     Minute  of 
S«cubf,  9th  March  1825  ;  ^Mntts  Prac  83,  et 
leg.    See  GtlUge  of  Justice. 
Close  Time.     See  Fishing.  . 
aodng  FolL     See  Poll. 
dodng  Becord.    See  Record. 
Coaches,  Public.    See  Public  Carriages. 
Coalrlfiiie.     A  coal  mine  is  legally  a  part 
of  the  lands  within  which  it  is  situated,  and 
passes  with  a  conveyance  of  the  lands.    It 
najoeTertheless  form  a  separate  estate.  Thus; 
I  proprietor  may  sell  or  feu  the  surface,  re- 
serring  the  coals  and  minerals,  or  dispose  of 
tbem,  reserving  the  lands ;  and  the  two  thus 
wpatatedbecome  distinct  fendal  estates.  Ersk. 
B.  ii.  tit  6,  §  5.    When  a  superior  feus  lands 
under  a  reservation  of  a  right  to  coals,  it  is 
nioal  for  him  to  come  nnder  an  obligation  to 
ftj  the  vassal  surface  damage  for  the  injury 
which  may  be  done  to  the  lauds  by  working 
the  coal-mines,  an  obligation  which,  in  case 
of  a  sale  of  the  coals  by  the  superior,  will 
sttseh  to  the  pnrchaser  of  the  coal,  in  virtue 
of  the  principle  by  which  every  obligation 
affecting  an  heritable  subject  is  transferred 
from  the  former  to  the  present  proprietor. 
A  liferenter,  whose  right  extends  merely  to 
the  fruits,  salva  rei  substantia,  has  no  title  to 
coal-mines  without  a  special  grant,  even  al- 
tbongh  they  are  open,  and  in  course  of  being 
worked;  nor  will  he  be  entitled  to  the  rents 
of  coal-mines  unless  the  granter  of  the  life- 
rent shows  that  it  was  plainly  his  intention 
to  inelade  these  rents  in  the  liferent.    Stair, 
B.  ii.  tit.  3,  §  74 ;  tit.  9,  §  43  ;  Mor^s  Notes, 
pp.  ee,  and  cclxxi. ;  BdTs  Com.  toL  i.  p.  62, 
5th  edit. ;  Bell  on  Leases,  vol.  ii.  pp.  43, 120, 
261,  4th  edit. ;  BeWs  Princ.  4th  edit.  arts. 
1043, 1051, 1069, 740 ;  Hutdt.  Justice  of  Peace, 
vol.  iii.  p.  241.  2d  edit. ;  Hunter's  Landlord 
«*<  Tenant;  Rou's  Led.  ii.  173.    See  Life- 
ratter. 

Coeket ;  a  seal  belonging  to  the  Custoni- 

honae ;  or  rather  a  scroll  of  parchment  sealed 

and  delivered  from  the  Custom-house  to  mer- 

citaats,  as  a  voucher  that  their  goods  aro  cus- 

u 


tomed.  The  word  also  signifies  the  custom- 
house or  office  where  goods  to  be  transported 
were  first  entered  and  paid  custom,  and  had 
a  coeket  or  certificate  of  discharge.  TonUint' 
Diet.:  Fleta,  I.  2.  c.  g. 

Code ;  a  collection  of  the  laws  and  consti- 
tutions of  the  Roman  emperors  made  by  order 
of  Justinian.  The  code  is  the  second  rolnme 
of  the  Corpus  Juris  Civilis,  and  contains  twelve 
books.  Before  the  time  of  Justiniau  similar 
collections  had  been  made,  such  as  the  Grego- 
rian and  Hermogenian,  which  are  collections 
of  the  imperial  constitutions  from  Hadrian  to 
Diocletian  and  Maximinus ;  and  the  Theodo- 
sian,  from  Constantino  the  Great  to  Theodo- 
sius  the  Younger.  There  are  several  modem 
systematic  collections  of  laws  called  codes,  the 
most  celebrated  of  which  is  the  Code  Napo- 
leon.   See  Roman  Law.    Civil  Law^ 

Codicil ;  is  a  writing  by  which  the  granter 
bequeathes  legacies  out  of  his  moveable  estate, 
and  which  does  not  contain  the  nomination  of 
an  executor,  or  clauses  which  refer  to  any- 
thing but  moveables,  or  which  take  eSbct  till 
the  grantor's  death.  The  same  form  of  au- 
thentication is  required  in  a  codicil  as  in  any 
other  formal  deed.  Codicils  are  usually  exe- 
cuted in  reference  to  a  previous  testament. 
See  Testament.  The  same  name  is  frequently 
given  to  those  writings  which  alter  the  terms 
of  settlements  mortis  causa  of  any  description, 
whether  they  be  in  the  form  of  testament  or 
not.  Stair,  B.  iii.  tit.  8,  §  16  and  23  ;  BelPs 
Princ,  4th  edit.  art.  1870  ;  Jurid.  Stt/l^,  3d 
edit.  vol.  ii.  p.  434. 

Cofferer ;  a  principal  officer  of  the  king's 
household,  who  has  a  special  charge  and  over- 
sight of  other  ofScers  of  the  household,  to  all 
of  whom  he  pays  their  wages.  TomliTis^  Did. 
h.t. 

Cognate,  A  cognate  is  a  relation  connected 
by  the  mother's  side  ;  and  as  there  is  no  suc- 
cession through  the  mother,  a  cognate  cannot 
succeed  as  heir  to  the  father's  property.  But 
where  there  is  room  for  a  tutor-at-law,  who 
is  chosen  from  the  relations  on  the  father's 
side,  or  agnates,  as  they  are  called,  the  cus-  , 
tody  of  the  child  is  given  to  the  mother,  or, 
failing  her,  to  the  nearest  cognate.  In  the 
Roman  law,  a  cognate  is  a  relation  through 
a  female,  and  an  agnate  a  relation  through  a 
male.  Stair,  B.  iii.  tit.  4,  §  8  and  34  ;  Ersk. 
B.  i.  tit.  7,5  4;  Ersk.  Princ.  12th  edit  87, 
386 ;  Bell's  Princ.  4th  edit,  art  2079. 

Cognition.  This  term  was  anciently  ap- 
plied to  an  action  for  ascertaining  disputed 
marches.  The  Court  of  Session  was  in  use 
to  remit  the  matter  in  dispute  to  the  Sheriff', 
to  bo  tried  by  a  jury ;  but  this  form  is  now 
in  disuse,  and  in  place  of  a  remit  to  the 
Sheriff,  the  present  practice  is  to  have  the 
proof  takon  by  commission,  and  reported  to 


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the  Court  of  Session,  who  decide  upon  it. 
Stair,  B.  i.  tit.  9,  §  28 ;  B.  ii.  tit.  3,  §  73 ; 
Enk.  B.  iv.  tit.  1,  §  48.  As  to-the  cognition, 
or  cognoscing,  of  idiots  and  insane  persons, 
see  Breoe.    Idiot.    FunotUy.    Curatory. 

Cognition  and  Sale ;  is  the  name  given  to 
a  process  before  the  Court  of  Session,  at  the 
instance  of  a  pupil  and  his  tutors,  for  obtain- 
ing a  Tarrant  to  sell  the  whole  or  a  part  of 
the  pupil's  estate.  In  this  action,  the  next 
heirs  and  creditors  are  called  as  parties ;  the 
summons  must  contain  a  statement  of  the 
nature  and  amount  of  the  pupil's  heritable 
estate;  and,  either  in  the  summons  or  in  the 
course  of  the  action,  a  fnll  state  of  the  pupil's 
affairs  must  be  exhibited,  so  as  to  enable  the 
Court  to  judge  of  the  necessity  of  the  sale. 
When  the  action  comea  into  Conrt,  a  proof 
of  the  value  of  the  property  is  led,  and  a  me- 
morial and  abstract  prepared,  as  in  the  case 
of  a  judicial  ranking  and  sale ;  upon  advising 
which,  the  Court  authorizes  a  sale  either  of 
the  whole  or  of  a  part  of  the  property,  as  it 
may  think  proper,  by  public  roup,  and  at  an 
upset  price,  not  under  the  value  proved  in 
the  course  of  the  process.  When  this  war- 
rant is  obtained,  the  tutors  may  proceed  to 
sell  extrajudicially,  at  such  time  and  place  as 
they  think  best.  In  this  process,  of  course, 
there  is  no  ranking  of  the  creditors.  It  may 
also  be  observed,  that  a  summary  application 
to  the  Court  for  warrant  to  sell  is  not  com- 
petent ;  Ersk.  B.  i.  tit.  7,  §  17,  note.  In  grant- 
ing such  warrants,  the  Conrt  of  Session  acts 
as  a  court  of  equity  ;  but  it  will  not  interpose 
unless  in  a  case  of  great  necessity,  and  where 
the  estate  is  so  burdened  as  to  afford  no  rea- 
sonable prospect  of  beneficial  management  for 
the  pupil  without  a  sale.  The  Court  at  one 
time  was  in  use  to  exercise  a  discretionary 
power  in  authorizing  such  sales,  as  appeared 
evidently  advantageous  to  the  pupil ;  but  more 
recently,  a  different  rule  has  been  followed, 
and  now  the  Conrt  will  not  interpose  on  any 
views  of  expediency,  however  clear ;  Finlay- 
ton,  22d  Dec.  1810,  Foe.  Coll.  It  was  once 
the  practice,  in  the  case  of  sales  by  minors 
puberet,  for  the  purchaser  to  insist  on  an  ac- 
tion of  cognition  and  sale  at  the  instance  of  the 
minor  and  his  curators,  as  a  protection  against 
a  reduction  on  the  head  of  minority  and  lesion ; 
but  the  Court  lately,  "  on  the  ground  that  a 
minor  and  his  curators  could  sell  without  ju- 
dicial authority,  and  that  no  decree  of  the 
Court  could  preventa  reduction  by  the  minor, 
refused  to  interpose  their  authority  as  unne- 
cessary ; "  Wallace,  8ih  March  1817,  Fac.  Coll. 
See  Ersk.  B.  i.  tit.  7,  §  17 ;  Bdl's  Com.  vol.  ii. 
p.  257,  5th  edit. ;  Bell's  Prine.  4th  edit.  art. 
2084 ;  Shand's  Prac.  p.  757,  940,  et  seq. ;  Ju- 
rid.  Styles,  2  edit,  vol  iii.  p.  437;  Menzies' 
Lecl.  p.  31.    See  Judicial  Factor. 


Cognition  and  Sasine ;  is  a  form  of  enter- 
ing an  heir  in  burgage  property.  Where  the 
ancestor  died  infeft,  one  of  the  bailies  of  the 
burgh,  at  the  request  of  the  heir,  examines 
two  or  more  witnesses  as  to  his  propinquity ; 
upon  whose  evidence  the  bailie  cognosces,  and 
declares  him  heir  to  the  ancestor,  and  infefts 
him  by  hasp  and  staple,  the  S3rmbol8  used  in 
burgh  tenements.  The  ceremony  is  performed 
by  the  heir's  taking  hold  of  the  hasp  and 
staple  of  the  door,  and  entering  the  house 
and  bolting  the  door ;  and,  on  his  coming  out, 
he  takes  instruments  in  the .  hands  of  the 
town-clerk,  who  always  acts  as  notary  on  the 
occasion.  An  instrnment  of  cognition  and 
sasine  is  then  extended,  stating  the  resgtstce, 
and  closed  by  the  notary's  doqnet.  The  in- 
strument of  sasine,  by  1681,  c.  11,  mnst  be 
recorded  within  sixty  days  of  its  date,  in  a. 
particular  register  kept  by  the  town-clerk. 
Where  the  heir,  before  infeftment,  makes  over 
the  subject  to  another,  the  cognition  of  the 
heir's  propinquity,  and  the  purchaser's  infeft- 
ment, may  be  inserted  in  the  same  instru- 
ment; and  where  the  ancestor's  right  was 
merely  personal,  the  cognition  of  the  heir, 
the  resignation  by  the  ancestor's  anther,  and 
the  new  infeftment  in  favour  of  the  heir,  may 
all  be  inserted  in  the  instrument  of  cognition 
and  sasine,  which  is  then  called  resignaiion, 
cognition,  and  sasine;  Jurid.  Styles,  3d  edit.  vol. 
i.  p.  693 ;  4th  edit.  671.  The  form  just  ex- 
plained seems  to  be  the  regular  method  of  com- 
pleting an  entry  by  cognition  and  sasine.  By 
the  practice  of  the  cityof  Edinburgh,  however, 
no  witneses  are  examined  as  to  the  heir's  pro- 
pinquity;  but  on  the  simple  application  of 
the  party,  and  production  of  the  last  saame, 
an  instrnment  is  returned,  stating  the  cogni- 
tion and  infeftment  of  the  heir  under  the 
usual  salvo  jure  et^libet.  The  same  form  of 
entry  may  be  used  by  the  heir  of  the  creditor 
in  an  heritable  bond  over  burgage  subjects. 
The  title  of  the  heir  in  a  burgage  tenement 
may  also  be  completed  by  precept  of  dare 
constat  and  infeftment,  or  by  special  service 
and  infeftment ;  but  the  cognition  and  sasine 
is  the  simpler  and  more  usual  form.  See 
Belfs  Prine.  4th  edit.  art.  845 ;  Jurid.  Styles, 
vol.  i. ;  Menzies'  Lect.  See  also  Burgage  Hold- 
ing. The  act  10  and  11  Vict.,  c.  47, 1847,  en- 
acts, by  §  26,  that  the  service  and  entry  of  heirs 
more  hurgi  in  burghs,  in  tenements  holden  in 
burgage,  shall  not  be  affected  by  the  act.  By 
section  5  of  c  49,  the  forms  of  sasines  in 
lands  holden  in  burgage  are  assimilated  to 
those  used  in  relation  to  lands  holden  by  the 
other  tenures,  in  the  case  of  infeflments  upon 
a  disposition  or  other  deed  of  conveyance,  or 
upon  a  decree  of  adjudication  or  of  sale,  but 
no  change  is  introduced  in  regard  to  sasines 
upon  the  entry  of  heirs. 


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CogmtioniB  Cansa.  Where  the  creditor 
ofa  deceased  heritable  proprietor  pursues  the 
heir,  with  a  view  to  constitute  the  debt 
agaiDst  him,  and  attach  the  defunct's  heri- 
tage, and  the  heir  appears  and  renounces,  the 
Coort  will  pronounce  a  decree  for  the  amount 
of  the  debt,  which  is  called  a  decree  cogni- 
tittu  cMua,  And  in  virtue  of  this  decree 
ssMrtaining  the  debt,  the  creditor  may  pro- 
ceed to  adjudge  the  heritage  of  his  deceased 
debtor.  See  AdjudMoUm,  So  also  in  the 
(*»  of  moTeable  succession,  the  creditor  of  a 
deceased  person  whose  debt  is  not  constituted, 
maf  charge  the  defunct's  nearest  of  kin  to 
confirm  executor  to  him  within  twenty  days 
after  the  charge ;  which  charge  shall  be  a 
passire  title  against  the  person  charged,  un- 
iea  he  renounce ;  and  then  the  creditor  may 
proceed  to  have-  his  debt  constituted,  and  the 
hm^Uu  jacent  of  moveables  declared  liable 
by  a  decree  cogniUonit  causa;  upon  obtaining 
vhieh,  he  may  be  confirmed  executor-cre- 
ditor. 1695,  c  41 ;  Stair,  B.  iv.  tit.  19  ; 
Mvfit  Notes,  p.  ccclzxx. ;  Er^  Prine.  12th 
edit  276;  BOCt  Cm.  IL  85;  Shanes  Prac. 
p.  690.    See  Executor-creditor. 

Cognovit  Aetionoa;  in  English  law,  is 
where  a  defendant  acknowledges  or  confesses 
the  plaintiff's  cause  against  him  to  be  just  and 
true;  and,  before  or  after  issue,  suffers  judg- 
ment to  be  entered  against  him  without  triaL 
TWim'  Diet.  h.  t. ;  Wharton's  Lee.  h.  t. 

Cohabitation.  The  living  together  at  bed 
tad.  board ;  that  is,  living  as  husband  and 
wife,  and  being  repute  as  snch,  will  consti- 
tate  a  marriage.     See  Marriage. 

Coif ;  in  England,  the  badge  of  a  sergeant- 
>t-law,  who  is  called  sergeant  of  the  coif, 
fbm  the  lawn  coif  which  he  wears  under  his 
cap  when  he  is  created.    Tomlins'  Diet.  h.  t. 

Con;  is  the  current  money  of  the  realm. 
The  coining  of  money  is  part  of  the  king's 
prerogative;  and  he  may,  by  proclamation, 
make  any  foreign  coin  lavful  British  money 
tt  his  pleasure.  The  current  coin  of  Great 
Britain  is  composed  of  gold,  or  silver,  or  cop- 
per. The  denomination,  or  value  of  the 
coin,  B  also  fixed  by  the  king's  proclamation. 
Ms  Prine.  4th  edit.. art.  1334,  et  seq.; 
nmton  on  BiUt,  p.  414,  et  seq.;  Shaw's  Digest; 
TaiCs  Justice  of  Peace,  h.  t. ;  SwinL  Ahridg. 
rote  Money ;  Ros^  Led.  ii.  235 ;  Tomlins' 
Diet;  Wharton's  Lex,  h.  t.    See  Coining. 

By  16  and  17  Vict.,  c.  102,  it  is  enacted, 
that  uiy  person  defacing  the  current  coin  by 
stamping  words  thereon,  or  bending  the  same, 
diall  be  guilty  of  an  offence  punishable  by 
fine  or  imprisonment,  or  both;  and  that  a 
tender  of  coin  so  defaced  shall  not  be  a  legal 
tender;  and  the  party  t«nderiiig  such  de- 
faced coin  shall  be  liable,  on  summary  con- 
viction, in  a  penalty  not  exceeding  40s. ;  but 


the  prosecution  for  such  penalty  must  be 
with  consent  of  the  Lord  Advocate. 

Coining,  By  our  earlier  practice,  all  of- 
fences against  the  current  coin  of  the  realm, 
e.g.,  counterfeiting,  vending,  disguising,  or  im- 
porting it,  seem  to  have  been  considered  trea- 
sonable, and  were  punished  capitally,  whether 
the  coin  was  gold,  silver,  or  brass.  By  the 
treason  laws  of  England,  counterfeiting  the 
king's  money,  or  bringing  false  money  into 
the  kingdom,  counterfeiting  foreign  gold  or 
silver  coin  current  in  the  kingdom  by  consent 
of  the  Crown,  or  wasting,  clipping,  or  other- 
wise impairing  or  falsifying,  the  current  coin, 
or  possessing  instruments  proper  for  coinage, 
or  conveying  them  out  of  the  Mint,  or  mark- 
ing, colouring,  or  gilding  any  coin  or  base 
metal,  to  resemble  the  current  coin,  &c.,  is 
treason ;  and  the  English  treason  laws  having 
been  extended  to  Scotland  at  the  Union,  of- 
fences of  this  kind  must  now  be  tried  ac- 
cording to  the  forms  prescribed  in  trials- 
for  treason ;  Hume,  vol.  i.  p.  532.  But 
there  are  several  offences  against  the  coin  not 
treasonable  by  the  law  of  England,  which  of 
course  remain  on  the  same  footing  in  this 
country  as  before  the  Union,  and  may  be  pi'o- 
secuted  under  the  Scottish  statutes.  1.  The 
coining  of  counterfeit  brass  or  copper  money 
is  not  treason  by  the  law  of  England ;  and 
although  it  was  an  offence  punishable  capi- 
tally by  our  old  law,  the  punishment  by  the 
present  practice  seems  to  be  arbitrary.  To 
constitute  this  crime,  it  is  not  necessary  to 
utter,  or  attempt  to  utter,  the  base  coin,  if 
the  piece  be  formed  so  as  to  resemble  the 
coin,  and  be  likely  to  pass  as  such.  The 
crime,  however,  is  not  committed  if  the  piece 
or  medal  struck  have  some  private  and  pecu- 
liar device,  such  as  must  distinguish  it  from 
the  current  coin,  and  show  that  it  was  not 
intended  for  deception.  2.  The  knowingly 
uttering  of  false  British  coin,  counterfeited 
within  the  realm,  is  not  treason ;  and,  by  our 
practice,  the  punishment  is  arbitrary,  pro- 
vided the  person  guilty  of  the  offence  has  had 
no  concern  in  the  fabrication;  for,  in  that 
case,  or  if  he  share  the  profit  of  the  adven- 
ture with  the  coiner,  he  is  art  and  part  in  the 
crime  of  coining.  3.  The  uttering  of  false 
British  coin,  counterfeited  in  a  foreign  coun- 
try, and  imported,  is  not  treasonable,  except 
on  the  part  of  him  who  imports  it,  with  in- 
tent to  utter  it.  The  punishment  of  this 
offence  is  also  arbitrary.  4.  The  same  holds 
with  regard  to  the  uttering  of  imported  false 
foreign  coin,  current  in  this  country  by  pro- 
clamation. 5.  Coining  within  Britain,  or 
lightening  there,  foreign  money,  not  current 
by  act  of  Parliament,  but  by  consent  of  par- 
ties merely,  is  a  misdemeanour,  punishable 
arbitrtuily.    See  Hume,  vol.  i.  p.  561,  et  seq. 

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By  2  Will.  IV.,  c.  84,  by  which  the  former 
enactments  relative  to  coining  and  nttering 
are  repealed,  and  their  provisions  amended 
and  consolidated,  it  is  enacted — (1.)  That  if 
any  one  shall  falsely  fabricate  a  coin,  in  imi- 
tation of  any  of  the  king's  current  gold  or 
sUver  coin,  or  shall  gild  silver,  or  colour  any 
counterfeit  gold  or  silver  coin,  or  any  piece 
of  metal  whatever  of  a  fit  size  and  figure 
to  be  coined,  and  with  intent  that  the  same 
shall  be  coined  into  counterfeit  gold  or  sil- 
ver coin,  or  shall  alter  silver  coin,  with 
intent  to  make  it  pass  for  gold  coin ;  or 
copper  coin,  to  make  it  pass  for  gold  or 
silver  coin ;  he  shall  be  punishable  with  trans- 
portation for  life,  or  for  a  term  not  leas 
than  seven  years,  or  with  imprisonment  for 
a  term  not  exceeding  four  years;  and  the 
offence  of  making  or  fabricating  shall  be  held 
complete,  although  the  coin  so  made  or  coun- 
terfeited shall  not  be  in  a  fit  state  to  be  ut- 
tered, or  the  counterfeiting  thereof  shall  not 
be  finished  or  perfected ;  §§  3,  4.  (2.)  If 
any  one  shall  impair,  diminish,  or  lighten 
current  gold  or  silver  coin,  with  intent  to 
make  it  pass  for  current  coin,  he  shall  be 
punishable  with  transportation  for  a  term  not 
exceeding  fourteen,  nor  less  than  seven  years, 
or  with  imprisonment  for  a  term  not  exceed- 
ing three  years ;  §  5.  (3.)  If  any  person 
shall  buy,  sell,  receive,  pay,  or  put  off,  or 
shall  offer  to  do  so,  any  counterfeit  gold  or 
silver  coin,  for  a  lower  value  than  its  deno- 
mination, or  if  any  person  shall  import  into 
the  United  Kingdom  any  counterfeit  gold  or 
silver  coin,  knowing  it  to  be  counterfeit,  he 
shall  be  punishable  with  transportation  for 
life,  or  for  a  term  not  less  than  seven  years,  or 
imprisonment  for  not  more  than  four  years ;  § 
6.  (4.)  The  uttering  of  base  coin  is  punish- 
able with  imprisonment  for  not  more  than  one 
year ;  and  the  possessing  at  the  time  of  the 
said  uttering,  or  the  uttering  within  ten  days 
thereof,  other  counterfeit  coin  or  coins,  is 
punishable  with  imprisonment  for  two  years; 
second  convictions  to  make  the  culprit  liable 
to  transportation  for  life,  or  not  less  than 
seven  years,  or  imprisonment  for  not  moro 
than  four  years ;  §  7.  (5.)  If  &ny  person 
shall  havo  in  his  possession  throe  or  more 
pieces  of  counterfeit  gold  or  silver  coin,  know- 
iug  the  same  to  bo  counterfeit,  and  with  in- 
tent to  utter  the  same,  he  shall  be  punishable, 
for  the  first  offence,  with  imprisonment  for 
a  term  not  exceeding  three  years ;  and  for 
the  second  with  transportation  for  life,  or  not 
less  than  seven  years,  or  with  imprisonment 
for  a  term  not  exceeding  four  years;  §  8. 
(6.)  Making,  mending,  buying,  selling,  or 
possessing,  without  lawfiil  authority,  any  in- 
struments used  in  fabricating  current  coin, 
with  the  knowip(l:i:(>  that  such  instrument  or 


instruments  is  to  be  used,  or  has  been  used  in 
counterfeiting  current  gold  or  silver  coin, 
shall  be  punishable  with  transportation  for 
life,  or  not  less  than  seven  years,  or  impri- 
sonment for  not  more  than  four  years ;  §  10. 
(7.)  Conveying  instruments  or  engines  for 
coining  out  of  any  of  his  Majesty's  Mints, 
without  lawful  authority,  is  punishable 
with  transportation  for  life,  or  for  not  less 
than  seven  years,  or  imprisonment  for  not 
more  than  four  years ;  §  11.  (8.)  Counter- 
feiting copper  coin,  making,  mending,  buy- 
ing, selling,  or  possessing  instruments  for 
counterfeiting  it,  or  buying,  selling,  or  put- 
ting off  counterfeit  copper  coin  for  a  lower 
value  than  its  denomination,  is  punishable 
with  transportation  for  not  more  than  seven 
years,  or  imprisonment  for  not  more  than  two 
years ;  and  uttering  copper  coin,  knowing  it 
to  be  counterfeit,  or  possessing  three  or  more 
pieces  of  such  coin.  Knowing  it  to  be  coun- 
terfeit, and  with  intent  to  utter  it,  is  punish- 
able with  imprisonment  for  not  more  than 
one  year ;  §  12.  Current  coin  altered,  so  as 
to  pass  for  current  coin  of  a  higher  denomi- 
nation, is  held  to  be  "counterfeit  coin," 
within  the  meaning  of  the  act  The  fact  of 
the  coin  being  counterfeit  may  be  compe- 
tently proved  without  the  evidence  of  scien- 
tific witnesses.  All  that  is  necessary,  is  that 
the  jury  be  satisfied  by  personal  inspection, 
coupled  with  the  evidence  of  credible  wit- 
nesses, that  the  coin  is  bad ;  2  Broun'a  £ep. 
291.  A  party  may  still  be  indicted  at  tarn- 
mon  law  as  well  as  on  this  statute.  Where 
a  coin,  intended  to  represent  and  pass  as 
the  current  coin,  bears  the  royal  effigy  and 
arms,  it  is  not  necessary  that  they  be  in  every 
respect  identical  with  those  upoa  good  coin ; 
but  where  there  is  so  little  resemblance  as  not 
to  deceive  a  person  of  ordinary  comprehen- 
sion, the  offence  is  fraud,  and  not  uttering 
counterfeit  coin.  See  Stede,  p.  151 ;  Alism't 
Princ.  p.  451 ;  Seal's  Notes  to  Hvme,  p.  130, 
et  seq. 

The  act  6  and  7  Will.  IV.,  c.  69,  passed  to 
fix  the  standard  qualities  of  gold  and  silver 
plate  in  Scotland,  and  to  provide  for  the  as- 
saying and  marking  thereof,  impose  the 
punishment  of  transportation  for  life,  or  for 
any  term  not  less  than  seven  years,  or  im- 
prisonment for  any  term  not  exceeding  fonr, 
nor  less  than  two,  years,  for  offences  with  re- 
ference to  the  stamping  or  marking  of  gold  or 
silver  plate.  See  also  the  following  statutes, 
7  Will.  IV.,  and  1  Viet.,  c  9,  as  to  the 
punishment  of  imprisonment  being  accom- 
panied with  hard  labour  or  solitary  confine- 
ment ;  5  and  6  Viet.,  c.  47,  as  to  the  stamp- 
ing of  foreign  plate  admitted  into  this  realm ; 
and  66  Geo.  III.,  c.  68,  and  12  and  13  Viet., 
c.  41,  which  regulate  the  coinage  of  silver. 


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Collateral  Secnrity ;  is  an  additional  and 

separate  security  for  the  due  performance  of 
an  obligation.  Such  securities,  of  course,  can 
nerer  be  made  available  to  any  greater  ex- 
teot  than  that  of  securing  implement  of  the 
principal  obligation  ;  but  in  ranking  on  the 
bankrupt  estates  of  principal  and  collateral 
obligantB,  the  rule  is,  that  while  the  whole 
debt  remains  unpaid,  the  creditor  is  entitled 
to  rank  for  the  whole  upon  the  estate  of  each 
obligant,  whether  principal  or  collateral, 
vhose  obligation  extends  to  the  whole,  to  the 
effect  of  drawing  full  payment  of  the  debt. 
Zie/Tf  Com.  toL  ii.  p.  523,  5th  edit. ;  Juni. 
%fc»,  vol.  i. 

Collateral  Saocesslon ;  is  the  succession  of 
the  brothers  and  sisters  of  the  deceased.  In 
heritable  succession,  the  brother-german  next 
foongest  to  the  deceased  succeeds ;  or  where 
the  deceased  is  himself  the  youngest  brother 
of  three  or  more,  his  immediate  elder,  and 
not  the  eldest,  brother-german,  succeeds ;  and 
M  on  through  all  the  brothers  in  the  order 
of  their  senioi-ity.  Failing  brothers-german, 
the  sisters-german  succeed  equally  as  heirs- 
portioners,  though  there  should  be  brothers- 
consanguinean  ;  and  failing  them,  brothers- 
connngninean  (that  is,  brothers  by  the  same 
&ther]  succeed,  according  to  the  same  rules 
vith  brothers-german  ;  and  failin:;  brothers- 
conangninean,  sisters-consanguiiican  succeed 
«s  heire-portioners.  Brothers  and  sisters 
uterine  (that  is,  by  the  same  mother,  but  by 
different  fathers,)  formerly  had  no  right  to 
sneceed  by  the  law  of  Scotland  in  any  case. 
Sttur,  B.  iii.  tit.  4,  §  6,  et  seq. ;  Ersk.  B.  iii. 
tit.  8,  §  8 ;  Enh.  Prine.  12th  edit  385 ;  Bell's 
Princ.  art.  1661,  et  seq.  See  Succession.  Con- 
quest. 

In  moveahle  succession  there  was  formerly 
DO  representation  allowed.  But  by  the  act 
13  Vict,  cap.  23  (1855),  the  issue  of  a  prede- 
cearing  next  of  kin  come  in  the  place  of  their 
parent  in  the  succession  to  an  intestate,  and 
tike  the  share  to  which  the  parent  would 
hare  been  entitled.  It  is  provided,  however, 
that  no  representation  shall  be  admitted  among 
collaterals  of  the  brothers'  and  sisters'  de- 
Rendants.  It  is  also  provided,  that  the  sur- 
viving next  of  kin  of  the  intestate  claiming 
the  office  of  executor,  shall  have  exclusive 
right  to  the  office  in  preference  to  the  children 
or  other  descendants  of  any  predeceasing  next 
of  kin.  If,  however,  no  next  of  kin  shall 
compete  for  the  office,  then  such  children  or 
descendants  are  entitled  to  confirm.  By  the 
same  act  it  is  enacted,  that,  where  an  intes- 
tate dies  without  leaving  issue,  whose  father 
and  mother  have  both  predeceased  him,  and 
shall  not  leave  any  brother  or  sister-german 
or  conianguinean,  nor  any  descendant  of  such 
brother  or  sister,  but  shall  leave  brothers 


and  sisters  uterine,  or  any  descendant  of  such 
brother  or  sister,  such  brothers  and  sisters,  or 
such  descendants,  in  place  of  their  predeceas- 
ing parent,  shall  have  right  to  one-half  of 
his  moveable  estate. 

Collation ;  is  a  provision  of  the  law  of  Scot- 
land, by  which  the  heritable  and  moveable 
succession  of  a  deceased  person  may,  in  cer- 
tain circumstances,  be  accumulated  into  one 
mass,  and  distributed  in  equal  shares  amongst 
his  next  of  kin.  Collation  may  take  place 
either  between  the  heir  in  heritage  and  tho 
executors,  or  amongst  the  younger  children. 

1.  Collation  between  the  hkr  and  executor. — 
Where  the  estate  of  the  deceased  consists 
partly  of  heritage  and  partly  of  moveables, 
the  heir  in  heritage  has  no  share  of  the  move- 
able estate,  if  there  be  others  as  near  in  de- 
gree to  the  deceased  as  himself.  But  although 
this  be  the  provision  of  tho  law  where  the 
heir  chooses  to  iiccept  the  heritage,  yet,  if  ho 
considers  it  for  his  iuterest,  he  has  the  privi-  ' 
lege  of  claiming  a  share  of  the  moveables  as 
one  of  the  next  of  kin,  provided  he  collates 
the  heritage  with  the  executors,  who  are 
bound  to  collate  the  executrywith  him;  so 
that  the  whole  estate,  heritable  and  move- 
able of  the  deceased  may  be  thrown  into 
one  mass,  and  distributed  by  equal  portions 
amongst  all  the  next  of  kin.  The  same  rule 
holds  in  collateral  succession :  Thus,a  brother 
who  succeeds  as  heir,  may  collate  with  his 
younger  brothers  and  sisters,  and  claim  an 
equal  share  of  the  whole  succession.  Erskine 
seems  to  hold  that  the  heir  is  entitled  to  this 
privilege,  even  although  he  be  not  one  of  the 
next  of  kin  {Ersk.  B.  iii.  tit.  9,  §  3) ;  but  the 
contrary  has  been  found  by  an  unanimous 
decision  of  the  Court.  M'Caw,  28th  Nov.  1787, 
Fac.  Col.,  Mor.  p.  2383.  It  is  only  the  heir 
of  line,  or  the  heir  a5  intestato,  who  can  be 
required  to  collate,  in  order  to  have  a  share 
of  the  moveable  succession.  The  eldest  heir- 
portioner  who  succeeds  to  an  heritable  estate 
by  an  entail,  or  by  hor  father's  destination, 
is  entitled,  on  her  inthor's  death,  to  a  share 
of  the  moveables  without  collating ;  Eicarl, 
19th  Nov.  1720,  Mor.  p.  2378;  for,  although 
the  decision,  Balfour  v.  Scott,  15th  Nov. 
1787,  Fac.  Coll.,  Mor.  p.  2379,  is  of  a  con- 
trary tendency,  it  does  not  seem  reconcilable 
to  principle,  and  has  been  disapproved  of.  See 
report  of  Lord  Meadowbank's  speech  in  tho 
case  of  Little  Gilmour,  J  3th  Dec.  1809,  Foe. 
Coll.  It  is  settled  that  an  heir  of  entail  who 
is  one  of  the  next  of  kin,  and  not  heir  alioqui 
successurus,  is  entitled  to  a  share  of  the  move- 
ables without  collating  tiie  entailed  estate, 
although  he  has  sncceedi'd  to  it  through  the 
deceased :  Raii  Cram/ord  v.  Stetvart.  &c..  3f| 
Tec.  1794,  Fac.  Coll.,  Mor.  p.  2384.  But 
an  beir  of  entail  alioqui  succtssurus  is  not  on- 
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titled  to  receive  a  share  of  the  moveable 
estate  without  collating  the  rents  of  the  en- 
tailed estate  ;  Little  Qilmmtr,  13th  Dec.  1809, 
Fac.  CM. ;  see  also  Anstruther  v.  Ansiruther, 
16th  August  1836 ;  2  S.  <t  M.,  House  of  Lords, 
369  ;  also  1  S.  tfc  if .  463.  Where  lands  have 
been  purchased  and  taken  to  a  father  in  life- 
rent, and  to  his  heir  alioqui  successurus  in  fee, 
with  a  power  of  disposal  in  the  father,  the 
heir  must  collate  before  he  can  claim  any  share 
of  his  father's  moveable  succession  ;  Baillie, 
23d  Feb.  1809,  Fac.  GoU.;  and  it  would  also 
appear,  that  where  a  father  has,  during  his 
own  lifetime,  put  forward  his  heritage  to  his 
«ldest  son  prmceptione  hcereditatis,  the  son,  on 
his  father's  death,  cannot  claim  a  share  of 
the  moveables  without  collating  the  heritage 
so  put  forward  ;  Bank.  B.  iii.  tit.  8,  §  28.  It 
has  likewise  been  held,  that  an  heir  cannot 
claim  a  share  of  his  father's  moveables  from 
the  executors  without  collating  the  heritage 
to  which  he  has  succeeded  as  heir  to  his 
father,  although  that  heritage  lies  in  a  foreign 
country ;  Robertson,  18th  Feb.  1817,  Fac.  Coll. 
Where  a  father  has  possessed  heritage  on 
apparency,  without  completing  any  feudal 
title,  and  his  son  has  made  up  his  titles  by 
serving  to  the  person  last  infefc,  the  son  can 
claim  a  share  of  his  father's  moveable  succes- 
sion without  collating  the  heritage  possessed 
by  his  father  on  apparency.  See  the  case  of 
Spalding  v.  Spalding,  Nov.  18, 1821,  Hume's 
Decisions,  p.  119.  See  also  on  the  subject  of 
collation,  Fisher's  Trustees  v.  Fi^er,  Nov.  19, 
1844,  7  D.  129.    , 

'  2.  Collation  amongst  younger  children. — The 
object  of  this  collation  is  to  preserve  equality 
in  the  distribution  of  the  legitim,  and  it  is 
confined  exclusively  to  the  children  entitled 
to  legitim.  Under  this  provision  of  the  law, 
every  child  claiming  legitim,  who  has  already 
got  a  provision  from  the  father,  is  bound  to 
collate  that  provision  with  the  other  chil- 
dren, and  impute  it  in  part  of  the  legitim. 
Every  provision  given  by  the  father  falls 
under  this  collation  ;  e.g.,  tocher,  provisions 
granted  to  the  child  on  his  or  her  marriage, 
bonds  of  provision,  and  all  sums  advanced  for 
behoof  of  the  child,  except  the  expense  of 
education,  or  inconsiderable  presents  made 
by  the  father.  But  this  collation  is  not  re- 
quired where  it  appears  to  have  been  the 
grantor's  intention  that  the  child  should 
have  the  provision  as  a  pracipuum  over  and 
above  the  share  of  the  legitim.  Neither  is 
a  child  bound  to  collate  a  bond  of  provision 
granted  to  him  by  the  father  on  death-bed, 
in  so  far  as  such  provision  does  not  exceed 
the  dead's  part ;  for,  although  a  father  can- 
not diminish  the  legitim  by  a  death-bed  deed, 
yet  he  may  dispose  of  the  dead's  part  in 
articulo  mortis,  even  to  a  stranger,  and  much 


more  to  his  own  child.  Erik.  B.  iii.  tii  9,  § 
25.  Where  an  heritable  estate  is  provided 
toa  younger  child,  he  is  not  bound  to  collate  it, 
for  such  provision  does  not  diminish  the  fund 
from  which  legitim  is  taken.  This  kind  of 
collation  cannot  afTect  the  rights  of  third 
parties :  Thus  the  widow  cannot  be  required 
to  collate  legacies  or  donations  made  to  her 
by  the  hnsbwd  so  as  to  increase  the  legitim, 
nor,  on  the  other  hand,  are  the  children  ob- 
liged to  collate  their  provisions  with  the 
widow,  in  order  to  increase  her  jus  relicta. 
Stair, B.  iii.  tit.  8,  §§  26  and  46 ;  Monfs  Notes, 
pp.  clxxxviii.  and  ccclxiii. ;  Ersk.  B.  iii.  tit. 
9,  §§  24  and  25  ;  Ersk.  Princ.  12th  edit  431 : 
Bank.  B.  iii.  tit.  8,  §  16,  et  seq. ;  BelTs  Cm. 
vol.  i.  p.  100,  et  seq.  5th  edit.  ;  BelPs  Priiu. 
4th  edit.  art.  1910,  et  seq.;  Sandford  on  Heri- 
table Succession,  vol.  i.  p.  43,  etseq.  See  alu 
Legitim  and  Jus  Relicta!. 

Collatio  Bonomm;  in  the  Roman  law, 
was  somewhat  different  from  collation  in  onr 
law.  Any  one  of  the  sui  hceredes  who  wished 
to  participate  in  the  succession,  was  obliged 
to  collate  or  bring  into  the  common  stock,  to 
be  divided  among  the  several  heirs,  or  im- 
puted as  part  of  his  own  share,  whatever  he 
had  received  by  gift  out  of  the  estate,  during 
the  defunct's  lifetime. 

Collatio  bonorum,  in  English  law,  is  where 
a  portion,  or  money  advanced  by  the  tsiher 
to  a  son  or  daughter,  is  brought  into  A«(c4- 
pot,  in  order  to  have  an  equal  distributory 
share  of  his  personal  estate  at  his  death. 
Tomlins'  Diet.  h.  t. 

Collatioii  of  Benefices.  Collation  was  s 
form  of  introducing  a  parochial  minister  to 
his  church,  during  the  times  of  Episcopacy. 
It  was  done  by  writing  under  the  hand  of  the 
bishop,  approving  of  the  person  presented, 
and  conferring  on  bim  the  vacant  benefice, 
and  requiring  the  inferior  clergy  to  induct 
him  to  the  church.  For  the  form  of  admit- 
ting a  parochial  minister,  see  Minister,  Erik. 
Princ.  54,  12th  edit. 

Colleotioiis  in  Churches.  By  proclama- 
tion, 29th  August  1698,  it  is  ordained  that 
one-half  of  the  sums  collected  at  parish 
churche8,and  of  the  dues  received  by  the  kirk- 
session,  shall  be  paid  over  into  the  general 
fund  for  the  support  of  the  poor.  The  other 
half  has  generally  been  applied  for  the  tem- 
porary relief  of  sudden  distress.  Collections 
at  dissenting  meeting-houses  are  entirely  at 
the  disposal  of  the  congregation. 

By  the  Poor-Law  Act,  8  and  9  Vict.,c  83, 
§  54,  in  all  parishes  in  which  ithas  been  agreed 
that  an  assessment  should  be  leviedforthe  relief 
of  the  poor,  the  whole  ordinary  church  col- 
lections are  declared  to  belong  to,  and  to  be 
at  the  disposal  of,  the  kirk-session  of  each 
parish,  but  to  be  applied,  however,  to  no 

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other  pnrpotee  than  those  to  which  they  were 
before  the  date  of  the  act  in  whole  or  in  part 
legally  applicable.  See  Dwnkp's  Parochial 
Law,  p.  82. 

College  of  Jotioe.  The  term  college, 
which,  in  general,  is  applied  to  a  society  of 
learnt  men  associated  for  scientific  purposes, 
hu  been  applied  to  the  Supreme  Civil  Court, 
eeopoeed  of  the  Lords  of  Council  and  Ses- 
noD,  and  of  the  members  and  officers  of  court. 
This  court  receives  the  title  of  College  of 
Jiutioe  in  the  act  1537,  c  36,  and  the  judges 
of  it  that  of  Senators,  1540,  c.  93.  The 
judges  consisted  originally  of  seven  church- 
men and  seven  laymen,  with  a  president,  the 
Abbot  of  Cambuskenneth  being  the  first  pre- 
sident ;  and,  from  the  act  1579,  e.  93,  it  ap- 
pears that,  at  the  institution  of  the  court, 
the  president  must  have  been  a  clergyman. 
By  the  Treaty  of  Union,  art.  19,  no  person 
taa  be  appointed  a  judge  of  this  court  who 
has  not  served  as  an  aidvocate  or  principal 
clerk  of  session  for  five  years,  or  as  a  writer 
to  the  Signet  for  ten ;  and  in  the  case  of  a 
vriter  to  the  Signet,  he  must  undergo  the 
ordinary  trials  on  the  Roman  law,  and  be 
found  qualified  two  years  before  he  can  be 
named.  The  judge  must  be  at  the  least 
tventy-five  years  of  age.  The  admission  is 
made  by  the  judges,  in  virtue  of  a  letter  di- 
rected to  them  by  the  Sovereign,  requiring 
them  to  try  the  qualifications  of  the  nominee, 
and  to  admit  him.  The  form  of  trial  is  laid 
down  by  an  Act  of  Sederunt,  July  31,  1674. 
It  consists  in  the  presentee,  or  Lord  Proba- 
tioner as  he  is  called,  hearing,  and  reporting, 
and  delivering  an  opinion  on,  certain  of  the 
eantes  depending  in  court.  And  although 
this  injunction  to  make  trial  of  his  qualifica- 
tions seems  to  imply  a  power  of  rejecting 
bin,  yet  the  court  are  deprived  of  the  power 
of  rejecting  the  presentee,  by  the  act  10  Geo. 
I.,  c  19.  It  was  anciently  the  practice  to 
name  ektraordinary  Lords,  whose  number 
was  increased  to  no  fewer  than  seven  or 
eight.  But  James  YL,  by  a  letter  recorded 
in  the  books  of  Sederunt,  March  28,  1617, 
promised  to  restricthimself  to  the  nomination 
of  only  three  or  four,  in  terms  of  the  act 
1537 ;  and  it  is  not  till  the  10  Geo.  I.,  c.  19, 
that  the  power  of  naming  these  extraordi- 
nary Lords  was  renounced.  The  proper  num- 
ber of  judges,  until  the  stat.  1  Will.  IV.,  c. 
69,  was  fifteen,  and  is  now  thirteen ;  Ersk. 
B.  i.  tit.  3,  §  12,  et  seq.  See  Session.  In 
Addition  to  the  judges,  the  College  of  Jus- 
tice, by  Art  of  Sederunt,  23d  Feb.  1687, 
includes  the  advocates,  clerks  of  session, 
clerks  of  the  bills,  writers  to  the  signet, 
depotes  of  the  clerks  of  session  who  serve  in 
the  Outer-House,  their  substitutes,  one  in  each 
derk's  office,  the  depute-derks  of  the  bills. 


the  clerks  of  Exchequer,  thedirectorsof  Chan- 
cery, their  depute  and  two  clerks,  the  writer 
to  the  privy  seal  and  his  depute,  the  clerks  to 
the  general  registers  of  sasines  and  homings, 
the  macers  of  the  Court  of  Session,  the  keeper 
of  the  minute-book,  the  keeper  of  the  rolls 
of  the  Inner  and  Outer  House,  one  clerk  to 
each  of  the  judges,  one  clerk  to  each  advo- 
cate, the  extractors  in  the  Register  Office, 
and  the  keeper  of  the  Advocates'  Library. 
The  barons  and  members  of  the  Scotch 
Court  of  Exchequer  were  members  of  the 
College  of  Justice  by  6  Anne,  c  26,  §  11 ; 
the  Lords  Commissioners  and  officers  of  the 
Jury  Court  by  59  Geo.  III.,  c.  35,  §  36 ; 
and  the  keeper  of  the  judicial  records  of  the 
Court  of  Session,  the  assistants  to  the  prin- 
cipal clerks  of  session,  the  auditor  of  the 
Court  of  Session,  and  the  collector  of  the 
fee  fund,  are,  by  1  and  2  Geo.  IV.,  ex  officio 
members  of  the  College  of  Justice.  The 
privileges  of  the  College  of  Justice,  accord- 
ing to  several  acts  of  the  Scotch  Parliament, 
consisted  in  a  general  immunity  from  taxa- 
tion. No  such  general  immunity,  however, 
is  now  claimed ;  and  the  privileges  now  con- 
sist of  an  exemption  from  watching  and 
warding  ;  from  payment  of  the  annuity  for 
ministers'  stipends ;  from  all  the  city  imposts 
on  goods  carried  to  or  from  the  city ;  and, 
lastly,  from  the  civil  jurisdiction  of  the  ma- 
gistrates. The  privilege  of  suing  in  the 
Court  of  Session  was  abolished  by  the  Court 
of  Session  Act,  13  and  14  Vici,  c.  36,  §  17, 
1850 ;  and  the  privilege  of  exemption  from 
the  jurisdiction  of  the  Sheriff  Court  was  abo- 
lished by  the  Sheriff  Court  Act,  16  and  17 
Vict.,  cap.  80,  §  48, 1863.  In  so  far  as  the 
privileges  of  the  College  of  Justice  entitle 
the  members  to  exemption  from  police  assess- 
ments for  watching,  cleaning,  and  lighting 
the  city  of  Edinburgh,  they  have  been  re- 
nounced by  the  members ;  and,  by  the  police 
statute,  the  assessment  is  levied  from  them 
in  the  same  manner  as  from  the  rest  of  the 
inhabitants.  Stair,  5.  ii.  tit.  3,  §  3 ;  B.  iv. 
tit  1,  §  21 ;  Ersk.  Princ  12th  edit.  27,  29 
33  ;  BeWs  Princ  4th  edit.  art.  2212 ;  Shaw's 
Digest,  h.  t;  Brown's  Si/nop,;  Ross'  Led.  i. 
361,  423,  542. 

Collegiate  drarch ;  was  a  church  founded 
by  a  person  of  property,  at  his  private  ex- 
pense, in  which  certain  canons  or  prebenda- 
ries officiated  under  a  head  prceposiius  or  pro- 
vost.   Ersk.  B.  i.  tit.  5,  §  3. 

Colliers  and  Salters.  The  workmen  at 
coal-pits  and  salt-works  in  Scotland  wei'e 
formerly  in  a  state  of  servitude,  similar  to 
that  of  the  adscripti  of  the  Romans,  and  the 
ancient  nativi,  or  bondmen  of  this  country. 
Colliers  and  salters  were  bound  by  the  law 
itself,  independent  of  paction, merely  by  enter- 


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bg  to  a  coal-work  or  lalt-work,  to  perpetual 
service  there ;  and  in  case  of  sale  or  aUena- 
tion  of  the  ground  on  which  such  works  were 
situated,  the  right  to  the  service  of  these 
workmen  passed  to  the  purchaser  at  fvmdo 
cmnexum,  without  any  express  grant.  But  by 
the  statute  15  Geo.  III.,c.  28,  it  was  declared, 
that  after  the  1st  July  1775,  they  should  be 
no  otherwise  bound  than  as  other  workmen, 
and  the  benefit  of  the  act  1701  was  extended 
to  them.  The  object  of  this  statute,  however, 
having  been  in  a  great  measure  defeated, 
partly  by  the  nature  of  its  provisions,  and 
partly  by  transactions  between  the  work- 
men and  their  masters,  by  which  their 
bondage  was  continued,  it  was  provided  by 
the  act  39  Geo.  III.,  c.  56,  that  all  the 
colliers  in  Scotland  who  were  bonnd  colliers 
at  the  time  of  the  act  15  Geo.  111.,  should 
be  free  from  their  servitude ;  and  all  action 
is  denied  to  coalmasters  for  money  advanced 
to  colliers  prior  to,  or  during  their  service, 
with  a  view  to  their  engagement  at  the 
works,  except  only  sums  advanced  during 
their  service  for  the  support  of  their  families 
in  case  of  sickness,  for  which  advances  the 
ooalmaster  may  retain  from  their  weekly 
wages  one-twelfth  of  the  sums  so  advanced, 
till  the  principal  and  interest  be  repaid ;  and 
the  master  has  action  for  the  balance  in  case 
the  term  of  service  end  before  the  advance 
is  repaid.  Persons  seducing,  or  attempting 
to  seduce  colliers  from  Great  Britain,  are  to 
be  punished  in  the  same  manner  as  persons 
seducing  manufacturers.  In  questions  under 
the  act  no  coalmaster  or  lessee  of  coals  can 
act  as  a  justice.  Ertk.  B.  i.  tit  7,  §  61 ;  Ersk. 
Princ.  12th  edit.  114 ;  Jurid.  Stylet,  3d  edit, 
vol.  ii.  p.  160;  Watson's  Stat.  Law,  h.  i.; 
Hunter's  Landlord  and  Tenant ;  Blair's  Justice 
of  Peace,  h.  t. ;  TaiCs  Justice  of  Peace,  h.  t. ; 
Eraser's  Personal  Relations. 

Collision  of  Ships;  is  the  collision  of  one 
vessel  against  another,  whereby  the  ship  or 
cargo  suffers  damage.  The  question,  whether 
the  collision  has  been  caused  by  accident,  or 
by  design,  or  through  negligence,  must  ne- 
cessarily depend  upon  the  circumstances  un- 
der which  it  happens ;  but  where  it  is  clear 
that  a  fault  has  been  committed,  it  is  settled 
that  the  owners  of  the  vessel  in  fanlt  must 
answer  for  the  damage  resulting  IVom  it,  at 
least  to  the  value  of  the  ship.  Where  the 
loss  or  damage  arises  from  pure  accident,  or 
the  act  of  God,  as  it  is  termed,  the  rule  is, 
that  theloss  fallswbere  it  lights.  Where  there 
may  have  been  a  fault,  but  it  is  impossible  to 
say  to  whom  the  blame  attaches,  the  case  seems 
to  be  considered  as  one  of  average  loss,  or  con- 
tribution, in  which  both  ships  are  to  be  taken 
into  account,  so  as  to  divide  the  loss  equally ; 
although  there  is  some  difference  amongst 


authorities  as  to  whether  the  ships  are  to  con- 
tribute equally,  or  in  proportion  to  their  re- 
spective values.  But  however  that  question 
may  be  determined,  it  rather  appears  to  be 
fixed  that  the  contribution  is  confined  exeln- 
sively  to  the  ships,  and  that  no  share  either 
of  the  benefit  or  of  the  loss  arising  from  the 
contribution  falls  upon  the  cargo.  In  ques- 
tions between  the  owners  of  the  ship  and  the 
owners  of  the  cargo,  if  the  damage  has  arisen 
from  the  fault  of  the  master  or  mariners,  the 
shippers  are  entitled  to  claim  indemnification 
from  the  master  and  owners.  On  the  other 
hand,  if  the  loss  be  accidental,  it  is  a  mere 
peril  of  the  sea,  which  forms  an  exception  in 
the  charter  party,  and  must  fall  where  it 
lights.  In  like  manner,  if  the  injury  to  the 
cargo  has  arisen  from  an  inscrutable  acci- 
dent, which,  as  between  the  ships,  gives  rise 
to  a  claim  for  contribution,  it  is  settled,  in  ao 
far  as  the  cargo  is  concerned,  that  this  also  is 
a  mere  peril  of  the  sea  within  the  exception 
of  the  charter  party.  See,  on  this  subject, 
Bdrs  Com,  vol.  i.  p.  579,  et  seq.,  fifth  edit. 

Collistridium ;  the  "  jougs"  or  collar  round 
the  neck,  with  which  a  delinquent  is  bound 
to  the  pillory  or  stocks.    Skene,  h.  t. 

Collusion;  is  a  deceitful  or  fraadnlent 
agreement  between  two  or  more  persons  to 
defraud  a  third  party  of  his  right.  When 
proved,  it  has  the  effect,  at  common  law,  of 
voiding  any  transaction  in  which  it  occurs. 
Arrangements  between  bankrupts  and  their 
creditors,  on  the  eve  of  bankruptcy,  present 
the  most  frequent  instances  of  collusion  ;  and 
as  the  proof  in  such  cases  is  necessarily  diffi- 
cult, our  bankrupt  statutes  have  created  cer- 
tain legal  presumptions  of  collusion.  Such 
are  the  provisions  of  the  act  1621,  c  18,  as 
to  alienations  to  conjunct  and  confident  per- 
sons, and  of  the  act  1696,  c.  5,  regarding  se- 
curities granted  within  sixty  days  of  bank- 
ruptcy, by  which  presumptions  of  collusion 
and  fraud  are  established.  Independently, 
however,  of  those  statutes,  wherever  collusion 
can  be  proved,  or  where  the  transaction  is  of 
such  a  nature  as  to  imply  fraud  or  collusion, 
it  is  reducible  at  common  law :  such  are  con- 
veyances omnium  bonorum  to  the  prejudice  of 
creditors,  or  such  conveyances  as  necessarily 
render  the  debtor  insolvent ;  payment  by  an- 
ticipation to  a  favoured  creditor  on  the  ap- 
proach of  bankruptcy  ;  securities  given  on 
the  approach  of  bankruptcy,  accompanied 
with  concealment  or  false  appearances  ;  ar- 
rangements for  granting  preferences  by  cir- 
cuitous transactions  or  otherwise  ;  these,  and 
all  similar  transactions  in  which  there  is 
either  direct  evidence  of  collusion,  or  con- 
clusive real  evidence  in  the  nature  of  the 
transaction  itself,  are  reducible  at  comm-m 
law,  although  they  should  not  fall  within  the 


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letter  of  any  of  the  bankrupt  statutes.  See 
Stair,B. i.  tit. 9,  ^12,  et  sea ;  Enk.  B.  iii.  tit. 
1,  §  16 ;  and  B.  iv.  tit.  1,  J  27,  e<  «ej. ;  Bank. 
B.  i.  tit.  10,  §  72;  Bett's  Com.  vol.  ii.  p.  243, 
d  teq.  5th  edit. ;  BeU's  Princ  4th  edit.  art. 
1316 ;  BelTs  JUust.  art.  1316.  See  also  Cir- 
tumw^tim.    Fraud. 

Cdpindaoh ;  a  yonng  beast  or  cow  of  the 
age  of  one  or  two  years,  now  called  a  quey. 
According  to  Skene  it  is  an  Irish  word,  and 
proper]}  signifies  a  foot-follower.     Skene,  h,  U 

(wlmnbaria.    See  Pigeon-Hmtse. 

Combat.  Single  combat  was  anciently  ad- 
mitted as  a  legal  mode  of  proof,  both  in  cri- 
mioal  and  civil  actions;  and  this  kind  of 
eridenoe  appears  to  have  been,  received  as  far 
down  as  the  reign  of  Robert  III.  in  questions 
regarding  capital  crimes.  Ersk.  B.  iv.  tit.  2, 
j2;  Rou't  beet.  ii.  136.     See  Dudling. 

CaabinatioiL  A  combination  amongst 
workmen  to  raise  their  wages,  when  attended 
with  tofflultuary  assemblages  or  violence,  is  a 
crime  at  common  law ;  and  by  39  and  40 
Geo.  III.,  c  106,  j^ustices  of  peace  were 
relied  with  power  to  punish  summarily,  by 
fine  and  imprisonment,  combinations,  whether 
on  the  part  of  workmen  against  their  masters, 
or  of  masters  against  their  workmen.  It  was 
always  doubtful,  however,  whether  that  sta- 
tute extended  to  Scotland ;  and  at  any  rate, 
by  6  Geo.  IV„  c.  129,  the  previously  existing 
itatntes  relative  to  combinations  were  re- 
pealed; and  amongst  other  provisions,  it  is 
thereby  declared,  that  a  peaceable  meeting, 
for  the  sole  purpose  of  determining  the  wages 
to  be  given  or  asked,  shall  not  subject  those 
attending  it  to  the  punishments  awarded'  by 
tiiis  act ;  but  that  violence,  threats,  intimi- 
datioQ,  molestation,  or  the  like,  exercised  to- 
wnds  workmen  or  others,  to  make  them  join 
an  association,  or  to  prevent  them  from  hiring 
themselves  out,  is  punishable  with  imprison- 
ment for  not  more  than  three  months,  with  or 
without  hard  labour.  See  Hvme,  i.  493,  d 
«g. ;  Alison^ t  Prine.  p.  188 ;  More's  Notes 
to  Stair,  p.  Ixv. ;  Bell's  Princ,  4th  edit.  art. 
193 ;  Bnwn's  Syncp. ;  Hutch.  Justice  of  Peace, 
vol  iL  p.  279,  2d  edit. ;  Tait's  Justice  of  Peace, 
LU;  Blair's  Justice  of  Peace,  h.  t.;  Watson's 
5ta<.  Law,  h.  t. ;  Kfunes^  Princ.  of  Equity  (1825), 
336;  Barclay's  Digest,  h.  t. 

Comediaa ;  an  actor  or  actress.  The  sa- 
lary of  a  comedian  is  held  to  be  alimentary, 
and  cannot  be  attached,  except  in  so  far  as  it 
exceeds  what  is  necessary  for  subsistence ;  al- 
though the  debtor  may  be  incarcerated  for  the 
debt,  and  thus  forced  to  bargain  with  his 
creditors ;  BelPs  Com.,  vol.  i.  p.  131,  5th  edit. 
It  ii  not  hamesucken  to  assault  a  comedian  in 
a  ^y-house ;  Hume,  vol.  i.  p.  313.  A  copy 
of  every  new  play,  or  addition  to  an  old  play, 
must  he  sent  to  the  Lord  Chamberlain  seven 


days  before  it  is  acted,  by  whom  it  may  be 
prohibited  ;  6  and  7  Vict.,  c.  68,  §  12.  The 
same  statute  repeals  the  Act  10  Geo.  II.,  c 
28,  under  which  players  had  been  exposed  to 
be  treated  as  rogues  and  vagabonds. 

Comes ;  or  Earl,  was  an  ancient  officer  with 
territorial  jurisdiction  ;  Ersk.  B.  i.  tit.  4,  §  1. 

Comitas ;  as  used  in  international  law,  sig- 
nifies the  courtesy  of  nations,  by  which  effect 
is  given  in  one  country  to  the  laws  and  insti- 
tutions of  another,  in  questions  arising  between 
the  natives  of  both.  In  consequence  of  the 
intimate  connections  and  relations  of  small 
states  with  each  other  on  the  Continent,  such 
questions  are  there  frequent ;  and  many  trea- 
tises have  been  written  on  the  Cmfiictus  Le- 
gum,  and  the  Comitas,  by  which  they  are  re- 
conciled.   See  Foreign. 

Conunendator.  During  Popery  the  Com- 
mendator  was  the  person  by  whom  the  fruits 
of  a  benefice  were  levied  during  a  vacancy. 
He  was  properly  a  steward  or  trustee ;  but  the 
Pope,  who  was  entitled  to  grant  the  higher 
benefices  in  comm,endam,  abused  the  power,  and 
gave  them  to  commendators  for  their  lives. 
This  abuse  led  to  a  prohibition  of  all  com- 
mendams,  excepting  those  granted  by  bishops 
for  a  term  not  exceeding  six  mouths.  1466, 
c.  3  ;  Ersk.  B.  i.  tit.  5,  §  4. 

CommiBsaries.  The  commissaries  or  offi. 
cials  were  anciently  the  delegates  of  the  clergy, 
forjudging  in  those  questions  which  fell  within 
the  ecclesiastical  jurisdiction.  By  the  acts 
1560  and  1567,  c.  2,  all  jurisdiction  depend- 
ing on  Papal  authority  was  abolished.  But 
the  Commissary  Court  of  Edinbuigh,  consist- 
ing of  four  commissaries,  was  erected  by  Queen 
Mary,  under  a  grant  dated  Feb.  8,  1563. 
The  Commissary  Court  of  Edinburgh  had  a 
double  jurisdiction ;  one  diocesan,  which  it 
exercised  over  the  special  territoiy  contained 
in  the  grant,  viz.,  the  counties  of  Edinburgh, 
Haddington,  Linlithgow,  Peebles,  and  a  part 
of  Stirlingshire  (although,  in  practice,  this 
jurisdiction  wasconfined  tp  the  three  Lothians); 
another  universal,  by  which  it  confirmed  the 
testaments  of  all  who  died  in  foreign  conn- 
tries,  or  who  died  in  Scotland  without  a  fixed 
dumicil,  and  reviewed  the  decrees  of  inferior 
commissaries.  There  was  but  one  commissary 
in  each  diocese  until  the  erection  of  the  Com- 
missary Court  of  Edinburgh,  after  which  in- 
ferior commissaries  were  established,  under  a 
commission  from  James  YI.,  in  most  of  the 
principal  towns  in  Scotland.  The  Commis- 
sary Court  of  Edinburgh  is  now  abolished 
(see  infra) ;  but,  while  it  existed,  it  had,  as  re- 
garded inferior  commissaries,a  privative  juris- 
diction in  declarators  of  marriages,  actions  of 
adherence  or  divorce,  executions  of  testaments, 
and  declarators  of  bastardy  during  the  bas- 
tard's life ;  and  a  cumulative  jurisdiction  in 


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actions  of  aliment  against  husbands,  and  of 
slander  and  defamation, — actions  for  sealing 
up  repositories, — actions  for  verbal  injuries 
arising  from  hasty  words, — ^the  authenticating 
of  tutorial  and  curatorial  inrentories, — and 
civil  actions  In  absence  to  the  extent  of  £40 
Scots,  and  to  a  greater  amount,  if  the  juris- 
diction was  prorogated  by  consent  of  parties. 
The  judgments  of  the  Comraiasary  Court  of 
Edinburgh  were  subject  to  the  review  of  the 
Court  of  Session.  By  49  Geo.  III.,  c  42,  § 
2,  the  registration  of  probative  writs,  and  of 
protrats  on  bills,  was  taken  from  the  commis- 
saries. The  number  of  inferior  commissa- 
riots  was  formerly  twenty-three ;  but  by  4 
Geo.  IV.,  c.  97,  they  were  all  abolished,  and 
their  jurisdiction  vested  in  the  sheri&  The 
following  are  the  principal  provisions  of  that 
act :  Compositions  in  respect  of  confirmation 
and  fees,  termed  consignation  fees  and  sentence 
money,  are  abolished.  2.  Abridged  extracts 
of  decrees  and  testaments-testamentar  are 
substituted  for  full  extracts,  unless  a  party 
shall  require  a  full  extract.  3.  The  inferior 
oommissariots  are  abolished,  and  every  sheriff- 
dom and  stewartry  is  declared  to  constitute  a 
eommissariot,  except  Edinburgh,  Haddington, 
and  Linlithgow,  which  continue  the  eommis- 
sariot of  Edinburgh.  (See  infra.)  4.  The 
small-debt  jurisdiction  of  the  commissaries  of 
Edinburgh  is  abolished,  and  it  is  provided 
that  no  inferior  commissary,  as  established 
by  the  act,  shall  exercise  jurisdiction  in  such 
actions,  or  in  any  oases  to  which  the  sheriffs' 
jurisdiction  was  then  competent.  5.  The 
inferior  commissaries  cease  to  hold  office,  and 
the  sheriffs  or  stewarts-depute  become  com- 
missaries, each  over  the  eommissariot  com- 
prehending his  respective  county  or  stewar- 
try. 6.  The  proceedings  of  sheriffs  or  stew- 
arto,  as  commissaries,  are  reviewable  by  the 
Court  of  Session  only.  7.  Sheriff-substitutes 
may  be  appointed  commissary-deputes. 

By  the  act  1  WilL  IV.,  c.  69,  the  provi- 
sions of  4  Geo.  IV.,  c  97,  that  the  sheriff- 
doms of  Edinburgh,  Haddington,  and  Lin- 
lithgow shall  be  the  eommissariot  of  Edin- 
burgh, are  repealed ;  and  it  is  declared  that 
each  of  these  shall  constitute  a  separate  eom- 
missariot, under  the  provisions  of  the  said 
act.  The  Commissary  Court  of  Edinburgh 
is  declared  to  possess  the  same  jurisdiction 
in  the  sheriffdom  of  Edinburgh  as  the  she- 
riffs, being  commissaries,  in  other  sheriffdoms 
of  Scotland,  and  any  more  extensive  jurisdic- 
tion was  declared,  to  cease,  except  such  as  re- 
gards the  confirmation  of  testaments  of  per- 
sons dying  furth  of  Scotland,  having  personal 
prc^erty  in  Scotland.  2.  Actions  of  aliment 
are  competent  before  any  sheriff-court  of 
Scotland.  3.  All  actions  of  declarator  of  mar- 
riage, of  nullity  of  marriage,  legitimacy  and  | 


bastardy,  and  all  actions  of  divorce  aod  of 
separation  a  mensa  et  ikoro,  are  competent 
only  before  the  Court  of  Session.  To  then 
are  now  added  actions  of  adherence,  and  sU 
other  consistorial  actions,  though  not  spe- 
cially mentioned  in  the  act  of  1  W  ill.  IV.;  13 
and  14  Vict.,  c.  36,  §  16 ;  and  see  A.  v.  B. 
1848, 11  D.  101.  4.  In  actions  of  divorce,  the 
Lord  Ordinary  is  required  to  administer  the 
usual  oath  of  calumny  to  the  pursuer,  and 
no  judgment  can  be  pronounced  in  the  pnr- 
suer's  ^vour  till  the  grounds  of  action  have 
been  substantiated.  5.  Such  cases  are  not 
appropriated  to  trial  by  jury ;  but  either 
Division,  or  a  Lord  Ordinary,  after  advisiog 
with  his  Division,  may  direct  any  such  caase, 
or  issues  of  fact  connected  therewith,  to  be 
tried  by  jury ;  and  the  same  oath  shall  be 
administered  to  witnesses  in  consistorial 
causes  as  in  the  other  courts  of  justice.  6.  The 
incorporated  solicitors  of  Edinburgh  may 
conduct  before  the  Court  of  Session,  soeh 
causes  as  were  formerly  carried  on  before  the 
Commissary  Court.  7.  Summonses  in  mari- 
time and  consistorial  causes,  instituted  in  the 
Court  of  Session,  do  not  require  concurreaee 
or  to  pass  the  Signet,  but  must  be  signed  by  a 
clerk  of  Session^  But  by  1  and  2  Viet,  c. 
118,  §  29,  it  is  enacted  that  summonses  ia 
Admiralty  causes  may  be  raised  and  psae 
the  Signet,  like  other  summonses  before  the 
Court  of  Session ;  and,  by  13  and  14  Vict, 
c.  36,  §  15,  it  is  declared  that  all  summonses 
in  consistorial  or  other  causes  may  be  signed 
either  by  a  clerk  of  Session,  or  by  a  writer 
to  the  Signet,  whose  signature  shall  be  equi- 
valent to  that  of  a  clerk  of  Session.  See  14 
S.  p.  187,  7  D.  1063.  See  also  16  tnwt  17 
Ftd.,  c.  80,  §  21.  8.  Directions  are  given  for 
agency  fees,  &c.,  which  are  not  to  exceed 
what  they  were  in  the  Commissary  Court, 
nor  is  any  thing  to  be  exigible  on  account  of 
fee-fund. 

By  6  and  7  Will.  IV.,  c.  41,  the  Commis- 
sary Court  of  Edinburgh  was  abolished,  and 
the  duties  of  the  commissaries  transferred  to 
the  sheriff,  who  now  confirms  to  the  suocesuon 
of  parties  dying  furth  of  Sootland.  The 
provisions  of  the  act  4  Geo.  IV.,  c.  97,  apply 
to  the  sheriffdom  of  Edinburgh,  and  to  the 
clerks  and  officers  of  the  said  Commissary 
Court,  in  the  same  way  as  such  provisions 
apply  to  the  other  sheriffdoms  of  Scotland. 
Certain  of  the  sheriSb  are  named  in  a  com- 
mission for  taking  proofs  in  consistorial 
causes ; — ^and  all  agents  qualified  to  practise 
before  the  Court  of  Session  are  authorized 
to  practise  in  the  Sheriff-court  of  Edinburgh, 
in  proceedings  transferred  to  the  sheriff  as 
coming  in  place  of  the  commissaries.  Stair, 
B.  iv.  tit.  1,  §  36 ;  Beffs  Cm.  vol.  ii.  p.  80, 
5tli  edit ;  BelFs  Princ.  4th  edit.  art.  1888 ; 


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Juril  S^les,  2d  edit  vol.  iii.  pp.  289,  673 ; 
See  Boyt^t  Judicial  Proceedings ;  Shand^s 
Prae.  pp.  14,  420;  Lothian  on  ConsisloritU 
Actions;  Eraser  on  the  Domestic  Relations; 
Bardies  M'Glaah.  Sher.  Court  Prac.  66.  See 
also  (Hmmission. 
Commiision.    See  Mandate.   Prineipci  and 

Commission  in  the  Army.  The  acceptance 
«f  a  commission  in  the  army  by  a  member  of 
Psrliament,  not  then  holding  one,  vacates  his 
seat,  and  that  althongh  he  had  formerly  held 
a  commission  which  he  resigned.  But  accept- 
ance of  a  new  commission  in  the  army  or 
nary  by  a  member  already  holding  one  (e.g. 
ou  promotion),  does  not  disqualiiy  from  being 
elected,  sitting,  or  voting.  The  acceptance 
of  a  commission  in  the  militia  by  one  not 
prenonsly  in  the  service  does  not  disqualify. 
Clambers'  Election  Law,  h.  t, ;  May's  Pari.  Prac 
438. 

CommiBsion  of  Oyer  and  Terminer.  See 
Oyfi  <md  Terminer.     Treason. 

Commission  of  the  Peace.  See  Justices 
ifPme. 

Commission  for  Taking  Proof.  In  the 
Court  of  Session,  as  well  as  in  inferior  courts, 
parole  proof  may  be  taken  under  a  commis- 
lion  granted  by  the  court.  The  commis- 
sioner is  delegated  by  the  court  to  take  the 
oaths,  and  to  report  to  the  court  the  depo- 
ntioosof  the  witnesses  ;  and  the  judicial  war- 
rant, whereby  the  power  is  conferred  on  the 
tomiDiaioner,  is  called  a  commission.  The 
(ommiasion  is  invariably  accompanied  by  a 
dH^cHce,  which  is  in  like  manner  a  judicial 
warrant,  under  which  the  witnesses  are  cited, 
and  may  be  compelled  to  attend  the  commis- 
noner  for  examination.  Formerly  letters  of 
diligence  were  taken  ont,  commanding  the 
witnesses  to  attend,  which  were  signed  by  the 
extractor ;  but  it  is  now  provided  by  13  and 
14  Vict,  c  36,  §  25,  that  a  copy  of  the  in- 
terloentor  granting  the  diligence,  certified  by 
tiie  dflrk,  shall  have  the  same  effect  as  the 
extract,  according  to  the  former  practice. 
The  circumstances  nnder  which  such  commis- 
Bxm  may  be  g^nted,  as  well  as  the  duties  of 
the  commissioner  in  taking  down  the  depo- 
titioos  of  the  witnesses,  are  explained  voce 
Etiieuee.  In  the  commissions  granted  by  the 
Court  of  Session  or  Lords  Ordinary,  for  tak- 
ing proofs,  the  commissioner  must  be  a  mem- 
ber of  the  Faculty  of  Advocates,  resident  in 
Eduburgh,  and  attending  the  court,  and  of 
more  than  five  years'  standing  at  the  bar,  or 
a  iheriff,  or  stewart-depute,  or  substitute,  or 
any  other  inferior  magistrate,  or  the  clerk,  or 
aaistant-clerk  of  any  court;  A.  S.  llth  March 
1800.  The  parties,  or  their  agents,  are  not 
allowed  to  name  their  own  commissioner; 
altlieagh  in  practice  it  frequently  happens 


that  the  court  adopts  the  suggestion  of  the 
parties,  where  they  are  agreed  as  to  the  par- 
ticular commissioner  to  be  named.  When 
the  witnesses  to  be  examined  reside  furth  of 
Scotland,  the  commission  may  be  granted  to 
any  competent  person,  in  the  discretion  of  the 
coui't.  Commissions  may  also  be  granted  for 
the  recovery  of  writings ;  the  commissioner  in 
that  case  being  any  competent  person  named 
by  the  court,  or  by  the  Lord  Ordinary.  See 
Saver.  To  prevent  the  danger  of  loss  of  evi- 
dence, when  witnesses  are  above  70  years  of 
age,  or  suffering  under  severe  indisposition, 
or  are  intending  to  go  abroad,  and  to  remain 
there  for  a  considerable  period,  such  witnesses 
may  be  examined  by  commission,  upon  appli- 
cation to  the  Court  or  the  Lord  Ordinary 
during  session,  or  to  the  Lord  Ordinary  on 
the  Bills  during  vacation.  The  examinations 
are  sealed  up  by  the  commissioner,  and  lie  tn 
retentis,  subject  to  the  orders  of  the  Court. 
The  regulations  as  to  this  are  contained  in 
A.  S.,  llth  July  1828,  §  117  ;  and  they  ap- 
ply to  all  causes  in  the  Court  of  Session, 
whether  the  proof  is  ultimately  taken  on 
commission,  or  before  a  jury,  provided  issues 
have  not  been  ordered.  If  issues  have  been 
ordered,  the  examination  must  take  place  on 
adjusted  interrogatories,  and  according  to  the 
regulations  of  the  Act  of  Sederunt,  16th 
Feb.  1841,  §§  17,  21.  By  13  and  14  Vict,  c. 
36,  §  49,  either  division  of  the  Court  may 
allow  proof  on  commission  in  any  of  the 
causes  appropriated  by  6  Geo.  IV.,  c.  120,  § 
28,  to  jury  trial,  where  the  action  is  not  one 
for  libel  or  nuisance,  or  properly  and  in  sub- 
stance an  action  of  damages.  In  consistorial 
causes,  it  is  enacted  by  6  and  7  Will.  IV.,  c. 
41,  that  when  it  is  necessary  to  take  proofs  in 
snch  causes,  the  proofs  shall  be  taken  by  cer- 
tain of  the  sheriff  of  Scotland  named  in  a  com- 
mission to  be  issued  for  the  purpose ;  under 
which  statute,  six  sheriffs  resident  in  Edin- 
burgh have  been  named,  by  one  or  other  of 
whom  the  depositions  of  the  witnesses  in  con- 
sistorial causes  must  be  taken  and  reported 
to  the  Court  of  Session  or  Lord  Ordinary. 
See  article  Commissaries.  When,  however, 
the  witnesses  in  consistorial  causes  are  furth 
of  the  kingdom,  they  may  be  examined  before 
any  Commissioner  appointed  by  the  Lord  Or- 
dinary or  the  Court ;  13  and  14  Vict.,  c.  36, 
§  26.  The  Court  has  a  discretionary  power 
to  send  a  consistorial  cause,  or  any  issue  of 
fact  connected  therewith,  to  a  jury.  1  WUl. 
ir.,  c.  69,  §  41. 

Formerly,  the  depositions  of  witnesses  in 
civil  causes  in  the  sheriff-courts  (except  small 
debt  cases)  were  taken  in  writing  before  the 
sheriff  or  his  substitute,  to  be  proofs  on  com- 
mission ;  and  remits  to  a  commissioner  were 
discouraged  unless  the  sheriff  could  not  per- 

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Bonally  perform  the  duty.  A.  S.,  lOtt  July 
1839,  §  68 ;  il.  S.,  10th  March  1849  (at  to 
prorogationt  and  proof*  in  »herif  courts),  II.  § 
2 ;  A.  S.,  23d  Jane  1852 ;  26ih  Jan.  1853. 
This  matter  is  nov  regulated  hj  16  and 
17  Vict.,  c.  80,  §  10,  which  enacts  that  the 
sheriff  shall,  with  his  own  hand,  take  a  note 
of  the  evidence,  getting  forth  the  witnesses 
examined,  and  the  testimony  of  each,  not  by 
question  and  answer,  but  in  the  form  of  a 
narrative,  and  the  documents  adduced,  and 
any  evidence,  whether  oral  or  written,  allowed 
to  be  received.  The  note  of  the  evidence  of 
each  witness  must  be  read  over  to  him  by  the 
sheriff,  and  signed  by  the  witness  before  his 
dismissal.  The  notes  of  evidence  ought  also 
to  be  signed  by  the  sheriff  himself,  and  to 
have  the  partibtu  marked  thereon.  If  the 
sheriff  is  unavoidably  prevented  from  tak* 
ing  the  note  of  evidence  in  his  own  hand- 
writing, he  may  dictate  it.  But,  where  any 
witness  or  haver  is  resident  beyond  the  ju- 
risdiction of  the  Court,  or,  by  reason  of 
age,  infirmity,  or  sickness,  is  unable  to  at- 
tend the  diet  of  proof,  the  sheriff  is  em- 
powered to  grant  commission  to  any  compe- 
tent person  to  take  and  report  in  writing  the 
evidence  of  such  witness  or  haver.  He  may 
also  remit  to  persons  of  skill,  and  other  per- 
sons, to  report  on  any  matter  of  fact ;  and, 
.where  such  remit  is  made  by  consent  of  both 
parties,  the  report  is  final  and  conclusive. 
Section  11  provides,  that  a  certified  copy 
of  the  sheriff's  interlocutor,  fixing  the  diet 
of  proof,  shall  be  a  sufficient  warrant  for  cit- 
ing witnesses  and  havers;  which  warrant 
may  be  made  operative  in  any  other  county 
by  being  indorsed  by  the  sheriff-clerk  of  that 
county.  A  form  of  citation  and  execution  is 
appended  to  the  act.  Where  the  aid  of  a 
commissioner  is  still  required,  he  must  be 
either  the  clerk  of  Court  or  his  depute,  or  a 
practitioner  before  any  court  of  at  least  three 
years'  standing,  or  a  justice  of  peace,  or  any 
other  magistrate.  The  commissioner  ought 
to  follow  the  rules  prescribed  by  the  Court  of 
Session  for  the  guidance  of  commissioners  act- 
ing under  its  authority ;  A.  S.,  llth  March 
1800.  A.  S.,  22d  June  1809.  The  agents 
of  the  parties  are  personally  liable  for  the 
commissioner's  fees ;  6  D.  95. 

The  act  6  and  7  Vict.,  c  82,  makes  it 
compulsory  on  witnesses  and  havers  in  Eng- 
land and  Ireland  to  attend  before  a  commis- 
sioner appointed  by  any  of  the  courts  of  law 
in  Scotland  ;  and  it  contains  reciprocal  pro- 
visions as  to  commissions  issued  from  the 
courts  of  law  and  equity  in  England  and  Ire- 
land, to  be  executed  in  Scotland.  See  Shands 
Prae.  348,  et  seq.;  Mac/arlane's  Jxiri)  Prae.  87, 
et  seq.;  M'Glashan's  Sheriff-Court  Prae.  233,  et 
seq.;  Dickson  on  Evidence;  Jurid.  Styles,  2d  edit. 


vol.  iii.  p.  784.  See  also  Evidence.  Ad  mi 
Commission.  Diligence.  Jury  Trial.  Wiinm. 
Foreign. 

C<Humi<sioii  of  Trustee.  A  trustee,  under 
the  bankrupt  statute,  is  remunerated  for  hit 
trouble  by  a  commission  upon  the  amoant  of 
the  sums  recovered.  This  commission  is  as- 
certained by  the  commissioners,  who,  previ- 
ously to  each  dividend,  audit  the  acconnb, 
and  strike  the  allowance  to  the  trustee,  by  a 
minute  under  the  hands  in  the  book  of  sede- 
runt. The  commission  usually  allowed  is  5 
per  cent.,  although  a  much  higher  commission 
is  sometimes  sanctioned  by  the  creditors.  It 
is  competent  to  the  bankrupt,  creditors,  or 
trustee  to  bring  the  amount  allowed  nnder 
review  of  the  Lord  Ordinary  or  the  sheriff; 
but  the  opinion  of  the  creditors  shoold  in  all 
cases  be  expressed  in  the  first  place.  The 
emoluments  of  a  trustee  under  a  private  trust- 
deed,  or  of  judicial  factors,  are  frequently 
arranged  on  a  similar  principle.  19  omI  20 
Vict.,  0. 79,  §  141 ;  BeWs  Com.  i,  3S0.  See 
Trustee.     Judicial  Factor. 

Commissioner.  The  Lord  High  Commis- 
sioner to  the  General  Assembly  of  the  Cbarch 
of  Scotland  represents  the  Sovereign  in  that 
Assembly.  The  Church  of  Scotland  claims 
the  right  of  meeting  in  a  General  Assemblj.as 
well  as  in  inferior  courts,  by  ifat  own  appoint- 
ment ;  but  it  also  recognises  the  right  of  the 
Sovereign  to  call  synods,  and  to  be  present 
at  them.  According  to  Erskine,  the  rojal 
sanction  seems  to  be  necessary  to  the  meet- 
ing of  the  Assembly,  and  the  commissioner 
asserts  the  right  of  dissolving  it.  But  during 
the  last  century  and  a-half  no  conflict  in  tiie 
exercise  of  those  rights  has  occurred.  In  the 
years  1638  and  1692,  however,  the  commis- 
sioner having  dissolved  the  Assembly  against 
their  wish,  and  without  fixing  a  day  for  the 
meeting  of  another,  the  Assembly  continued 
its  sittings,  and  appointed  the  day  when  the 
next  Assembly  should  be  held.  In  the  years 
1746  and  1760,  when,  by  accident,  the  King's 
commissioner  had  not  an'ived,  the  Assemhij 
met  on  the  day  appointed,  and  elected  a  mu- 
derator,  but  did  not  proceed  to  business  un- 
til the  commissioner  arrived.  In  1798  the 
commission  was  sent,  down,  and  laid  on  the 
table  on  the  first  session  of  the  Assembly; 
but  the  commissioner  did  not  make  his  ap- 
pearance until  the  fourth  session.  When, 
from  temporary  indisposition,  or  any  other 
cause,  the  commissioner  is  unable  to  attend, 
the  business  of  the  Assembly  proceeds  without 
him  ;  the  former  practice  of  resolving  into  a 
committee  of  the  whole  house,  on  these  occa- 
sions, being  now  considered  unnecessary. 
Ersk.  B.  i.  tit.  6,  §  6  ;  Hill's  Prae.  87 ;  GoA't 
Prae.    See  Church  Judicatories. 

Commissioner  of  Customs.    See  Customs. 


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Conminioner  of  Excise.    Sw  Excise. 

Caaminioiien ;  private  factors.  A  com- 
misioner  or  factor  is  a  person  who  holds 
I  power  from  his  Gonstitnent  to  manage  his 
tSun,  either  generally  or  in  a  particular 
department,  vith  full  authority  to  act  as  he 
hiiDMlf  might  do  if  present.  Extensive  land 
ntates  are  generally  placed  under  the  ma- 
nsgenent  of  a  commissioner  or  commissioners. 
See  Factor. 

Commissioners  of  Justiciary.  The  Jus- 
titiwy  Court  consists  of  the  Lord  Justice- 
Qentn],  the  Lord  Justice-Clerk,  and  five 
Jodges  of  the  Court  of  Session,  who  are  com- 
niuoDed  by  the  Crown  in  place  of  the  asses- 
lora  formerly  given  to  the  Justice-General. 
In  this  court  the  Lord  Justice-General  is 
preddent,  or,  in  his  absence,  the  Lord  Justice- 
Clerk  ;  1  WiU.  /F,  c  69,  §§  18  and  19.  See 
CinuiL    Justiciary. 

Commissioiiers  of  Supply.  The  Commis- 
lioners  of  Supply  are  named  in  the  acts  im- 
poNog  the  land-tax,  and  are  authorized  to 
set  within  their  respective  counties.  They 
lud,  till  lately,  in  order  to  qualify  them  to 
Kt,  to  be  possi^sed  of  L.lOO  Scots  of  yearly 
valued  rent,  in  property,  superiority,  or  life- 
rent Every  person  acting  without  that  qua- 
lification, though  named  in  the  act  as  a  com- 
mioioner,  incarred  a  penalty  of  L.20  sterling, 
and  his  vote  was  not  reckoned  in  any  divi- 
SK)D  of  the  commissioners.  The  exceptions  in 
regard  to  qualifications  were  two ;  one  in  fa- 
'onr  of  the  eldest  sons,  or  apparent  heirs,  of 
tbeee  possessed  of  a  legal  qualification,  under 
tie  old  election  law,  to  vote  in  the  election  of 
a  mraiber  of  Parliament ;  the  other  of  the 
bailies  and  magistrates  of  royal  burghs.  See 
tt^  Before  proceeding  to  act,  the  commis- 
iioiKrs  are  required,  under  a  penalty  of  L.20 
tterling,  to  take  the  oath  of  allegiance  and 
abjuration,  and  to  subscribe  the  assurance  ap- 
pointed to  be  taken  by  persons  holding  ofBces 
and  public  tmst  in  Scotland.  They  are  en- 
titled to  name  a  convener,  who  acts  as  preses 
of  the  meeting.  See  17  and  18  Vict.,  c.  91,  §  14. 
They  are  also  entitled  to  appoint  a  clerk, 
with  a  reasonable  salary.  Their  chief  duty 
it  to  assess  the  land-tax  and  to  apportion  the 
valuation  according  to  the  provisions  of  the 
Valoationof  Lands  Act,17  andl8  Vict.,c.  91. 
By  this  act  a  new  qualification  is  intro- 
duce for  commissioners  of  supply,  and  any 
person  acting  without  that  qualification  is 
declared  to  be  liable  to  the  penalties  presently 
attached  by  law  to  such  acting.  The  quali- 
fication, it  is  enacted  by  §  19,  shall  be  the 
leing  named  as  an  ex  officio  commissioner  of 
MppTy  in  any  act  of  supply,  or  the  being  pro- 
prietor or  husband  of  any  proprietor  infeft  in 
liierent,  or  in  fee  not  burdened  with  a  life- 
rent, b  lands  and  heritages  within  the  county, 


of  the  yearly  rent  or  valne,  in  terms  of  the 
act,  of  at  least  L.lOO,  or  the  being  the  eldest 
son  and  heir-apparent  of  a  proprietor  in- 
feft in  fee,  not  burdened  with  a  liferent,  in 
lands  and  heritages  within  the  county  of  the 
yearly  rent  or  valne,  in  terms  of  the  act,  of 
L.400;  and  the  factor  of  any  proprietor 
infeft,  either  in  liferent  or  fee,  unburdened  as 
aforesaid,  in  lands  and  heritages  within  the 
county  of  the  yearly  rent  or  value  of  L.800, 
shall  be  qualified  to  act  as  a  commigsioner  in 
the  absence  of  such  proprietor.  It  is  pro- 
vided that,  with  reference  to  the  qualifica- 
tion of  commissioners  of  supply,  the  yeai'ly 
rent  or  value  of  houses  and  other  buildings, 
not  being  farm-houses  or  ofiices,  or  other  agri- 
cultural buildings,  is  to  be  estimated  at  only 
one-half  of  their  actual  yearly  rent  or  value 
in  terms  of  the  act.  Persons  who,  at  the  date 
of  the  passing  of  this  act  (10th  August  1854), 
were  in  actual  possession  of  the  former  qualifi- 
cation, are,  so  long  as  they  continue  to  pos- 
sess it,  to  be  deemed  to  be  in  possession  of  the 
requisite  qualification  for  a  commissioner. 
By  "the  Commissioners  of  Supply  Act,  1856," 
19  and  20  Vict.,  c.  93,  all  persons,  being 
males  and  of  full  age,  and  possessed  of  the 
above  qualification,  otherwise  than  by  nomi- 
nation ex  officio,  for  acting  as  commissioners, 
are  declared,  without  being  named  in  any 
act  of  supply,  to  be  commissioners  of  supply 
while  so  qualified,  and  as  such  to  be  qualified, 
and  have  power  to  vote  and  act  as  freely,  and 
to  the  like  efiect,  asif  they  had  been  so  named. 
Any  one  desirous  of  being  put  on  the  list  of 
commissioners  must  give  in  a  claim  in  writing 
before  the  10th  December  in  each  year. 
Within  seven  days  thereafter  any  objections  to 
said  claim  must  be  lodged  with  the  clerk  of 
supply,  and  the  lodging  thereof,  must  be  inti- 
mated forthwith  by  him  to  the  party  objected 
to.  Ten  free  days'  notice  of  the  time  and 
place  of  disposing  of  claims  and  objections 
must  be  given  by  the  clerk  in  meeting  {ibid. 
§  3).  The  commissioners,  at  their  annual 
meeting  on  30th  April,  will  then  appoint  a 
committee  of  their  number,  three  being  a 
quorum,  to  meet  and. dispose  of  the  claims 
and  objections.  They  must  be  disposed  of 
before  20th  December  in  each  year  (§  4).  In 
accordance  with  their  determination,  the  clerk 
must  make  up  a  list  of  the  commissioners  on 
or  before  31st  December  in  each  year,  and  au- 
thenticate it  by  his  subscription,  and  retain  it 
in  his  custody.  This  list  is,  till  the  com- 
pletion and  authentication  of  the  next  list, 
conclusive  as  to  the  right  of  acting  and  voting 
as  commissioners,  except  as  regards  such 
sherifiTs  and  magistrates  of  burghs  and  towns 
as  may,  in  any  subsisting  act  of  supply,  be  con- 
stituted ex  officio  commissioners,  without  being 
required  to  possess  any  property  qualification, 


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who  and  whose  sacceasors  in  office  are  entitled 
to  act  and  rote  as  commiasionera  virtute  officii, 
without  heing  inserted  in  the  list  (§  5).  There 
is  an  appeal  from  the  determination  of  the 
commissioners  on  claims  and  objections  to  the 
Lord  Ordinary  on  the  Bills  within  ten  days 
after  the  determination  is  pronounced.  The 
Lord  Ordinary's  judgment  is  not  subject  to 
any  review. 

The  commissioners  of  supply  of  erery 
county,  and  the  magistrates  of  every  burgh, 
must  cause  a  valuation-roll  to  be  annually 
,  made  up,  showing  the  yearly  rent  or  value  of 
the  whole  lands  and  heriti^ges  in  the  county 
or  burgh,  specifying  the  nature  thereof,  and 
the  names  of  the  proprietors  and  tenants, 
or  occupiers;  17  and  18  Vict.,  c.9l,§  1.  For 
making  up  this  roll  they  are  entitled  to  ap- 
point an  assessor  or  assessors,  whose  duty  it 
IS  to  ascertain  and  assess  the  yearly  rent  or 
value  of  the  lands,  &o.,  and  to  make  up  the 
roll  before  the  15th  day  of  August  in  each 
year  (§§  3,  4).  The  mode  of  estimating  the 
yearly  rent  or  value,  according  to  which  it  is 
the  object  of  the  act  that  all  public  assess- 
ments leviable  according  to  the  real  rent  shall 
be  assessed,  is  fixed  by  §  8.  For  the  purpose 
of  making  up  the  list  of  commissioners,  the 
last  completed  valuation-roll  of  the  county  is 
primd  facie  evidence  that  every  person  entered 
therein  as  a  proprietor  of  any  lands,  &c.,  is 
the  proprietor  thereof;  and  is  conclusive  evi- 
dence that  the  lands,  &c.,  are  of  the  yearly 
Talue  set  forth  in  the  roll ;  19  and  20  Vict., 
c.  93,  §  2.  The  commissioners  must,  on  or 
before  the  15th,  and  not  earlier  than  the  10th 
September,  annually  hold  a  court  for  hearing 
appeals  against  the  valuations  made  by  their 
assessors ;  17  and  18  Vict.,  c.  91,  §  8.  The 
procedure  at  such  courts  is  regulated  by  §  10. 
Three  oommissioners  of  supply,  and  two  ma- 
gistrates of  a  burgh,  are  to  iorm  a  quorum  of 
such  commissioners  and  magistrates,  the  proses 
having  a  casting  vote  where  the  votes  are 
equal  (§  14).  The  election  of  a  preses  is  re- 
gulated by  §  15.  See  Valuation  of  Land*.  See 
also  5  and  6  Will.  IV.,  c  64,  §  10  ;  Wight  on 
Elections,  pp.  184, 194,  and  App.  28 ;  More's 
Notes  on  Stair,  p.  cedxxi. ;  Hutch.  Justice  of 
Peace,  B.  v.  c  4 ;  Dunlop's  Parochial  Law. 

Commissionen  of  Teinds.  See  Teind  Court. 

Commissioners  of  the  Jury  Court    See 
Jun  Trial. 

Commissioners  on  a  Sequestrated  Estate. 
By  the  Bankrupt  Act,  19  and  20  Vict.,c.  79, 
(  75, 1856,  it  is  enacted  that  at  the  meeting 
for  election  of  a  trustee,  the  creditors  present, 
or  their  mandatories,  shall,  after  the  election 
of  the  trustee,  elect  three  commissioners  (if 
there  be  so  many  creditors  who  have  claimed), 
who  shall  be  either  creditora  or  mandatories  of  i 
creditorsjandthe  like  proceedings  are  declared  | 


to  take  place  in  regard  to  their  election  as  are 
provided  in  regard  to  the  election  of  a  tnu- 
tee,  except  that  they  shall  not  be  bound  to 
find  security.  No  person  is  eligible  as  a  eom- 
missioner  who  is  disqualified  to  be  a  trustee. 
A  majority  of  the  creditors,  aaembled  at  any 
meeting  duly  called  for  the  purpose,  may  re- 
move a  commissioner,  and  may  elect  another 
in  his  place  in  the  manner  directed  by  the 
SLct.  It  is  the  duty  of  the  commiasioners  to 
superintend  the  proceedings  of  the  trustee, 
concur  with  him  in  submissions  and  transac- 
tions, give  their  advice  and  assistance  rela- 
tive to  the  management  of  the  estate,  and  de- 
cide as  to  paying  or  postponing  pa3rment  of  a 
dividend.  They  may  also  assemble  at  any 
time  to  ascertain  the  situation  of  the  bank- 
rupt estate,  and  any  one  of  them  may  make 
such  report  as  he  may  think  proper  to  a  ge- 
neral meeting  of  the  creditors. 

Commissioners  are  disqualified,  in  the  same 
manner  as  the  trustee,  f^om  purchasing  any 
part  of  the  estate  or  efiTects  of  the  bankrupt ; 
M'KeUar,  8th  March  1817,  Fae.  CoU.,  and  are 
entitled  to  no  salary,  commission,  or  allowance 
of  any  kind  from  the  bankrupt  estate.  See 
Bell's  Com.  vol.  ii.  p.  383,  et  seq.  5th  edit 

Comnussorinm  Factum.  See  Pactum  CiM*. 
missorium. 

Commitment  for  Trial.  After  the  de- 
claration of  an  accused  person,  and  the  pre- 
cognition hare  been  taken,  if  there  be  reason- 
able grounds  against  him,  the  ma^^rate 
grants  warrant  to  commit  him  to  prison,  to 
abide  the  result  of  his  trial  for  the  crime 
charged  against  him.  This  warrant,  by  1701, 
c.  6,  must  be  in  writing,  and  duly  signed. 
It  must  specify  distinctly  the  particular  offence 
charged ;  and  it  must  proceed  on  a  signed  in- 
formation. This  information  is  generally  in 
the  form  of  a  petition  or  complaint  at  the  in- 
stance of  the  procurator-fiscal,  by  whom  it  is 
signed,  although  it  would  seem  that  a  leas 
formal  application  is  a  sufficient  compliance 
with  the  statute ;  such,  for  example,  as  an 
affidavit  or  signed  declaration,  or  even  a  let- 
ter by  the  party  concerned,  or  having  cause 
of  knowledge,  provided  it  properly  describe 
the  fact,  and  be  duly  referred  to  in  the  war- 
rant of  commitment.  But,  in  whatever  shape 
the  information  is,  it  must  contain  a  direct 
charge  of  facte,  not  a  vague  statement  of  sus- 
picions. The  officer  executing  the  warrant, 
before  imprisonment,  must  serve  the  accused 
party  personally  with  a  copy  of  the  warrant. 
The  ordinary  practice  is,  to  subjoin  the  war- 
rant to  the  information,  and  to  serve  the 
prisoner  with  a  full  copy  of  both.  Commit- 
ment for  trial,  on  a  warrant  defective  in  the 
statutory  requisites,  exposes  the  grantor,  the 
officer  executing  it,  and  the  keeper  of  the 
prison,  to  the  paiAs  of  wrongous  imprison- 


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BKDt;  1701,  c.  6.  See  Wrongous.  Tmpruo»- 
a«H<.  There  is  an  exception  in  the  statute 
ia  fiiToar  of  inferior  magistrates,  justices  of 
tiie  peace,  &e.,  empowering  them  to  take 
aecarity  for  good  behaviour,  and  to  keep  the 
peace,  as  they  were  in  use  to  do  before  the 
pasting  of  the  act  1701 ;  and  also  to  commit 
for  trial  for  indignities  done  to  themselves,  or 
to  imprison  vagabonds,  &c. ;  or  for  riots, 
Utteries,  pickeries,  && ;  the  persons  so  com- 
mitted, however,  having  the  benefit  of  the 
itatnte,  in  so  far  as  concerns  bail  and  the  ex- 
pediting of  the  trial.  It  is  also  provided  by 
the  statute,  that  the  Privy  Council,  or  any 
fire  of  them,  in  case  of  imminent  or  actual 
isTtsion,  rebellion,  or  insurrection,  may  com- 
mit, upon  suspicion  or  accession  thereto,  with- 
out being  liable  to  the  penalties  of  the  sta- 
tute; the  person  so  committed  having  his 
relief  for  trial  or  liberation  under  this  act ; 
Stat.  1701,  c,  6.  See  Hume,  vol.  ii.  p.  84, «( 
uq.;  Alison't  Prae.  161 ;  Taifs  Justice  of 
Ptace,  i.  (. ;  Blear'g  Justice  of  Peace,  h.  t.  See 
alto  Arrettmmt.    Bail,    Crimituii  Prosecution. 

Committee;  are  those  to  whom  the  con- 
sideration or  management  of  any  matter  is 
referred  by  some  court  or  assembly  to  whom 
it  belongs.  The  powers  of  a  committee  must, 
of  eonrse,  depend  upon  the  particular  autho- 
rity given  to  them  by  their  constituents.  In 
the  House  of  Commons  there  are  certain 
standing  committees  appointed  by  each  new 
Parliament,  viz.,  the  Committee  of  Privileges, 
^Migum,  ef  Grievances,  and  of  Trade.  The 
House  is  also  in  use,  when  it  thinks  proper, 
to  appoint  Select  Committees,  as  they  are 
termed,  for  particular  purposes.  Both  the 
House  of  Lords  and  the  House  of  Commons 
may  resolve  themselves  into  a  committee  of 
the  whole  House,  which  is,  in  fact,  the  House 
ilielf  presided  over  by  a  chairman,  instead  of 
by  the  speaker.  Tomlin's  Diet. ;  May's  Pari. 
Prae.  p.  299. 

One  of  the  most  important  committees  of 
the  House  of  Commons  is  that  for  deciding 
upoD  disputed  elections.  The  election  and 
proceedings  of  this  committee  are  regulated 
by  11  and  12  Vict,  c.  98,  "  to  amend  the 
lar  for  the  trial  of  election  petitions."  See 
Cw'f  Law  oimI  Prae.  of  Registration  and 
£l«tit>iu,p.  290  ;  Clerk's  Election  Laws;  Mail's 
Pari.  Prae. 

Conmixtion ;  is  a  species  of  specification, 
isclading  under  it  commixtio  properly  so 
taQed,  which  is  the  mingling  of  solids ;  and 
^*/ii*w,  which  is  the  mixing  of  liquids.  It 
may  be  proper  to  distinguish  between  that 
couimixtion  which  produces  a  new  subject, 
Md  tiiat  which  mingles  without  altering  the 
nattre  of  the  subjects,  as  in  the  case  of  two 
^reek  of  grain,  or  the  mixing  of  two  quan- 
tiliee  of  wine.     1.  Where,  from  the  com- 


mixtion  of  two  or  more  substances  of  different 
kinds  a  new  substance  is  produced,  which 
does  not  admit  of  the  materials  being  re- 
stored to  their  original  state,  the  person  by 
whom  the  new  property  has  been  made  be- 
comes the  sole  proprietor,  and  he  must  conse- 
quently be  liable  to  the  owners  of  the  mate- 
rials, for  their  value.  2.  Where  it  is  a 
mixture  of  the  same  substances,  and  no  new 
one  is  formed,  the  original  right  of  property 
remains ;  and  whether  the  mixture  has  hap- 
pened through  accident,  or  has  been  made  by 
design,  the  right  of  property  in  the  mate- 
rials will  render  the  subject  a  common  pro- 
perty, divisible  amongst  the  parties  according 
to  the  value  of  their  respective  shares.  Stair, 
B.  ii.  tit.  1,  §  37  ;  Ersk.  B.  ii.  tit  1,  §  17  ; 
BdVs  Princ.  4th  edit.  art.  1298. 

Commodate ;  is  a  species  of  loan,  gratuitous 
on  the  part  of  the  lender,  by  which  the 
borrower  is  obUged  to  restore  the  same  indi- 
vidual subject  which  was  lent,  in  the  same 
condition  in  which  he  received  it  Stair, 
B.  i.  tit  11,  §  8,  «<  seq,;  Moris  Notes,  p. 
Ixxxi. ;  Ersk.  B.  iii.  tit.  1,  et  seq.;  Bell's  Com. 
vol.  1.  p.  225, 5th  edit ;  Bell's  Princ.  4th  edit 
art.  195,  et  seq.  See  Loan.  Mutuum.  Bor- 
rowing. 

Cummon  Error.    See  Communis  Error. 

Common  Law.  The  term  common  law 
is  used  by  many  of  the  writers  on  the  law 
of  Scotland,  and  in  some  of  the  acts  of  the 
Scotch  Parliament,  to  signify  the  Roman 
law  ;  but  in  its  proper  acceptation,  it  means 
our  consuetudinary  law,  whether  founded  on 
the  Roman  law,  the  feudal  customs,  or  the 
ancient  unwritten  law  of  the  country  from 
whatever  other  source  derived.  Ersk.  B.  i. 
tit.  1,  §  28  ;  Karnes'  Princ.  of  Equity  (1825). 

Common  Pasturage.    See  Pasturage. 

Common  Agent ;  is  tm,  agent  or  solicitor 
before  the  Court  of  Session,  employed  to 
conduct  a  cause  in  which  several  parties 
have  a  common  interest.  The  two  most  im- 
portant occasions  for  this  appointment  are  in 
the  process  of  ranking  and  sale,  and  in  the 
process  of  augmentation  and  locality.  But 
a  common  agent  is  also  sometimes  appointed 
in  a  process  of  multiplepoinding.  In  the 
process  of  ranking  and  sale,  immediately 
after  the  first  term  assigned  for  lodging 
claims,  the  process  is  enrolled,  and  an  inter- 
locutor pronounced  by  the  Lord  Ordinary, 
appointing  the  creditors  to  meet  to  choose  a 
common  agent,  to  carry  on  the  process.  This 
interlocutor  is  intimated  in  the  minute-book, 
and  in  the  Edinburgh  Oazette,  fourteen 
days  before  the  meeting.  At  the  meeting 
for  election  no  one  can  vote  unless  his  grounds 
of  debt,  with  an  oath  of  verity  by  the  credi- 
tor, if  in  Britain,  or  an  oath  of  credulity  by 
his  agent  or  attorney,  if  the  creditor  be  out 


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of  Britain,  bave  been  lodged  witb  tbe  clerk 
of  process,  at  least  twenty-four  honrs  prerioos 
to  tbe  meeting.  The  majority  in  ralae  elect. 
A  regular  mandate  should  be  produced  to  en- 
title any  one  to  vote  for  an  absent  creditor. 
No  one  can  be  elected  wbo  is  a  creditor, 
or  conjunct  and  confident  with  the  common 
debtor ;  and  after  his  -election,  the  common 
agent  cannot  act  directly  or  indirectly  as  the 
private  agent  of  any  particular  creditor  or 
class  of  creditors,  or  of  the  common  debtor, 
in  any  matter  relative  to  tbe  ranking,  or  the 
division  of  tbe  price ;  nor  can  he  purchase 
the  property  he  brings  to  sale ;  York  Build- 
ings Co.,  Mor.  p.  1336.  The  clerk  to  the 
process  draws  up  a  minute  of  tbe  election ; 
and  the  case  being  enrolled,  and  the  election 
reported,  the  Lord  Ordinary  approves  of  the 
appointment,  and  administers  the  oath  de 
Juuli  to  the  common  agent.  If  the  election 
be  disputed,  the  agent  approved  of  by  tbe 
Lord  Ordinary  acts  until  the  point  is  decided ; 
and  the  competition  is  decided  by  the  Lord 
Ordinary,  whose  decision,  however,  may  be 
reviewed  by  the  Inner  House,  on  a  reclaim- 
ing note  by  either  of  the  candidates.  The 
Buccessfnl  candidate  receives  his  whole  ex- 
penses from  his  opponent,  or  at  least  is  not 
entitled  to  charge  any  part  of  the  expense 
against  the  common  fund.  The  common 
agent  must  keep  a  minute-book  of  his  pro- 
ceedings and  official  correspondence  open  to 
the  inspection  of  all  concerned,  and  is  answer- 
able to  the  court  for  his  conduct,  by  summary 
complaint.  It  is  his  duty  to  take  effectual 
steps  for  ascertaining  the  subjects  belonging  to 
tbe  common  debtor,  and  the  encumbrances 
affecting  them ;  and  immediately  on  his  ap- 
pointment he  onght  carefully  to  examine  the 
whole  proceedings,  to  see  that  the  proof  of 
the  rental,  &c.,  are  correct,  and  to  Iraar  the 
value  of  the  lands  and  lots  deponed  to  before 
the  Lord  Ordinary.  A.  S.  I7th  Jan.  1766, 
nth  July  1794 ;  Shand"*  Fraciici,  pp.  881- 
938.     See  Ranking  and  Sale. 

In  the  process  of  augmentation  and  locality, 
after  the  augmentation  has  been  granted,  and 
the  case  enrolled  before  the  junior  Lord  Or- 
dinary, in  order  to  proceed  with  the  locality, 
he  pronounces  an  interlocutor,  ordering  the 
heritors  or  their  agents  to  meet,  to  name  a 
person  to  be  suggested  to  bim  as  common 
agent  for  conducting  the  locality.  A  notice 
of  this  interlocutor  is  inserted  in  certain  of 
tbe  Edinburgh  newspapers;  and  the  name 
of  the  person  chosen  is  then  reported  to,  and 
approved  of  by,  the  Lord  Orttinary ;  A.  S. 
9th  July  1809.  No  one  who  is  agent  for  the 
minister,  titular,  or  for  any  heritor  in  the 
parish,  can  be  common  agent ;  A.  S.  I2tii 
Nov.  1825,  §  13.  It  is  tbe  duty  of  this  com- 
mon agent  to  prepare  a  state  of  the  teinds, 


according  to  tbe  rules  elsewhere  expluned. 
See  Teinds.    Locality. 

Where  a  common  agent  is  elected  in  the 
process  of  mnltiplepoinding,  tbe  same  general 
rules  as  to  his  appointment  are  observed; 
A.S.  nth  July  1828,  §  48 ;  Shand-s  Prae.  596 ; 
Beffi  Com.  vol.  ii.  p.  266, 5th  edit.  See  M*lr 
tipl^inding. 

Common  Fleas.  The  Court  of  Common 
Pleas  is  one  of  the  three  Superior  Courts  of 
Common  Law  at  Westminster.  The  Coort 
consists  of  a  chief  justice  and  fonr  pmtM 
judges.  Its  jurisdiction  is  general  over  Bng- 
land,  in  all  civil  causes  at  common  law  be- 
tween subject  and  subject.  By  tbe  act  3  and 
4  Gul.  IV.,  c.  27,  §  36,  1833  ;  all  real  and 
mixed  actions  are  abolished  except  for  Dower 
Quare  Impedit  and  Ejectment,  and  in  the  two 
first,  the  Court  of  Common  Pleaa  continues  to 
have  exclusive  jurisdiction,  but  it  has  no  e(^- 
nisance  of  pleas  of  the  Crown.  Tbe  judges  of 
the  Common  Pleas  and  of  Queen's  Bench  con- 
stitute the  Court  of  Error  in  error  from  the 
Exchequer.  The  judges  of  the  Court  of 
Queen's  Bench  and  barons  of  Exchequer, 
constitute  the  Court  of  Error  in  error  trott 
the  Court  of  Common  Pleas;  and  the  judges 
of  tbe  Common  Pleas  and  the  barons  of  Bx- 
cheqner  constitute  the  Court  of  Error  in  errw 
from  tbe  Queen's  Bench. 

Common  Prayer;  the  liturgy  or  prayers 
used  in  the  Euglish  church.  It  is  the  parti- 
cular duty  of  clergymen,  every  Sunday,  fe., 
to  use  the  public  form  of  prayer  prescribed  by 
the  book  of  common  prayer ;  and  if  any  in- 
cumbent be  resident  npon  his  living,  and  ke^ 
a  curate,  he  is  obliged,  by  tbe  act  of  unifor- 
mity, once  every  month  at  least,  to  read  the 
common  prayers  of  the  church  in  his  parisb- 
cburcb,  in  his  own  person,  under  a  penalty. 
The  book  of  common  prayer  must  be  provided 
in  every  parish,  and  the  common  prayer  most 
be  read  before  every  lecture,  tbe  whole  »f- 
pointed  for  the  day,  with  all  the  circumstances 
and  ceremonies,  &c. 

Common  Debtor.  Where  the  effects  of  a 
debtor  have  been  arrested,  and  there  are 
several  creditors  claiming  a  share  of  them,  the 
debtor,  as  being  debtor  to  all  tbe  claimants, 
is  distinguished  by  tbe  name  of  the  eomaum 
debtor  in  tbe  proceedings  which  take  place  in 
the  competition.  Ersk.  B.  iii.  tit.  4,  §  2.  See 
Arrestment. 

Common  Good.  This  term,  in  its  widest 
acceptation,  includes  all  the  property  of  a 
corporation,  over  which  tbe  magistratea  bave 
a  power  of  administration,  solely  for  behoof 
of  the  corporation.  By  3  Oeo.  IV.,  c.  91,  § 
5,  it  is  enacted,  that  all  leases  for  more  than 
one  year,  of  the  heritable  property  or  common 
good,  shall,  after  certain  notices,  be  let  by 
public  roup  or  auction,  under  tbe  sanction  of 


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BvMj.  Common  lands  feued  by  the  magis- 
trates to  a  private  pnrehaser  hold  not  of  the 
Crown  in  bnrgage,  but  of  the  burgh  in  feu- 
fsnn.  Neither  are  lands  purchased  by  a 
bar^h  tanjuam  ^ilibet,  out  of  their  common 
stock,  to  be  accounted  burghal  tenements. 
Ersk.  B.  n.  tit.  4,  §  9 ;  Broum's  Syn.  398 ; 
Htitiet't  Landlord  and  Tenant.  See  Burgh 
Rcfoi.    Commwiitt/. 

Gonunon  Property ;  is  property,  whether 
heritable  or  moveable,  belonging  to  two  or 
mors  proprietors  pro  indivito.     The  common 
proprietors  are  mutually  bound  to  communi- 
eaie  the  profit,  or  to  share  the  loss  arising  from 
their  common  property,  according  to  their  re- 
spective shares  in  it;  and  the  consent  of  all  the 
common  proprietors  is  requisite  in  the  manage- 
nent  or  disposal  of  the  subject.    Each  joint 
owner  may  sell  his  pro  indivito  right,  the  pur- 
eluuer  eominginto  his  place ;  and  the  right  may 
be  in  like  manner  adjudged  by.  the  creditors  of 
the  common  proprietors,  or  any  of  them.    As 
to  the  management,  >the  maxim,  In  re  corn- 
am  meiior  est  conditio  prohibentis,  applies ; 
ud  benee,  one  eoproprietor  may  prevent  the 
otbenirom  removing  tenants,  unless  better 
rents  or  better  security  is  offered.    He  may 
iljo  prevent  any  extraordinary  use  of  the  sub- 
ject; e.f.,  a  lease  of  the  privilege  of  shooting 
O'er  the  property.   Or  he  may  prevent  opera- 
tion! OD  the  common  subject,  whereby  its  con- 
dition is  to  be  altered ;  e.g.,  striking  out  a 
door  in   a  common  stair  or   passage. .  But 
necessary  operations  in  rebuilding,  repairing, 
iciCtinnot  be  stopped  by  the  opposition  of 
My  of  the  joint  owners ;  and  in  general,  the 
coart  seems  disinclined  to  countenance  wanton 
Md  emulous  opposition.     Where  anything 
a  biilt  or  planted  on  the  common  subject,  it 
*tmatte  to  the  common  right.    Where  the 
parties  cannot  agree,  either  the  will  of  the 
■najority  rules,  or  matters  remain  in  statu  quo. 
The  expense  of  erecting  or  repairing  a  com- 
Boo  wall  between  conterminous  proprietors 
BBst  be  borne  in  proportion  to  the  value  of 
the  diare  which  each  has  in  the  subject ;  and 
><>  urban  subjects,  a  division-wall  has  been 
held  to  be  common  property,  although  built  at 
the  expense  of  one  of  the  parties.     Where 
the  common  property  is  heritable,  and  the 
pn^rietors  wish  a  division,  this  may  be  done 
either  extrajudicially,  or  on  a  brieve  of  divi- 
«ioB  directed  to  the  Sheriff.    See  Bribes. 
B(in  Portioners.     Where  the  subject  is  not 
diriable,  t.g.,  a  brewhonse,  or  other  indivi- 
sible heritable  subject,  any  one  of  the  common 
proprietors  seems  to  be  entitled  to  require 
the  others,  either  to  purchase  his  share  at  a 
<«rtsia  price,  or  to  sell  him  their  shares  at 
the  same  rate,  or  to  concur  with  him  in  ex- 
pwsg  the  subject  to  sale  by  public  roup. 
Uoreable  subjects,  again,  held  in  common, 


may  be  divided,  when  divisible,  in  an  action 
before  the  Judge  Ordinary ;  or,  when  indi- 
visible, as  in  the  case  of  a  ship,  a  majority  of 
the  joint  owners  mny  sell  by  public  roup ;  or 
any  one  of  them  may  oblige  the  others  to  take 
his  share  at  a  fixed  price,  or  to  sell  him  theirs 
at  the  same  rate,  by  means  of  an  action  of 
sett.  Stair,  B.  i.  tit.  16,  §  4,  and  tit.  7,  §  15  : 
Ersk.  B.  iii.  tit.  3,  §  56 ;  BarA.  B.  i.  tit.  8,  § 
40;  Milligan,  8th  Feb.  1782,  M.  2486, 
jffaifes,  897  ;  Belt's  Princ.  289,  and  cases  there 
cited.    See  Sett, 

Common  Interest ;  as  contradistinguished 
from  common  property,  is  applied  to  that 
right  arising  from  mutual  interest  in  a  sub- 
ject which,  although  not  amounting  to  com- 
mon property,  vests  the  parties  interested 
with  certain  rights  which  they  may  legally 
vindicate.  The  most  familiar  example  of  a 
right  or  interest  of  this  class  is  afforded  by 
those  large  tenement^  or  buildings  in  Edin- 
burgh, and  other  towns  in  Scotland,  called 
lands;  consisting  of  several  storeys  or  floors, 
each  of  which  is  the  separate  property  of  an 
individual  proprietor ;  and  although  there  is 
no  common  property  amongst  the  several 
owners  of  those  floors,  yet  all  the  proprietors 
in  the  land  have  a  common  interest  in  the 
preservation  of  the  walls  and  roof  of  the  en- 
tire tenement.  This  common  interest  differs 
from  servitude,  in  as  far  as  each  proprietor  is 
bound  to  maintain  his  own  portion  of  the 
walls.  It  differs  from  property,  in  so  far  as 
no  one  having  merely  a  common  interest,  is 
entitled  to  break  or  to  touch  the  wall  or 
space,  which  belongs  to  the  upper  or  under 
proprietor.  He  can  merely  prevent  injury, 
and  insist  on  support.  And  it  differs  from 
common  property,  in  so  far  as  each  of  the 
several  proprietors  may  make  what  altera- 
tion he  pleases  in  suo  propria,  provided  he 
does  not  endanger  the  common  interest,  or 
expose  thoso  who  hold  it  to  reasonable  alarm. 
The  extraordinary  alterations  and  transfor- 
mations which  have  taken  place  in  the  older 
part  of  the  New  Town  of  Edinburgh,  in  the 
process  of  converting  dwelling-houses  into 
shops,  have  contributed  to  settle  the  law  on 
this  subject ;  and  a  series  of  instructive  cases 
are  cited  below.  As  to  the  burden  of  sup- 
porting the  roof  of  the  tenement,  it  is  gene- 
rally made  matter  of  special  stipulation ;  but 
failing  that,  this  burden  lies  on  the  proprie- 
tor of  the  garret-floor.  In  Edinburgh,  and 
in  other  royal  burghs,  in  every  case  of  pro- 
jected alterations  on  tenements  within  burgh, 
application  for  a  warrant  must  be  made  to 
the  Dean-of-Guild  Court ;  those  interested 
being  called  as  parties.  Ersk.  ii.  t.  9,  §  11 ; 
BeWs  Princ.  §  292,  and  cases  cited;  Sir  J. 
Marjoribanks,  12th  Nov.  1816,  F.  G. ;  Pimie, 
5th  June  1819,  F.  C. ;   Cfray,  18th  June 


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1825;  WKean,  12th  Nor.  1823;  Dmnis- 
(0un,  10th  March  1824;  Ckrittie,  4th  June 
1825 ;  Sttmrt,  3d  Feb.  1829.  See  Dean  of 
Guild.    Jedge  and  Warrant.   Edinburgh. 

CknunuHU,  Howe  o£  The  House  of  Com- 
mons under  the  reform  acts,  consists  in  all  of 
658  members,  viz.,  159  for  counties  in  Eng- 
land and  Wales,  64  for  counties  in  Ireland, 
and  30  for  counties  in  Scotland,  333  for  Eng- 
lish, 39  for  Irish,  and  23  for  Scotch  burghs, 
with  4  for  the  English  universities,  and  2  for 
the  universityof  Dublin ;  Chambtrt  voce  Home 
of  Commont.  Vacancies  occur  by  the  general 
dissolution  of  Parliament  by  act  of  law 
which  takes  place  at  the  end  of  seven  years 
from  the  return  of  the  writ  whereby  it  was 
summoned,  or  at  the  end  of  six  months  after 
the  sovereign's  death ;  or  by  act  of  the  sove- 
reign in  exercise  of  the  prerogative.  They 
also  occur  by  the  secession  or  disqualification 
of  a  particular  member.  After  a  general  dis- 
solution, the  Crown  has  theoretically  three 
years  before  a  new  Parliament  need  be  sum- 
moned ;  but  the  practical  necessity  for  sum- 
moning it  is  immediate.  A  warrant  goes 
accordingly  from  the  Queen  in  Council  to  the 
Lord  Chancellor  to  issue  writSk  In  cases  of 
particular  vacancies,  if  during  session,  a  mo- 
tion is  made  in  the  House,  and  the  Speaker 
makes  his  warrant  for  the  issuing  of  a  new 
writ ;  if  during  recess,  the  Speaker  receives 
notice  of  the  vacancy,  certified  by  two  mem- 
bers, he  forthwith  causes  notice  to  be  inserted 
in  the  Gazette,  and  fourteen  days  afterwards 
issues  a  new  writ.  See  Election-Law.  Rrform 
Act.    Parliament.  Member  of  Parliament. 

Conunonty.  A  common  or  commonty  is  a 
piece  of  ground  belonging  in  property  to 
one  or  more  persons,  and  in  general  burdened 
with  sundry  inferior  rights  of  servitude,  such 
as  pasturage,  feal  and  divot,  and  the  like,  in 
which  last  respect  a  commonty  differs  from 
common  property  held  pro  indiviso.  There 
being  no  regular  method  at  common  law  of 
ascertaining  the  rights  of  parties  in  a  com- 
monty, and  dividing  it  among  them,  the  act 
1695,  c.  38,  makes  all  commonties,  except 
thoso  belonging  to  the  king  and  to  royal 
burghs,  divisible  at  the  instance  of  any  hav- 
ing interest,  by  an  action  in  the  Court  of 
S^ion.  The  Court  is  empowered  by  this 
statute  to  discuss  the  relevancy,  and  to  deter- 
mine on  the  rights  and  interests  of  the  parties 
to  grant  commission  for  perambulating  and 
taking  all  necessary  proof,  and  to  divide  the 
common  amongst  the  parties  concerned.  It 
is  also  declared,  that  the  interest  of  the  heri- 
tors having  right  to  the  common  shall  be  es- 
timated according  to  the  valuation  of  their 
respective  lands  and  properties,  and  that  the 
portion  of  the  common  adjacent  to  the  pro- 
perty of  each  heritor  be  adjudged  to  him  ; 


with  power  to  the  Court  also  to  divide  ths 
mosses  in  the  common,  or,  in  ease  they  eao- 
not  be  conveniently  divided,  that  they  ahsU 
remain  common,  with  free  ish  and  entry,  whe- 
ther divided  or  not.    Where  there  is  only  one 
proprietor  burdened  with  rights  of  servitade 
competent  to  other  heritors,  it  has  been  set- 
tled, after  considerable  fluctuation  of  opinios, 
that  this  is  not  a  commonty  within  themeio- 
ing  of  the  statute.    But  if  there  be  two  co- 
proprietors,  the  statutory  division  may  he 
made ;  and  the  device  of  a  conveyance  by 
the  sole  proprietor,  of  a  small  portion  of  the 
lands  proposed  to  be  divided,  to  an  adjoining 
proprietor,  made  even  pendente  proeetn,  hai 
been  held  sufficient  to  warrant  the  Court  io 
proceeding  with  the  division.    A  right  of 
servitude  over  the  common  is  not  a  sufficient 
title  to  pursue  an  action  of  division  ;  Befft 
Prine.,  §  1093.  In  Gordon  v.  Grant,  12th,  Nor. 
1850,  13  2>.  1,  relating  to  the  division  of 
the  commonty  of  Benachie,  it  was  held  QaX 
a  party  who  had  not  a  right  of  common  pro- 
perty in  a  part  of  the  lands  was  not  enti- 
tled to  insist  on  a  divisiob  of  that  part  of  the 
lands  in  respect  of  a  right  of  servitade  which 
he  claimed  over  it,  and  that  his  claim  of  ser- 
vitude could  only  be  made  effectual  under  & 
separate  action  of  declarator  of  servitude. 
The  same  party  was  also  found  not  entitled  to 
object  to  the  claim  of  another  party  to  hare 
the  same  lands  found  to  be  his  exclusive  pro- 
perty, there  being  no  other  party  claiming 
them  as  common  property. 

It  is  not  at  all  times  easy  to  ascertain 
whether  the  right  be  a  right  of  common  pro- 
perty, or  a  right  of  servitude  merely.  If  the 
proprietor's  title-deeds  convey  his  lands  to 
him,  "  with  parts,  pendicles,  and  pertinents," 
or  with  "  mosses,  commonties,  parts,  pendicles, 
and  pertinents,"  with  "the  commonty,"  or 
the  like  expression,  the  right  is  a  right  of 
property  in  the  common.  If,  on  the  other 
hand,  the  expression  be,  "  with  parts,  perti- 
nents, and  common  pasturage,"  or  "with 
pasturage  of  cattle  and  privilege  of  com- 
monty," a  servitude  merely  is  held  to  hsve 
been  conveyed,  although,  in  both  cases,  the 
possession  may  have  been  identical.  And  so 
infeflment "  with  parts  and  pertinents,"  fol- 
lowed by  prescriptive  possession  of  the  ad- 
joining common,  will  amount  to  a  right  of 
common  property ;  although,  where  the  char- 
ter is  a  bounding  charter,  the  clause  "  with 
pertinents,"  will  found  no  more  than  a  right 
of  servitude.  See  Bounding  Charter.  Where 
the  expressions  are  more  ambiguous,  they 
will  be  construed  or  explained  by  usag^ 
The  statute  expressly  exempts  from  divisioa 
commonties  the  property  of  the  Grown  or  ol 
royal  burghs ;  and  it  has  been  decided  that,  if 
the  property  be  vested  in  the  Crown,  alihou^ 


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ihe  benefit  is  eonferred  by  grant,  or  a  Bul))oct, 
neb  s  common  cannot  be  divided.  Shand's 
Prae.  ii.  520,  and  authorities  there  cited. 

In  the  action  of  division,  ail  parties  having 
interests,  whether  of  common  property  or  ser- 
ritode,  must  be  called ;  but  tenants  need  not 
lie  cited.  The  summons  is  executed,  called, 
sod  enrolled,  in  the  usual  manner.  It  is 
framed  in  terms  of  the  Court  of  Session  Act, 
13  and  14  Vict,  c.  36,  §  1 ;  and  the  annexed 
condescendence  must  set  forth,  in  reference  to 
s  plan  or  sketch  to  be  produced  along  with 
it,  the  descriptions  of  the  boundaries  of  the 
eommon,  according  to  natural  or  other  ob- 
jects, or  the  names  of  hills,  mosses,  and  other 
localities  occurring  along  or  near  the  line  of 
the  boundaries.  The  condescendence  must 
set  forth  the  nature  and  extent  of  the  right 
and  interest  the  pursuer  claims  in  the  com- 
fflonty,  his  titles,  and  the  claim  he  proposes 
to  advance,  vhich  claim  may  be  subject  to 
any  alteration  which  the  evidence  and  the 
pieis  of  parties  may  render  necessary ;  A,  S. 
ISA  June  1852,  §§  1,  2.  The  parties  who 
intend  to  appear  must  lodge  defences,  stating 
the  extent  of  the  right  and  interest  they  mean 
to  advance  in  the  process ;  the  extent  and 
bonndaries  of  the  commonty,  if  they  do  not 
sdait  those  stated  by  the  pursuer ;  the  lands, 
if  uy,  within  the  pursuer's  boundaries  which 
they  claim  as  private  property,  and  as  not 
forming  part  of  the  common ;  their  titles  and 
dsim ;  lb.  §  4.  After  these  papers  axe  lodged 
the  Lord  Ordinary  shall  consider  them,  both 
in  reference  to  the  requirements  of  the  Court 
of  Session  Act,  and  also  in  order  to  consider 
whether  any  questions  of  law  should  be  de- 
termined before  proof,  or  to  what  points  the 
proof  dioold,  in  the  firet  instance,  be  directed ; 
and  whether  it  should  be  by  commission  or 
before  a  jury,  and  whether  there  are  any  se- 
parate and  distinct  points  which  should  be  so 
tried  before  the  general  bonndaries  are  remit- 
M  to  proof,  and  between  what  parties ;  /i.  §  5. 
When  a  proof  by  commission  is  determined 
npon,  the  Lord  Ordinary  grants  commission 
to  perambulate  the  commonty,  to  asce^ain 
its  boundaries,  and  the  possession  of  the  so- 
nral  heritors,  to  get  the  ground  measured 
and  a  plan  maide,  and  to  divide  the  common 
saottg  the  parties  interested.  See  Beoeridge't 
Ftmt  vf  Procas,  565.  Diligence  is  at  the 
same  time  granted  against  witnesses  and 
kmn ;  and  the  proof  is  in  general  ordered 
to  be  reported  to  the  Court,  or  sometimes  to 
the  Lord  Ordinary.  The  statutory  rule  of 
dirisioo  is  the  valued  rent  of  the  properties 
to  which  the  right  to  the  common  belongs ; 
od  where,  as  in  Shetland,  there  is  no  valua- 
tion, the  division  is  regulated  by  the  number 
efnerks  belonging  to  each  proprietor,  ac- 
cording to  which  the  taxes  are  paid ;  Bruce, 


11th  Dec.  1823,  2  S,  673.  The  oth^* 
rules  are — \st,  To  allocate  to  the  parties  the 
shares  most  adjacent  to  their  own  property, . 
looking  to  the  quality  as  well  as  the  quan- 
tity ;  especially  where  the  adjacent  heritor 
has  improved  the  borderofthecommon  nearest 
his  lands.  In  that  case,  however,  the  land  is 
allocated  to  the  heritor  at  its  improved  value, 
the  presumption  being,  that  he  has  been  re- 
imbursed for  the  expense  of  the  improvement 
by  the  possession, — a  presumption  which  doubt- 
less would  yield  to  the  fact  in  cases  where  it 
was  otherwise.  2<i,  To  preserve  the  servitudes 
over  the  undivided  portions,  or  to  commute 
them  if  those  in  right  of  the  servitudes  will 
consent,  and  to  give  them  a  portion  of  land 
in  lieu.  3</,  To  allocate  to  the  proprietor - 
of  a  barony  his  share,  according  to  the  state 
of  his  possession.  But  where  the  proprietor 
of  a  barony,  to  which  a  common  was  attached, 
had  feued  out  the  whole  barony,  and  given 
the  fenars  rights  of  servitude  over  the  com- 
mon, it  was  decided  that  he  was  still  to  be 
held  as  possessing  by  means  of  his  feuars,  and 
that  he  was  entitled,  accordingly,  to  have  a 
share  of  the  common  set  apart  for  him,  cor- 
responding to  the  aggregate  valuation  of  the 
fenars,  and  subject  to  their  servitudes ;  Dvke 
o/Buceleuch,  16th  June  1812,  Fac.  Coll.  ith. 
To  continue  as  common  such  mosses  as  are 
indivisible,  with  free  ish  and  entry  to  the  moss, 
whether  divided  or  not.  In  the  case  of  mosses 
the  rule  is  not  the  valued  rent,  but  the  ex- 
tent of  the  respective  lands  lying  along  the 
edge  of  the  moss.  In  making  the  division, 
the  common  is  first  subdivided  amongst  the 
joint  proprietors,  as  above.  Then  each  pro- 
prietor divides  his  share  with  those  whose 
servitudes  are  derived  from  him  or  his  au- 
thora ;  although  this  seems  to  be  an  arrange- 
ment which  can  only  be  made  of  consent  of 
parties ;  and  in  questions  between  the  com- 
mon proprietors  and  those  having  rights  of 
servitude,  the  division  is  regulated  not  by  the 
valued  rent,  but  by  the  number  of  cattle  the 
parties  in  right  of  the  servitudes  have  been 
in  use  to  pasture  on  the  common,  or  according 
to  the  value  of  their  interests  in  the  common, 
whatever  they  may  be ;  Maittand,  11th  August 
1772,  Mor.  2485.  Formerly  the  proprietor, 
in  such  cases,  got  a  prcedpuum  of  a  fourth, 
over  and  above  his  share  in  the  division ;  but 
no  such  rule  is  now  acted  on :  all  that  the 
proprietor  gets  is  the  residue,  after  deducting 
the  value  of  the  servitudes.  The  proprietor 
has  also  a  right  to  the  coals  and  minerals, 
the  parties  in  right  of  servitudes  haying  right 
merely  to  the  surface.  When  the  prooif  is 
concluded  and  reported,  circumduction  will 
be  pronounced,  and  great  avizandum  made. 
A  prepared  state  was  then  framed  by  the 
Inner-House  clerk,  and  a  memotrial  and  ab^ 

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straet,  as  in  the  process  of  ranking  and  sale ; 
bat  prepared  states  hare  fallen  into  dis- 
use. Instead  of  the  memorial  and  abstract, 
when  all  parties  aeqniesce  in  the  division,  a 
short  printed  petition  is  boxed,  praring  the 
Court  to  approve  of  the  proceedings,  and  to 
pronounce  decree ;  and  if  there  be  no  objec- 
tions, decree  of  division  will  be  pronounced 
by  the  Inner-House  in  terms  of  the  report  of 
the  commissioner.  If  there  be  objections, 
they  will  either  be  disposed  of  at  once,  or  a 
remit  will  be  made  by  the  Inner-House  to 
the  Lord  Ordinary  to  prepare  the  cause,  and 
decide  on  the  objections  in  the  usual  way,  and 
subject  of  coarse  to  the  review  of  the  Court. 
The  expense  of  the  division  is  paid  propor- 
tionally to  the  benefit  each  heritor  has  de- 
rived f^om  the  division,  as  proved  by  the  value 
of  the  portion  allocated  to  him.  Tenants, 
however,  are  not  liable  in  any  part  of  the 
expense,  nor  even  for  the  interest  of  the  ex- 
pense so  disbursed  by  their  landlords.  This  ac- 
tion is  not  competent  in  an  inferior  court.  See 
Ertk.  B.  iii.  tit.  3,  §  56,  et  teq. ;  BeWt  Prine. 
§  1092,  et  uq. ;  Earned  Stat.  Law,  k.  (.;  Jurid. 
Stiflts,  iii.  149 ;  Shand'g  Prae.  p.  845,  et  teq. 

'Commnni  lUvidimdo  Actio ;  in  the  Ro- 
man law,  was  an  action  for  the  division  of 
what  was  possessed  in  common  by  more  than 
one ;  Stair,  B.  i.  tit.  8,  §  15.  The  princi- 
ples of  the  Roman  law  on  this  subject  are 
adopted  in  the  law  of  Scotland ;  and  where 
subjects  possessed  hj  pro  iWtoMo  proprietors 
are  in  their  nature  indivisible,  an  action  of 
division  and  sale  is  competent  at  the  instance 
of  one  of  the  proprietors ;  Brock  v.  Hamilton, 
19  D.  701,  in  note. 

Commimioii-Elemeiiti.  The  Teind  Conrt, 
in  modifying  a  stipend  to  a  minister,  make 
an  allowance  for  communion-elemenis,  pay- 
able out  of  the  tiends  of  the  parish  ;  but  do 
not  consider  themselves  to  be  at  liberty  to 
encroach  on  the  stock  where  the  tiends  are 
exhausted.  Ertk.  B.  ii.  tit.  10,  §  50  ;  Dtm- 
lop't  Parochial  Law.    See  Augmentation. 

Comauuiion  of  Oooda.  See  Goodt  in  eom- 
mtmion. 

Conunimis  Error.  Where,  through  over- 
sight or  negligence,  an  erroneous  practice 
has  prevailed,  and  has  become  inveterate,  and 
especially  where  parties  in  their  transactions 
have  relied  on  the  prevailing  practice  as  cor- 
rect ;  or  where  there  is  danger  of  disturbing 
judicial  procedure  in  past  cases ;  the  Court 
of  Session  is  in  use,  instead  of  correcting  the 
error  by  a  decision  in  a  particular  case,  to 
overrule  the  objection  when  so  stated,  but  to 
pass  an  Act  of  Sederunt,  enjoining  the  obser- 
vance of  the  correct  practice  in  future  ;  and 
certifying  all  concerned  that  they  will  here- 
after decide  accordingly.  Such  are  the  Acts 
of  Sederunt,   26th   Feb.  1684,   17th  July 


1741,  and  17th  Jan.  1756  y  in  some  of  which 
cases  the  erroneous  practice  had  been  di- 
rectly in  the  face  of  statutory  enactments. 
See  also  the  more  recent  cases  of  Beattie,  22d 
May  1830, 8  S.  84,  where  the  eommwm  error 
was  in  the  will  of  a  summons ;  and  of  Ruttd, 
7th  July  1837,  where  the  error  was  in  the 
ordinary  form  of  the  prayer  of  bills  of  saqten- 
sion     See  Actt  of  Seaerunt.    Stupention. 

Commiiiiity  or  Corporation.  A  corpora- 
tion is  composed  of  a  number  of  persons 
erected  by  proper  authority  into  a  body  po- 
litic with  certain  rights  and  privileges. 
Cities,  burghs,  hospitals,  scientific  or  profes- 
sional associations,  and  the  like,  may  be  thus 
incorporated.  Corporations  cannot  be  legally 
constituted  except  by  patent  or  by  act  of  Par- 
liament. Voluntary  associations  have  no per- 
tona  standi  injudicio.  But  by  special  statute 
it  is  made  lawful  to  establish  societies  for 
raising  funds  for  the  mutual  relief  and  main- 
tenance of  the  members  or  their  families  in  old 
age,widowhood,sickne88,orothercontingency. 
The  regulations  of  such  societies  are  directed 
to  be  exhibited  to  the  quarter-sessions  of  the 
justices  of  the  peace,  by  whom  they  are  to  be 
confirmed  ;  10  Geo.  /F.,  c  66 ;  2  WiU.  IV^  c 
37.  See  Friendly  Soeietiet.  The  stot.  7, 
Oeo.  lY.,  e.  67,  authorizes  joint-stock  banks 
to  sue  and  be  sued,  in  name  of  their  manager 
or  principal  officer,  on  certain  conditions  pre- 
scribed in  the  statute.  See  Bank.  A  corpo- 
ration is  held  in  law  to  be  one  person,  and 
being  in  general  established  for  a  perpetuity, 
the  legal  person  never  dies ;  for  although  the 
individuals  composing  it  die  out,  yet  those 
who  come  in  their  places,  either  by  suceeaaion 
or  by  election,  or  by  the  nomination  of  the 
founder,  according  as  the  charter  is  conceived, 
preserve  the  corporation  entire.  In  general, 
by  the  charter  of  erection,  a  corporation  may 
sue  or  be  sued  in  its  corporate  name ;  and  it 
may  hold  heritable  property,  and  contract 
debt,  which  will  be  effectual  against  the  pro- 
perty and  funds  of  the  corporation.  A 
superior,  however,  is  not  bound  to  giro  an 
entry  to  a  corporation,  as  to  an  ordinary  pur- 
chaser, on  payment  of  a  year's  rent ;  BM, 
17th  Jan.  1815,  Fac.  CoU.  See  Composition. 
Communities  have  also,  in  the  ordinary  case, 
authority  nnder  their  charter  to  elect  magis- 
trates, directors,  or  other  office-bearers,  to 
represent  the  whole  community,  and  to  bind 
it  in  the  matters  which  the  charter  of  in- 
corporation allows  to  be  entrusted  to  their 
management.  Independent  of  an  express 
clause  in  the  charter,  there  are  certain  natu- 
ralia  of  a  corporation  which  are  implied  in 
its  erection.  Thus,  the  corporation  may 
acquire  moveable  property,  and  be  sued  for 
the  price  of  it;  it  may  have  a  common 
seal;    may   assemble   to  deliberate    on    its 


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sf&ira ;  and  has  a  power  to  make  bye-laws 

for  the  administration  of  the  affairs  of  the 
commnnitj,  provided  sach  bye-laws  are  not 
incoDustent  with  the  laws  of  the  realm.  Com- 
nunities  are  dissolved, — 1.  By  the  expiration 
ef  the  time  to  which  their  constitution  limits 
them ;  2.  By  act  of  Parliament ;  3.  By  for- 
feitore,  when  they  abuse  their  powers;  in 
vbieh  last  case,  although  the  members  neces- 
larily  suffer  in  their  political  capacity,  yet  no 
prosecution  lies  against  such  of  the  individual 
members  as  have  had  no  accession  to  the  crime. 
After  a  community  is  dissolved,  the  individ- 
nals  are  not,  in  the  general  case,  bound  even 
ttibiidiarie  for  sums  borrowed  by  the  incorpo- 
ration. The  estate  of  the  corporate  body,  as 
being  the  fund  on  the  faith  of  which  the  cre- 
ditor contracted,  is  the  only  one  to  which  he 
can  look  for  repayment.  Public  trading  com- 
puies,  incorporated  by  a  royal  grant  or  by 
to  act  of  Parliament,  are  also  proper  corpo- 
rations, which  endure  in  continual  succession 
daring  the  time  appointed  by  their  charter. 
Bat  private  copartnerships  do  not  fall  under 
this  description ;  and  being  intended  merely 
for  the  private  interests  of  the  copartners, 
tbey  may  be  constituted  without  the  authority 
of  the  King  or  Parliament.  Stair,  B.  ii.  tit. 
3,  {28,  ttttq.;  Mor^s  NoUt,  pp.  clxxvi.  et 
«;.,  eeiii. ;  Ertk.  B.  i.  tit.  7,  §  64 ;  Bank.  B. 
i- p.  tit.  2,  §18,  ateq.;  Beff$  Com  p.  240, 
6tb edition;  Brown's Sif nop.  h.  t.,  and  pp.  170, 
597,  403;  Shaw's  Digett,  tiU  Bwrgh;  Jwrid. 
%fc»,2dedit.,  vol.  i.  pp.  39,  107  ;  vol.  iii. 
pp.  20, 712,  971 ;  Hvme,  ii.  260 ;  ifos»'  Leet. 
i.  83 ;  Strint.  Ahridg.  voce  Corporatums ;  BdPs 
Ptm.  4th  edit.,  art.  2167,  et  seq.  See  Joint- 
St«<i  Con^anies.  Society.  Bank.  See  also 
Bank  Royal. 

(Jompuiy,  Se«  Society.  Firm  of  a  Company. 

Canpany,  PaUio.    See  Public  Companiet. 

Contpantio  literanim.  The  comparison 
of  handwritings.  This  is  one  of  the  means 
of  proving  the  truth  or  falsehood  of  an  alle- 
gation of  forgery :  and  where  genuine  sub- 
aoriptiona  or  writings  are  brought  to  prove 
that  a  subscription  or  writing  is  truly  not  of 
the  handwriting  of  the  person  whose  it  is  said 
te  be,  much  weight  is  given  to  this  species  of 
eridence.  Bat  when  the  eomparatio  titerarum 
>>  resorted  to,  to  prove  that  a  particular 
Writing  has  been  written  by  the  accused,  it  is 
coisidered  as  a  much  more  doubtful  species 
•f  evidenee.  Ertk.  B.  iv.  tit.  4,  §  71 ;  Mae- 
/•iica>^$  Jury  Prae.  p.  225;  Memiet't  Con- 
•gwaenV ;  ^'»«<  <»  Evidence,  142,  2d  edit. ; 
^^Mbxm  on  Evidence.  See  also  Hume,  vol.  i. 
p.  160 ;  vol.  iL  p.  381. 

Comp«arance.  This  term  is  applied  to 
the  appearance  made  for  a  defender  in  an 
•etion.  In  the  Court  of  Session,  if  a  party 
'ppeare  by  counsel,  and  propones  defences, 


such  appearance  will  have  the  effect  of  ren- 
dering the  decree  pronounced  in  the  action 
what  is  termed  a  decree  in/oro:  and  the 
question  in  -dispute  between  the  parties,  when 
decided  by  a  final  judgment  in  which  appear- 
ance has  been  made  for  both  parties,  is 
termed  a  res  judicata.  Stair,  B.  iv.  tit.  38,  § 
5,  and  tit.  40,  §  8 ;  Jitrid.  Styles,  vol.  iii.  p. 
973 ;  1672,  c.  16 ;  Shand^s  Prac.  311.  If 
no  defences  have  Men  lodged,  though  ap- 
pearance have  been  entered,  and  the  process 
taken  out  to  see,  and  counsel  have  appeared 
for  the  defender  at  the  first  enrolment,  and 
got  the  case  continued,  decree  pronounced 
thereafter,  in  respect  of  no  defences,  is  never- 
theless a  decree  in  absence ;  19  D.  p.  474. 
Compearance  in  civil  causes  in  the  Sheriff- 
courts  is  made  by  notice  lodged  with  the 
clerk  in  terms  of  16  and  17  Vict,  c.  80,  § 
3.    See  Decree.    Res  Judicata.    Absence. 

Compearer.  A  party  not  called  as  a  de- 
fender in  an  action,  but  who  conceives  that 
he  has  an  interest  to  oppose  the  action,  may 
compear  and  claim  leave  to  sist  himself. 
If  his  claim  is  sustained,  an  interlocutor  al- 
lowing him  to  sist  himself  is  pronounced,  and 
is  designated  as  Compearer. 

Compensation ;  is  a  provision  of  the  law 
of  Scotland,  by  which,  where  two  parties  are 
mutually  debtors  and  creditors,  their  debts, 
if  equal,  extinguish  each  other;  and,  if  un- 
equal, leave  only  the  balance  due.  Com- 
pensation, except  by  way  of  action,  was  un- 
known in  the  law  of  Scotland  until  1592,  c 
141,  which  provides  that  compensation,  de 
liquido  ad  liquidum,  may  be  pleaded  by  way  of 
exception  or  defence  b^ore  decree,  but  not  by 
way  of  suspension  or  reduction  after  decree. 
Although  compensation  does  not  operate  ipso 
jure,  but  must  be  pleaded,  yet,  where  it  is 
pleaded  and  sustained,  the  mutual  debts  are 
held  to  have  been  extinguished  as  at  the 
time  of  concourse;  and,  from  that  time 
downwards,  the  currency  of  interest  on  either 
side  is  stopped.  In  order  to  found  compen- 
sation, it  is  necessary, — ^1.  That  each  party  be 
debtor  and  creditor  in  his  own  right :  hence 
a  tutor  cannot  compensate  a  debt,  properly 
due  to  himself,  with  a  sum  for  which  he  is 
creditor  tutorio  nomine.  An  executor  eon- 
firmed,  however,  is  held  in  this  respect  to  be 
the  same  person  with  the  deceased;  and 
therefore,  where  he  owes  a  Aeht  proprio  no- 
mine,  he  may  plead  compensation  upon  a  debt 
due  to  the  deceased ;  and,  on  the  other  hand, 
a  debt  due  to  one  who  afterwards  becomes 
executor  to  a  person  deceased,  may  be  com- 
pensated with  a  debt  due  by  the  defunct  to 
the  executor's  debtor.  2.  The  parties  must 
be  debtors  and  creditors  to  each  other  at  the 
same  time :  hence,  if,  before  the  concourse, 
one  of  them  has  regularly  assigned  his  debt 


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to  a  third  party,  compensation  cannot  be 
pleaded  against  the  assignee,  on  any  debt 
afterwards  arising  between  the  original  par- 
ties, although,  where  the  concourse  has  taken 
place  before  the  assignation,  the  debtor  may 
effectually  plead  compensation  against  the 
assignee,  npon  the  debt  due  by  the  cedent ; 
■Ersk.  B.  ii).  tit.  4,  §  14.  3.  The  debts  to  be 
compensated  must  be  of  the  same  species  and 
qnality:  hence,  a  sum  of  money  cannot  be 
compensated  with  a  quantity  of  com;  be- 
cause, until  the  price  is  fixed  at  which  the 
com  is  to  be  converted  into  money,  the  two 
debts  are  incommensurable  ;  yet,  in  this  case, 
some  short  time  would  probably  be  allowed 
for  ascertaining  the  conversions,  in  order  to 
make  such  a  debt  a  proper  subject  of  com- 
pensation ;  Ersk.  ibid.  §  15.  It  would  also 
appear,  that  where  a  person  is  indebted  to  a 
bankrupt  estate  in  a  specific  sum,  and  has, 
at  the  same  time,  an  unascertained  claim  for 
damages  against  the  bankrupt  for  failure  to 
deliver  goods,  there  is  room  for  a  plea  of 
compensation  on  the  part  of  the  debtor ;  BeWs 
Com,  vol.  ii.  p.  128,  5th  edit  It  is  proper 
to  observe,  however,  that  the  cases  referred 
to  by  Professor  Bell  are,  as  he  himself  ad- 
mits, scarcely  to  be  quoted  as  authorities 
establishing  this  point.  4.  A  debt  already 
due,  and  payable,  cannot  be  compensated  with 
a  conditional  debt,  or  one,  the  term  of  pay- 
ment of  which  has  not  arrived ;  Enk.  ibid. 
But  this  holds  only  where  the  parties  are  sol- 
vent; for  if  one  of  them  is  bankrupt,  the 
other  may  plead  compensation  on  a  debt 
which  may  become  due  at  a  future  time ; 
BdPt  Com.  ibid.  6.  In  strictness,  compen- 
sation ought  not  to  be  admitted  where  the 
mutual  debts  are  not  clearly  ascertained, 
either  by  the  writ  or  oath  of  the  adverse 
party,  or  by  the  decree  of  a  judge.  But,  by 
invariable  practice,  if  a  debtor  in  a  liquid 
sum  pleads  compensation  npon  a  debt  due  to 
him  by  his  creditor,  but  not  actually  consti- 
tuted, the  rule,  "  fuod  statim  Uquidari  potest 
pro  jam  liquido  hdbetur,"  is  applied,  and  sen- 
tence delayed  ex  aquitate,  until  the  ground 
of  compensation  be  made  effectual.  This  rule 
has  been  applied  not  only  where  the  counter- 
claim was  offered  to  be  instantly  proved  by 
writer  oath,  but  even  where  the  constitution 
of  thb  debt  required  a  proof  by  witnesses 
{Ersk.  lb.  §  16) ;  and  although  a  debtor  might 
not,  in  the  ordinary  case,  be  allowed  to  avoid 
the  payment  of  what  is  liquid  and  payable, 
during  a  long  litigation  on  an  illiquid  coun- 
ter-claim, yet  there  is  an  exception  even  to 
this  rule  in  balancing  accounts  on  bank- 
ruptcy ;  for  a  solvent  debtor  will  not  be  com- 
pelled to  pay  the  liquid  debt,  and  rank  for 
his  own  illiquid  claim,  but  may  plead  com- 
pensation ;  BeU't  Com.  ib.  p.  128.    «  From 


the  exuberant  trust  implied  in  deposit,  com- 
pensation is  not  pleadable  by  the  depontuy 
against  the  depositor.    Nor  can  it  be  pleaded 
against  the  holder  of  a  note  payable  to  the 
bearer  by  the  debtor,  upon  a  debt  due  to  the 
debtor  by  any  former  possessor  of  the  note— 
a  doctrine  extended  to  indorsed  bills  of  ex- 
change, which  the  acceptor  cannot  compen- 
sate against  the  holder,  by  debts  due  to  the 
acceptor  by  any  of  the  indorsers ;  £rsL  ib.  § 
17.     Neither  is  compensation  admitted  upon 
a  debt  extinguished  by  the  long  prescription 
at  the  time  compensation  is  pleaded,  even 
although  at  the  time  of  concourse  the  pre 
Bcriptieta    had    not  run ;    Carmidutd,  Jnly 
1719,  Mor.  p.  2677.    This  rule  holds  also 
with  respect  to  the  shorter  prescriptions,  where 
the  debtor  isdead.    But  where  the  debtor  b 
alive,  the  debt  seems  not  to  be  in  a  worse 
condition  than  an  illiquid  debt,  which  nay 
be  instantly  liquidated  by  reference  to  oath ; 
BdPs  Com.  ib.  p.  128.    7.  Where  the  con- 
course   is  made    by  the  debtor    acquiring 
right  to  a  debt  due  by  his  creditor,  com- 
pensation is  not  admitted,  either  where  the 
acquirer  is  presumed  to  have  had  a  bad 
intention,  or  where  the  compensation,  if  sos- 
tabed,  would  void  the  diligence  of  third 
parties.     Thus,  a  factor  who  is  sued  by  his 
constituent  for  intromissions  cannot  plead 
compensation  upon  a  debt  due  by  the  consti- 
tuent,  to  which  the  factor  has  acquired  right, 
after  receiving  the  rents  sued  for.     Nor  can 
the  debtor  of  a  deceased  person  who,  after 
his  creditor's  death,  has  acquired  right  to  a 
debt  due  by  the  deceased,  plead  compensation 
on  such  debt  in  a  question  with  the  crediton 
of  the  defunct ;  Ersk.  ib.  §  18.    Nor,  indeed, 
can  compensation  be  pleaded  in  any  case  on 
a  debt  which  has  been  acquired  mala  fiie  to 
gain  any  undue  advantage ;   BdPs  Com.  ib. 
p.  130.     8.   Compensation  may  be  pleaded 
not  only  by  the  principal  debtor,  but  by  any 
one  having  an  interest,  as  by  a  cautioner,  or 
by  a  competing  creditor  who  has  an  interest 
to  enlarge  the  fund  for  division,  by  extinguish- 
ing the  debt  of  one  of  the  claimants  ;  Beffs 
Com.  ib.  p.  131.     By  the  act  1592,  c  141, 
if  compensation  has  not  been  pleaded  by  way 
of  exception  in  the  course  of  an  action,  it 
cannot  be  pleaded  after  decree,  either  by  way 
of  suspension  or  reduction.     But   if  it  has 
been  pleaded,  and  unjustly  repelled,  it  may 
be  again  insisted  on,  either  in  a  suspension  or  a 
reduction,  where  these  forms  of  process  are  not 
otherwise  incompetent.    Decrees  in  absence, 
whether  of  inferior  judges  or  of  the  Court  of 
Session,  are  held  to  be  decrees  in  the  sense  of 
the  statute  ;  although  Erskine  seems  to  think 
that,  as  the  act  of  regulations  1672,  c.  16, 
provides,  that  all  defences  competent .  in  law 
may  be  pleaded  against  a  decree  in  absence. 


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io  tbe  same  manner  as  if  tbere  had  1)een  no 
decree ;  so  the  defence  of  compensation  ought 
in  DO  case  to  be  excluded  by  such  a  decree ; 
Erst.  ib.  §  19.     But  where  the  decree  in 
absenoe  has  followed  upon  a  snmmong  against 
one  of  many  debtors  included  in  the  same 
gammons,  this  has  been   held  a  su£Scient 
ipecialty  to  allow  compensation  to  be  pleaded 
in  a  suspension ;  Corbet,  20th  March  1707, 
Mor.  p.  2642  ;  A.  v.  B.,  25th  Feb.  1747, 
Mor,   p.   2648.      So  also  vhere    the  de- 
crees hare   been  set   aside  on  some  legal 
nallitj,  or  the  charge  has  been  turned  into  a 
libel,  compensation  is  still  pleadable ;  Wright, 
25tli  July  1676,  Mor.  p.  2640.     Neither  do 
bsroo  decrees,  nor  summary  decrees  on  a 
dsiue  of  registration,  exclude  compensation ; 
BMk.  B.  i.  tit.  24,  §  6,  par  27.    But  it  has 
been  found  that,  after  a  decree  of  furthcoming, 
eompensation  cannot  be  pleaded  by  way  of 
sn^nsiou  by  an  arrestee  against  the  arrester 
«n  a  debt  due  to  the  arrestee  by  the  common 
debtor,  although  the  decree  of  furthcoming 
Ttt  pronounced  in  absence  of  the  arrestee  ; 
Cuamngkame,  Stevenson,  and  Company/,    17th 
Jan.  1809,  Foe.  CoU.    This  deQision,  however, 
teems  to  hare  proceeded  chiefly  on  the  ground, 
that  the  decree  of  furthcoming  operated  as  a 
tnuufer  of  the  debt  to  the  arrester,  who  was 
entitled  to  trust  to  his  arrestment  and  furth- 
coming.    When  a  pursuer  is  creditor  to  a 
defender  by  a  separate  debt  not  included  in 
the  libel,  he  may  elide  the  defender's  plea  of 
compensation  by  pleading  recompensation  on 
the  separate  debt.    The  rules  applicable  to 
recompensation  and  to  compensation  are  the 
tame ;  and  when  recompensation  is  pleaded, 
the  matter  generally  resolves  into  an  action 
of  eoont  and  reckoning  ;  Ersk.  ib. 

Where  the  creditor  of  a  company  sues  for 
acompany's debt, compensation  maybe  pleaded 
on  a  private  debt  due  by  the  creditor  to  one 
of  the  partners  of  the  company,  and  this 
may  be  done  whether  the  company  is  solvent 
or  insolvent,  in  existence  or  dissolved.  The 
reason  for  compensation  being  allowed  in 
tadi  a  case  is,  that  the  rights  of  payment 
and  compensation  are  commensurate,  and  that, 
as  every  partner  of  a  company  is  liable  in 
the  payment  of  the  debts  of  a  company,  a 
debt  due  by  a  partner  may  be  pleaded  against 
one  due  by  the  company.  The  leading  case 
00  this  subject  is  Bogle's  Creditors  v.  BaUantyne, 
8th  July  1793,  M.  2581.  In  that  case  it 
WM  observed  by  a  majority  of  the  Court,  that 
in  determining  the  question,  there  was  no 
occasion  to  inquire  whether  the  company  was 
solvent  or  insolvent,  dissolved  or  not  dissolved, 
for  that  in  all  these  situations  the  same  rule 
vonld  hold ;  that  when  a  creditor  pursued  a 
company  for  payment,  he  could  not  prevent 
any  one  partner  from  standing  forward  and 


discharging  the  debt,  although  out  of  his  own 
private  funds;  that,  on  the  other  hand,  acredi- 
tor  had  it  in  bis  power  to  demand  payment 
in  solidum  from  any  individual  partner  with- 
out discussing  the  company;  and  that,  as 
every  partner,  therefore,  might  not  only  make 
an  ultroneous  offer,  but  might  even  be  com- 
pelled to  pay,  so  he  also  was  entitled  to  plead 
compensation,  it  being  a  general  rule  that 
the  obligation  to  pay  always  implied  a  right 
to  compensate.  It  is  to  be  observed,  however, 
that  compensation  on  a  private  debt  due  to  a 
partner  can  only  be  pleaded  against  a  comr 
pany's  debt  with  consent  of  the  company ;  but 
if  the  company  do  not  object,  it  is  jus  tartii  of 
the  creditor  to  do  so.  See  also  the  cases, 
Scott  T.  HaU  d:  Bissett,  13th  June  1809  ; 
RusseU  V.  M'Nab,  26th  May  1824,  3  S.  63, 
N. E.,  41 ;  Sahttony.  Padon,  17th  Dec  1824, 
3  S.  406,  N.E.  285.  See  also  Thomson  v. 
Stevenson,  10th  March  1855, 17  D.  739.  In 
this  last  case  it  was  observed,  "  When  a  pur- 
suer brings  an  action  against  a  company 
where  the  partners  are  liable  in  solidum  to 
the  creditor  for  all  the  sums  sued  for,  each 
is  a  debtor  individually  for  the  whole 
sum.  The  creditor  has  every  partner  liable 
to  him  in  solidum  for  the  whole  amount.  If  any 
individual  partner  has  a  debt  owing  to  him- 
self individually,  he  is  entitled  to  plead  com- 
pensation, and.  the  company  is  entitled,  with 
his  consent,  that  it  shall  be  so  applied.  Assig- 
natioit  is  not  necessary,  but  consent  of  the 
individual  is  necessary ;  and  he  must  concur 
in  the  application  of  his  individual  debt.  But 
with  his  concurrence  the  company  is  entitled 
to  say,  '  Our  partner,  who  is  individually 
liable,  chooses  to  pay  off  our  debt  in  this  man- 
ner, and  we  apply  his  debt  in  that  way :'  that 
is  the  principle  upon  which  the  former  de- 
cisions proceed." 

The  doctrine  above  laid  down,  being  that 
established  by  the  case  of  Bogle  v.  Ballantyne, 
is  strongly  controverted  by  Professor  Bell  in 
his  Commentaries,  vol.  2,  p.  664.  In  the 
fourth  edition  of  his  Principles  of  the  Law  of 
Scotland  he  states  the  doctrine  in  a  very 
qualified  manner.  "  It  may  be  doubted,"  he 
observes,  "  whether  a  company  called  upon  to 
pay  a  debt  to  one  who  is  creditor  of  a  partner 
may  not  arrange  with  that  partner  to  enable 
them  to  satisfy  the  debt,  by  assigning  his  debt 
to  the  company,  so  as  to  make  a  concourse." 
He  adds,  however,  "  such  arrangement  can-' 
not  be  made  after  bankruptcy."  It  is  thought, 
however,  that  no  assignation  by  the  partner, 
to  a  company  of  a  debt  due  to  him  by  the 
company's  creditor  is  necessary ;  and  that  the 
true  principle  is,  that  the  partner,  with  the 
company's  consent,  may  stand  forward  and 
compensate  the  debt  due  by  the  company  by 
a  debt  due  to  himself,  on  the  ground  that  he 


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himself,  as  an  individual,  is  personally  liable 
in  payment  of  tlie  company  debt. 

Professor  More,  too,  in  liis  notes  on  Lord 
Stair's  Institations,  objecta  to  the  doctrine 
above  laid  down,  and  observes, "  Where  a  com- 
pany happens  to  be  solvent  and  able  to  pay  its 
debts  from  iU  own  proper  funds,  can  any  of 
the  individaal  partners  who  has  a  debt  owing 
to  him  by  a  creditor  of  the  company,  step  for- 
ward, and,  by  setting  off  such  debt  against  the 
claim  of  the  company's  creditor,  obtain  a  pre- 
ference over  all  the  other  creditors  of  his 
debtor  ?  It  is  extremely  difficult  to  hold  this 
doctrine,  which,  in  truth,  resolves  into  this — 
that  the  partner  of  a  company  is  entitled  to 
set  off  a  debt  due  to  him  against  a  claim  of 
which  he  personally  and  individually  has  no 
right  to  demand  payment.  The  mere  circum- 
stance of  being  a  partner  of  the  company 
would,  according  to  this  doctrine,  operate  as 
an  assignment  in  his  favour  of  the  claims 
which  any  of  his  private  debtors  may  have 
against  the  company."  In  the  first  portion 
of  the  passage  here  cited,  the  doctrine  in  ques- 
tion is  clearly  stated.  There  is  some  confu- 
tion,  however,  in  the  statement  as  to  what  the 
doctrine  resolves  itself  into,  when  it  is  stated 
"  that  it  resolves  into  this,  that  a  partner  of 
a  company  is  entitled  to  set  off  a  debt  due  to 
him  against  a  claim  of  «hi<A  he  has  no  right  to 
demam  poyfneiU."  No  party,  however,  can 
have  a  right  to  demand  payment  of  a  claim 
against  which  he  pleads  compensation.  Al- 
though, however,  he  has  no  right  to  demand 
payment  of  such  a  claim,  he  is  under  an  obli- 
gation to  make  payment  of  it ;  and  this  is  the 
principle  on  which  the  doctrine  in  question 
is  based.  Neitlier  can  it  be  said  that,  accord- 
ing to  that  doctrine,  "  the  mere  circnmstaoce 
of  a  person  being  the  partner  of  a  company 
would  operate  as  an  assignment  in  his  favour 
of  the  claims  which  any  of  his  private  debtors 
might  have  against  the  company."  This  would 
be  to  entitle  the  partner  of  a  company  to  com- 
pensate a  debt  due  by  him  to  the  company 
with  debts  due  to  the  company  by  parties  in- 
debted to  him.  This,  however,  is  by  no  means 
the  doctrine  in  question,  which  is  this — that 
the  circumstance  of  the  creditor  of  a  company 
being  a  debtor  of  a  partner  of  a  company 
operates  as  an  assignment  in  favour  of  the 
company  of  the  debt  due  by  its  creditor  to  the 
partner. 

Although,  however,  a  company  may  plead 
compensation  against  a  company's  debt  on  a 
debt  due  to  one  of  its  partners  by  the  com- 
pany's creditor,  the  converse  does  not  hold, 
that  a  company's  debtor  can  compensate  a 
company's  debt  by  a  private  debt  due  to  him 
by  a  partner  of  the  company.  See  the  cases 
Xorritm  v.  H»nier,  Dec.  5,  1822,  2  S.  68, 
N.  E.  26 ;  Kerr  r.  Seott,  July  3,  1823,  2  S. 


447,  N.  E.,  400  ;  Thorn  v.  Nortk  Britidt  Batii, 
Nov.  23  1850,  13  n.  134.  Professor  More- 
thinks  that  the  same  principle  should  regulat« 
both  cases.  He  observes,  "  It  is  quite  tied 
that  the  debtor  of  a  company  when  sued  foi;a 
debt  owing  by  him,  cannot  set  off  or  compensate 
any  claim  which  he  may  have  against  one  of 
the  partners  as  an  individual ;  and  how  tbs 
converse  of  this  can  be  supported  upon  princi- 
ple is  not  so  clear."  The  two  cases,  however, 
are  very  different.  Where  a  company  pleads 
compensation  on  a  debt  due  to  a  partner,  the 
partner  in  right  of  the  debt  is  himself  per- 
sonally liable  for  the  company's  debt ;  and, 
being  so  liable,  the  company's  creditor  might, 
if  he  pleased,  proceed  at  once  against  tlie 
partner  and  not  against  the  company.  Wliere, 
again,  a  company's  debtor  pleads  compena- 
tion  against  a  company's  debt  on  a  private 
debt  due  to  him  by  a  partner  of  the  company, 
compensation  is  incompetent,  because  there  is 
no  concurtut  debiti  et  credUi,  on  the  simple 
ground,  that  although  each  partner  of  a  com- 
pany is  personally  liable  for  a  company's  debt, 
a  company  is  not  liable  for  the  debts  of  any 
of  its  partners. 

Two  other  cases  still  require  to  be  consi- 
dered. Although  a  company's  debtor  cannot 
compensate  a  company's  debt  with  a  debt  due 
by  a  partner,  a  company's  creditor  may  com- 
pensate a  debt  due  to  a  partner  with  a  cmd- 
pany's  debt ;  and  this,  on  the  same  principle 
that  a  company  may  compensate  a  company's 
debt  with  a  debt  due  to  a  partner,  the  prin- 
ciple in  both  cases  being,  that  a  partner  is 
individually  liable  for  tlie  company's  debt. 
In  the  case  now  supposed,  of  a  company's 
creditor  compensating  a  debt  due  to  a  partner 
with  a  company's  debt,  it  is  clear  that  the 
company's  creditor  might  sue  the  partner  who 
is  his  creditor  for  the  company's  debt.  It 
therefore  follows,  that  the  debt  due  by  the 
company  may  compensate  the  debt  due  to  the 
partner.  The  case  of  HoUMns  v.  R<»/al  Bank  ef 
Scotland,F6h.  28, 1707,  M.  2673,  and  affirmed 
in  the  House  of  Lords,^  28th  Nov.  1787,  3 
Baton's  App.,  p.  618,  may  be  cited  in  sup- 
port of  this  proposition.  In  that  case  the 
plea  sustained  was  one  of  retention  and  not  of 
compensation.  But  the  g^unds  on  which 
these  two  pleas  are  competent  to  be  pleaded 
are  the  same.  In  that  case  the  Roy^  Bank 
of  Scotland  was  sued  by  the  trustee  for  the 
creditors  of  a  shareholder  of  the  bauk  for  the 
transference  of  bank  stock  belonging  to  the 
bankrupt.  The  bankrupt  was  a  partner  of  a 
company  which  was  indebted  to  the  bank,  and 
the  bank  claimed  retention  of  the  stock  in 
satisfaction  of  the  debt  due  by  the  company 
of  which  the  bankropt  was  a  partner.  The 
plea  was  sustained  both  here  and  in  the  House 
of  Lords. 


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Where,  again,  a  company's  debtor  bucb  a 
]Hutner,  the  partner  cannot  plead  compensa- 
tioo  on  the  debt  due  by  his  creditor  to  the 
company ;  and  on  this  principle,  that  although 
t  partner  is  personally  liable  for  all  the  com- 
pany's debts,  be  is  not,  as  an  individual,  in 
rinbt  of  the  debts  due  to  the  company.  There 
is  therefore  no  anumrsus  d^iti  et  crediti.  The 
company,  it  is  true,  may  assign  the  company's 
debt  to  the  partner,  who  may  then  plead  com- 
pensation upon  it,  but  he  cannot  do  so  vith- 
ont  a  transference  of  the  debt  in  his  favour ; 
Bod  such  transtierence  could  only  be  effectual 
for  the  purpose  of  enabling  -the  partner  to 
plead  compensation  if  made  before  the  bank- 
ruptcy of  his  creditor.  There  is  no  case,  It  is 
thought,  giving  rise  to  the  point  last  consider- 
ed, but  it  appears  to  be  easily  resolvable  on 
principle. 

There  are  thus/our  cases  in  which  the  plea 
of  compensation  may  arise  with  reference  to 
company  debts,  and  debts  due  to  or  by  part- 
ners. The  first  case  is,  where  a  company's 
creditor  sues  a  company,  and  is  met  with  the 
plea  of  compensation  on  a  debt  due  by  him  to 
a  partner.  The  second  case  is,  where  a  com- 
pany's debtor  is  sued  by  a  company,  and  meets 
the  claim  by  pleading  compensation  on  a  debt 
doe  to  him  by  a  partner.  The  third  case  is, 
where  a  partner  sues  a  company's  creditor  for 
a  private  debt,  and  is  met  by  the  latter  plead- 
iag  compensation  on  a  debt  due  to  him  by  the 
company.  The  fcmih  case  is,  where  a  com- 
pany's debtor  sues  a  partner  for  a  private 
<lebt>  and  is  met  by  the  latter  pleading  com- 
pensation on  a  debt  due  by  the  former  to  the 
company.  The  result  of  the  foregoing  in- 
qniry  shows  that  compensation  is  competent  in 
the^«<andt&tr<2  of  these  cases,  and  that  itisnot 
competent  in  the  second  and  fourth.  See,  on 
the  subject  of  Compensation,  Stair,  B.  i.  tit. 
18,  §  6,  rf  teq. ;  Mor^s  Notes,  cxxviii. ;  Ersk. 
B. iii.  tit.  4,  §  11 ;  Bank.  B.  i.  tit.  24,  §  4; 
M**  Con.  vol.  ii.  p.  124,  664,  5th  edit. ; 
M"*  Princ.  §  572,  et  teq. ;  Thomson  on  Bills, 
p^  334-38,  834-54 ;  Karnes'  Princ.  of  Equittf 
(1825),  7,  258.     See  also  Retention. 

Coaipeiuatio  Iiqnrianun.  The  plea  of 
(tnpeiuaiio  infunarum  is  most  frequently  met 
vid  as  a  defence  against  actions  of  damages 
for  slander  or  defamation.  This  plea,  how- 
ever, is  not  properly  a  bar  to  the  action,  but 
of  the  nature  of  a  set-off  or  coanter-claim, 
*hieh  extinguishes  or  modifies  the  pursuer's 
claiai.  The  mutual  injuries  thus  to  be  setoff 
against  each  other  must  be,  generally  speak- 
ing, ujnries  of  the  same  kind.  Thus,  a  claim 
vf  damages  for  defamation  could  not  be  suc- 
eesrfuUy  met  by  an  outstanding  counter-claim 
efdasMges  for  a  former  assault;  the  defend- 
er's remedy  there  being  obviously  a  separate 
action  of  damages       On  the  other  hand,  a 


claim  of  damages  for  a  libel  in  a  newspaper, 
or  in  judicial  pleadings,  may  be  met  and  ex- 
tinguished by  a  counter-claim  for  cotempo- 
raneouB  defamation  of  the  same  character, 
conveyed  through  the  same  or  a  similar 
medium.  A  good  deal  of  judicial  discussion 
has  occurred  on  the  question,  whether  or  not 
a  counter-action  at  the  instance  of  the  defend- 
er is  necessary,  in  order  effectually  to  raise 
this  plea ;  and  it  is  not,  perhaps,  very  easy  to 
reconcile  the  authorities  an,d  judicial  dicta  on 
this  point.  It  has  been  said,  that  the  plea  "  is 
allowed  without  any  separate  action,  where 
the  injuries  are  of  the  same  kind  "  (per  Lord 
Gillies,  in  Gilchrist  v.  Dempster,  infra) ;  but 
more  recently,  the  leaning  of  judicial  autho- 
rity has  been  in  favour  of  a  separate  action. 
This  much,  however,  seems  certain,  that  with- 
out a  separate  action,adefender,  in  bis  defences, 
and  at  the  trial,  may  found  on  concomitant 
injuries  of  the  same  kind  inflicted  on  him  by 
the  pursuer,  and  this  not  only  as  part  of  the 
res  gestce,  but  as  justifying  the  injury  com- 
plained of,  and  extinguishing  the  claim  of 
damages  on  that  account.  Eecompensation, 
however,  cannot  be  proved,  since  that  plea,  if 
well  founded,  ought  to  have  formed  part  of 
the  pursuer's  direct  claim.  And  in  one  case, 
where  the  defence  of  compensatio  injuriarum 
had  been  sustained,  and  one  shilling  only  of 
damages  given,  the  Court  refused  to  give  the 
pursuer  his  costs,  holding  that  the  jury  must 
be  presumed  to  have  balanced  accounts  be- 
tween the  parties,  and  found  them  equally 
wrong.  Olldirist  v.  Dempster,  10th  Sept. 
1823,  3  Murray,  368 ;  and  Borthwidifs  Law  of 
Libel,  App.  433.  See  also  Oodard,  4th  Nov. 
1816,  1  Murray,  156  ;  Edwards,  23d  Dec. 
1823,  and  6th  Feb.  and  24th  June  1824,  3 
Murray,  369,  et  seq. ;  Borthmck  on  Libel,  279, 
et  seq.,  and  authorities  there  cited;  Shaw's 
Digest,  Macfarlan^s  Practice,  pp.  223,  288. 
As  to  compensatio  injuriarum,  considered  as  a 
defence  against  an  action  of  divorce  on  the 
head  of  adultery,  see  Recrimination. 

Competent  and  Omitted.  Those  pleas  wh  ich 
might  have  been  maintained  in  the  course  of 
a  suit,  but  which  have  not  been  stated,  are 
said  technically  to  be  competent  and  omitted. 
By  the  stat.  1672,  c.  16,  §  19,  it  is  enacted, 
"  that  decreets  «n  foro  contradictorio  before 
the  Lords  of  Session  be  not  again  suspended 
upon  reasons  competent  to  have  been  proponed, 
or  which  were  repelled  in  the  former  decreet." 
But  a  final  decree  in  foro  of  the  Court  of 
Session  may  be  suspended  or  reduced  when 
it  labours  under  essential  nullities;  e.g.,  where 
it  is  ultra  petita,  or  disconform  to  its  warrants, 
or  where  there  is  an  error  calculi,  &c.  And, 
in  the  opinion  of  our  greatest  law  anthorities, 
the  Court  of  Session  may  also  reduce  their 
own  decrees  upon  the  emerging  of  any  new 

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hek,  or  vritten  roacher,  not  formerly  pleaded 
upon,  provided  it  appears  that  such  fact 
or  document  was  not  known  to  the  party  be- 
fore decree,  and  wilfully  omitted,  in  order  to 
protract  the  litigation ;  Stair,  B.  ir.  tit.  1,  §  44, 
50,  et  seq. ;  Ersk.  B.  iv.  tit.  3,  §  3.  The  rule 
as  to  pleas  competent  and  omitted  is  not  ef- 
fectual against  a  minor,  although,  if  the  plea 
has  been  proponed  for  the  minor,  and  repelled, 
he  cannot  open  up  the  decree ;  preliminary 
objections  to  the  form  of  action  and  citation 
must  be  taken  tn  limine,  otherwise  they  can- 
not be  heard  afterwards.  After  a  record  has 
been  once  closed,  new  facts  will  be  allowed  to 
be  brought  forward  before  decree,  provided 
they  have  occurred  since  the  closing,  or,  if 
they  existed  before,  provided  they  had  only 
just  reached  the  knowledge  of  the  party,  res 
noviter  venientes  ad  notittam. 

The  plea  of  competent  and  omitted  has  no 
place  against  a  pursuer.  If  he  sue  on  the 
same  media  conctudendi,  be  will  be  met  with 
the  plea  of  res  judicata.  If  the  media  conn 
cludendi  are  different,  the  plea  of  competent 
is  inadmissible.  See  Stair,  iv.  40, 16  ;  Bank- 
ton,  i.  10,  217.  See  also  Macdonald  v.  Mac- 
donald,  26th  May  1840,  2  D.  889,  1  BeWs 
Appeals,  819.  See  on  the  subject  of  the  article 
Stair,  iv.  1,  44,  60,  et  seq.;  also  Stair,  ut 
supra,  §  44;  Ersk.  Prine.  12th  edit.  491; 
Bank,  B.  i.  tit.  36,  §  16,  et  seq.;  Bdl's  Com. 
vol.  ii.  p.  279,  6th  edit. ;  BelPs  Prine.  4th 
«dit.  2346  ;  Shand's  Prac.  314,  652. 

Competition.  A  competition,  generally 
speaking,  takes  place  wherever  two  or  more 
persona  are  claimants  for  the  same  right,  or 
on  the  same  fund ;  but,  in  the  technical  lan- 
guage of  the  Scotch  law,  the  term  is  most  fre- 
quently applied  to  those  contests  which  arise 
on  bankruptcy  between  creditors,  claiming  in 
virtue  of  their  respective  securities  or  (Qli- 
gences.  In  all  competitions  of  real  rights  or 
of  real  diligences,  the  preference  depends  in 
general  upon  priority  of  registration  ;  and,  in 
personal  rights,  the  general  rule  is,  that  pri- 
ority of  diligence,  not  of  obligation,  determines 
the  preference.  But  these  general  rules  have 
been  considerably  modified  by  the  various 
bankrupt  statutes,  one  object  of  which  has 
been  to  equalize  diligences  used,  or  securities 
granted,  within  a  certain  period  of  bankruptcy. 
The  rules  according  to  which  the  preference 
of  rights  and  diligences  is  determined  will 
be  explained  in  the  separate  articles  in  which 
those  rights  and  diligences  are  treated  of.  The 
chief  processes  of  competition — that  is,  those 
processes  in  which  the  competing  rights  or 
claims  are  usually  determined — are  the  pro- 
cesses of  multiplepoinding,  ranking  and  sale, 
and  mercantile  sequestration  under  the  bank- 
rupt statute.  Ersk.  Prine.  12th  edit. ;  BdPs 
Prine.  4th  edit,  art  2262,  et  seq.;  Karnes' 


Prine.  of  Equity  (1826).  See  Sasint.  Aij»- 
dicoHcn.  Jnhibition.  Assignation.  ArrttU 
ment.  Preference.  Poinding.  Bankrupt.  MM- 
plepoinding. 

Competition  of  Brievei.  gee  Senice  ofm 
Heir. 

Complaint.    See  Petition  and  Gow^mL 

Complaint,  Summary.  See  Summani  Ap- 
plications. 

Completing  an  A^ndioation.  An  adjadi* 
cation  maybe  completedfor  different  parposeB. 
It  may  be  completed  in  order  to  enaUt 
it  to  compete  with  other  heritable  rights,  in 
which  case  it  must  be  completed  by  chart«r 
of  adjadication  and  sasine  ;  or  it  may  be  com- 
pleted, to  the  effect  of  rendering  it  the  first 
effectual  adjudication,  under  the  statute  19 
and  20  Vic.  c.  91,  §  6,  1816.  See  Efectiul 
Adjudication. 

Composition  by  a  Bankrupt.  The  credit- 
ors of  an  insolvent  person  are  said  to  aeeept 
of  a  composition  when  they  agree  to  give  him 
a  discharge  in  full,  on  his  paying  them  a  part, 
instead  of  the  whole,  of  the  debt  he  owes  them. 
Extrajudicial  agreements  of  this  kind  may  be 
ent«red  into,  either  with  a  single  creditor,  or 
with  the  whole  creditors.  In  the  former  esse, 
the  agreement  will  be  valid,  whatever  ma;  be 
the  consideration  agreed  upon  between  the 
creditor  and  the  debtor.  Where  the  agree- 
ment is  entered  into  with  the  whole  creditors, 
it  is  a  mutual  contract  proceeding  on  two  im- 
plied conditions ;  the  one  that  all  the  credit, 
ors  are  dealt  with  equally ;  the  other,  that 
all  shall  concur,  and  that  no  one  shall  lie 
bound,  unless  all  are  bound.  The  proper 
evidence  of  an  agreement  of  this  kind  is  s 
regular  deed  on  stamped  paper,  although  lea 
formal  evidence,  particularly  where  followed 
by  payments,  or  rei  interventus,  may  bind  the 
parties.  It  would  seem,  indeed,  that  such 
contracts  are  within  the  privileges  conceded 
to  writings  tn  re  mercatoria,  and  do  not  require 
to  be  either  holograph  or  tested ;  BelPs  Gem. 
vol.  ii.  pp.  466,  604,  6th  edit. ;  Tait  on  Ea- 
dence,  120  ;  Dickson  on  Evidence.  In  extrajo- 
dicial  arrangements  for  settling  by  composi- 
tion, no  creditor  can  be  required  to  accept  the 
composition  offered  unless  he  pleases. 

By  the  bankrupt  statute,  19  tt  20  Vict,,  c. 
79,  §  137,  an  offer  of  composition  may  be 
made  by  a  bankrupt  or  his  friends,  or,  in  ease 
of  his  decease,  by  his  successors,  and  in  case 
of  a  company  by  one  or  more  of  the  partnen 
thereof,  on  the  whole  of  his  debts,  with  se- 
curity for  payment  of  the  same,  at  the  meeting 
for  the  election  of  a  trustee.  If  a  majority 
of  the  creditors  in  number,  and  nine-tenths 
in  value,  present  at  the  meeting,  shall  resolve 
that  the  offer  and  security  should  be  enter- 
tained for  consideration,  a  meeting  must  be 
called  by  the  trustee,  to  be  held  af^r  the  ex- 


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aniDatlon  of  tbe  bankrnpt,  to  consider  the  I 
offer;  and  if  the  same  majority  of  the  creditors 
present  shall  resolve  to  accept  the  offer,  a  bond 
of  eantion  mnst  be  lodged  with  the  trustee, 
and  a  report  of  the  resolution,  along  with  the 
bond,  is  transmitted  to  the  Bill-Chamber  clerk, 
or  Sheriff-clerk,  in  order  that  the  approval  of 
the  Lord  Ordinary  or  Sheriff  may  be  obtained, 
and  if  approved  of  by  him  after  hearing  op- 
posing  creditors,  9,  deliverance  to  that  effect 
it  prononnced  by  him.  An  offer  of  composi- 
tion may  also  be  made  at  the  meeting  held 
afierthe  examination  of  the  bankrupt,  or  any 
Nitseqnent  meeting.  On  a  deliverance  ap- 
proring  of  the  composition  being  pronounced, 
and  on  the  bankrupt  making  a  declaration,  or,  if 
required  by  the  trustee  or  any  creditor,  an  oath 
before  the  Lord  Ordinary  or  Sheriff,  that  he 
has  made  a  full  and  fair  surrender  of  his  estate, 
and  has  not  granted  or  promised  anypreference 
or  security,  or  made  or  promised  any  payment, 
or  entered  into  any  secret  or  collusive  agree- 
ment or  transaction  to  obtain  the  concurrence 
of  any  creditor  to  this  offer  and  security,  the 
Lord  Ordinary  or  Sheriff  pronounces  a  deliver- 
ance discharging  the  bankrupt  of  all  debts 
and  obligations  for  which  he  was  liable  at 
the  date  of  his  sequestration.  AH  prefer- 
ences, payments,  and  collusive  agreements  for 
coneom'ng  in  a  discharge  are  void,  and  a 
tollnding  creditor  who  has  obtained  any  pre- 
ference or  payment  is  liable  in  the  loss  of 
doable  the  value  or  amount  of  the  preference 
or  payment  obtained,  and  also  in  the  loss  of 
the  amount  of  the  debt  due  to  him  by  the 
bankrupt ;  these  amounts  to  be  divided  among 
the  other  creditors  of  the  bankrupt. 

If  the  bankrupt  and  his  cautioners  fail  to 
pay  the  composition,  the  anctioners  will  be 
entitled  to  rank  upon  the  bankrupt  for  tbe 
Thole  original  debt,  and  on  the  cautioners, 
for  the  amount  of  the  composition.  But  the 
ntpiestratioa  will  not  be  held  to  revive  on 
such  failure  ;  although,  in  competition  with 
new  creditors,  the  old  creditors  will  be  entitled 
to  rank  for  their  whole  debt,  deducting  only 
what  they  have  received  from  the  bankrupt 
or  his  cautioners,  as  if  it  bad  been  a  mere 
payment  to  account.  It  would  appear,  how- 
ever, that,  in  the  event  of  a  second  bankruptcy, 
where  payment  of  the  composition  to  the 
creditors  nnder  the  first  has  been  delayed  only 
for  a  short  time,  the  cautioners  or  the  new 
creditors  may  tender  the  stipulated  composi- 
tion, and  ao  exclude  the  first  set  of  creditors 
from  £uther  competition.  BdPs  Com.  vol.  ii. 
^  472.  et  seq.  5th  edit.  '  See  in  general,  on 
the  subject  of  Compositions,  BdPs  C(m.]ibtd. 
p.  454,  et.  seq. ;  BeWs  Princ.  4th  edit.,  art. 
2439 ;  Thom<m  on  BiUs,  p.  575-80. 

Compodtion  to  a  Superior ;  is  the  name 
given  to  the  entry-money  paid  to  the  superior 


by  a  singular  successor.  The  amount  of  this 
composition  is  sometimes  fixed,  or  taxed,  as  it 
is  termed,  in  the  original  charter  ;  but  where 
that  is  not  the  case,  the  superior  is  legally 
entitled  to  demand  a  year's  rent  of  the  su^ect. 
The  superior's  right  to  this  exaction  is  found- 
ed on  the  acts  1469,  c.  37,  1669,  c.  18,  and 
1681,  c.  17,  by  which  superiors  are  hound  to 
enter  appraisers,  adjudgers,  and  purchasers 
at  judicial  sales,  on  payment  of  a  year's  rent. 
There  was  formerly  no  direct  mode  of  com- 
pelling a  superior  to  enter  a  voluntary  pur- 
chaser ;  but  as  this  might  always  have  heea 
accomplished  indirectly,  under  those  statutes, 
by  means  of  adjudication  on  a  trust-bond  or 
bill,  the  practice  prevailed  of  entering  pur- 
chasers by  private  consent,  for  the  same 
composition  which  was  legally  exigible  from 
adjudgers ;  and  the  stat.  20  Geo.  II.,  c.  50, 
by  providing,  that  heirs  or  purchasers  may 
force  an  entry  from  the  superior  on  payment 
to  him  of  such  fees  or  casualties  "  as  he  is  by 
law  entitled  to  receive  upon  the  entry  of  such 
heir  or  purchaser,"  is  held  to  have  placed 
purchasers  and  adjudgers  in  the  same  situation 
with  respect  to  entry-money.  By  tbe  present 
practice,  in  settling  the  composition  for  a  singu- 
lar successor,  the  following  rules  seem  to  be 
fixed : — 1.  In  the  case  of  a  land  estate,  the 
superior  is  entitled  to  a  year's  rent,  as  the 
lands  are  let  to  tenants,  under  deduction  of 
feu-duties,  public  burdens,  and  annual  bur- 
dens imposed  with  the  superior's  consettt. 
2.  In  the  case  of  houses  built  in  a  village  on 
ground  feued,  tbe  same  rule  applies,  with  the 
additional  deiduction  of  a  reasonable  sum  for 
repairs  of  bouses,  or  other  perishable  sub- 
jects ;  Aitchison,  14th  Feb.  1775,  Fac.  Coll., 
Mor.  p.  15,060 ;  Hailes,  ii.  612.  3.  Where 
the  vassal  has  granted  a  sub-feu,  at  a  fair 
feu-duty,  and  not  for  an  elusory  payment,  or 
with  the  view  merely  of  defeating  the  supe- 
rior's right,  it  is  now  settled  that  the  pur- 
chaser or  adjudger  of  the  vassal's  right  is 
entitled  to  an  entry  on  payment  of  one  year's 
sub-feu-duty.  This  last  point  was  very  de- 
liberately decided  in  a  late  case  between  the 
superiorandavassal  who  had  sub-feued ground 
on  which  part  of  the  New  Town  of  Edinburgh 
is  built.  The  superior  demanded  a  full  year's 
rent  of  the  houses  built  by  the  sub-feuars ; 
but  the  Court  held  that  the  vassal's  singular 
successors  were  entitled  to  an  entry  on  paying 
one  year's  sub-feu  duty,  that  being  a  year's 
rent  of  the  subject  to  which  the  singular 
successors  were  to  acquire  right ;  Cockbuni 
East  V.  HerioVi  Hospital,  6th  June  1815, 
Fac.  Coll. ;  affirmed  on  appeal.  See  Rots,  L.  0. 
vol.  ii.  p.  193.  In  strict  law,  the  composition 
by  an  adjudger  is  due  to  the  full  extent,  with- 
out regard  to  the  amount  of  the  debt  on  which 
the  dUigence  is  led ;  but,  jcx  aquitate,  it  is 

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frequently  modified  below  its  true  value ; 
Baird,  18th  July  1633,  Mor.  p.  15,054 ;  and 
where  the  adjudger  is  excluded  by  a  liferentor, 
he  is  not  bound  to  pay  the  composition  while 
the  liferent  subsists.  If  the  right  adjudged 
be  a  bare  superiority,  it  was  decided  long  ago 
that  a  year's  feu-duty  is  all  to  which  the  supe- 
rior is  entitled  as  composition,  because  the  feu- 
duty  is  the  only  rent  to  which  the  adjudger 
acquires  right  by  his  diligence  ;  monklon, 
15th  Feb,  1634,  Mor.  p.  15,020.  Where  seve- 
ral adjudgers  charge  the  superior  to  enter 
them,  he  is  not  entitled  to  more  than  one 
year's  rent  for  the  whole,  for  all  of  their  rights 
make  but  one  right  to  the  land  adjudged. 
In  lands  holdeu  by  the  Crown,  the  composi- 
tion payable  by  an  adjudger  is  regulated,  not 
according  to  the  rent  of  the  lands,  but  by  a 
parcentage  on  the  amount  of  the  principal  sum 
adjudged  for ;  Ersk.  B.  ii.  tit.  12,  §  24.  Where 
the  subject  adjudged  is  an  annualrent  holden 
base  of  the  debtor,  he  is  bound  to  receive  the 
adjudger  gratis.  In  like  manner,  magistrates 
of  royal  burghs,  being  merely  the  Crown's 
officer's,  are  bound  to  enter  adjudgers,  and 
even  voluntary  purchasers,  without  exacting 
any  composition ;  Bank.  B.  ii.  tit.  4,  §  32. 
It  was  once  found,  that  where  a  corporation 
had  adjudged,  the  superior  was  bound  either 
to  enter  the  corporation  as  his  vassal,  on  pay- 
ment of  the  usual  composition  of  a  year's  rent, 
or  to  pay  the  value  of  the  lands  adjudged ; 
Church  and  Bridge  work  <^  Aberdetn,  11th 
Dec.  1712,  Mor.  p.  15,034;  Vnivenity  of 
Glasgow,  24th  July  1713,  Mor.  p.  9296  and 
15,075.  But  the  decision  in  the  last  of  these 
«ase3  was  reversed  on  appeal ;  and  it  has  been 
lately  held  that  the  superior  is  not  bound  to 
receive  a  corporation  as  his  vassal ;  Hill,  17 th 
Jan.  1815,  Fac,  Coll.  In  the  last  case,  the 
Court  did  not  dictate  any  particular  arrange- 
ment for  the  parties,  and  doubts  were  ex- 
pressed by  the  highest  authority  on- the  bench, 
as  to  whether  the  Court  had  the  power  to  com- 
pel the  superior  to  receive  a  corporation  on 
any  terms.  The  expedients  suggested  by  some 
of  the  judges  were,  either  the  entry  of  a  trus- 
tee for  behoof  of  the  corporation,  on  payment 
of  the  usual  composition,  or  an  entry  of  the 
corporation  itself,  with  a  provision  for  a  dupli- 
cation of  the  feu-duty  every  twenty-five  years. 
The  superior  is  bound  to  enter  an  heir  of 
entail,  who  is  likewise  heir  of  the  former  in- 
vestiture, for  a  mere  duplicando  of  the  feu- 
duty  ;  and  he  is  also  bound  to  enter  the  in- 
stitute, when  not  heir  of  line,  on  payment  of 
the  usual  composition  due  by  a  singular  suc- 
cessor ;  but  it  is  not  held  to  be  settled  whether, 
when  the  heirs  of  entail  are  not  also  the  heirs 
of  the  former  investiture,  the  superior  is  en- 
titled to  a  year's  rent.  In  two  cases  in  which 
£uperioi-s  insisted  on  having  a  clause  inserted, 


declaring  their  right  to  a  composition  of  s 
year's  rent  whenever  the  heir  of  entail  vm 
not  also  heir  of  line  to  the  last  vassal,  the 
Court  held  that  the  superior  is  not  entitled  to 
insert  such  a  clause,  but  that  he  may  insert 
a  reservation  of  his  right  to  make  the  claim 
when  the  separation  takes  place.  M'^Kmzit, 
4th  July  1777,  Mor.  p.  15,063,  and  App.  Supt. 
rior  and  Vassal,  No.  2 ;  Duke  ofArgyli,  IStt 
Nov.  1795,  Mor.  p.  15,068. 

Where  the  institute  or  any  heir  of  entail  hss 
once  paid  a  composition  to  the  superior,  do 
second  composition  can  be  demanded  from  a 
subsequent  heir  of  entail,  on  the  ground  either 
that  he  is  not  the  heir  of  line  of  the  last  vassal, 
or  that  he  is  not  the  heir  of  the  former  investi- 
ture. The  principle  of  this  is,  that  on  payment 
of  a  single  composition,  a  superior  is  bound  to 
grant  a  charter  in  favour  of  whatever  persons 
the  party  paying  the  composition  may  please  to 
name,  and  to  embody  in  the  charter,  if  re- 
quired, the  fetters  of  a  strict  entail;  and  the 
whole  persons  named  in  the  charter,  although 
strangers  in  blood  to  the  party  paying  the 
composition,  or  to  each  other,  are  entitled, 
as  the  heirs  of  the  investiture,  to  obtain  aa 
entry  on  payment  of  tho  casualty  of  relief. 
See  the  cases  of  Mackeiuie  v.  Dvke  <f  Argyll,  as 
above  ;  also  Lockhart  v.  Denham,  10th  Jnly 
1760,  M.  15,047  ;  uni  Stirling  v.  Ewart,  14th 
Feb.  1842,  4  D.  684 ;  and  afSrmed  in  the 
House  of  Lords,  4th  Sep.  1844.  See  tiao 
Ross,  L.  C,  vol.  ii.  p.  329,  et  seq. 

Where  the  institute  of  an  entail  is  also  the 
heir  of  the  last  investiture,  but  the  entail 
comprehends  various  substitutes  who  do  not 
possess  that  character,  the  institute,  it  is 
thought,  is  entitled  to  be  entered  as  an  heir, 
on  payment  merely  of  the  casualty  of  relief; 
but  it  is  also  thought  that  the  superior  is 
entitled  to  the  insertion  of  a  clause  in  the 
charter  feudalizing  the  entail,  reserving  his 
right  to  claim  payment  of  a  compositioo 
from  a  party  claiming  an  entry  who  is  not 
the  heir  of  the  former  investiture;  but  on  such 
composition  being  once  paid  by  such  party, 
no  subsequent  composition,  itis  thought, wonld 
be  due.  This  appears  to  be  the  result  of  the 
combined  cases  of  Mackenzie  v.  Mackenzie,  and 
Stirling  v.  Ewart.  See  on  the  subject  of  this 
article.  Stair,  B.  ii.  tit.  3,  §  41,  and  B.  ii.  tit. 
4,  §  32 ;  Ersk.  B.  ii.  tit.  4,  §  11,  and  B.  ii. 
tit.  12,  §  24 ;  Bank.  B.  ii.  tit  4,  §  11,  and  B. 
iii.  tit.  10,  §  16 ;  BetTs  Com.  vol.  i.  p.  23 ; 
BeWs  Princ.  art.  715,  et  seq.  See  ErUry  of 
Heirs. 

Compound  Interest ;  is  never  allowed  on 
the  sum  in  the  original  obligation  or  agree- 
ment ;  but  it  is  common,  by  posterior  con- 
tracts, to  accumulate  interest,  and  make  it  a 
principal  bearing  interest :  and  interest  due 
in  terms  of  the  act  1621,  c.  20,  if  decreet  and 


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koning  follow  tberenpon,  will  bear  interest. 
Aonnalrent  paid  by  a  eautioner  bears  inter- 
est against  the  principal  debtor,  since,  quoad 
him,  it  is  a  disbursement,  and  traly  a  prin- 
cipal snm.  In  some  cases  of  peculiar  hard- 
ship, thoDgb  not  coming  under  these  rules, 
conponnd  interest  has  been  allowed ;  and, 
by  48  Geo,  III.,  c.  151,  §  19,  the  House  of 
Lords  is  empowered,  upon  hearing  appeals 
from  Scotland,  to  adjudge  the  payment  of  com- 
ponod  interest  upon  the  sums  found  due,  if 
the  said  House  shall,  in  its  sonnd  discretion 
think  meet  so  to  do.  Stair,  B.  i.  1. 15,  §  8 ; 
Mtr^t  Notes,  p.  Ixxix.  See  the  cases.  Jolly 
T.  M-NeiU,  28th  May  1829,  7  S.  666 ;  M'Neill 
T.  M'Nem,  26th  May  1826,  4  S.  455 ;  in  the 
Bm«  of  Lords,  22d  Dec  1830;  ^W.tiS. 
455. 

Where  payment  of  a  debt  is  improperly 
withheld,  and  the  creditor  is  obliged  to  have 
recourse  to  an  action  to  enforce  payment,  in- 
terest on  the  arrears  of  interest  appears  to 
be  due  from  the  date  of  the  citation  in  the 
action.  The  principle  of  this  is,  that  at  the 
date  of  the  action  the  pursuer  claims  two 
suns — the  amount  of  the  principal  sum,  and 
also  the  amount  of  the  arrears  of  interest 
due  on  that  snm.  The  debtor,  by  refusing 
payment  of  the  two  sums  claimed,  when  cited 
in  the  summons  to  do  so,  renders  himself  lia- 
ble for  interest  on  both  the  sums.  See  on 
this  subject  the  case  of  Napier  r.  Gordon,  1st 
Dec  1829,  8  S.  149,  and  21st  Jan.  1830 ; 
8  S.  357,  and  in  the  House  of  Lords,  3d  Oct. 
1831;  4  W.  St  S.  745.  See  also  the  case 
itMadeany.  Campbell,  16th  Feb.  1856, 18  D. 
609.    See  Interest.    Aceumulatg  Sum. 

Camponnding  Felony,  or  Theft-bote;  in 
English  law,  is  where  a  party  robbed  not 
only  knows  the  felon,  but  also  takes  his  goods 
again,  or  other  amends,  upon  agreement  not 
to  prosecute.  It  is  a  misdemeanour  punished 
witti  fine  and  imprisonment.  Tomlin's  Diet. 
i  (.    See  Th^t-boU. 

Comprising,  or  Apprising ;  was  the  an- 
cient form  of  diligence  used  for  attaching 
land  for  debt.  See  Adjudication.  Diligence. 
Apprising. 

ConpromiM;  in  English  law,  is  under- 
stood to  be  a  mutual  promise  of  parties  to 
submit  matters  in  dispute  to  arbitration.  In 
SeotUnd,  the  terms  submit  or  refer  are  gene- 
rally used ;  and  a  power  to  compromise  is 
loderstood  to  be  a  power  to  adjust  and  settle 
a  difference.  Doubtful  claims  connected  with 
s  lequertrated  estate  may  beeompromisedby 
the  trustee  and  a  migority  of  the  commission- 
ers. Mor^s  Notes  on  Stair,  p.  1 ;  BeWs  Com. 
nl.  ii.  p.  415,  Sth  edit.  See  Commissioners. 
■Attitntion. 

Compiilaion.  Acts  done  or  rights  granted 
OB  compulsion,  or  under  the  influence  of  force 


and  fear,  such  as  would  shake  a  man  of  or- 
dinary firmness  and  resolution,  are  reducible ; 
^rsifc.  B.  iv.  tit.  1,  §  26.  See  Force  and  Fear, 
In  like  manner,  crimes  perpetrated  under 
constraint,  where  vis  major  and  imminent 
personal  .danger  are  distinctly  proved ;  as, 
for  example,  where  a  person  has  been  found 
in  arms  against  government  during  a  rebel- 
lion,— or  acting  with  a  mob,  or  with  pirates, 
— or  even  engaged  in  some  minor  outrage, — 
where  the  continued  influence  of  superior 
force  can  be  proved,  it  will  be  a  sufficient  de- 
fence against  the  criminal  charge.  Bell's 
Princ,  §  12 ;  Must,  ib.;  Hume,  vol.  i.  p.  60. 

Compurgator;  one  who  bears  testimony 
to  the  credibility  of  another.  Of  old,  a  man's 
credit,  in  courts  of  law,  depended  on  the 
opinion  vhich  his  neighbours  had  of  his  ve- 
racity ;  and  a  party  swearing  was  accompa- 
nied with  a  certain  number  of  his  neigh- 
bours to  attest  his  credibility.     TonUins,  h.  t. 

Computation  of  Time.  The  question 
whether  or  not  a  particular  period  of  time 
has  legally  expired,  may  have  very  important 
efiects  on  the  rights  of  parties;  and  it  is 
therefore  of  importance  to  attend  to  the  rules 
by  which  time  is  computed.  The  following 
points  seem  to  be  fixed:  1.  Where  time  is 
computed  by  years,  as  in  the  prescriptions, 
the  yeara  will  be  reckoned  from  the  nominal 
day  in  one  year  to  the  same  nominal  day  in 
the  following  year.  Thus,  if  a  debt  be  pay- 
able on  the  15th  May  1800,  the  15th  May  1840 
will  be  the  last  day  of  the  long  prescription , 
and  an  interruption  on  that  day  will  be  eflec- 
tual.  Where  a  right  is  made  to  depend  upon 
the  expiration  of  a  single  year,  a  day  is  ge- 
nerally added  in  majorem  evidentiam;  hence 
the  expression  "  year  and  day ;"  and  the  run- 
ning of  any  part  of  the  additional  day  com- 
pletes the  period.  In  this  case,  the  brocard. 
Dies  inceptttspro  completo  habetur,  is  applicable. 
Thus,  a  marriage  contracted  on  the  1st  Janu- 
ary 1800  will  be  held  to  have  subsisted  year 
and  day,  to  the  effect  of  giving  the  husband 
right  to  the  tocher,  if  the  wife  should  die  on 
the  morning  of  the  2d  January  1801 ;  Wad- 
del,  25th  Feb.  1680,  Mor.  p.  3466.  In  reckon- 
ing tbe  year  and  day  for  the  pari  passu  rank- 
ing of  adjudications,  if  the  first  adjudication 
were  dated  1st  February  1800,  an  adjudica- 
tion dated  2d  February  1801  would  have  the 
benefit  of  the  pari  passu  ranking ;  Bangovr, 
26th  Jan.  1681,  Mor.  3467.  2.  In  computii:g 
by  days,  the  days  are  reckoned  from  midnight 
to  midnight.  Thus,  where  an  imprisoned 
debtor  applies  for  liberation  under  the  act  of 
grace,  the  ten  days  will  not  be  held  to  hare 
expired  until  twelve  o'clock,  F.ir.,  of  the  tenth 
day;  Blair,  11th  Nov.  1704,  Mor.  p.  3468; 
Hood,  Henderson,  A  Company,  14th  Dec. 
1813,  Fac.  Coll.     Where  the  grantor  of  a 


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deed  challenged  under  the  1st  of  deathbed 
lived  for  fifty-nine  days  and  three  hours,  com- 
puted de  momento  m  momtnium,  after  executing 
the  deed,  the  Court  held  the  deed  to  be  re- 
ducible, on  the  ground  that  the  law  requires 
thak  grantor  to  have  lived  for  sixty  days,  with- 
out counting  the  day  on  which  the  deed  was 
executed ;  Ogilme,  10th,  Dec.  1793,  Fac.  Coll., 
Mor,  p.  3336.  This  decision  was  affirmed  on 
appeal,  and  in  the  note  of  the  judgment  of 
the  House  of  Lords,  the  House  is  said  to  have 
held,  that  if,  exclusive  of  the  day  of  execut- 
ing the  deed,  the  grantor  had  lived  until  the 
morning  of  the  sixtieth  day  after,  the  maxim, 
Diet  incepius  pro  compUto  habetur,  would  have 
applied ;  and,  accordingly,  it  has  been  so  de- 
cided; Mitchell,  3d  Feb.  1801,  Foe.  CoU.  Mor. 
App.  voce  Deathbed,  No.  4.  On  the  same  prin- 
ciple, the  sixty  days  before  bankruptcy,  under 
the  act  1696,  §  5,  and  the  sequestration  sta- 
tutes, are  reckoned  backwards,  exclusive  of 
the  day  of  the  bankruptcy,  the  first  of  the 
sixty  days  commencing  from  the  midnight 
preceding  the  bankruptcy,  and  being  held  as 
concluded  the  'moment  the  sixtieth  day  be- 
gins; Blaikie,  21st  Jan.  1809,  Foe.  CM.; 
Anderson,  2d  March  1813,  Fac.  CoU.  In 
citations,  and  in  computing  the  induciw  of 
diligence,  it  is  also  settled  that  the  action 
cannot  be  called,  or  a  homing  denounced, 
until  after  the  midnight  of  the  last  day  of 
the  citation  or  charge.  In  computing  the 
sixty  days  within  which  an  instrument  of 
sasine  had  to  be  recorded,  the  day  of  taking 
the  infeftment,  as  being  the  terminus  a  quo, 
was  not  counted,  and  registration  at  any  time 
on  the  sixtieth  day  after  that  was  effectual. 
BeWs  Com.  IL  178;  Mortis  Notes  to  Stair, 
pp.  cclvii.  and  ccexv. ;  Hunter's  Landlord 
and  Tenant,  Maekeniie's  Obs.  on  Stat.  p. 
353. 

Concealing  Crimes.  The  protection  of  a 
criminal  after  the  commission  of  a  crime,  by 
concealing  him  from  justice,  knowing  his 
guilt,  is  a  distinct  offence,  which  may  be 
pnnished  arbitrarily ;  Sums,  274,  281. 
Where,  however,  the  protection  is  given  in 
consequence  of  an  agreement  entered  into 
before  the  commission  of  the  crime,  such  con- 
cealment will  be  found  a  charge  against  the 
concealer  of  art  and  part  in  the  principal 
crime ;  Ersk.  B.  4,  tit.  4,  §  13 ;  Alison's  Princ. 
231.  See  Accessary.  Accomplice.  Art  and 
Part. 

Concealment  of  Pregnancy.  By  the  act 
1690,  c.  21,  concealment  of  pregnancy  autho- 
rized conviction  for  the  murder  of  the  child, 
if  it  was  amissing  or  found  dead.  But  by  49 
Geo.  III.,  c.  14,  it  is  enacted,  that  if  a  woman 
"  shall  conceal  her  being  with  child  during 
the  whole  period  of  her  pregnancy,  and  shall 
not  call  for  or  make  use  of  help  or  assistance 


in  the  birth  ;  and  if  the  child  shall  he  found 
dead  or  be  amissing,  she  shall  be  imprisoned 
for  a  period  not  exceeding  two  years."  By 
the  latter  statute,  the  concealment  is  not  held 
to  be  a  presumption  of  the  murder,  but  to  be 
iteelf  a  cHme.  The  concealment  must  con- 
tinue down  to  the  death  of  the  child ;  for  the 
mother's  keeping  and  acknowledging  the 
child,  for  however  short  a  time,  will  render 
the  statute  inapplicable.  Premature  labour, 
shown  to  be  the  canse  of  the  child's  death,  is 
a  sufficient  defence ;  but  the  burden  of  protr- 
ing  it  lies  upon  the  panel.  This  is  the  only 
crime  in  which,  from  the  nature  of  the  ma- 
jor proposition,  there  can  be  no  accession; 
and  the  minor  consequently  need  not  coutsin 
the  charge  of  art  and  part ;  11  Smnton's  Rtf. 
572.  Disclosure  to  the  putative  father  is  a 
sufficient  defence ;  GaU,  1856,  2  Irvine,  367. 
The  punishment  usually  awarded  is  from  three 
to  six,  and,  in  aggravated  cases,  from  nine  to 
eighteen  months'  imprisonment.  Hume,  i. 
291,  et  seq.;  Bdl's  Notes,  p.  80;  Alitm't 
Princ.  153 ;  Burnett,  672  ;  Steele,  100.  See 
GhUd-Murder. 

Concluded  Causes.  A  cause  is  said  to  be 
a  concluded  cause  where  a  proof  has  been 
allowed,  and  the  term  for  proving  has  elapsed ; 
Shand's  Prac.  964.  In  the  older  practice  of 
the  Conrt  of  Session,  the  cause  was  then 
called  before  a  Lord  Ordinary  on  the  Acts ; 
the  proof  was  declared  to  be  concluded,  and 
a  state  of  the  process  was  prepared  by  the 
assistant  to  the  Inner-House  clerk,  under  the 
authority  of  the  Lord  Ordinary  on  concluded 
causes.  This  state  was  printed  and  distri- 
buted amongst  the  judges  for  decision  in  the 
Inner-House ;  Ersk.  B.  iv.  tit  2,  §  32.  This 
form,  with  some  rare  exceptions,  is  practically 
superseded  by  the  introduction  of  jury  trial  in 
civil  causes.  The  prepared  state  is  still  some- 
times made  up  in  actions  of  proving  the  tenor. 
Shand's  Prac.  840 ;  Stair,  B.  iv.  tit.  35,  §  5, 
and  tit.  46,  §  8,  e<  seq. ;  2  Ivory's  Forms,  1127. 
See  Jury  Trial. 

Concourse  of  Actions.  By  the  Roman 
law,  different  actions  were  competent  on  the 
same  ground  of  right;  but  by  the  law  of 
Scotland  there  is  no  civil  action  in  which  the 
pursuer  has  this  privilege ;  for  althongh,  in 
some  actions  partly  of  a  penal  nature,  the 
pursuer  may  insist  either  for  the  aetnal 
damage,  or  for  violent  profits,  yet,  if  he  once 
make  his  election,  and  claim  simple  restitution 
only,  he  cannot  afterwards  sue  for  violent 
profits.  But  our  law  admits  a  concourse  of 
actions,  in  the  special  case  of  facts  which  may 
be  prosecuted  either  civilly  or  criminally; 
for  a  prosecution  to  satisfy  public  justice  u 
entirely  different,  both  in  its  nature  and  ob- 
ject, from  a  mere  prosecution  ad  civiiem  ef&> 
turn ;  and  even  although  in  the  criminal  prose- 


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eotioD,  the  accused  may  have  been  acquitted, 
jet  it  is  still  competent  for  the  private  party 
to  institute  a  civil  action  against  him,  found- 
ing on  the  same  facts,  which,  in  a  civil  pro- 
cess, where  a  debt  or  damages  only  are  sought, 
may  be  referred  to  the  defender's  oath  ;  a 
mode  of  proof  inadmissible  in  a  criminal  pro- 
aeentioD.  Stair,  B.  ir.  tit.  48,  §  9 ;  Ertk.  B. 
IT.  tit.  1.  §  64. 

Coneoitrse  of  the  Lord  Advocate,  Al- 
thoagh  a  private  party  vho  has  a  proper  in- 
terest may  institute  a  criminal  prosecution  at 
his  own  instance,  concluding  for  the  ordinary 
pains  of  lav  against  the  accused  person ;  yet, 
by  ancient  and  invariable  style,  such  prosecu- 
tion at  the  instance  of  a  private  party  must 
be  raised  with  concourse  of  the  Lord  Advo- 
cate. This  concourse  is  necessary  to  every 
libel  in  the  Court  of  Justiciary,  whether  the 
fiiii  pains  of  law,  or  pecuniary  reparation  only, 
be  concluded  for ;  and  also  in  criminal  pro- 
ceedings before  the  Court  of  Session  (Shand's 
Prte.  196) ;  and,  even  in  the  ordinary  civil 
action  of  reduction-improbation,  which,^<tm6 
jmt,  is  laid  upon  criminal  grounds,  but  which 
is  parsned  ad  i^mlem  effectum  only,  the  Lord 
Advocate's  concourse  is  necessary;  Shand's 
Pnc.  639.  It  would  rather  appear  that,  al- 
thoBghthe  Lord  Advocate  may  no  doubt  exer- 
cise his  discretion  in  refusing  his  concourse, 
vhere  the  proposed  prosecution  is  manifestly 
absnnl  or  illegal,  or  at  the  instance  of  a  party 
whose  title  to  prosecute  is  evidently  defective, 
vet,  in  the  ordinary  case,  he  is  not  entitled  to 
exercise  any  such  discretion,  but  must  give 
his  concourse  when  required,  and  that,  even  if 
he  were  formally  to  recal  it  in  Court,  the  pro- 
secution might  still  proceed  at  the  private  in- 
itance.  In  mutual  libels  at  the  instance  of 
the  private  parties  founded  on  the  same  facts, 
the  Lord  Advocate  must  give  his  concourse  to 
the  action  of  each  party.  Swne,vol.  ii.  pp. 
119, 126.     See  Criminal  Proteeution. 

Coneonne  of  Procnrator-riscaL  SeoPr<h 
ftnier-Fisoal. 

Catewrsofl  Debit!  et  CreditL    See  Com- 

CoomiMion.    See  Force  arid  Fear. 

CmdesoeiLdence  is  the  name  given  toa  judi- 
cial pleading.  Before  the  recent  Court  of 
Session  Act,  where  the  parties  did  not  agree 
to  hold  the  summons  and  defences  as  setting 
forth  fully  the  facts  and  pleas  upon  which 
th«T  respectively  founded,  or,  when  the  Lord 
Ordinary  thought  fit,  he  ordered  the  pursuer 
to  give  in  a  condescendence,  and  the  defender 
Mswere  thereto,  which  papers  altogether 
nperseded  the  summons  and  defences.  The 
condescendence  was  drawn  by  counsel,  and 
Kt  forth  in  substantive  propositions,  and  un- 
der distinct  heads  or  articles,  all  facts  and 
ciicamslaoces  pertinent  tathe  cause  of  action. 


which  the  party  alleged  and  offered  to  prove. 
In  the  answers  the  defender  met  the  aver- 
ments in  the  condescendence  by  admissions  or 
denials ;  and  if  he  meant  to  rely  on  a  series 
of  counter-averments,  he  subjoined  them  to 
his  answers  also,  in  an  articulate  form,  under 
the  title  of  "  Defender's  Statement  of  Facts." 
Annexed  to  each  paper  were  the  pleas  in  law 
maintained  by  the  parties.  The  papers  were 
then  revised,  and  the  record  closed.  See  6 
Geo.  IV.,  c.  120,  §§  8,  9, 12 ;  A.  S.  11th  July 
1828.  Now,  under  13  &  14  Vict.  c.  36,  and 
A.  S.  31st  October  1850,  the  summons  only 
sets  forth  the  name  and  designation  of  the  pur- 
suer and  defender,  and  the  conclusions  of  the 
action.  The  statement  of  the  grounds  of 
action  is  set  forth  in  an  articulate  condescen- 
dence, having  a  note  of  pleas  in  law  subjoined, 
which  is  annexed  to  the  summons  and  consti- 
tutes a  part  of  it.  The  defences  must  be  in 
the  form  of  articulate  answers  to  the  conde- 
scendencO)  with  a  statement  of  the  defender's 
allegations  in  fact,  if  necessary,  and  a  note  of 
pleas  in  law  appended.  The  summons  is 
signed  by  a  writer  to  the  Signet,  the  de- 
fences by  counsel.  If  the  pursuer  do  not 
choose  to  close  the  record  upon  summons  and 
defences,  the  pursuer  then  revises  his  conde- 
scendence, and  the  defender  his  defences.  The 
record  is  thereafter  adjusted  before  the  Lord 
Ordinary  in  chambers,  and  closed.  See  Snni' 
mons.  Defences.  Record.  Prorogation.  By 
§  10  of  the  said  statute,  the  records  are  to 
continue  to  be  made  up  in  the  old  form  in 
processes  of  competition,  such  as  rankings  and 
sales,  and  multiplepoindings,  and  other  causes 
to  which  the  new  regulations  are  not  appli- 
cable. Strictly  speaking,  the  parties  ought, 
along  with  their  papers,  to  lodge  in  process 
all  writings  in  their  custody,  or  within  their 
power,  on  which  they  found.  Such  writings 
are,  however,  admissible  productions  at  any 
time  before  closing  the  record;  A.  S,  11th 
July  1828.  Where'a  party  has  not  the  papers 
essential  to  enable  him  to  aver  correctly,  he 
may  get  a  diligence  for  their  recovery.  See 
Diligence.  Where,  again,  the  mutual  aver- 
ments and  answers  cau  be  safely  made  with- 
out the  written  evidence,  it  may  be  recovered 
m  modwnprohationis,  after  the  record  is  closed. 
But,  generally  speaking,  where  documents 
exist,  or  are  supposed  to  exist,  which  may  be 
decisive  of  the  cause  without  the  intervention 
of  a  jury,  or  the  aid  of  parole  evidence,  it 
seems  to  be  desirable  (although  in  this  re- 
spect the  judicial  practice  has  by  no  means 
been  uniform),  to  afford  the  parties  every 
facility  for  the  recovery  of  the  documentary 
evidence,  prior  to  the  completion  of  the  plead- 
ings and  the  closing  of  the  record.  In  pro- 
cesses of  suspension,  and  in  certain  advoca- 
tiocs,  the  pleading,  called  Reasons  of  Suspen' 

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sion  or  of  Advocation,  is  substantially  a  conde- 
scendence ;  and  the  provigions  of  the  recent 
statute  as  to  making  np  the  record,  apply,  so 
far  as  may  be,  to  processes  of  suspension  and 
adrocation.  Sw  Advocation  t^ Suspension.  In 
the  Sheriff-courts,  where  the  record  is  not 
closed  upon  the  short  minute  introduced  by 
16  and  17  Vict,  c.  60,  §  3,  the  record  is  made 
up  under  that  statute,  by  articulate  conde- 
scendence and  defences,  in  a  manner  similar 
to  that  pursued  in  the  Court  of  Session.  Bar- 
clay's M'Olash.  Sher.  Court  Prac.  p.  203,  et  seq. 
See  on  the  subject  of  this  article,  6  Geo,  IV., 
c.  120,  §§  8,  9, 12 ;  ShantFs  Prac. ;  Barclay's 
Dig.  h.  t.;  A.  S.  llth  July  1328,  §§  105,  55, 
49.  See  also,  Pitas  in  Law.  Record.  Vommoniy. 

C<mde«oendeiioe  and  Claim.  In  a  process 
of  multiplepoinding,  the  claimants  on  the  fund 
tn  medio  must  state  their  respective  claims  in 
the  form  of  condescendences,  with  the  con- 
clusions, deduced  in  the  shape  of  notes  of 
pleas  in  law.  The  usual  form  is,  first  to 
aver  the  facts  articulately,  as  in  an  ordinary 
condescendence ;  theu  to  make  the  claim 
thence  resulting,  and  to  conclude  with  pleas 
in  law.  Where  a  competition  ensues,  the 
rnreral  condescendences  and  claims  are  or- 
dered to  be  revised  ;  and  each  claimant,  in 
revising  his  own  condescendence,  must  sub- 
join answers  to  the  condescendence  and  claim 
of  every  other  competitor.  The  injunction 
of  the  Act  of  Sederunt  is,  that  the  competition 
shall  thereafter  proceed  as  nearly  as  may  be 
like  an  ordinary  action ;  but  practically,  the 
records  thus  made  up  are  complicated  and 
awkward.  A.  S.  llth  July  18-28,  ^  48.  See 
Condescendence.  HultipUpoinding,  Ranking 
and  Sale.     Record. 

Condiotio  Indebiti ;  was  an  action  in  the 
Roman  law  for  repetition  of  money  paid  to  a 
person,  under  the  belief  that  there  was  a  debt 
due  to  him,  when  there  was  in  reality  no  debt 
due.  By  the  law  of  Scotland,  action  is  also 
given  for  recalling  a  payment  made  through 
mistake  or  ignorance.  W  riters  on  the  civil  law, 
founding  on  the  maxim,  "  Jgngrantia  juris  nem- 
inem  excusat,"  have  made  it  a  question  whether 
a  sum  paid  through  a  mistake  in  law  is  re- 
coverable by  this  action.  The  Court  of 
Session,  on  the  ground  that  this  was  an  equit- 
able relief,  formerly  held  that  a  mistake, 
whether  in  law  or  in  fact,  was  a  sufficient 
reason  for  recalling  a  payment ;  Carrick,  5th 
Angnst  1778,  Mor.  p.  2931 ;  Bank.  B.  i.  tit. 
8,  §  23,  et  seq.  From  this  rule  there  were 
the  following  exceptions :  1.  Payment  made 
under  a  natural  obligation,  though  the  law 
would  not  have  enforced  it,  cannot  be  recalled. 
2.  If  the  person  by  whom  the  payment  was 
made  knew  at  the  time  that  no  debt  was  due ; 
for  in  that  case  the  person  must  have  been 
presumed  to  have  given  the  money  in  a  pre- 


sent ;  Ersk.  B.  iii.  tit.  3,  §  54,  A  payment 
made  in  consequence  of  a  compromise,  and  in 
order  to  put  an  end  to  a  law-suit,  cannot  be 
recalled,  though  it  may  afterwards  turn  oat 
that  the  claim  so  compromised  was  unfound- 
ed ;  Oliver,  16th  May  1798,  not  reported,  liU 
noted;  Ersk.  ib.  A  creditor  who  had  ob- 
tained a  preference  in  .a  ranking  to  which  he 
was  not  entitled  was  found  liable  to  repeti- 
tion, although  he  had  got  no  more  than  par- 
ment  of  his  debt.  Keith,  14th  Nov.  179'2. 
Mor.  p.  2933 ;  Stair,  B.  i.  tit.  7,  §  9 ;  Mortis 
Notes,  p.  xlix. ;  BeWa  Prine.  4th  edit.  art. 
531 ;  Bell's  Illust.  art.  634  ;  Karnes'  Prine.  ^ 
Equity  (1825),  200. 

In  the  case  of  Wilson  v.  Sinclair,  7th  Dec. 
1830,  iW.dS.  398,  however,  it  was  laid 
down  in  the  House  of  Lords,  that  when  a 
person  pays  money  under  a  mistake,  be  has 
no  right  to  recover  the  money  so  paid,  unless 
it  was  paid  under  a  mistake  in  point  of  fact ; 
and  that  if  he  pays  by  mistake  in  point  of 
law,  he  has  no  right  to  recover  it  It  was 
further  laid  down,  in  the  same  case,  by  the 
House  of  Lords,  that  in  the  case  of  a  pay- 
ment by  mistake  in  point  of  fact,  the  party 
can  only  recover  if  the  mistake  was  unavoid- 
able, and  no  fault  of  the  party  making  the 
payment ;  but  that  if  he  had  himself  to  blame, 
being  ignorant  of  the  fact  which  rendered 
the  payment  unnecessary,  but  having  the 
means  of  knowledge  of  the  fact  within  his 
power,  and  did  not  use  those  means,  no  action 
to  recover  would  lie.  The  law  on  this  point 
was  again  laid  down  to  the  same  effect  in  the 
House  of  Lords  in  the  case  of  Dixon  v.  Monk- 
land  Canal  Company, 17 thSept.  1831,  5  W.diS. 
445.  In  neither  the  case  of  Wilson  nor  of 
Dixon  was  it  necessary  to  decide  the  point  of 
law  adverted  to  in  these  cases.  In  the 
former  of  the  two  cases  the  point  was  not 
pleaded,  and  the  judgment  was  rested  on  the 
ground  that  the  party  claiming  repetition 
had  in  his  possession  the  document  which 
contained  the  error  founded  on.  In  the 
latter  case  of  Dixon,  the  decision  was  not 
necessary  for  the  judgment,  which  was  an 
affirmance  of  the  judgment  of  the  Court  of 
Session  refusing  the  claim  of  repetition,  and 
proceeding  on  the  special  circumstances  of 
the  case.  See  on  the  subject  the  case  of 
Dickson  v.  JTotoert,  19th  Feb.  1854,  16  D. 
586. 

Condietio  causa  data,  causa  non  secuta;  was 
a  Roman  law  action,  by  which  things  given 
with  the  view  to  a  certain  event  might  be 
reclaimed  if  that  event  did  not  take  place. 
The  example  of  this  commonly  given,  is  that 
of  presents  made  in  contemplation  of  a  mar- 
riage which  did  not  take  place.  Bnt  if  the 
expected  event  had  been  prevented  by  a 
cause  not  imputable  to  the  receiver,  no  action 


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lar,  nnless  he  nndaly  delayed,  wben  he  might 
hare  performed.  Stair,  B.  i.  tit.  7,  §  7 ; 
Ertk.  B.  ii.  tit.  1,  §  10 ;  Karnes'  Prine.  of 
Ejui^  (1825),  131. 

Cmidition  n  sine  Liberia  Decesserit,  By 
the  Roman  law,  if  one  made  a  donation  of 
all,  or  the  greater  part  of  his  estate,  when 
he  had  do  children,  and  came  afterwards  to 
have  children,  the  gift  became  void,  upon  the 
presnmption  that,  if  the  donor  had  antici- 
pated having  children  of  his  own,  he  would 
not  hare  made  it.  There  is  no  example  of 
this  implied  condition  in  our  law,  where  the 
doBstion  was  inter  vivos,  and  perfected  by  de- 
livery; but,  in  testamentary  settlements,  or 
donations  mortis  caiua,  the  doctrine  is  recog- 
niaed  with  us,  if  the  t^tator  leares  a  child, 
of  whose  existence  tn  utero  he  is  not  presumed 
to  have  known.  But  if  the  children  have  been 
actually  bom  during  the  testator's  life,  and  if, 
notwithstanding,  he  allows  the  settlement  to 
nsiain  for  a  reasonable  time  unrevoked,  it 
would  rather  seem  that  it  cannot  be  set  aside, 
especially  if  it  was  not  of  the  whole,  or  the 
greater  part  of  his  estate,  and  provided  it  does 
not  prejudice  the  child's  legal  or  conventional 
prorisioDS.  The  principle  on  which  this  doc- 
trine rests  has  been  applied  in  heritable  as 
well  as  moveable  succession,  and  has  been  ex- 
tended to  the  ease  where  a  testator  makes  a 
provision  for,  or  a  destination  in  favour  of, 
nil  child  or  children,  whom  failing,  on  a 
•tranger.  In  such  a  case,  where  the  immedi- 
ate children  of  the  testator  have  predeceased 
hhn,  but  leaving  children,  the  grandchildren 
will  exclude  the  stranger  substitute.  But  as 
this  mle  of  construction  rests  on  a  legal  pre- 
nmption,  that  presnmption  may  be  elided  by 
contrary  evidence,  or  by  opposite  presump- 
tions, founded  on  the  circumstances  of  the 
psrticolar  case.  The  general  rule,  however, 
ii  well  settled.  See  Ersh.  B.  3,  tit.  8,  §  46 ; 
B**k,  B.  i.  tit.  9, 5  5 ;  Bell's  Prine.  §  1776,  d 
m;.;  and  particularly  Mowbray  v.  SeougaU, 
9th  Joly  1834, 12  8.  910,  affirmed  on  appeal; 
2S.iM'Lean,30&. 

The  application  of  the  condition  si  sine  U- 
ifrii  is  not  confined  to  the  case  of  the  child- 
Ten  and  grandchildren  of  the  maker  of  the 
Mttlement,  but  it  has  been  extended  to  the 
duldren  of  legatees  to  whom  the  testator  is 
an  nnele,  or  other  near  collateral  relative.  In 
the  eate  of  Walker  v.  Walker,  7th  Dec.  1744, 
'•  10,328,  also  14,858,  the  subject  of  the 
l>*qiest  was  the  whole  effects  of  the  testator, 
*hicb  were  estimated  in  the  deed  at  a  par- 
tienlar  sum.  The  mother  of  the  testator  was 
tb  institute  in  the  bequest,  and  his  brothers 
tod  sisters  were  substituted  to  heir  nomi- 
*''«.  The  sisters  predeceased  the  institute  ; 
liBt  it  was  held  that  their  children,  al- 
Uwngh  not  expressly  called,  had  right  to  their 
o 


parents'  shares.  In  the  case  of  MaAentie  r. 
Hcite,  2d  February  1781,  M.  660,  &c,  the  be- 
quest was  in  favour  of  the  children  of  three 
persons  named,  these  children  being  substi- 
tuted to  the  institute  in  the  bequest.  Some  of 
the  children  predeceased  the  institute.  It 
was  held  that  the  issue  of  such  children  had 
right  to  their  parents'  shares,  but  that  the 
nearest  of  kin  of  those  who  had  predeceased 
the  institute  without  issue  had  no  right.  It 
does  not  appear  from  the  report  of  the  case 
what  was  the  degree  of  relationship,  if  any, 
which  existed  between  the  substitute  lega- 
tees and  the  testator.  In  the  case  of  Wal- 
lace V.  Wallace,  28th  Jan.  1807,  M.  App. 
Clause  No.  6,  the  children  in  whose  favour 
the  condition  si  sine  liberie  was  applied,  were 
the  grand-nephews  of  the  testator,  whose 
parents  had  predeceased  the  liferenter  of  the 
bequest.  In  the  case  of  Christie  v.  Paterson, 
5th  July  1822, 1  S.  643,  N.  E.  498,  the  chUd- 
ren  who  were  favoured  were  second  cousins  of 
the  testator.  Lord  Gillies  in  that  case  observed, 
"  that  he  could  not  admit  that  there  was  any 
distinction  in  principle  between  the  parties 
being  first  and  second  cousins,  or  more  distant 
collaterals."  In  the  case  of  Dixon  v.  Brown, 
10th  June  1836, 14  &  938 ;  House  of  Lords,  2 
Robinson  1,  a  father  left  the  residue  of  his 
succession,  consisting  both  of  heritable  and 
moveable  estate,  to  his  eldest  son  nominatim, 
who  had  a  family  at  the  date  of  the  settlement, 
but  without  mention  of  the  son's  heirs.  It 
was  held  that  the  possession  did  not  lapse  by 
the  son  predeceasing  his  father  by  one  day, 
but  that  it  transmitted  to  his  children.  Where 
a  tenement  was  directed  to  be  liferented,  and, 
on  the  death  of  the  liferenter,  to  be  sold,  and 
the  price  divided  among  the  heirs  of  the  tes- 
tator then  living,  it  was  held  that  the  term 
heirs  was  not  equivalent  to  children,  and 
that,  therefore,  the  conditio  si  sine  liberie  was 
inapplicable ;  Black  v.  Valentine,  17th  Feb. 
1844, 6  D.  689.    See  Menzies's  Lectures. 

Conditiom  in  Feudal  Grants.  Where 
particular  conditions  or  stipulations  are  in- 
serted in  feudal  grants,  with  the  view  either 
of  more  effectually  securing,  or  of  modifying 
in  some  respect  the  rights  of  parties,  it  is  an 
important  inquiry,  whether  such  stipulations 
are  to  be  considered  as  mere  personal  obliga- 
tions, binding  upon  the  parties  and  their  heirs, 
or  as  real  qualifications  or  conditions  of  the 
grant,  effectual  against  singular  successors. 
It  seems  to  be  settled,  that  an  obligation  on 
the  part  of  the  vassal  to  take  infeftment  on 
the  charter  within  a  certain  time,  or  not  to 
dispone  before  he  has  himself  entered,  or  not 
to  disappoint  the  superior  of  an  entry  by  sub- 
feuing,  or  any  similar  obligation,  although  it 
may  serve  as  the  ground  of  diligence,  or  of  an 
action  against  the  vassal  or  his  repreieatative, 


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will  hare  no  effeet  against  singular  successors. 
But  if  the  stipulation  be  declared  a  condition 
of  the  grant,  it  has  been  thought  that  it  will 
not  only  qualify  the  rassal's  right  so  long  as 
the  right  remains  personal,  but  that,  if  the 
condition  be  inserted  in  the  instrument  of 
sasine,  and  so  appears  in  the  record,  it  will 
operate  as  a  real  qualification,effectualagain8t 
purchasers  and  creditors,  as  being,  on  strict 
feudal  principle,  a  condition,  without  compli- 
ance with  which  the  superior  is  not  bound  to 
give  an  entry.  BeW$  Com.  vol.  i.  p.  26,  5th 
edit. 

The  stipulations  must  be  neither  illegal  nor 
contra  bonoi  mora.  Hence,  it  has  been  ques- 
tioned, whether  any  legal  obligation  can  be 
created  by  a  stipulation,  sometimes  inserted 
in  feudal  grants,  by  which  it  is  provided,  that 
the  superior's  law-agent  shall  pass  the  infeft- 
ments  on  the  various  transmissions  of  the  right 
Such  a  condition  has  been  in  general  re- 
probated as  a  discreditable  attempt  to  in- 
mnge  the  ordinary  rules  of  professional  prac- 
tice. In  the  case  of  Caumell  r.  Dunn,  28th 
Uay  1825,  2  S.  341,  N.  E.  299,  where  such 
a  condition  was  inserted  under  the  sanction 
of  nullity,  the  court,  although  not  without 
considerable  difference  of  opinion,  held  the 
condition  lawful.  The  judgment  was  appealed, 
when  the  case  was  remitted  to  obtain  the 
opinion  of  the  whole  court ;  IW.AS.  690. 
The  case  was  afterwards  compromised;  but 
not  before  the  opinions  of  the  consulted  judges 
were  returned,  which  are  given  in  6  S,  679. 
Of  the  consulted  judges,  Lordt  Justiee-Clerk 
Boyle,  PitmiUt/,  MeadowbarA,  Medm/n,  Olenlee, 
and  ifewton,  returned  opinion  in  favour  of  the 
superior's  claim;  and  Lordt  AUoviay,  Gringletie, 
Maduntie,  and  Eldin,  returned  a  contrary 
opinion,  on  the  ground  that  the  condition  was 
Tozatious,  and  one  in  which  the  superior  had 
no  interest,  and  that  it  was  capable  of  answer- 
ing no  purpose  but  that  of  creating  an  office 
in  favour  of  his  agent,  to  the  direct  and 
manifest  annoyance  and  prejudice  of  the  feu- 
ars.  See  also  3  Rou,  L.  C.  291.  Where  a 
superior  inserts  such  a  clause,  and  insists  on 
its  being  implemented,  he  is  responsible  to  his 
vassal  for  the  negligence  or  ignorance  of  the 
agent,  whose  services  he  is  thus  compelled  to 
take.  Bea?s  Princ.  §  861,  et  uq.;  Ross's  Led. 
ii.  304, 362 ;  Shaw's  Digest;  Mmzies's  Lectures. 

Where  the  burden  or  condition  is  not  con- 
trary to  law,  it  is  not  essential  that  any  voces 
tignatce,  or  technical  form  of  words,  should  be 
employed.  There  is  no  need  of  a  declaration 
that  the  obligation  is  real,  that  it  is  debitum 
fundi,  that  it  shall  be  inserted  in  all  the  inture 
infefbnents,  or  that  it  shall  attach  to  singular 
successors.  Neither  is  it  necessary  that  the 
obligation  should  be  fenced  with  an  irritant 
clause.    On  strict  feudal  principles,  a  con- 


dition in  a  feudal  grant  is  effectual  as  a  con- 
dition of  the  grant,  without  a  compliance  with 
which  the  superior  is  not  bound  to  give  so 
entry  to  the  heir  or  disponee  of  his  Tassal. 
See  the  case  of  Tailors  of  Aberdeen  v.  Gouttt, 
20th  Dec.  1834, 13  S.  226  ;  House  of  Lordt, 
remitted  23d  May  1837,  2  5.  <t  M'L.  609 ; 
affirmed  August  3,  1840,  1  Rob.  296.  See 
also  3  Ross,  L,  G.  269.  See  also,  on  the  sub- 
ject of  this  article,  Burdens.  Clatue  of  Pre- 
emption.   Clause  de  non  Alienando. 

Conditional  Obligatioii.  A  conditional  ob- 
ligation is  an  obligation  depending  on  the 
existence  of  a  condition.  Such  an  obligation 
has  no  force  until  the  condition  exist,  or  be 
purified,  as  it  is  termed,  because  it  is  in  that 
event  only  that  the  party  declares  his  inten- 
tion to  be  bound ;  hence  the  condition  of  an 
uncertain  event  suspends  not  only  the  execu- 
tion of  the  obligation  but  the  obligation  it- 
self. An  obligation  of  this  kind  is  held  to  be 
but  "  an  obligation  in  hope  till  the  condition 
be  existent ;"  Stair,  B.  i.  tit  3,  §  7 ;  but  the 
grantor  is  so  far  bound  that  he  cannot  revoke 
the  hope  he  has  given.  Creditors  may  attach 
conditional  debts ;  and  if  the  obligation  does 
not  depend  on  the  life  of  the  particular  indi- 
vidual, it  is  transmitted  to  heirs,  in  case  the 
creditor  should  die  before  the  existenee  of  the 
condition.  All  obligations  dependii^  on  un- 
certain events  are  properly  conditional ;  thai, 
an  obligation  depentung  on  the  arrival  of  a 
day  which  may  possiUy  never  arrive  is  con- 
ditional ;  hence  a  provision  payable  to  a  child 
on  his  arrival  at  a  particular  age  falls  if  the 
child  die  before  reaching  that  age ;  and  the 
same  rule  is  also  extended  to  legacies,  al- 
though a  contrary  doctrine  at  one  time  pre- 
vailed ;  Ersk.  B.  iii.  tit.  i.  §  6  and  7,  and  note. 
Conditions  adjected  to  obligations  are  divided 
into  possible  and  impossible;  the  former  are 
such  as  may  naturally  and  legally  happen; 
the  latter  such  as  either  naturally  or  legally 
cannot  come  to  pass,  for  what  is  contrary  to 
the  law,  or  contra  bonos  mores,  ia  held  to  be 
legally  impossible.  Possible  conditions  are 
distinguished  into  potential  or  potestative,  i.e., 
such  as  are  within  the  power  of  the  party 
burdened  with  them ;  and  casual,  being  such 
as  depend  upon  an  uncertain  event  over 
which  the  party  has  no  controL  CiHitraets 
are  null  if  illegal  or  impossible  conditions  are 
annexed,  it  being  presumed  that  the  parties 
are  not  serious.  But  such  conditions  adjected 
to  legacies  are  simply  held  pro  n«n  seriptit,  and 
the  legacy  remains  pure ;  for  nemo  proesumitur 
ludere  in  extremis,  and  the  testator  is  pre- 
sumed to  have  seriously  intended  to  give  the 
legacy.  The  same  rule  holds  in  bonds  of  pro- 
vision by  parents  to  children  in  implement  of 
the  natural  obligation ;  illegal  or  irrational 
conditions  annexed  to  them  being  held  pro  non 


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tij«iit;  Bank.  B.  1,  tit.  4,  §  17.  It  was  for- 
merly held  that  this  nile  was  also  applicable 
to  nn&ronrable  conditions,  such,  for  example, 
as  a  condition  that  the  grantee  shonld  not  in- 
termarry with  a  particular  person,  or  without 
the  consent  of  certain  indiridnals ;  but  the 
rale  at  present  established  seems  to  be  differ- 
ent; for  although  these  and  such  like  condi- 
tions are  not  strictly  enforced,  if  unreasonably 
insisted  on,  yet  they  are  to  a  certain  extent 
held  to  be  effectual.  Thus,  if  consent  to  a 
suitable  marriage  is  unreasonably  withheld 
by  the  parties  whose  consent  is  made  a  con- 
dition, the  provision  will  be  effectual  even 
althongh  the  marriage  is  contracted  without 
tlie  content,  and  this  whether  the  provision 
comes  fr^m  a  father  or  from  a  rtranger; 
Ersk.  B.  iii.  tit.  3.  §  85.  And,  in  general,  all 
potestative  conditions  will  be  held  as  fulfilled 
if  the  grantee  has  done  his  utmost  to  fulfil 
them:  thus,  if  the  condition  be  that  the 
grantee  shall  intermarry  with  a  particular 
fuiaa  named,  the  condition  will  be  purified 
by  the  grantee's  paying  his  addresses  to  that 
person,  althongh  he  is  rejected;  provided 
he  has  not  nndoly  delayed  doing  so,  or  made 
his  addresses  in  such  a  manner  as  to  insure 
tieir  being  rejected ;  Ersk.  ibid.  Conditions 
depending  merely  on  accident  must  be  puri- 
fied before  the  obligation  can  be  enforced ; 
bat  if  the  arrival  of  the  condition  has  been 
prevented  by  the  act  of  the  debtor,  or  of  any 
other  person  unduly  interested  in  preventing 
its  arrival,  it  will  be  held  as  purified,  on  the 
principle  that  no  man  can  profit  by  his  own 
wrong ;  Erdt.  ibid.  Although  an  uncertainty 
unexnl  to  sun  obligation  renders  it  condi- 
tiooal,  it  is  to  be  observed,  that  an  uncertain 
day  u  not  merely  a  day  the  arrival  of  which 
ii  nneertain,  bat  the  very  existence  of  which 
is  nneertain.  Thus,  the  day  on  which  a  per- 
ton  shall  arrive  at  a  particular  age  may 
Derer  exist,  but  the  day  of  his  death  must 
certainly  arrive  :  the  former,  therefore,  is  an 
nneertain  day,  which  creates  a  condition ;  the 
latter  creates  no  condition ;  and  an  obligation 
to  take  effect  on  the  day  of  a  person's  death  is 
pot  in  law  a  conditional  obligation,  although 
its  operation  is  suspended  until  that  event 
arrives.  This  distinction  ought  to  be  kept  in 
view  in  applying  the  maxim,  "  Diet  incertus 
pn  ammow  Mietur."  Stair,  B.  i.  tit.  3,  §  7, 
rf  lej.;  Ersk.  B.  iii.  tit.  1,  5  6 ;  Enk.  Prine. 
12th  edit.  288,  339 ;  Bank,  B.  i.  tit.  4,  §  19 ; 
Beffs  C<m.  vol.  i.  p.  236,  6th  edit. ;  BdPs 
Prine.  4th  edit  art  49,  et  stq.,  93,  et  seq.;  BelPs 
lOut.  art.  93 ;  Brown  on  Sale,  pp.  32,  42,  et 
«j.;  Karnes'  Prine.  of  Equity  (1825),  149; 
HvUer's  LantUord  and  Tenant;  Thomson  on 
BiOt,  pp.  10,  rf  seq.,  375,  et  seq. 

CanditioDal  LegSiCy.    The  doctrine  ex- 
plained in  the  prece^g  article  applies  to  the 


case  of  a  conditional  legacy.  Bell's  Prine.  4lh 
edit.  art.  1881 ;  Menties's  Lect.  See  Legacy. 
Conditional  Institute.  Under  destina- 
tions of  heritage,  those  who  are  entitled  to 
take  up  the  succession  as  the  immediate  dis- 
ponees  of  the  granter,  are  called  institutes,  in 
contradistinction  to  the  substitutes,  who  suc- 
ceed as  heirs  to  such  persons.  Frequently, 
however,  the  institution  of  a  particular  per- 
son is,  by  the  terms  of  the  deed,  made  contin- 
gent upon  certain  events.  Thus,  a  person 
may  be  instituted  conditionally,  upon  the  fail- 
ure of  others  prior  to  the  period  when  the 
destination  will  take  effect.  In  snch  a  case 
the  survivance  of  such  person,  when  the  succes- 
sion opens,  vacates  the  right  of  the  institutes. 
If  the  institute  does  not  survive  the  opening 
of  the  succession,  the  property  will  descend 
to  the  substitutes.  BeWs  Prine.  4th  edit.  art. 
1746,  et  seq. ;  Sandfori  on  Heritable  Succession, 
vol.  i.  p.  397 ;  Sandford  on  Entails,  p.  14,  et 
seq.    See  Tailzie. 

Cases  of  conditional  institution  in  land  rights 
seldom  occur  in  practice.  A  conveyance  to  a 
party,  in  the  event  of  the  granter  leaving  no 
heirs  of  his  body,  is  a  proper  case  of  condi- 
tional institution ;  for,  if  the  granter  leaves 
heirs  of  his  body,  the  conveyance  falls.  If 
also  the  conveyance  contains  substitutions, 
these  also  wiU  fall,  because  the  conveyance 
being  to  the  conditional  institute,  if  that 
fail  the  substitution  must  fail  also.  If,  how- 
ever, the  conveyance  be  to  a  party  failing  heirs 
of  the  grantor's  body,  it  is  not  so  clear  that 
in  such  a  case  the  conveyance  would  fall 
in  the  event  of  the  granter  leaving  heirs  of 
his  body.  In  snch  a  case  there  is  room  for 
holding  that  the  granter  intended  the  con- 
veyance to  take  effect  after  the  heirs  of  his 
body  had  failed,  although  they  may  have  ex- 
isted at  his  death.  A  conveyance  by  the 
granter  to  the  heirs  of  his  body,  whom  fail- 
ing, to  another  party,  differs  very  little  in  its 
conception  from  a  conveyance  to  a  party,  fail- 
ing heirs  of  the  grantor's  body;  and  it 
might  be  contended  that,  in  both  cases,  the 
conveyance  was  to  take  effect,  and  not  to  fall 
if  heirs  of  the  grantor's  body  existed  at  the 
grantor's  death.  The  case  of  Stevenson  v. 
Barr,  24th  June  1784,  M.  14862,  however, 
appears  to  be  opposed  to  this  view.  In  that 
case  a  husband,  by  his  contract  of  marriage, 
disponed  a  tenement  to  the  children  of  the 
marriage,  and,  failing  children  of  the  mar- 
riage, to  his  spouse,  and  the  precept  of  sasine 
was  in  favour  of  the  wife  and  her  heirs  and 
assignees.  A  child  of  the  marriage  existed, 
and  survived  its  father,  and  on  its  death  a 
competition  arose  between  its  mother  and  its 
uncle,  who  claimed  the  tenement  as  the  heir 
of  the  child.  The  mother  pleaded  that  the 
declaration  of  the  fee  in  favour  of  the  child- 


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dren  of  the  marriage  could  have  no  other 
effect,  when  followed  with  the  expression 
"  failing  them,"  than  if  it  had  been  suc- 
ceeded bv  that  of  "  whom  failing."  On  the 
part  of  the  uncle  it  was  pleaded  that,  by  the 
child  gnrviring  its  father,  it  became  rested  in 
the  fee,  and  that,  therefore,  its  mother  could 
not  succeed  but  as  a  substitute ;  but  that  the 
terms  of  the  deed,  and  especially  those  of  the 
precept  of  sasine,  implied  a  conditional  insti- 
tution only,  for  that  the  mother's  infeftment 
under  her  husband's  precept  could  be  of  no 
avail  after  the  fee  had  devolved  npon  another. 
A  mtyority  of  the  court,  chiefly  influenced  by 
this  fact  of  the  precept  having  been  granted 
directly  in  favour  of  the  wife,  considered  her 
as  a  conditional  institute,  and  accordingly  al- 
tered the  interlocutor  of  the  Lord  Ordinary, 
who  had  found  that  the  children  of  the  mar- 
riage having  failed  by  the  death  of  the  only 
child  of  the  marriage,  the  mother  was  en- 
titled to  the  fee  of  the  subject,  it  being  spe- 
cially provided  to  her,  failing  children  of  the 
marriage.  Apart  from  the  circumstance  that 
the  precept  was  granted  directly  in  favour  of 
the  mother,  it  could  scarcely  be  doubted  that 
she  was  a  substitute  to  her  children,  because 
the  conveyance  was  in  favour  of  the  children, 
and,  failing  them,  to  their  mother.  The  case, 
therefore,  is  not  an  authority  for  the  propo- 
sition that  a  conveyance  to  a  party,  failing 
heirs  of  the  body  of  the  grantor,  falls  by  the 
grantor  being  survived  by  such  heirs. 

In  practice  a  substitute  is  termed  and  treat- 
ed as  a  conditional  institute,  where  the  insti- 
tute predeceases  the  grantor  of  the  deed,  and 
such  substitute  is  therefore  entitled  to  take 
infeftment  directly  on  the  precept  in  the  con- 
veyance, without  any  service  either  to  the 
granter  of  the  deed  or  to  the  institute.  A 
service  to  the  granter  would  be  inept,  be- 
cause the  deed  of  conveyance  vests  nothing  in 
him.  A  service  to  the  institute  would  also 
be  inept,  because,  by  his  predece.ising  the 
granter  of  the  deed,  nothing  either  vested  in 
him.  If,  therefore,  the  substitute  satisfies  the 
notary  that  the  institute  and  prior  institutes 
are  dead,  an  infeftment  in  his  favour  would 
be  valid.  Such  appears  to  be  the  sound  view 
of  the  matter ;  but  much  difference  of  opinion 
has  existed  on  this  subject  both  at  the  bar 
and  on  the  bench.  By  some  it  has  been 
thought  that,  in  all  cases  of  substitution,  the 
substitute  must  serve  to  the  institute,  al- 
though he  may  have  predeceased  the  granter 
of  the  deed.  The  opposite  view,  however, 
appears  to  be  more  in  accordance  with  sound 
legal  principle ;  and  so  the  majority  of  the 
court  decided  in  the  case  of  Fogo  v.  Foffo, 
11th  March  1842,  4  D.  1063.  In  the  House 
of  Lords  the  judgment  of  the  court  was 
affirmed ;   but  it  was  unnecessary  to  deter- 


mine whether  a  service  by  a  substitute  to  an 
institute  who  had  predeceased  the  grant«r, 
was  necessary  or  not,  because  the  party  whose 
deed  was  challenged  had,  in  point  of  fact, 
served  to  the  predeceasing  institute;  and 
therefore  there  was  no  necessity  for  the  point 
adverted  to  being  decided.  The  point,  bow- 
ever,  may  be  held  to  be  ruled  by  the  opinioM 
of  the  majority  of  the  court  below.  See 
Menzie^s  Leduret  on  Conveyancing. 

Condonation ;  forgiveness ;  usually  applied, 
in  Scotch  law  language,  to  the  pleaof  remutw 
injuria!,  as  a  defence  against  an  action  of  di- 
vorce on  the  ground  of  adultery.  See  Remitm. 

ConfarreatUm ;  the  most  sacred  of  the 
three  solemn  modes  of  contracting  marri^ 
among  the  Romans.  It  consisted,  as  the 
name  imports,  in  the  ponti/ex  maxintu  and 
Jlamen  dialis  joining  and  contracting  the  man 
and  woman,  by  making  them  eat  of  the  same 
cake  of  salted  bread ;  or,  according  to  Ulpiso, 
in  the  offering  up  of  some  pure  wheaten 
bread,  each  of  the  parties  eating  a  pwtien, 
and  throwing  a  portion  upon  the  victims  s»- 
criSced  on  the  occasion.     See  Marriage. 

Confession;  the  acknowledgment  or  avoisl 
of  a  fact.  A  confession  or  declaration  of 
guilt  made  by  a  criminal,  in  presence  of  a 
judge,  is  not  admitted  of  itself  as  eridesee 
against  him;  but  it  affords  a  presumption: 
and  being  proved  to  the  jury  on  the  trial  by 
those  present  at  the  time  when  the  confession 
was  made,  to  have  been  truly  the  voluntary 
confession  of  the  criminal,  it  will  be  held  to 
be  evidence,  in  terms  of  the  act  1587,  c.  91. 
The  evidence  required  for  establishing  tbe 
fact  of  the  acknowledgment  having  been 
made  by  the  panel,  is  that  of  two  concurring 
witnesses.  But  this  declaration  is  noteqni- 
valent  to  a  confession  by  the  panel  in  pre- 
sence of  the  jury,  which  is  conclusive  evidence 
against  him ;  9  Geo.  IV.,  c.  29,  §  14 ;  nor 
will  it  by  itself  be  received  as  a  proof  of  the 
crime.  It  will  necessarily  affect  the  minds  of 
the  jury  in  weighing  the  evidence  in  iht 
cause,  but  it  ought  to  do  no  more  ;  Hume,  vol. 
ii.  p.  324 ;  Bvmett,  488 ;  Alis.Prac.578;  Mt 
Notes,  239;  Dickson  on  Evid.  722,  7 M.  Ac- 
cordingly, if  the  only  evidence  against  a  panel, 
besides  his  declaration  confessing  the  crime, 
is  proof  of  the  corpus  delicti,  the  court  will  di- 
rect the  jury  to  acquit,  on  the  ground  that  tbe 
evidence  is  insufficient  in  point  of  law ;  and 
the  same  course  is  followed  where  some  slight 
suspicion  only  attaches  to  the  panel  firom 
other  evidence.  A  confession,  before  ecdesi* 
astical  courts,  of  adultery,  or  of  any  other 
offence  which  gives  the  church  scandal,  being 
held  as  extrajudicial  as  to  prosecutions  on  tbe 
same  grounds  before  other  courts,  is  no  proof 
against  the  party  either  as  to  civil  or  crimi- 
nal effects,  even  although  it  be  followed  by 


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■ablic  chnrch  censure ;  Bank.  B.  iv.  tit.  32, 
§  20.  In  ordinary  civil  actions,  a  party  may 
be  called  upon  to  confess  or  deny  any  rele- 
vant matter  of  fact,  and,  if  he  refuse,  he  will 
be  held  as  confessed.  By  A.  S.  11th  July 
1828,  ^  105,  it  is  declared  that  where  a  state- 
ment u  point  of  fact,  within  the  opposite 
party's  knowledge,  is  averred  on  the  one  side, 
and  not  denied  on  the  other,  he  shall  be  held 
ueonfeased.  The  judges  in  inferior  courts 
are  also  empowered,  either  before  or  after 
elflsiog  the  record,  to  order  the  parties,  either 
by  writing  under  their  hands,  or  at  a  judicial 
examination,  to  confess  or  deny  such  facts  as 
may  be  thought  pertinent ;  and  the  party  fail- 
ing to  comply  with  the  inferior  judge's  order 
will  be  held  as  confessed ;  A.  S.  10th  Jvly 
1839,  §  66,  67.  As  to  the  older  practice,  see 
A. S.  Itt Fa.  1715,  {Gand7;  7th Feb.  1810 ; 
Sim,  B.  iv.  tit.  44,  §  1,  e<  teq.  See  also  Ca- 
kiuuf,  Oath  of.  Condescendence.  Dedaration. 
(hininal  Prosecution. 

Cimfident  Person.  In  the  sense  of  the  act 
1621,  a  confident  person  may  be  defined  gene- 
r^y  to  be  an  intimate  and  confidential 
friend.  The  term  seems  applicable  in  parti- 
cular to  a  partner  in  trade,  a  factor  or  stew- 
ard, a  confidential  man  of  business,  or  a  ser- 
vant or  other  dependent.  The  deeds  of  an 
insolvent  peiion  in  favour  of  those  so  cou' 
neeted  with  him,  if  granted  without  a  just  and 
necessary  cause,  and  a  price  bona  fide  paid, 
are  reducible  at  the  instance  of  his  prior  cre- 
ditors, under  the  act  1621,  o.  18.  The  proof 
of  the  confidential  situation  of  the  grantee 
lies  with  the  challenger  of  the  deed,  and  that 
being  proved,  the  person  founding  on  the  deed 
ehaUenged  has  the  burden  of  proving  that  it 
does  not  fall  under  the  act ;  for  a  conveyance 
to  a  confident  person  is  not  null  prtesumplione 
}»ru  a  dejure.  Stair,  B.  i.  tit  9,  §  15 ;  More's 
'V«te,  p.  Ixi. ;  BeWt  Com.  vol.  ii.  p.  187,  5th 
edit.    See  also  Conjunct  Persons.    Collusion. 

Confidentiality.  In  order  to  insure  per- 
fect freedom  of  communication  between  a  law- 
agent  and  his  client,  a  bar  is  generally  placed 
npon  the  production,  in  modum  probationis,  of 
their  communications.  Neither  can  an  ac- 
tion of  damages  be  fonnded  upon  confidential 
letters  by  a  law-agent  to  his  client,  nor  upon 
statements  made  by  a  client  to  his  agent,  in 
reference  to  a  depending  or  threatened  pro- 
eem.  But  an  agent  must  produce  all  writ- 
ings which  the  party  himself  would  have  been 
bound  to  prodace ;  and  even  letters  between 
the  client  and  another  party,  put  into  the 
bands  of  the  agent  as  legal  adviser.  It  has 
been  decided  that  a  former  agent  is  bound  to 
secfeey.  But  there  are  conflicting  decisions 
open  the  point,  whether  the  production  of 
communications  made  without  reference  to 
»ny  suit,  depending  or  anticipated,  can  be  en- 


forced. The  authorities  will  be  found  collect- 
ed in  Dickson  on  Evidence,  p.  930.  In  Eng- 
land it  is  settled  that  the  privilege  of  confi- 
dentiality is  not  qualified  by  any  reference  to- 
proceedings  pending  or  in  contemplation ;  and 
that  it  extends  to  attornies  consulted  on  title^ 
as  well  as  those  employed  in  a  cause.  An 
agent  concealing  that  the  debt  for  which  he 
demands  and  attempts  to  enforce  payment  is 
already  paid,  is  liable  to  repeat  it.  The 
client,  by  calling  his  own  agent  as  a  witness, 
waives  the  privilege  of  his  agent's  silence ; 
15  Vict.,  c.  27,  §  1.  The  privilege  extends 
only  to  professional  legal  advisers,  with  their 
clerks;  non-professional  persons,  except  iu 
certain  special  cases,  or  factors,  accountants, 
&c.,  are  not  included  under  the  rule  of  silence. 
Commnnications  between  several  parties  en- 
gaged on  the  same  side  of  a  suit,  and  between 
the  counsel  and  agents  of  the  respective 
parties  to  an  action,  are  privileged.  There 
are,  however,  other  relations  in  which  confi- 
dentiality is  preserved.  Thus,  public  oflScen 
are  not  entitled  nor  compellable  to  produce 
written  communications  made  to  them  offl~ 
cially,  relative  to  the  character  and  conduct 
of  a  party  applying  for  a  public  office,  where 
the  production  is  demanded,  in  c6ntemplation 
of  an  action  of  damages  against  the  writer. 
An  agent  in  a  criminal  trial  has  the  same 
privilege  in  reference  to  anything  he  knows 
as  agent.  It  is  not  settled  whether  confes- 
sions made  by  a  criminal  to  a  clergyman,  to 
relieve  his  burdened  conscience,  are  privi- 
leged ;  and  distinctions  have  been  attempted 
to  be  made  between  such  confessions  by  a  pri- 
soner in  custody  with  a  view  to  trial,  and 
confessions  made  prior  to  incarceration  by  a 
party  conscious  of  guilt,  the  latter  being 
thought  to  form  part  of  the  history  of  the 
crime,  and  to  be  unprivileged ;  2  Eume,  335, 
350;  Alison's  Prac.  471,  537,  686.  The 
point  is  still  open  in  Scotland,  though  in 
England  such  communications  have  been  de- 
cided not  to  be  privileged.  Professional  men, 
as  surgeons,  physicians,  &c.,  are  not  entitled 
to  withhold  anything,  however  confidential. 
While  husband  and  wife  are  now  admissible 
as  witnesses  for  and  against  each  other  iu 
most  civil  cases,  no  husband  is  competent  or 
compellable  to  give,  against  his  wife,  evidence 
of  any  matter  communicated  by  her  to  him 
during  marriage,  nor,  vice  versa,  any  wife 
competent  or  compellable  to  give  such  evi- 
dence against  herhusbaud;  16  Vict.,  c.  20, 
§  3.  See,  on  the  subject  of  this  article.  Stair, 
iv.  43,  9 ;  Ersk.  Inst.  iv.  2,  25 ;  Hume,  ii. 
350  ;  BeWs  Princ.  §  2254 ;  Shand's  Prac.  See 
Affent.    Evidence. 

Confirmation,  Charter  o£  The  modem 
form  of  a  disposition  to  a  purchaser,  includes, 
the  clauses  of  a  charter  a  me  as  well  aademey 

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and  when  the  disponee  has  taken  infeftment 
on  the  indefinite  precept  of  sasine,  contained 
in  a  disposition,  with  this  double  manner  of 
holding,  snch  infeftment  will  not  only  consti- 
tute a  ralid  base  right  in  the  person  of  the 
disponee,  from  the  date  of  the  infeftment; 
but  the  superior  maj,  by  confirmation,  render 
that  infeftment  equivalent  to  infeftment  on  a 
precept  of  sasine  granted  by  himself,  and  thus 
render  the  right  pvblic.  This  is  accomplished 
by  a  charter  of  confirmation  from  the  supe- 
rior ;  so  called,  becanse  it  ratifies  and  confirms 
the  right  granted  to  the  purchaser,  and  the 
sasine  following  upon  it.  The  charter  of 
confirmation  narrates  and  specially  confirms 
the  whole  conveyances  and  infeftments  since 
the  last  public  infeftment,  and  declares  them 
to  be  as  effectual  as  if  they  had  been  verbatim 
engrossed  in  the  charter  of  confirmation,  or  as 
if  it  had  been  granted  before  taking  the  in- 
feftment. The  other  clauses  do  not  materially 
diflfer  from  those  in  an  original  grant,  except 
that,  as  infeftment  has  been  already  taken, 
the  charter  of  confirmation  contains  no  pre- 
cept of  sasine.  The  confirmation  in  the  ordi- 
nary case  operates  retro  to  the  date  of  the 
infeftment,  and  renders  it  as  effectual  as  if  it 
had  proceeded  from  the  first  on  the  superior's 
precept.  A  charter  of  confirmation  is  one  of 
the  most  ordinary  methods  of  completing  a 
purchaser's  title ;  at  the  same  time,  where 
the  progress  is  intricate,  unless  particular 
attention  be  paid  to  the  state  of  the  titles, 
serious  mistakes  may  be  committed.  When 
the  disponee  wishes  to  confirm  intermediate 
base  rights,  and  to  resign  on  the  procuratory 
of  his  immediate  author,  so  as  to  complete  his 
own  title  by  a  charter  of  resignation  from  his 
superior,  care  ought  to  be  taken  that  the 
confirmation  ends  with  the  sasine  in  favour 
of  the  granter  of  the  procnratory  on  which 
the  resignation  is  intended  to  proceed ;  for, 
by  confirming  the  disponee's  own  sasine,  his 
right  becomes  public,  and  his  author's  procu- 
ratory useless,  as  in  the  case  supposed;  Jurid. 
Styles,  vol.  i.  pp.  483,  524.  Although  the 
disposition  to  a  purchaser,  in  its  ordinary 
form,  contains  a  double  manner  of  holding, — 
that  is,  a  holding  either  amede  superiore  meo, 
or  de  me, — yet  it  may  happen  that  a  holding  a 
me  only  is  inserted.  In  that  case,  a  mere  in- 
feftment on  the  precept  will  carry  nothing 
until  confirmed  by  the  superior ;  and,  in  the 
event  of  double  rights  to  the  same  subject  be- 
ing granted  by  dispositions  containing  hold- 
ings a  me  only,  the  preference  will  depend, 
not  on  the  date  of  the  registration  of  the  sa- 
sine on  the  rights  confirmed,  but  on  the  date 
of  the  confiinnation  ;  because,  as  such  rights 
are  imperfect  without  confirmation,  the  right 
first  perfected  must  be  preferable ;  Ersk.  B. 
it.  tit.  7,  §  14.    And  on  the  same  principle, 


a  charter  of  resignation,  proceedbg  on  the 
procuratory  in  a  disposition  containing  soeh 
single  manner  of  holding,  will  carry  the  pro- 
perty in  preference  to  an  unconfirmed  saiiDe 
on  the  precept.  An  improper  use  of  confir- 
mation, or  a  neglect  of  due  attention  to  its 
effect,  may  give  occasion  to  questions  of  grest 
nicety  and  difficulty  in  thecompleting  of  titles. 
See  Cons(^idation.  Base  Right.  Pvblic  RigU. 
Charter.  RetigtuUion.  Where  a  disponee  dies 
base  infeft,  his  heir  may  complete  his  title  by 
a  charter  of  confirmation  and  precept  of  dare 
constat  contained  in  the  same  deed,  whereby 
the  superior,  in  the  first  place,  confirms  the 
ancestor's  base  infeftment,  and  then  grants  a 
precept  for  infefting  the  heir.  Stair,  B.  ii. 
tit.  3,  §  28 ;  Mor^t  Notes,  p.  clzvii. ;  Rot^s 
Led.  ii.  149,  et  seq. ;  Ross,  L.  C.  toL  2,  p. 
127 ;  Mentions  Lectures.    See  Clare  eonstoL 

A  disponee  who  has  taken  infeftment  on 
the  precept  in  his  disposition,  and  whose  in- 
feftment has  been  confirmed,,  is  not  barred 
from  resigning  on  the  procuratory  in  the  dis- 
position, and  taking  an  infeftment  in  a  chwter 
of  resignation  expede  on  the  procuratory. 
The  disponee  taking  this  step  is  held  to  have 
two  completed  titles  in  his  person,  and  to  hold 
the  one  without  prejudice  to  the  other.  See 
2  Ross,  L.  C.  157. 

Clonfinnatioii  of  Ezeontor ;  is  the  form  in 
which  a  title  is  conferred  on  the  executor  of 
a  person  deceased,  to  intromit  with  and  ad- 
minister the  defunct's  moveable  effects,  for 
behoof  of  the  executor  himmlf,  or  of  those 
interested  in  the  succession.  There  are,  pro- 
perly speaking,  only  two  cases  recognised  in 
the  law  of  Scotland,  where  the  interposition 
of  judicial  authority  is  in  this  respect  dis- 
pensed with,  viz., — \st,  With  regard  to  those 
effects  of  which  the  next  of  kin,  when  not 
excluded  by  a  preferable  title,  can  obtain 
actual  possession ;  and,  2d,  With  regard  to 
those  which  the  deceased  has  specially  con- 
veyed to  another,  either  per  eapressum,  or  by 
reference  to  an  inventory ;  an  exception  from 
the  general  rule  introduced  by  the  act  of  Par- 
liament, 1690,  c.  26.  It  has  also  been  said, 
that  legitim  and  jus  rdicta  are  exceptions, 
since  both  vest  without  confirmation;  and 
that  the  same  is  the  case,  where  the  repre- 
sentative of  the  defunct  gets  from  the  de- 
funct's debtor  a  bond  of  corroboration ;  bat 
legitim  and  jxa  relictw  do  not  vest  jure  repr*- 
sentationit;  and  in  the  case  of  a  bond  of  cor- 
roboration, confirmation  is  obvionsly  rendered 
unnecessary  by  the  substitution  of  a  new  ob- 
ligation. Hence,  the  two  above  specified 
seem  to  be  the  only  proper  exceptions.  Con- 
firmation must  be  expede  before  the  eom- 
missai7  of  the  district  in  which  the  deceased 
has  had  his  principal  domicile,  or,  if  he  had 
no  fixed  domicile,  in  that  where  he  had  lived 


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for  the  forty  days  preceding  his  death.    In 
the  case  of  those  to  vhom  this  rule  will  not 
i^ly,  from  the  want  of  a  proper  domicile ; 
aod  of  those  who  have  died  abroad,  and  who 
went  there  animo  remanendi,  the  confirmation 
proceeds  at  Edinburgh  as  the  commune  forum. 
In  confirming  execntots,  the  commissary  is 
bonod  to  follow  certain  prescribed  rules  as 
to  the  order  of  preference,  which  will  be 
found  particularly  explained,  voce  Executor. 
As  to  the  form  of  procedure ;  where  the  exe- 
cutor is  an  executor-nominate,  he  lodges  with 
the  clerk  of  court  the  deed  containing  his 
nomination,  along  with  an  inventory  of  the 
defimct's  moveable  estate.     It  was  formerly 
aeeeaary  for  him  to  find  caution ;  but,  by 
4  Geo.  IV.,  c.  98,  §  2,  this  is  dispensed  with  in 
the  ease  of  an  executor-nominate ;  and  an 
extract,  containing  the  inventory  and  a  copy 
of  die  deed,  with  the  act  of  confirmation  by 
the  judge,  completes  his  title.     This  is  called 
a  confirmation  of  a  testament-testamentary, 
lo  the  case  of  an  executor-dative,  the  party 
promoting  the  procedure  receives  from  the 
court  what  is  called  an  edict,  which  is  pub- 
lished on  mducia  of  nine  days  by  a  messenger- 
at-srms  or  ofiScer  of  court,  on  a  market-day, 
St  the  market-cross  of  the  head  burgh  of  the 
county  where  the  deceased  lived,  and  at  the 
parish-church  door,  at  the  dismissal  of  the 
congregation  on  a  Sunday.    See  Edict,    This 
edict  is  afterwards  called  in  court ;  and  when 
s  competition  ensues,  the  judge  is  guided  by 
the  rules  explained  voce  Executor.    The  office 
of  executor  is  conferred  by  decree-dative ;  an 
inventory  is  lodged ;  caution  is  found  by  the 
execntor ;  and  his  title  is  then  in  all  respeda 
snalogons  to  that  of  an  executor-nominate. 
This  is  called  a  confirmation  of  a  testament- 
datiTe.    Where  the  edict  has  been  moved  by 
one  of  the  nearest  of  kin,  or  by  a  creditor, 
any  other  equally  near  in  kin,  or  any  other 
creditor  m  pari  casu,  may  be  conjoined  in  the 
office  on  application.    By  the  existing  sta- 
tutes regulating  the  duties  on  moveable  suc- 
cesion,  it  is  incumbent  on  every  person  who 
applies  to  be  confirmed  executor,  whether 
teamen tary  or  dative,  to  give  up  on  oath  a 
foil  inventory  of  the  deceased's  moveable 
estate,  80  far  as  known  to  him ;  and  the  whole 
moveable  estate  of  the  deceased  known  at 
the  time  must  now  be  confirmed.    But  it  is 
lawful  to  make  an  e£b  to  such  confirmation, 
aho  upon  oath,  of  any  part  of  the  estate 
which  may  be  afterwards  discovered,  special 
asignations  under  the  act  1690,  c.  26,  being 
excepted ;  as  also  in  the  case  of  confiima- 
lions  by  executors-creditor,  the  confirmation 
■nay  be  limited  to  the  amount  of  the  debt  and 
Mm  confirmed,  to  which  the  creditor  must 
fflake  oath ;  every  application  for  confirma- 
tion as  executor-creator  being  notified  in  the 


Edinburgh  Oazttte,  at  least  once,  immedi- 
ately after  such  application  shall  be  made; 
which  must  be  proved  by  production  of  a  copy 
of  the  Gazette,  before  the  confirmation  can  be 
further  proceeded  in ;  4  Geo.  IV.,  c.  98,  §§  3  and 
4.  A  mere  nomination  as  executor,  or  a  mere 
decree-dative  without  a  confirmation,  vests  no 
right,  except  a  title  to  pursue.  It  is  the 
confirmation  which  confers  the  right  to  re- 
cover and  discharge.  As  to  the  transmission 
of  the  right  to  confirm,  it  is  enacted  by  the 
above  statute,  that  in  all  cases  of  intestate 
succession,  where  the  person  who,  at  the  death 
of  the  intestate,  was  his  next  of  kin,  dies  be- 
fore confirmation  is  expede,  the  right  of  such 
next  of  kin  shall  transmit  to  his  or  her  repre- 
sentatives, so  that  confirmation  maybe  granted 
to  such  representatives  in  the  same  manner  as 
might  have  been  granted  to  the  deceased  next 
of  kin,  immediately  on  the  death  of  the  in- 
testate ;  4. Geo.  IV.,  c.  98,  §1,  See,  on  the 
subject  of  this  article,  Stair,  B.iii.tit.8,§  54; 
More's  Notes,  cccliv;  Ersk.  B.  iii.  tit.  9,  $ 
27,  et  seq. ;  Bank.  vol.  2406 ;  BeWs  Oom.  i. 
81 ;  Belt's  Princ.  §  1888,  et  seq. ;  Jwrid.  Styles 
ii.  500,  3d  edit  See  Executor.  ExeaUor-credi- 
tor.    Licence  to  pursue. 

Confinnatioii;  in  English  law,  a  convey- 
ance of  an  estate,  or  right  in  esse  which  one 
hath  in  or  to  lands,  &c.,  to  another  that  hath 
the  possession  thereof,  or  some  estate  therein. 

Confiscation ;  is  a  forfeiture  of  lands  or 
goods  to  the  Crown,  being  part  of  the  punish- 
ment of  certain  crimes.  See  Stair,  B.  iii.  tit. 
3,^1,  et  seq.    See  Escheat. 

Conform,  Decree.    See  Decree  Conform. 

Conform,  Letters.    See  Letters  Conform. 

Confosio ;  is  a  kind  of  specification,  and  is 
used  to  express  the  mixture  of  liquids  or 
fluids ;  Ersk.  B.  ii.  tit  1,  S  17 ;  see  Gommix- 
tion.  A  debt,  again,  is  said  to  be  lost  confu- 
sione,  where  the  debtor  succeeds  to  the  credi- 
tor, or  the  creditor  to  the  debtor,  so  that  the 
same  person  becomes  both  debtor  and  creditor. 
See  the  following  article. 

Confasien ;  is  one  of  the  modes  1^  which 
obligations  may  be  extinguished.  It  takes 
effect  where  the  debt  and  credit  meet  in  the 
same  person,  either  by  succession  or  by  singu- 
lar titles ;  for,  as  one  cannot  be  a  creditor  or 
a  debtor  to  himself,  the  law  holds  the  debt 
to  be  extinguished  confusions,  whenever  a  per- 
son stands  in  that  predicament,  whether  he 
has  succeeded  as  heir,  or  has  acquired  right 
by  assignation.  But,  although  this  be  the 
general  rule,  there  are  certain  modifications 
and  exceptions  which  must  be  kept  in  view 
in  applying  it  1.  Where  a  cautioner  for 
a  debt  succeeds  to  that  debt,  or  acquires  right 
to  it,  his  cautionary  obligation  is  of  course 
extinguished;  but  the  principal  obligation 
remains  as  effectual  as  ever.    2.  Where  a 


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creditor  in  a  moveable  debt  lucceeds  to  the 
heritable  eBtate  of  his  debtor,  the  debt  is  not 
extinguished.  Itisnotlostcon^tMiVmebythat 
tnccession  ;  for,  though  the  heir  in  heritage 
be  liable,  it  is  only  tvitidiarie,  and,  therefore, 
he  may  demand  the  debt  from  the  executor, 
who  is  primarily  liable  in  personal  debts.  3. 
Where  an  executor  acquires  right  to  an  heri- 
table debt,  the  debt,  in  like  manner,  is  not 
extinguished,  but  may  be  made  effectual 
against  the  heir  in  heritage.  4.  A  debt 
affecting  the  ancestor's  estate,  acquired  by  an 
apparent  heir  after  the  death  of  the  ancestor, 
is  not  extinguished  eon/usione  by  being  vested 
in  the  person  of  the  apparent  heir ;  for  the 
heir,  while  nnentered,  does  not  represent  the 
debtor,  and,  consequently,  the  debt  and  credit 
do  not  meet  in  the  same  person.  Upon  the 
same  ground,  a  debt  purchased  by  the  debtor's 
heir,  who  is  liable  prxceptione  KerediiaHt,  is 
not  extinguished  in  the  person  of  the  heir ; 
a  prceceptio  hereditatis  not  being  considered  as 
conferring  such  an  universal  active  title  as 
renders  the  heir  eadem  persona  cum  defuncto. 
6.  The  conveyance  of  a  debt  affecting  an  en- 
tailed estate,  in  favour  of  one  of  the  heirs  of 
entail  and  his  heirs  whomsoever,  may  not 
have  the  effect  of  extinguishing  the  debt  con- 
ftttione.  The  debt,  indeed,  is  dormant  during 
the  life  of  the  heir  of  entail  to  whom  it  was 
conveyed ;  but  if  the  next  heir  of  entail  is 
not  also  heir  of  line  to  his  predecessor,  the 
debt  will  revive  in  the  person  of  the  heir 
whomsoever  against  the  heir  of  entail ;  Gor- 
don,  1st  Dec.  1757,  Fac.  Coll.,  Mor.  p.  11161 ; 
Cratoford,  11th  Mar.  1809,  Fac.  Coll.  A  debt 
does  not  become  extinguished  eonfwione,  when 
the  succession  to  the  fund  or  subject  liable  for 
it,  happens  to, be  afterwards  divided  from  the 
succession  to  the  debt  itself.  See  Stair,  B. 
i.  tit.  18,  §  9 ;  ErtL  B.  iii.  tit.  4,  §23,  et  seq. ; 
Bank,  vol.  1.  p.  496,  et  teq. ;  BeWs  Princ.  §  580, 
1298. 

The  general  rule  is,  that  confusion  is  pro- 
perly not  an  absolute  extinction,  hnt  rather 
a  suspension  of  obligations.  Wherever,  there- 
fore, the  creditor  in  the  obligation  has  an  in- 
terest to  keep  up  the  debt,  it  is  held  to  be 
only  suspended,  and  not  extinguished. 

Conge  B'Elixe ;  is  the  name  given  to  the 
King's  licence  or  permission,  sent  to  a  dean 
and  chapter,  to  proceed  to  the  election  of  a 
bishop,  when  any  bishopric  becomes  vacant. 
Tomlint'  Did, 

Coqjoining  of  Processe*.  Where  two  or 
more  processes  in  the  Court  of  Session,  re- 
lating to  the  same  sabject-matter,  and  in 
which  the  same  parties  are  interested,  are  in 
dependence,  and  it  appears  expedient  that 
they  should  be  diseuEsed  together,  the  Lord 
Ordinary  before  whom  they  depend,  on  the 
motion  of  the  parties,  may  pronounce  an  inter- 


locutor  conjoining  the  processes ;  after  which 
they  are  proceeded  in  as  one  process.  The 
processes  at  the  time  of  being  conjoined,  most 
be  both  awake  and  in  dependence  before  tbe 
same  judge.  Where,  therefore,  they  hsve 
been  originally  brought  before  different  Lords 
Ordinary,  it  is  necessary  that  they  shoald  be 
remitted  ob  contingentiam  to  the  leading  pro- 
cess, and  both  in  the  roll,  or  at  avizandum,  to- 
gether, before  an  interlocutor  conjoining  them 
can  be  pronounced ;  A.  S.  24th  Dec.  1838. 
Where  necessary,  the  court  may  disjoin  con- 
joined processes.  See  on  the  subject  of  this 
article,  Ivory's  Form  of  Process,  ii.  52 ;  5fl»- 
ridge,  ii.  599,  et  seq. ;  Shand's  Prae.  500 ; 
MVlash.  Sher.  Court  Prae.  321.  See  CrntH*- 
gency. 

Conjunct  Sight* ;  are  rights  taken  to  two 
Or  more  persons  jointly. 

Conjunct  rigkts  to  strangers. — Where  a  right 
is  granted  in  favour  of  two  persons,  strangers 
to  each  other,  "  in  conjunct  fee  and  Ufereid, 
and  their  heirs,"  the  two  are  equal  fiars  during 
their  joint  lives.  On  the  death  of  either  of 
them,  the  survivor  has  the  liferent  of  the 
whole,  and  after  the  survivor's  death,  the  fee 
divides  equally  between  the  heirs  of  both. 
Where  the  right  is  taken  V  to  ttoo  jointly  ani 
their  heirs,"  the  conjunct  Aare  enjoy  the  subject 
equally  during  their  lives ;  and  on  the  death 
of  either,  his  share  descends  to  his  own  heir. 
Where  the  right  is  taken  "  to  turn  jointly,  ami 
the  longest  liver  and  their  heirs,"  the  ex- 
pression, "  their  heirs,"  is  understood  to  mesa 
the  heirs  of  the  longest  liver ;  and  therefore, 
although  the  creditors  of  either  of  the  con- 
junct fiars  may  attach  their  respective  shares 
while  both  are  alive,  yet,  upon  the  death  of 
either,  the  survivor  has  the  fee  of  the  whole, 
exclusive  of  the  heir  of  the  predeceased,  in  so 
far  as  the  predeceased's  share  is  not  exhausted 
by  his  debts.  Where  the  right  is  taken  "  to 
A  and  B  jointly,  and  to  the  heirs  of  B,"  the 
heirs  of  B  are  substituted  both  to  AandB, 
and  will  take  the  whole,  if  neither  A  nor 
B  have  disposed  of  their  shares,  to  the  ex- 
clusion of  the  hein  of  B.  Stmr,  B.  2,  tit.  6, 
§  10 ;  Ersk.  B.  iii.  tit  8,  §  35. 

Conjunct  rigMi  to  husband  and  mfe.  In 
questions  between  husband  and  wife,  where 
the  right  is  taken  to  them,  "  in  conjunct  fee 
and  liferent,  and  the  heirs  of  thisir  body,"  or  "  ikdr 
heirs"  indefinitely,  the  general  rule  is,  that 
the  husband  is  sole  fiar,  and  the  wife  a  mere 
liferentrix ;  "  their  heirs,"  therefore,  are  held 
to  be  the  heirs  of  the  husband,  and  his  credi- 
tors may  attach  the  right,  subject  only  to  the 
wife's  liferent.  But  this  general  rule  suffers 
several  exceptions,  founded  on  the  presumed 
intention  of  the  parties,  as  arising  out  of  the 
different  circumstances  of  particular  cases. 
Thus,  where  the  subject  comes  from  the  wife, 


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or  her  relations,  and  the  expression  is  not 
mch  as  to  indicate  a  preference  in  favour  of 
the  husband,  the  wife  is  fiar,  the  husband 
merely  liferenter,  and  his  creditors  cannot 
attach  the  subject.  The  wife,  however,  can- 
not convey  it,  nor  can  her  creditors  attach  it, 
without  a  reservation  of  the  husband's  life- 
rent. The  wife  is  also  fiar  on  her  survivance, 
if  the  fee  be  destined  to  the  survivor.  Where 
the  destination  is  to  husband  and  wife,  and 
the  survivor,  and  "  their  heirs,"  if  the  husband 
predecease,  the  fee  will  be  held  to  be  in  the 
wife  and  her  heirs,  not  ii\  the  heirs  of  the 
marriage.  In  a  case  where  heritable  pro- 
perty ^as  conveyed  by  a  husband,  in  an  ante- 
nnpiial  contract  of  marriage,  to  himself  and 
wife,  "in  conjunct  liferent,  during  all  the  days 
of  their  lifetime,  and  to  the  longest  liver  of 
them,  and  their  heirs  or  assignees,  in  fee,"  the 
fee  was  held  to  be  in  the  surviving  wife; 
M'Origor,  3d  Jan.  1831,  9  S.dD.  675.  But 
where  the  subject  so  destined  belonged  origi- 
nally to  the  husband,  it  would  seem  that, 
daring  his  life,  he  may  alienate  it,  or  his 
creditors  may  attach  it;  Fergusan,  22d  July 
1739,  Mor.  p.  4202;  Riddds,  6th  Nov.  1747, 
Mor.  p.  4203.  Where  the  subject  has  come 
from  the  wife  as  tocher,  and  has  been  des- 
tined to  the  husband  and  wife  in  conjunct 
fee  and  liferent,  the  strongest  expressions  of 
preference  in  favour  of  the  wife  will  be  re- 
quired, in  order  to  vest  her  with  the  fee; 
Brvee  Henderson,  20th  Jan,  1790,  Foe.  Coll., 
Mor.  p.  4215,  where  the  fee  was  held  to  be  in 
the  husband.  If  the  wife's  heirs  are  preferred 
in  the  destination,  the  fee  is  iilso  in  the  wife. 
It  is  to  be  observed,  however,  that  it  is  not  a 
proper  criterion  of  this  preference,  that  the 
wife's  heirs  are  last  named  in  the  substitution, 
unless  there  be  no  intermediate  substitutes  be- 
tween the  heirs  of  the  marriage  and  them ; 
for  where  there  are  such  substitutes,  that 
sfovae  is  deemed  fiar  where  heirs  are  first 
called  after  the  heirs  of  the  marriage.  Stair, 
B.  u.  tit.  6,  §  10 ;  Ersk.  B.  iii.  tit.  8,  §  36 ; 
Bdft  Com.  vol.  i.  p.  56,  etseq,  5th  edit. ;  BelFs 
Prine.  §  1953  ;  Jurid.  Sti/ks,  2d  edit.  vol.  ii.  p. 
33.    See  Rots,  L.  C.  vol.  iii. 

Coronet  righUto  parents  and  children.  Where 
rights  are  taken  to  a  father  in  liferent,  and 
to  his  children  natcituri  in  fee,  the  fee  is  in 
the  father,  and  the  children  have  a  mere  spes 
sueceuionis,  defeasible  by  the  father's  credi- 
tors ;  Frog's  Creditors,  25th  Nov.  1735,  Mor. 
p.  4262.  But  where  the  children  are  in  ex- 
istence, and  the  right  is  taken  to  the  child  or 
children  nominaiim  in  fee,  the  fee  is  held  to  be 
in  the  child  named,  even  although  the  right 
has  been  acquired  by  the  father,  and  destined 
to  the  child  gratuitously ;  M'Intosh,  28th  Jan. 
1812,  Fae.  CM.  Even  where  the  children  are 
not  yet  bom,  if  the  right  be  taken  to  the 


father  in  liferent,  "for  his  liferent  use  oMenarly, 
and  to  his  children  ncuciluri  in  fee,"  this  form 
of  expression  will  limit  the  father's  right  to  a 
mere  fiduciary  fee,  for  behoof  of  the  children,, 
which  cannot  be  affected  by  the  father's  debts 
or  deeds ;  Newlands,  9th  July  1794,  Fac.  Coll., 
"itor.  p.  4289,  affirmed  on  appeal ;  Watherstone, 
25th  Nov.  1801,  Fac.  Coll.,  Mor.  p.  4297 ; 
Harvey,  26th  May  1816,  Fac.  Coll.  But  the 
words,  in  order  to  exclude  the  father,  must 
be  clearly  taxative ;  a  destination  of  the  sub- 
ject to  the  father  "  during  all  the  days  of  his 
life,  and  to  the  children  in  fee,"  will  import  a 
full  fee  in  the  father ;  Lindsay,  9th  Dec.  1807, 
Fac.  CoU.,  Mor.  App.  voce  Fiar ;  Robertson,  20th 
Nov.  1806,  Fac.  Coll.,  Mor.  App.  Fiar  absolute, 
limited.  It  is  quite  settled  that,  where  a  sub- 
ject is  conveyed  to  trustees  for  behoof  of  a 
certain  person  in  liferent,  and  of  his  children 
natcituri  in  fee,  the  father  is  not  fiar  ;  Seton, 
6th  March  1793,  Fac.  Coll.,  Mor.  p.  4219. 
Where  a  subject  had  been  taken  to  husband 
and  wife,  "  and  longest  liver  of  them  two  in 
conjunct  fee  and  liferent,  for  her  liferent  use 
allenarly,  and  to  their  son  nominatim  in  fee," 
with  a  reserved  power  of  disposal  to  the  father, 
the  fee  was  found  to  be  in  the  father,  on  the 
ground  apparently,  that,  by  the  terms  of  the 
destination,  there  was  &fee  actually  vested  in 
him  ;  Wilson,  14th  Dec.  1819,  Fac.  CoU.  See 
this  case  particularly,  and  the  authorities 
there  cited.  See  also  on  this  subject,  Stmr, 
B.  ii.  tit.  6,  §  10 ;  Ersk.  B.  iii.  tit.  8,  §  35,  et 
seq. ;  Batdc.  vol.  i.  p.  575,  and  vol.  ii.  p.  337  ; 
BeWs  Com. i.  56, etseq.  5th  edit. ;  Jurid.  Styles, 
2d  edit.  vol.  i.  p.  108.  See  also  Ross,  L.  C. 
vol.  iii.  p.  602,  et  seq. ;  Menzies's  Lectures. 

Coiqiinct  or  Confident  Persons.  By  the 
act  of  Sederunt  12th  July  1620,  ratified  and 
approved  as  law  by  stat.  1621,  c.  18,  the 
Court  of  Session  declares  that,  in  all  actions 
pursued  by  any  "  true  creditor  for  recovery  of 
his  just  debt,  or  satisfaction  of  his  lawful 
action  and  right,  they  will  decreet  and  de- 
cern all  alienations,  dispositions,  assignations, 
and  translations  whatsoever,  to  any  conjunct 
or  confident  person,  without  true,  just,  and 
necessary  causes,  and  without  a  just  price 
really  paid,  the  same  being  done  after  the 
contracting  of  lawful  debts  from  true  credi- 
tors, to  have  been  from  the  beginning,  and  to 
be  in  all  time  coming,  null,  and  of  no  avail, 
force,  or  effect,  at  the  instance  of  the  true  and 
just  creditor,  by  way  of  action,  exception,  or 
reply,  without  further  declarator."  And  in 
case  any  one  shall  have  bona  fide  purchased 
the  subject  from  the  conjunct  or  confident  per- 
son for  a  fair  price,  or  ^all  have  obtained  it 
in  satisfaction  of  a  just  debt,  in  that  case, 
"  the  right  lawfully  acquired  by  him,  who  was 
nowise  partaker  of  the  fraud,  shall  not  be 
annulled  in  manner  foresaid,  but  the  receiver 


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of  the  price  of  the  said  lands,  &c.,  iVom  the 
buyer,  shall  be  holden  and  obliged  to  make 
the  same  forthcoming  to  the  behoof  of  the 
bankrupt's  true  creditors  in  payment  of  their 
lawful  debts.  And  it  shall  be  sufficient  pro- 
bation of  the  fraud  intended  against  the  cre- 
ditors, if  they,  or  any  of  them,  shall  be  able 
to  verily,  by  writ  or  oath  of  the  party  re- 
ceiver of  any  security  from  the  dyvour  or 
bankrupt,  that  the  same  was  made  without 
any  just  and  necessary  cause,  or  without  any 
true  and  competent  price  ;  or  that  the  lands 
and  goods  of  the  dyvour  and  bankrupt  being 
sold  by  him  who  bought  them  from  the  said 
dyvour,  the  whole  or  the  most  part  of  the 
price  thereof  was  converted,  or  to  be  converted, 
to  the  bankrupt's  profit  and  use."  In  the 
sense  of  this  act,  conjunct  persons  are  brothers, 
sisters,  sons,  sons-in-law,  uncles  by  consan- 
guinity or  affinity,  stepsons,  sisters  or  bro- 
thers-in-law, and,  in  general,  all  persons  who, 
by  their  relationship  to  the  insolvent  person, 
would  be  legally  mcapable  of  acting  as  wit- 
nesses or  judges  in  a  cause  in  which  he  was 
concerned.  A  confident  person  is  a  confiden- 
tial and  intimate  friend ;  e.g.,  a  partner  in 
trade,  or  a  factor,  or  steward,  or  confidential 
man  of  business,  or  a  servant,  or  other  de- 
pendant. See  Confident  Person.  With  regard 
to  this  statute,  which  has  given  rise  to  ques- 
tions of  construction  of  considerable  difficulty, 
it  may  be  observed  in  general,  that  it  was  in- 
tended to  aid  the  common  law,  by  which,  in- 
dependently of  statute,  all  fraudulent  aliena- 
tions by  insolvent  persons,  to  the  prejudice  of 
their  lawful  creditors,  are  reducible.  The 
chief  benefit,  indeed,  conferred  by  the  act 
1621,  seems  to  be  that  of  creating  certain 
legal  presumptions,  which  have  the  effect  of 
throwing  the  burden  of  disproving  fraud  on 
the  parties  concerned  in  the  transaction, 
wherever  they  are  so  connected  as  to  give  rise 
to  strong  suspicions  of  collusive  or  fraudulent 
proceedings ;  and  it  would  rather  appear  that, 
with  reference  to  this  object,  the  statute  has 
been  liberally  interpreted.  It  is  not  meant  to 
detail  here  the  various  difficulties  which  have 
occurred  in  the  application  of  this  act,  but  the 
following  points  in  the  construction  of  it  de- 
serve attention  : — 1.  The  challenging  creditor 
must  have  been  a  creditor  at  the  date  of  the 
alienation  challenged ;  or,  at  least,  his  debt 
must  have  had  its  Origin  prior  to  the  date  of 
the  alienation,  or  he  must  have  lent  money  to 
pay  off  prior  creditors,  so  as  to  come  into  their 
place.  It  is  sufficient,  however,  that  the  debt 
of  the  challengmg  creditor  is  conditional,  or 
even  gratuitous ;  and,  where  the  challenge  is 
at  the  instance  of  a  trustee  for  creditors,  it  is 
enough  if  the  debt  of  any  of  his  constituents 
is  prior  to  the  alienation.  2.  The  deeds  liable 
to  challenge  are  all  conveyances  or  obliga- 


tions, direct  or  indirect,  which  may  confer  oa 
the  grantee  property  belonging  to  the  debtor, 
or  which  may  enable  the  grantee  to  claim  in 
competition  with  onerous  creditors,  or  save  him 
from  a  demand  for  payment  of  a  debt  due  bj 
him  to  the  debtor.  3.  The  proof  of  conjunct 
or  confident  lies  with  the  challenging  credi- 
tor ;  but,  if  that  be  proved,  the  presumption  of 
law  is,  that  the  debtor  was  insolvent  at  the 
time  of  granting  the  deed,  and  that  it  ns 
g^ranted  without  value ;  and,  in  order  to  sop- 
port  it,  the  person  founding  on  it  must  prore 
either  that  the  granter  was  solvent  at  the 
time  of  granting  it,  or  that  a  just  price,  or 
some  other  onerous  consideration,  was  giren 
for  it.  4.  With  regard  to  the  consideration, 
it  must  be  a  fair  price  paid  bona  fide,  and  not 
collusively,  to  answer  the  debtor's  purposes. 
It  is  not  necessary,  however,  that  the  conside- 
ration should  be  a  payment  in  money ;  itwiU 
be  a  sufficient  onerous  cause  to  support  the 
deed  challenged,  if  it  has  been  granted  in 
consequence  of  a  legal  obligation  undertaken 
during  solvency,  or  if  it  be  a  deed  in  imple- 
ment of  an  antenuptial  Contract  of  marriage. 
It  is  a  more  difficult  question  where  the  deed 
has  been  granted  in  implement  of  a  mere  na- 
tural obligation,  as  in  the  case  of  provisioni 
made  for  a  wife  or  children  in  a  postnuptial 
contract;  but  even  in  such  a  caae  itwonld 
seem  that  the  marriage  will  be  regarded  at  a 
sufficient  onerous  cause,  to  support  moderate 
provision,  provided  they  are  not  struck  at  by 
the  act  1696,  c.  5,  nor  are  otherwise  objection- 
able ;  Ersk.  B.  iv.  tit.  1,  §  33,  ^  seq.  5.  It  is 
a  sufficient  defence  against  a  challenge  under 
this  act,  that  the  debtor  was  solvent  at  the 
time  of  granting  the  deed  challenged ;  Erti, 
ib.  §  32.  6.  The  challenge  is  competent  be- 
fore the  Court  of  Session  only  ;  and,  by  in- 
variable practice,  it  is  made  in  the  form  of  an 
action  of  reduction,  although  that  form  seems 
not  to  be  indispensable.  7.  The  effect  of  a 
decree  of  reduction  is  a  raUtutio  in  inttgrvm, 
as  between  the  parties  to  the  fraud;  bnt 
where  a  third  party  has  bona  fide  purchased 
from  the  conjunct  or  confident  person,  withont 
being  aware  of  the  nuUity  to  which  his  title 
was  exposed,  the  sale  will  be  effectual,  the 
challenger's  remedy  in  that  case  being  a  claim 
against  the  bona  fide  purchaser  for  the  price 
if  not  paid,  and,  if  paid,  an  action  against  the 
receiver  of  the  price  for  restitution.  !/«%, 
The  benefit  of  the  legal  presumptions  created 
by  this  act  may  be  lost  by  undue  delay,  or 
mora,  in  bringing  the  chidlenge.  See  the 
subject  of  this  article  fully  treated,  Ef^. 
Princ.  12th  edit.  457  ;  BeWs  Com.  vol.  ii.  p. 
186,  et  seq.  5th  edit.  See  also  CoBusim.  Dili- 
gence. 

Conjonotion  of  an  A^jodioatioii.    When 
a  first  abjudication  is  called  in  court,  the  pro- 


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tea  most  be  intimated  on  the  walls  and  in 
the  minnte-book,  in  terms  of  the  statute  54 
Geo.  III.,  c.  137,  §  9,  that  those  ready  to  ad- 
jndge  may  be  conjoined.  For  this  purpose, 
twenty  sederunt-days  are  allowed,  in  order 
that  thoee  who  have  liquid  grounds  of  debt, 
and  Bommonses  of  adjudication  libelled  and 
signetted,  may  produce  them  in  the  clerk's 
hands,  and  be  conjoined  in  the  adjudication. 
Ms  Cm.  vol.  L  p.  723,  5th  edit.  See  Ad- 
judication. 

Coqunctly  and  Sererally.  When  two  or 
Dore  persons  are  honod  conjunctly  and  seve- 
rally to  perform  an  obligation,  they  are  liable 
m^'  «n  tolidum,  and  it  is  in  the  option  of 
the  creditor  to  exact  performance,  either  from 
each  of  them  proportionally,  or  to  enforce  the 
obligation  to  the  full  extent  against  any  one 
of  tiem,  leaving  him  to  seek  his  relief  from 
the  rest.  The  general  rule  in  joint  obliga- 
tions is,  that  the  ohligants  are  bound  pro  rata, 
unless  the  contrary  be  expressed,  or  unless  in 
the  case  of  bills  of  exchange,  or  where  the 
obligation  is  an  obligation  ad  factum  proegtan- 
iiM,  and  so  indivisible.  Ersk.  B.  iii.  tit.  3, 
574;  Alaander,  28th  Nov.  1827,  6  S. 
150;  Darlington,  6th  Dec.  1836,  15  S.  197; 
Mauie^t  Lect. ;  Rosses  Led.  i.  77, 287  ;  Thorn- 
tM  m  BUk,  88.  See  Sdidtm  et  pro  raia. 
Imt  OUiyant.    Singuli  in  Solidum. 

HmqwtL  In  explaining  this  term,  it  is 
neceoary  to  distinguish  between  its  meaning, 
as  applied  to  succession  in  heritage,  and  the 
construction  it  receives  when  it  occurs  in  a 
contract  of  marriage. 

SuccatioH  of  Conquest.  Those  heritable 
rights  to  which  the  deceased  has  succeeded  as 
heir  to  his  ancestor,  are  sometimes  termed 
Itritaje  in  a  strict  sense,  in  contradistinction 
to  antquett,  which  term  is  applied  to  such 
heritable  rights  as  the  deceased  has  acquired 
I7  dngnlar  titles,  e^.,  by  purchase,  dona- 
tion, or  even  excamhion.  When  left  to  the 
destination  of  the  law,  heritage,  as  thus 
limited,  descends  to  the  heir  of  line,  and 
eoaqaest  ascends  to  the  heir  of  conquest. 
There  is  room  for  this  separation  in  the 
ssceession,  however,  only  where  the  deceased 
has  died  without  lawful  issue,  leaving  brothers 
both  older  and  younger  than  himself,  or 
the  isBue  of  such  brothers,  or  two  or  more 
tuicles,  older  and  yonnger  than  the  father 
of  the  deceased,  or  the  descendants  of  such 
mieles.  In  such  cases  heritage  descends  to 
tile  inunediate  younger  brother  of  the  de- 
ceaied,  or  to  the  next  younger  brother  of  his 
father,  but  conquest  ascends  to  the  immediate 
elder  brother  or  uncle.  Where  the  deceased 
is  the  youngest  brother,  and  leaves  two  elder 
brothen,  the  youngest  surviving  brother  is 
heir  both  in  heritage  and  conquest;  and  where 
the  deceased  leaves  but  one  brother,  he  is  ne- 


cessarily heir  both  of  line  and  conquest.  In 
conquest  as  well  as  in  heritage,  the  whole 
blood  excludes  the  half  blood.  Conquest  can 
ascend  but  once.  Thus,  where  one  who  has 
acquired  an  estate  by  singular  titles  dies, 
although  this  estate  may  ascend  to  the  heir 
of  conquest,  yet  in  the  person  of  such  heir  it 
becomes  heritage,  and  will  descend  to  his  heir 
of  line.  Where  a  father  propels  an  heritable 
subject  to  his  eldest  son,  who  at  the  date  of 
the  gift  is  heir  aiioqui  iuccesiwrus,  it  wUl  not 
be  conquest  in  the  son.  But  such  a  grant  in 
favour  of  an  heir  presumptive  merely  seems 
to  be  conquest ;  if  the  right  was  granted,  for 
example,  by  a  person  having  no  lawful  issue, 
in  favour  of  his  brother,  it  is  conquest  in  the 
brother;  Ersk.  B.  iii.  tit.  8,  §  15.  See  also 
Short,  13th  Feb.  1771,  Foe.  CoU.,  Mor.  p.  6616. 
All  rights  to  lands,  and  other  heritable  rights 
which  require  sasine  to  complete  them,  fall 
under  conquest,  including  heritable  bonds ; 
but  rights  to  teinds,  leases,  annuities,  pen- 
sions, and  personal  bonds,  excluding  execu- 
tors, descend  to  the  heir  of  line.  Ersk.  ib.  § 
16 ;  Stair,  B.  iii.  tit.  6,  §  10.  See  Succes- 
sion. 

Provision  of  Conquest  in  a  contract  of  mar- 
riage. In  contracts  of  marriage,  the  conquest 
acquired  during  the  marriage,  or  a  certain 
proportion  of  it,  is  frequently  settled  either 
on  the  heir  or  on  the  issue  of  the  marriage ; 
and  in  giving  effect  to  a  provision  of  this 
kind,  it  is  to  be  observed,  that  conquest  in 
this  sense  means  only  such  an  accession  of 
fortune  as  renders  the  husband  locupletior, 
and  does  not  therefore  necessarily  include  all 
that  has  been  acquired  during  the  marriage 
by  singular  titles.  A  subject  purchased  with 
money  acquired  by  industry  or  economy  is 
conquest  in  this  sense  ;  but  land  or  any  other 
subject  purchased  with  borrowed  money,  is 
not  conquest  of  the  marriage,  except  in  so  far 
as  the  subject  may  be  of  greater  value  than 
the  price  paid  for  it.  A  clause  of  this  kind 
will  be  defeated  by  onerous  or  rational  deeds, 
but  a  deed  merely  gratuitous  would  be  redu- 
cible, as  granted  »n  fraudem  of  the  provision. 
The  father  retains,  however,  during  his  life, 
the  uncontrolled  right  of  fee  in  the  conquest ; 
and  notwithstanding  the  dissolution  of  the 
marriage,  no  action  lies  at  the  instance  of 
any  of  the  children  for  enforcing  the  provi- 
sion ;  so  that  the  conquest  quoad  the  father 
must  be  computed,  not  as  at  the  time  of  the 
dissolution  of  the  marriage,  but  at  the  time 
of  his  death;  Ersk.  B.  iii.  tit.  8,  §  43.  The 
question  as  to  what  subjects  fall  under  a  clause 
of  conquest,  will  be  determined  by  the  ex- 
pressions used  in  the  particular  clanse  out  of 
which  the  question  arises.  Without  an  ex- 
press provision  to  that  effect,  it  will  not  in- 
clude what  devolves  on  the  husband  by  suc- 

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cession ;  Stair,  B.  iii.  tit.  6,  §  52.  Thus  le- 
gacies to  a  wife  itantt  matrimonio,  falling  to 
the  husband  jure  mariti,  were  found  not  to  be 
conquest  under  such  a  clause,  generally  ex- 
pressed ;  Roe,  23d  Jan.  1810,  Fac.  Coll.  But, 
on  the  other  hand,  where  the  clause  conveyed 
"  all  heritages,  goods,  gear,  debts,  sums  of 
money,  or  other  moveables  which  should  be 
acquired  during  the  standing  of  the  intended 
marriage,"  it  was  held  to  carry  leases  acquired 
during  the  marriage,  although  leases  do  not, 
in  their  own  nature,  fall  under  the  denomina- 
tion of  conquest.  Duncan,  15th  Feb.  1810, 
Foe.  CM.;  Ersk.  Prine.  12th  edit.  387,  398 ; 
Bell't  Prine.  §  1656,  et  teq.,  1974,  et  $tq. ; 
Sandford  m  Heritable  Succetston,  vol.  i.  p.  3, 
30,  etseq.    Bee  Karnes' Elucidationt,  art.  6. 

Conqaeiti;  succession  of  conquest ;  Skene, 
h.  t.    See  Conquest. 

Coiuangiiiiiity ;  is  the  relationship  of  per- 
sons descended  from  the  same  ancestor.  It  is 
either  lineal  or  collateral.  Lineal  or  direct 
consanguinity  is  that  formed  between  the 
persons  generating  and  generated ;  and  is 
either  descending,  as  in  the  case  of  parent  and 
child, — or  ascending,  as  from  the  child  to  the 
parent.  Collateral  consanguinity,  termed 
also  transverse  or  oblique,  is  that  which  exists 
between  persons  descended  from  the  same 
common  ancestor,  but  not  from  one  another, 
as  brothers,  uncles,  and  nephews.  BelPs  Prine. 
§  1527, 1646,  et  seq.    See  Heir. 

Conseufos,  non  Concnbitiu,  tuaX  Ma- 
trimoninin ;  a  Roman  law  maxim,  adopted 
in  the  law  of  Scotland,  importing  that  mar- 
riage is  constituted  by  the  ecnjunctia  animo- 
rum,  or  consent  alone ;  so  that,  though  the 
parties,  after  consent  given,  should,  by  death 
or  disagreement,  or  from  any  other  cause, 
except  impotency,  happen  not  to  consummate 
the  marriage,  eonjunctione  corporum,  they  are 
nevertheless  entitled  to  all  the  legal  rights 
consequent  on  marriage.  Ersk.  B.  i.  tit.  6, 
§  2,  5,  note  bt/  Ivory.  See  Marriage.  Consent, 
impotency.  Divorce. 

Cionient.  The  consent  of  parties  is  implied 
in  all  legal  and  binding  contracts;  hence 
persons  legally  incapable  of  giving  consent, 
as  idiots,  pupils,  &c.,  cannot  be  parties  to  a 
contract.  By  the  Roman  law,  and  by  our 
more  ancient  nsage,  this  disability  was  ex- 
tended to  deaf  and  dumb  persons ;  but  if  this 
be  the  general  rule  of  the  law  of  Scotland, 
it  plainly  must  suffer  exceptions  in  favour  of 
those  persons  who,  notwithstanding  this  in- 
firmity, possess  abilities  which  qualify  them 
for  the  discharge  of  the  most  important 
duties  of  life.  Persons  in  a  state  of  absolute 
drunkenness  cannot  give  legal  consent,  al- 
though a  lesser  degree  of  intoxication  will 
not  afford  suflScient  ground  for  annulling  a 
contract.    The  consent,  although  given  by  a 


person  labouring  under  no  disqualification,  ii 
null  where  it  proceeds  on  essential  error,  or 
where  it  has  been  obtained  by  fraud,  or  by 
force  and  fear.  Stair,  B.  u  tit.  10,  §  II ; 
More's  Notes,  p.  clix.  and  cclxiv ;  Ertt.  B.  iii. 
tit  1,  §  16 ;  Bell's  Com.  vol.  i.  p.  294,  Sth 
edit. ;  Sett's  Prine.  §  10,  et  seq. ;  BeWs  iBwt. 
§  8,  «( seq. ;  Brown  on  Side,  p.  162.  See  Daf 
and  Dutid). 

Conaenter.  Where  one  signs  as  eonsenter 
to  a  deed,  by  which  land  is  conveyed,  his  con- 
sent is  held  to  amount  to  a  total  conveyance 
of  his  right  to  the  subject,  whatever  that 
right  may  be ;  or,  at  least,  such  consent  will 
import  a  valid  obligation  on  the  oontenter  to 
grant  such  a  conveyance.  But  where  a  per- 
son, who  holds  an  heritable  security  over 
lands,  signs  as  eonsenter  to  a  disposition  of 
those  lands,  his  consent  imports  merely  that 
he  is  not  to  use  his  security  to  the  prejodice 
of  the  disponee's  right,  not  that  he  is  to  dis- 
charge his  claim  for  the  debt  against  the 
debtor  personally ;  Ersk.  B.  ii.  tit.  3,  §  21. 
A  mere  eonsenter  is  not  liable  in  any  implied 
warrandice,  for  he  is  not  the  seller,  and  only 
gives  his  consent  at  the  purchaser's  desire; 
and  although  he  thus  resigns  his  own  right 
entirely,  he  incurs  no  obligation  to  warrant 
the  right  conveyed,  unless  his  warrandice  ia 
made  matter  of  express  stipulation.  Ertk, 
B.  ii.  tit.  3,  §  25.    See  Ross,  L.  C.  vol.  i.  p.  33. 

Conseqaential  Samaget.    See  Damage. 

CiHuenrator.  The  conservator  of  the  Scotch 
privUeges  in  the  Netherlands  formerly  held 
a  mercantile  court  for  Scotchmen  resident  in 
the  Scotch  factory  at  Campvere,  to  which  he 
had  four  merchants  as  assessors ;  1503,  c  81 ; 
1597,  c.  259.  The  Court  of  Session  had  a 
cumulative  jurisdiction  with  the  conservator"! 
court  over  Scotchmen  established  at  the  &e* 
tory.  This  was  one  of  the  offices  the  appoint- 
ment to  which  vacated  a  seat  in  the  House  of 
Commons.    Ersk.  B.  i.  tit.  4,  §  34. 

Couideration ;  is  the  name  given  totiw 
cause  or  reason  of  granting  a  deed,  or  of 
entering  into  a  contract.  The  eonsideratioo 
may  be  either  onerous  or  gratuitous.  Where 
value  in  money,  or  goods,  or  services,  has  beeo 
given  in  return  for  the  deed,  the  considera- 
tion is  said  to  be  bnerous.  Where  the  deed 
is  granted  without  value,  and  from  mere  lore 
and  favour  to  the  grantee,  the  consideration 
is  termed  gratuitous.  But  where  the  deed 
is  granted  in  implement  of  a  natural  obliga- 
tion, such,  for  example,  as  the  natural  obli- 
gation on  a  husband  to  make  a  rational  pro- 
vision for  his  wife  or  children,  it  would  seem 
that,  although  the  consideration  for  such  a 
deed  does  not  fall  properly  under  the  denomi- 
nation of  onerous,  as  above  explained,  yet 
that  it  differs  essentially  from  a  consideration 
merely  gratuitous ;  Ersk.  B.  iv.  tit  1.  §  33. 


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6;  the  law  of  Scotland,  a  deed  granted  for  a 
gnitnitoas  consideration,  where  not  struck  at 
as  a  frand  against  onerous  creditors,  is  as 
efectnal  as  a  deed  granted  for  a  valuable  con- 
tideratioD,  or  in  implement  of  a  valid  legal 
obligation.  BelPs  Com.  ii.  187  ;  Ro$^s  Led, 
ii.  232 ;  Thonson  on  Bilk,  p.  103-30,  et  teq. 
See  Conjunct  and  Confident.   GoUution. 

Coptignation ;  is  the  depositation  in  the 
hands  of  a  third  party  of  a  sum  of  money, 
▼faich  is  the  subject  either  of  a  dispute  or  of 
a  competition.  Consignation  may  be  made 
where  the  existence  or  amount  of  the  debt  is 
jndieially  questioned,  as  in  a  suspension ;  or 
where  the  creditor  refuses  to  receive  his 
money,  as  in  wadsets  and  other  redeemable 
rights ;  or  where  it  has  not  been  finally  deter- 
mined to  whom  the  money  is  to  be  paid,  as  in 
tbe  case  of  consignation  of  the  price  of  sub- 
jects bought  at  judicial  sales,  or  of  the  fund 
m  wkedio  in  a  process  of  mnltiplepoinding. 
The  general  rules  as  to  consigned  money  are, 
—1.  That  the  risk  of  loss,  either  from  the 
fiulnre  of  the  consignee,  or  the  loss  of  interest, 
•r  the  expense  of  consignation,  lies  with  the 
eoniigner,  where  he  ought  to  have  made  pay- 
ment, and  not  consignation,  or  has  consigned 
a  part  only,  or  has  chosen  as  consignee  a 
person  neither  authorized  by  law  nor  named 
by  the  parties ;  Ersk.  B.  iii.  tit.  1,  §  31.  2. 
Tlie  charger  or  other  creditor  runs  the  same 
risk  if  he  has  charged  for  sums  not  due,  or 
has,  without  good  reason,  refused  payment 
when  offered,  whereby  the  consignation  has 
become  necessary ;  Enk.ib.  Where,  indeed, 
the  creditor  has  unwarrantably  refused  to 
take  the  money  when  tendered  to  him,  con- 
signation in  the  hands  even  of  a  private  party 
who  ia  solvent,  not  only  stops  the  currency  of 
interest  against  the  debtor,  but  is  said  by 
Ermine  to  be  equivalent  to  payment  of  the 
debt ;  Erik.  B.  iii.  tit.  4,  §  5.  3.  It  is  the 
daty  of  the  consignee  to  keep  the  money  in 
safe  custody  until  called  for.  If,  thererore, 
he  pots  it  ont  to  interest,  he  does  so  at  his 
own  risk  ;  but,  for  the  same  reason,  he  has 
right,  according  to  Erskine,  to  the  interest 
he  draws,  without  being  liable  in  interest  to 
the  consigner;  Erik.  B.  iii.  tit.  1,  §  31. 
This  doctrine,  however,  appears  to  be  ques- 
tionable ;  and,  in  practice,  it  is  usual  to  con- 
Bgn  money  in  a  public  bank,  so  that  the  party 
entitled  to  it  receives  it  with  bank  interest' 
for  the  time  it  has  remained  consigned.  4. 
By  1695,  c.  6,  the  purchaser  at  a  judicial 
ule  was  entitled,  a  year  after  the  decree  of 
•ale,  to  consign  the  price  of  the  lands,  and 
interest  due  to  the  date  of  consignation,  in 
the  hands  of  the  town-council  of  Edinburgh, 
or  their  treasurer ;  but,  by  64  Geo.  III.,  c. 
I^>  §  6,  this  statute  is  so  far  repealed,  and 
it  is  made  lawful  for  the  purchaser  at  a  judi- 


cial sale,  at  any  term  of  Whitsunday  or 
Martinmas  after  the  term  of  payment  of  the 
price,  to  lodge  the  same,  with  the  interest 
due  on  it,  in  the  Koyal  Bank,  or  the  Bank 
of  Scotland,  or  the  Bank  of  the  British  Linen 
Company,  at  such  interest  as  can  be  procured 
for  it ;  and  by  doing  so,  and  intimating  it  to 
the  agent  in  the  sale,  the  purchaser  shall  be 
discharged  of  the  price.  By  the  same  section 
of  the  statute,  the  Court  of  Session  is  em- 
powered, upon  the  application  of  any  of  the 
creditors,  to  order  the  purchaser  to  lodge  the 
price  and  interest  in  one  of  those  banks,  at 
any  of  the  foresaid  terms  after  the  term  of 
payinent,  sufficient  intimation  of  such  appli- 
cation being  given  to  the  purchaser  and  the 
common  agent.  5.  The  effect  of  consignation 
in  terms  of  this  statute  seems  to  be,  that  each 
creditor's  right,  whether  previously  secured 
over  the  lands  heritably  or  not,  becomes 
merely  personal,  and  may  be  attached  by  the 
diligence  applicable  to  moveables ;  BdUg  Com. 
vol.  ii.  pp.  6  and  276,  5th  edit.  In  wadsets, 
money  consigned  for  the  redemption  remains 
heritable  until  declarator  of  redemption ; 
Ertk.  B.  ii.  tit.  8,  §  23.  And,  on  the  same 
principle,  consignation  made  in  terms  of  the 
clause  of  redemption  in  an  heritable,  bond, 
will  not  have  the  effect  of  rendering  the  sum 
inoveable  until  redemption.  Stair,  B.  i.  tit. 
13,  §  6,  and  tit.  18,  §  4 ;  Morilt  Notet,  p. 
Ixxviii. ;  Ersk.  Prim.  11th  edit.  217,  296; 
BdVs  Princ.  §  215 ;  Illust.  ib. ;  Jurid.  Stylet, 
2d  edit.  vol.  i.  p.  608 ;  vol.  iii.  p.  979 ;  Thotn- 
son  on  BiUs,  p.  410,  et  teq. ;  Hunter's  Land- 
lord and  Tenant ;  Ross't  LecU  i.  383,  458 ;  ii. 
363. 

Consigiiatary ;  a  consignee,  or  the  person 
in  whose  hands  consignation  is  made  ;  Ersk. 
B.  iii.  tit.  1,  §  31. 

CoTHignment.  In  mercantile  law,  the  term 
consignment  is  generally  applied  to  goods  de- 
livered over  or  transmitted  by  one  merchant 
to  another,  or  by  a  merchant  to  a  mercantile 
agent  or  factor,  for  sale,  or  for  some  o^ther 
specific  purpose.  The  bankruptcy  of  either 
the  consigner  or  the  consignee  may  give  occa- 
sion to  questions  of  considerable  difficulty 
both  in  regard  to  reputed  ownership,  and  on 
other  points  connected  with  tbe  rights  of  the 
parties  or  their  creditors.  But  these  are 
questions  which  must  obviously  depend  in  a 
great  degree  on  the  circumstances  under  which 
they  arise,  so  that  it  would  be  difficult  to  com- 
prehend them  under  any  general  rule.  One 
very  ordinary  transaction,  however,  is  for  the 
consignee  to  make  advances,  either  in  money 
or  bills,  to  a  certain  extent,  on  the  faith  of 
the  expected  sales  of  the  goods  consigned; 
and,  in  such  a  case,  the  following  general 
rules  seem  to  be  fixed : — 1.  If  the  consignee 
should  fail,  and  the  consigner  be  obliged  to 


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pay  the  bills  granted  to  him  for  such  adrances, 
the  consigner  mi^  demand  back  his  consign- 
ment in  so  far  as  unsold.  2.  If  the  consigner 
should  fail,  the  consignee  has  a  lien  over  the 
consignment,  to  the  amount  of  all  engage- 
ments on  the  faith  of  the  gooda  consigned. 
3.  When  both  parties  fail,  the  holder  of  such 
bills  may  rank  upon  both  estates  for  the  full 
amount  of  the  bills,  provided  be  does  not 
draw  more  than  twenty  shillings  in  the  ponnd 
on  his  debt.  BelTt  Com.  voL  i.  p.  269,  5th 
edit. ;  BdPs  Princ.  §  1456 ;  BtU't  JUutt.  § 
1456 ;  Shav't  Digest,  p.  20.    See  Factor. 

Connstorial  Conrt.  This  term  was  applied 
to  the  commissary-conrt,  lately  abolished, 
which  came  in  place  of  the  bishops'  court ; 
and  the  bishops'  court  derived  the  term  from 
the  courts  held  by  the  Roman  emperors.  See 
CommtMariet. 

Connatory ;  in  English  law,  a  pr<ftori- 
vm  or  tribunal.  It  is  commonly  used  for 
a  council-hoose  of  ecclesiastical  persons,  or 
place  of  justice  in  the  spiritual  conrt :  a 
session  or  assembly  of  prelates.  Tomlitu* 
Diet.  h.  t. 

Coniolidation ;  in  feudal  law,  is  the  re- 
union of  the  property,  or  dominium  utile,  with 
the  superiority,  or  dominixtm  dire^m,  after 
they  hare  been  feudally  di^oined.  A  pro- 
prietor may  sub-fen  his  lands  to  be  holden  of 
himself  as  superior.  The  sub-feu  is  called  a 
base  right,  and  conveys  what  is  denominated 
the  dominium  utile,  or  property ;  that  which 
remains  with  the  granter  of  the  sub-feu  being 
termed  the  dominium  directum,  or  superiority. 
When  the  sub-vassal  wishes  to  recouvey  the 
property  to  bis  superior,  he  does  it  by  a  re- 
signation ad  remanentiam  in  the  superior's 
favour ;  a  mere  renunciation  of  the  sub-feu 
not  being  held  sufficient  to  accomplish  this 
object.  By  snch  resignation  the  dominium 
directum  and  the  dominium  utile  are  again 
united  or  consolidated  as  one  property  in  the 
person  of  the  superior.  Where  the  superior 
succeeds  to  the  dominium  utile,  as  heir  to  the 
vassal,  it  is  necessary  for  him  to  complete  his 
title  to  the  property  by  a  precept  of  clare  con- 
ttat,  granted  by  himself,  in  his  character  of 
superior,  to  himself  as  heir  to  his  vassal,  on 
which  precept  he  is  infeft.  He  will  then 
hold  the  superiority  nnder  his  former  titles, 
and  the  property  under  the  precept  of  clare 
constat  and  infeftment ;  the  two  estates,  al- 
though vested  in  the  same  person,  being  en- 
tirely distinct.  In  order  to  unite  them,  the 
proprietor  must,  in  the  double  capacity  of 
superior  and  vassal,  resign  the  dominium  utile 
in  his  own  favour  adremanentiam ;  and  in  this, 
as  in  the  former  case,  consolidate  the  two 
estates  of  property  and  superiority.  In  like 
manner,  if  the  vassal  should  succeed  to  the 
superiority,  it  would  be  necessary  for  him, 


after  having  completed  his  title  to  the  snperi- 
ority,  to  consolidate  the  two  estates  b  the 
same  manner,  by  resignation  ad  remaneniiam. 
The  same  rule  holds  where,  by  adjudication  or 
otherwise,  the  two  estates  have  come  to  be 
vested  by  separate  titles  in  the  same  penon. 
According  to  our  more  ancient  practice,  it 
was  considered  incongruous  for  the  same  indi- 
vidual to  act  in  the  double  capacity  of  superior 
and  vassal  to  himself,  so  that,  wherever  tLe 
two  estates  came  to  be  rested  in  the  same 
person,  an  ipto  jure  or  virtual  consolidation 
was  held  to  have  taken  place.  Bat  the 
practical  inconvenience  attending  this  notion 
of  ipso  jure  consolidation,  and,  in  partienlsr, 
its  prejudicial  effect  on  the  security  of  tbe 
records,  led  to  the  adoption  of  a  different 
riew ;  and  it  was  at  last  settled,  by  anahnoet 
unanimous  decision,  that  consolidation  eonld 
cot  be  effected  ipso  jure,  or  without  resif- 
nation  ad  remanentiam;  Bald  r.  Byukmn, 
8th  Mar.  1786,  Tae.  GoU.,  Mor.  p.  15084; 
affirmed  on  appeal.  The  separation  of  pro- 
perty and  superiority  may  take  place,  sot 
only  by  a  regular  sub-infendation,  but  also 
where  a  conveyance  has  been  made  by  a  dis- 
position containing  a  doable  nuumer  of  hold- 
ing. If,  for  example,  the  disponee  were  to 
die  after  taking  infeftment  on  the  precept  of 
sasine  in  such  a  deed,  and  his  heir  were  to 
make  up  his  title,  by  serving  heir  in  general 
to  his  ancestor,  so  as  to  carry  the  unexeented 
procuratory  of  resignation,  and  were  then  to 
expede,  and  be  infeft  on,  a  charter  of  reog- 
nation  on  the  unexecuted  procuratory,  to 
which  he  had  thus  acquired  right,  he  would 
carry  the  mid-superiority  merely,  and  would 
leave  the  property  in  herediiate  jaeente  of  hit 
ancestor.  In  order  to  complete  his  titles, 
and  unite  the  property  and  superiority,  it 
would  be  necessary  for  him  to  grant  a  precept 
of  clare  constat  to  himself,  as  heir  to  his  anoee- 
tor  in  the  property,  and  afterwards  to  con- 
solidate the  two  estates  by  resignation  ai  ft- 
manentiam  in  his  own  hands.  Where  tbe 
disponee,  in  a  disposition  containing  a  double 
manner  of  holding,  has  first  taken  infeftment 
on  the  precept,  without  taking  a  charter  of 
confirmation,  uid  has  afterwards  resigned 
upon  the  procuratory,  and  obtained  a  charter 
of  resignation,  the  property  and  superiority 
are  held  to  be  separated,  althongh  a  differ- 
ent doctrine  is  held  by  Lord  Stair.  See 
Stair,  App.  p.  787,  and  BeU  on  Purdiatefs 
Tide,  319,  et  seq. ;  Mortis  Notes  to  Stair,  pp. 
ccv.  cclxiii. ;  Ersk.  Princ.  12th  edit.  209, 
444  ;  BelPs  Princ.  §  821 ;  Ross's  Lect  ii.  222, 
292, 368.  See  also  Confirmation.  Eesiynation. 
Disposition.  Charter. 

The  dominium  utile  may  be  consolidated 
with  the  dominium  directum,  by  a  prescriptive 
possession  of  the  former  following  on  a  title 


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to  the  ktter ;  and  this  will  take  place  al- 
thoa^  the  effect  of  the  consolidation  may  be 
to  hrin;;  the  dominium  utile  under  the  fetters 
ofa  strict  entail.  Lord  Elibank  y.  Campbell, 
2l8t  Not.  1833, 12  S.  74  ;  Bartrie  v.  Graham, 
2d  March  1837,  16  S.  711 ;  affirmed  in  tius 
Smt(^  Lords,  Aug.  6,  1840,  1  BeU,  347  ; 
Wism  y.  Polkek,  29th  Nov.  1839,  2  D.  159. 
See  also  3  Ross,  L.  G.  534. 

Coutat,  Praoept  of  Clare.  See  Glare 
Cmlal. 

Conitable  of  Scotland.  The  office  of  Lord 
High  Constable  of  Scotland  is  one  of  great 
antiquity  and  dignity.  The  Lord  High  Con- 
stable had  anciently  the  command  of  the 
King's  armies  while  in  the  field,  in  absence 
of  the  King.  He  was  likewise  judge  of  all 
criims  or  offences  committed  within  four  miles 
of  the  King's  person,  or  within  the  same  dis- 
tance of  the  Parliament,  or  of  the  Privy 
Coaneil,  or  of  any  general  convention  of  the 
^tes  of  the  kingdom.  The  office  is  heredi- 
tary io  the  noble  family  of  Errol,  and  is  re- 
lenred,  both  in  the  Treaty  of  Union,  and  in 
the  statute  20  Geo.  II.,  c.  43,  by  which  heri- 
table jurisdictions  were  abolished.  Ersk.  B. 
Ltii3,§37. 

Coutablm;  are  the  officers  of  the  justices 
of  the  peace,  entrusted  with  the  execution  of 
their  warrants,  decrees,  or  orders.  They  are 
appointed  by  the  justices  at  their  qniui«r- 
iesions,  two  at  least  for  every  parish,  and 
more  if  thought  necessary.  In  royal  burghs, 
constables  are  appointed  by  the  magistrates. 
It  is  the  duty  of  constables,  ex  officio,  and 
tithoot  any  special  warrant  from  a  justice  of 
the  peace,  to  apprehend  offenders  against 
the  peace,  vagrants,  and  such  as  can  give  no 
•Moont  of  themselves,  and  take  them  to  the 
next  justice.  It  is  also  their  dnty  to  suppress 
riots,  and  apprehend  the  rioters ;  but,  after 
the  riot  is  over,  a  constable  is  not  authorized 
to  apprehend,  irevt  manu,  any  person  concerned 
in  it,  onless  one  has  been  dangerously  wounded 
in  the  fray.  See  1617,  c.  8 ;  1661,  c  38. 
EnL  B.  i.  tit.  4,  §  16 ;  Hwne,  i.  386,  ii.  75 ; 
TaiCt  JusUee  of  Peace,  h.  t.,  and  Tait  on  Duties 
«^a  CokUabU;  Blair's  Justice  of  Peace,  h,  t. 

The  act  1  Geo.  IV.,  c.  37,  authorizes  jus- 
tices to  appoint  special  constables,  not  only  in 
case  of  actual  tumult,  riot,  or  felony,  but  also 
where  they  have  information  that  any  such 
tumult,  be,  has  taken,  or  is  likely  to  take 
place,  and  may  be  reasonably  apprehended, 
nch  qiecial  constables  being  authorized  to 
act  for  such  time,  and  in  such  manner,  as  the 
jnstites  shall  deem  fit  and  necessary  for  the 
praervation  of  the  public  peace.  Parties 
appointed  under  this  act  generally  continue 
to  act  until  they  are  removed,  or  their  resig- 
nations accepted  by  the  Quarter  Sessions.  The 
statute  2  and  3  "Vict.,  c,  65,  authorizes  com- 


missioners of  supply  to  establish  and  main- 
tain an  efficient  constabulary,  or  police  force, 
in  their  respective  counties,  for  the  prevention 
of  crime,  and  to  levy  an  assessment  for  such 
purpose,  in  addition  to  the  fund  called  Rogue 
Money.  The  statute  8  Vict.,  c.  3,  provides 
for  the  appointment,  by  the  Sheriff  or  Jus- 
tices, of  persons  to  act  as  additional  constables 
and  peace  officers  within  the  limits  of  public 
works — e.g.,  railways  and  canals — in  process 
of  construction,  and  within  a  mile  therefrom, 
with  a  view  to  repress  the  mischiefs  arising 
from  the  violent  and  unlawful  behaviour  of 
the  labourers  at  such  works.  See  Barclay's 
Digest,  which  contains  an  abstract  of  the  vari- 
ous statutes,  and  gives  also  the  instructions 
framed  by  the  present  Lord  Justice-General 
for  the  guidance  of  the  constables  of  the 
county  of  Perth. 

Constitation,  Decree  of.  Every  decree  by 
which  the  extent  of  a  debt  or  obligation  is 
ascertained,  is  a  decree  of  constitution ;  but 
the  term  is  usually  applied  especially  to  those 
decrees  which  are  requisit«  to  found  a  title  in 
the  person  of  the  creditor,  in  the  event  of  the 
death  of  either  the  debtor  or  the  original 
creditor.  Thus,  where  the  debtor  dies,  the 
creditor  must  obtain  a  decree,  constituting  the 
debt  against  the  heir  of  the  debtor,  before  he 
can  proceed  with  diligence  to  attach  the 
debtor's  heritable  or  moveable  estate,  unless 
the  heir  chooses  voluntarily  to  grant  a  new 
obligation  in  his  own  name  for  the  debt ;  or 
unless  he  renounces  the  succession,  in  which 
last  case  a  decree  of  cognition  is  pronounced. 
Jurid.  Styles,  2d  edit.  vol.  iii.  pp.  328,  363. 
See  GogniUonit  Causa.  Bond  of  Corroboration. 
Adjudication. 

Coiistitation;  means  an  ordinance,decision, 
regulation,  or  law,  made  by  authority  of  any 
superior,  ecclesiastical  or  civil.  The  constitu- 
tions of  the  Roman  emperors  had  the  autho- 
rity of  laws.     See  Roman  Law. 

Constnictnre.     See  Contexture. 

CoiiBuetadinaryLaw.  Consuetudinary  or 
customary  law,  in  contradistinction  to  written 
or  statutory  law,  is  that  law  which  is  derived 
by  immemorial  custom  from  remote  antiquity. 
Such  is  the  common  law  of  Scotland.  Stair, 
B.  1.  tit.  1,  §  16 ;  Ersk.  B.  i.  tit.  1.  §  43,  et 
seq.    See  Common  Law. 

Consnltation  of  Judges.  In  cases  of  diffi- 
culty it  occasionally  happens  that  the  judges 
of  one  Division  of  the  Court  of  Session,  con- 
sult those  of  the  other  Division  ;  or  the  record 
and  pleadings  in  the  cause  are  laid  before  the 
whole  judges  for  their  opinion,  on  questions 
stated  in  writing.  In  such  cases  it  is  enacted, 
by  6  Geo.  IV.,  c.  120,  §  24,  that,  when  con- 
sultations take  place,  "  the  judgment  to  be 
pronounced  in  the  cause  shall  be  according 
to  the  opinion  of  the  majority  of  all  the  judges 

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so  «oiisnlted,  and  shall  bear  that  it  is  the 
judgment  of  the  Division  before  which  the 
cause  depends,  after  consulting  with  the  other 
judges."  This  is  interpreted  to  mean  the 
majority  of  the  judges  consulting  and  con- 
suited.    See  SharuCs  Prac.  67,  957. 

With  the  riew  of  remedying  the  disadvan- 
tages arising  from  the  judges  being  called 
upon  to  give  opinions  in  cases  without  having 
heard  the  debate,  the  statute  13  and  14 
Vict.,  c.  36,  §  35,  lays  down  the  procedure 
to  be  adopted  when  one  Division  consults  the 
other,  as  follows: — The  judges  of  either 
Division,  in  any  cause  in  which  they  are 
equally  divided  in  opinion,  may  appoint  it  to 
be  heard  and  judged  by  the  Inner-House 
judges  of  both  Divisions,  either  on  any  se- 
derunt-day  during  session,  or  at  any  time 
during  the  sittings  of  the  Lord  Ordinary. 
The  cause  is  thereupon  heard  before  the 
judges  of  the  Division  before  which  it  de- 
pends, with  the  addition  of  three  judges  of 
the  other  Division.  The  judgment  must  be 
according  to  the  opinion  of  the  mi^'ority ;  and 
the  interlocutor  bears  to  be  the  judgment  of 
the  Division  before  which  the  cause  depends, 
after  consulting  with  the  other  Division.    If 

E resent,  the  Lord  Justice-General  presides, 
ee  Session,  Court  of.  Hearing. 
Contempt  of  Court.  This  term  is  generally 
applied  to  any  disrespect  or  indignity  offered 
to  judges  while  sitting  in  judgment,  or  on 
account  of  their  proceedings  in  their  judicial 
capacity ;  including  personal  violence  or  in- 
decorous expressions  towards  the  eonrt  or  its 
members,  libellous  attacks  written  or  spoken 
against  the  judges  or  their  mode  of  adminis- 
tering justice,  and  contemptuous  or  illegal 
disobedience  to  the  orders  of  the  court,  or  to 
the  rules  prescribed  by  the  court  for  the  con- 
duct of  business  before  it.  Outrageous  con- 
tempts, such  as  striking  or  threatening  judges 
for  their  proceedings  as  such,  or  committing 
an  assault  in  open  court,  are  offences  punish- 
ableeither  capitally  or  by  very  severe  arbitrary 
pains ;  1593,  c.  173  ;  1600,  o.  4.  See  Beat- 
ing of  Judges.  Inferior  acts  of  insult  or  con- 
tempt, although  they  may  not  fall  under  any 
statutory  enactment,  are  nevertheless  punish- 
able at  common  law.  The  defaming  of  judges, 
or  casting  imputations  upon  the  integrity  of 
the  court,  are  offences  of  this  description  ;  and 
if  committed  in  the. course  of  a  depending 
process,  or  connected  with  a  process  which  has 
been  lately  in  dependence,  they  may  be 
punished  summarily  ex  propria  motu  of  the 
court  to  which  the  insult  has  been  offered. 
See  Jamieson,  A.  S.  17-28tt  January  1815. 
In  like  manner,  every  court  must  necessarily 
be  vested  with  the  power  of  inflicting  punish- 
ment summarily,  for  all  disorders,  or  acts  of 
contempt,  committed  during  the  sitting  of  the 


court.  Where  the  contempt  has  not  Wn 
committed  in  the  immediate  presence  of  the 
court,  but  has  relation  to  a  matter  ia  depen- 
dence, or  recently  before  the  court,  the  pro- 
per form  seems  to  be  to  bring  the  offence 
under  the  notice  of  the  court  by  snmmarj 
complaint  at  the  instance  of  the  public  proee- 
cntor.  And  in  such  cases,  the  punishment  of 
censure,  fine,  or  imprisonment  may  be  inflict- 
ed. See  Lord  Advocate  v.  Jamieson,  Ist  Feb. 
1822,  1  S.  285 ;  Lord  AdvocaU  v.  %,  Ist 
Feb.  1822, 1  S.  288;  -Stair,  B.  iv.  tit.  37,5 
8.  See  also  Sume,  vol.  i.  p.  405,  et  seq.,  vol. 
ii.  p.  138,  et  seq. ;  Alison's  Princ. ;  Bankn't 
Sher.  Court  Prae.  409,  419.  See  Captlm. 
Process. 

Conteztnre ;  is  a  mode  of  industrial  acM>- 
sion,  borrowed  from  the  Roman  law.  It  tales 
place  "  where  things  belonging  to  one  are 
wrought  into  another's  cloth,  and  are  carried 
therewith  as  accessary."  It  is  similar  to  con- 
structure,  whereby,  if  a  house  be  repaired  with 
the  materials  of  another,  the  materials  accrue 
to  the  owner  of  the  house,  full  reparation,  hov- 
ever,  being  due  to  the  owner  of  thematoriak 
If  the  materials  have  been  obtained  makfiit, 
the  person  using  them  will  be  liable  for  tiieir 
value,  ascertained  by  the  owner's  oath  t'a  lien; 
or  he  may  be  prosecuted  for  theft,  according 
to  the  circumstances  under  which  he  has  ac- 
quired them.  It  would  also  appear,  that 
where  there  has  been  mala  fides,  the  fomer 
owner  may  estimate  the  materials  |>«rj)re<«>* 
affectionis.  Stair,  B.  ii.  tit.  1,  §  39  ;  Banl,  B. 
ii.  tit.  1,  §  17.    See  Adjunction.    Actamt. 

Contmgency  of  a  Process.  "  Where  two 
or  more  process^  are  so  connected  that  the 
circumstances  of  the  one  are  likely  to  thro* 
light  on  the  rest,  the  process  first  enrolled  is 
considered  as  the  leading  process,  and  those 
subsequently  brought  into  court,  whether  be- 
fore the  same  Division  or  not,  may  be  remit- 
ted to  it  ob  contingentiam ;"  Jvan/'t  For*  ff 
Process,  vol.  ii.  p.  51.  If  both  cases  come 
into  court  the  same  week,  that  enrolled  before 
the  senior  Lord  Ordinary  is  deemed  the  lead- 
ing process,  and  the  other  is  remitted  to  his 
Lordship,  and  belongs  to  the  same  Dirision 
with  the  leading  cause.  If  cases  having  a 
contingency  are  enrolled  the  same  week  be- 
fore the  same  Ordinary,  and  marked  for  dif- 
ferent Divisions,  his  Lordship  determines  to 
which  Division  they  shall  belong ;  A.  S.  2ith 
Dec.  1838.  The  remit  is  usuaUy  made  on  a 
simple  motion  at  the  bar.  The  effect  of  re- 
mitting processes  in  this  manner  is  merely  to 
bring  them  before  the  same  division  of  the 
court,  or  the  same  Lord  Ordinary.  In  other 
respects  they  remain  distinct ;  the  pleadings 
may  be  unconnected  ;  and  no  step  taken  in 
the  one  will  prevent  the  other  from  sleeping. 
Where  an  action  has  been  bronght  into  the 


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Conrt  of  Session,  and  a  process  between  the 
same  parties  in  relation  to  the  same  subject- 
matter  is  depending  in  an  inferior  court,  it  is 
Qsnal  to  bring  the  case  from  the  inferior  court 
into  the  Court  of  Session,  by  an  advocation 
cb  coHtiKgentiam,  which  is  competent  at  any 
stage  of  the  inferior  court  process;  50  Geo. 
III.,  c.  112,  §  36.  See  also  48  Geo.  III.,  c. 
151,  §  9 ;  Shand^t  Prae.  501 ;  Shaw's  Digest, 
407.    See  Advocation.  Conjoining, 

Contingent  Debti;  are  debts  due  provi- 
sionally, in  a  certain  event.  Creditors  in 
Eoeh  debts  are,  by  the  law  of  Scotland,  en- 
titled to  rank  upon  the  estate  of  a  bankrupt, 
sod  formerly  they  had  security  found  for  the 
payment  of  their  debts,  proportionally  with 
those  of  the  other  creditors,  on  the  emerging  of 
the  contingency.  A  discharge  obtained  under 
the  sequestration  statute  operates  against 
such  debts,  as  well  as  against  debts  due  at  the 
time  of  the  bankruptcy,  although  it  would 
^)pear  that  in  England  the  role  is  different ; 
BdFs  Com.  vol  i.  p.  315,  5th  edit.  A  contin- 
gent creditor,  however,  is  not  entitled  to  con- 
cur as  a  creditor  in  the  petition  for  sequestra- 
tion, or  to  vote  in  the  election  of  the  trustee, 
or  in  the  other  steps  of  the  proc^ure  until  his 
daimshallbe  valued;  19an<;20  Vict.,c.79,§  14. 

When  the  claim  of  a  creditor  depends  upon 
a  contingency  which  is  unascertained  at  the 
date  of  bis  lodging  his  claim,  he  is  not  en- 
titled to  draw  a  dividend  in  respect  of  such 
contingent  debt;  but  on  applying  to  the 
Sheriff  or  the  trustee,  a  value  is  put  on  the 
debt  as  at  the  date  of  the  valuation,  and  the 
creditor  votes  and  draws  dividends  in  respect 
of  such  value,  and  no  more  ;  li.  §.  53. 

Contingent  Legacy  ;  is  a  legacy,  the  ex- 
istence of  which  depends  upon  an  uncertain 
future  event,  as  where  a  legacy  is  given, 
provided  the  legatee  shall  arrive  at  a  certain 
age.    See  Conditional  Obligation.  Legacy. 

Continuation  of  the  Inet.  The  summons 
in  a  civil  process  authorizes  the  defender  to 
be  cited  to  appear  on  a  certain  day, "  with 
continuation  of  dat/s,"  and  the  summons  may 
be  called  in  Court,  either  on  the  day  named, 
or  within  year  and  day  of  the  day  of  compear- 
ance, unless  it  be  forced  on  by  protestation. 
{^»b  CoiUng  of  a  Swnmons.  'Protestation.)  But 
in  a  criminal  prosecution  the  diet  is  peremp- 
tory, and  the  libel  must  be  called  on  the  pre- 
cise day,  and,  in  some  way  or  other,  disposed 
of;  otherwise  the  action  falls,  and  cannot  be 
resumed.  The  diet  may  be  continued,  how- 
ever, by  an  act  of  Court,  iftade  in  the  presence 
of  a  single  judge,  and  in  the  absence  of  the 
parties.  Sucb  an  act  is  not  even  signed  by 
the  judge,  but  merely  entered  in  the  books  of 
adjournal  by  the  clerk,  in  the  judge's  pre- 
sence. The  diet  must  be  continued,  not 
indefinitely,  but  to  a  fixed  day.    So,  when 


after  a  verdict  of  guilty  on  a  charge  of  mur- 
der, the  judges  on  circuit  certified  the  case  to 
the  High  Court,  with  reference  to  a  question 
as  to  the  admissibility  of  evidence,  but  did 
not  name  a  diet  for  the  cause  being  taken  up, 
it  was  held  that,  on  account  of  the  generality 
of  the  certification,  the  diet  had  fallen,  and 
the  panels  were  accordingly  discharged ;  and 
subsequently  a  new  indictment  and  trial  were 
held  incompetent,  in  respect  that  the  panels 
had  already  tholed  an  assize ;  Frasers,  9tli 
June  and  12th  July  1852 ;  1  Irvine,  pp.  1, 66. 
Stair,  B.  iv.  tit.  2,  §  2,  and  tit.  38,^2;A.S. 
8th  July  1831 ;  Hum,  ii.  263,  275,  417  ; 
BdPs  Notes.    See  Diet.    Criminal  Prosecution. 

Contra  non  Valentem  agere  non  Cnrrit 
Fnesoriptio;  a  Roman  law  maxim,  received 
in  the  law  of  Scotland,  importing  that  pre- 
scription does  not  operate  against  one  under 
a  legal  incapacity  to  interrupt  it.  Ersk.  B. 
iii.  tit.  7,  §  37.    See  Prescription.   Citation. 

Contraband  Oooda ;  are  those  goods  which 
are  imported  to  this  country,  or  exported 
from  it,  without  paying  the  duties  imposed 
by  law.  Contracts  for  smuggling,  or  for  the 
delivery  of  goods  known  to  be  contraband, 
found  no  right  of  action ;  and  no  party  par- 
ticipant in  the  smuggling,  or  by  whom  the 
contraband  goods  have  been  delivered  in  this 
country,  can  legally  claim  under  the  contract. 
But  foreigners,  or  even  native  Scotchmen 
settled  abroad,  selling  and  delivering  goods 
which  are  afterwards  smuggled  into  this  coun- 
try, have  action  here  for  the  price,  even  al- 
though the  seller  suspected  or  knew  that  the 
buyer'  meant  to  smuggle  the  goods  into 
Britain,  provided  the  seller  was  not  himself 
accessary  to  the  smuggling ;  CuUen  and  Com- 
pany, 16th  May  1793,  Fae.  Coll.,  Mor.  p.  9554 ; 
Eeid,  same  date,  Mor.  p.  9555.  Where  the 
buyer  of  contraband  goods  knows  them  to  be 
contraband,  he  has  no  claim  for  delivery,  or 
no  action  of  damages  for  breach  of  contract, 
the  maxim  being,  that,  in  all  demands  upon 
illegal  contracts.  Potior  est  aynditio  possidentis 
et  defendentis.  It  seems,  however,  to  have  been 
thought  at  one  time,  that  where  a  bill  was 
granted  for  the  price  of  contraband  goods,  ac- 
tion or  diligence  was  competent  on  the  bill ; 
but  more  recently  action  has  been  refused, 
where  the  bills  were  in  the  hands  of  the  original 
parties,  or  of  their  trustees.  See  Stair,  B.  ii. 
tit.  2,§  14;  BelVs  Com.  vol.  i.  p.  305,  6th 
edit. ;  BeU's  Princ.  §  42,  et  seq. ;  Bell's  lUust. 
§  42,  and  Mor.  Diet,  voce  Pactum  iUicitum,  p. 
9533,  etseq.,iLni  App.  same  title,  No.  1. 

Contract.  A  contract  is  "  the  voluntary 
agreement  of  two  or  more  persons,  by  whicli 
something  is  to  be  given  or  performed  upon 
one  part,  for  a  valuable  consideration,  either 
present  or  future,  on  the  other  part ;"  Ersk. 
B.  iii.  tit.  1,  §  16.    Consent  of  parties  being 


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implied  in  ail  contracts,  peraons  incapable  of 
consent,  such  as  idiots,  pupils,  persons  abso- 
lutely drunk,  Ac,  cannot  contract.  Persons 
wbo  have  been  compelled  to  give  their  con- 
sent by  force  or  fear,  or  who  have  been  in- 
duced to  consent  by  means  of  fraud  or  decep- 
tion, cannot  be  said  to  have  legally  consented ; 
and  all  contracts,  therefore,  exposed  to  such 
objections,  are  null  and  reducible.  In  like 
manner,  error  iu  the  essentials, — e.  g.,  either 
in  regard  to  the  contracting  parties,  or  the 
subject-matter  of  the  contract — will  vacate  the 
agreement.  A  contract,  by  which  the  parties, 
or  any  of  them,  become  bound  to  perform 
what  is  naturally  impossible,  or  to  do  any 
illegal  act,  or  in  which  stipulations  contra 
honos  mores  are  inserted,  can  found  no  action ; 
and  the  contracting  parties  are  neither  liable 
in  performance  nor  in  damages  for  nonper- 
formance. But  all  facts,  in  themselves  legally 
possible,  are  the  subjects  of  obligation,  al- 
though beyond  the  power  of  the  contracting 
party,  and  be  is  liable  in  damages  if  he  can- 
not perform  ;  Ersk,  B.  iii.  tit.  3,  §  83,  84. 
Things  ex.empted  from  commerce,  either  by 
nature,  by  destination,  or  by  statute,  cannot 
be  the  subject  of  obligation.  The  wminaU 
contracts  in  Scotch,  as  in  the  Koman  law, 
are  loan,  commodate,  deposit,  pledge,  sale, 
permutation,  location,  society,  and  mandate, 
— for  which  see  separate  articles.  There  are 
also  in  onr  law,  as  well  as  in  the  Roman  law, 
a  great  variety  of  contracts,  which,  not  having 
been  distinguished  by  special  names,  are 
termed  innominate,  all  of  which  are  obliga- 
tory on  the  contracting  parties  from  their 
date ;  so  that  neither  party  can  resile,  even 
although  one  has,  and  the  other  has  not,  per- 
formed his  part  of  the  contract ;  Ersk.B.  iii. 
tit.  1,  §  35 ;  Bank.  vol.  i.  p.  328.  Breach  of 
contract  subjects  the  party  guilty  of  it  not 
only  to  an  action  for  enforcing  it,  but  also 
to  a  claim  for  damages.  Stair,  B.  i.  tit.  10 ; 
Moris  Notes,  p.  Ixii.  et  seq. ;  BeWs  Com.  vol. 
1.  p.  293,  St  seq.  6th  edit. ;  Bell's  Princ.  §  5, 
15,  et  seq. ;  Belts  Illust.  p.  1,  et  seq.  For  an 
explanation  of  the  diflferent  degrees  of  dili- 
gence prestable  under  contracts,  see  Culpa. 
iSee  also  Damages.  Feu-Contract.  Lease.  Mar- 
riages, de. 

Contract  of  Marriage;  is  the  technical 
name  given  to  a  written  contract  entered  into 
between  parties,  who  are  either  about  to  be- 
come husband  and  wife,  or  actually  married 
to  each  other.  In  the  one  case,  it  is  termed 
an  antenuptial  contract,  and  in  the  other  a 
postnnptial  contract. 

1.  Antenuptial  Contract. — The  object  of  this 
contract  generally  is,  to  make  some  modifica- 
tion on  the  legal  rights  of  the  parties  and 
their  children,  and  more  effectually  to  guard 
against  the  risk  of  the  husband's  insolvency. 


An  antenuptial  contract  is  held  to  be  strictly 
an  onerous  deed,  by  which  either  a  real  se- 
curity or  a  jus  crediti,  may  be  eonstitnted  is 
favour  of  the  wife  or  children,  which  will, 
in  the  one  case,  give  them  a  preference,  and, 
in  the  other,  entitle  them  to  rank  as  creditors. 
With  regard  to  the  wife. — Instead  of  her 
legal  provisions  of  terce  and  jus  rdicta,  tht 
husband  may  become  bound  to  infeft  her  in 
liferent  in  certain  lands ;  and  infeftment  on 
the  contract  will  render  her  right  real.  Lands 
thus  set  apart  for  the  wife  are  called  locaUb/ 
lands :  or  he  may  secure  her  by  infeftment 
in  an  annuity,  which  is  iermei  a,  jotnture :  or 
he  may  bind  himself  to  invest  money  in  real 
security  for  her  behoof,  or  to  provide  her  in 
a  certain  annuity.  All  which  obligations,  if 
expressed  with  sufficient  precision,  will  vest  s 
jus  crediti  in  the  wife,  which,  in  case  of  the 
husband's  insolvency  before  they  are  made 
real  by  infeftment,  will  entitle  her  to  rank 
as  a  creditor  for  snch  provisions,  or  if  pre- 
viously realized  by  infeftment,  will  give  her  an 
absolnte  preference.  By  contract  of  marriage, 
the  jus  mariti  may  be  excluded  as  to  a  par- 
ticular subject,  but  it  cannot  be  excluded /i«r 
aversionem ;  e.g.,  an  annuity  may  be  purchased 
by  the  hnsband  for  the  wife  for  her  aliment, 
or  a  bond  may  be  taken,  payable  to  her,  ex- 
cluding the  j'us  mariti,  provided  this  is  done 
by  an  antenuptial  deed ;  for,  after  marriage, 
all  such  provisions  between  husband  and  vife 
are  revocable  as  donations.  The  terce  is  ex- 
cluded by  a  conventional  provision  to  the  wife, 
unless  the  contrary  be  expressed ;  1681,  c.  10. 
The  rule  is  different  with  regard  to  the  ju 
relictoe,  which  requires  an  express  exclnsion, 
even  where  conventional  provisions  are  made. 
BelPs  Com.  i.  636,  5th  edit. 

Provisions  in  favour  of  children,  in  an 
antenuptial  contract,  are  also  held  to  be 
onerous. deeds;  but  it  depends  entirely  npm 
the  manner  of  expressing  the  provision, 
whether  they  shall  confer  either  a  preference 
or  a  jus  crediti.  In  the  ordinary  case,  ike 
contract  makes  the  children  merely  bein, 
having  only  an  expectancy,  or  spes  successioMi; 
but,  on  the  other  hand,  it  is  not  possible,  by 
means  of  a  contract  of  marriage,  whether 
antenuptial  or  postnuptial,  to  deprive  the 
children  of  the  marriage  of  their  legal  pro- 
vision of  legitim,  without  providing  them  with 
an  equivalent.  And  even  in  that  case,  they 
will  have  an  option  either  to  accept  the  con- 
ventional provision,  or  to  reject  it,  and  insist 
for  the  legitim.  See  Legitim.  Where  the 
property  is  settled  on  the  children  nascUvtri  iu 
fee,  or  the  provisions  made  payable  after  the 
death  of  the  father,  the  children  cannot  com- 
pete with  onerous  creditors,  although  they 
may  reduce  gratuitous  alienations  to  the  pre- 
judice of  their  provisions.    In  order  to  confer 


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t/»s  erdm,  the  children  must  be  vested  with 
thecbarscterof  creditors,  during  their  father's 
life,  which  maj-  be  done  by  an  obligation  to 
)ny  the  provisions,  or  the  interest  on  them, 
U  t  term  which  either  must  or  may  happen 
daring  the  father's  life.  Where  it  is  in- 
teDded  to  give  the  heir  or  children  a  prefer- 
able right,  to  be  effectual  against  onerous 
creditors,  it  may  be  done  by  the  father  in  an 
utennptial  contract,  binding  himself  not  to 
contract  debt,  or  to  infeft  the  heir  against  a 
determinate  day,  or  by  a  clause  restricting 
his  own  right  to  a  mere  liferent ;  and  such 
obligations,  though  granted  liberis  nasci- 
tum,  when  secured  by  proper  diligence,  and 
perfected  by  sasine,  found  a  preference 
agsiost  all  posterior  deeds  of  the  father. 
Where  the  husband  or  wife's  titles  are  not 
complete,  or  where  any  other  obstacle  pre- 
nnte  the  execution  of  a  regular  antenuptial 
contract,  antenuptial  marriage  articles  may 
be  entered  into,  under  which  a  jus  crediti  may 
be  effectually  Tested  in  the  parties ;  and  any 
deed  after  marriage  in  implement  of  these 
articles,  if  it  does  not  fall  within  the  bankrupt 
(tatutes,  and  if  it  be  otherwise  unobjection- 
able, will  be  effectual.    Ersk,  B.  iii.  tit  8, 

2.  Potbu^tial  Contracts. — After  marriage, 
tie  wife  and  children  can  take  nothing  in 
competition  with  his  creditors,  which  the  hus- 
band cannot  legally  bestow.  Postnuptial  con- 
tracts must  always  be  construed  with  refer- 
ence to  this  principle,  in  so  far  as  creditors 
are  concerned ;  and,  in  so  far  as  regards  the 
husband  and  the  wife,  they  are  exposed  to 
the  risk  of  roTOcation  by  either  of  the  parties, 
as  ioiMtionei  inter  virum  et  uxorem.  See  Ersk. 
B.  L  tit  6,  §  29.  As  to  the  wife's  provisions 
U)der  snch  a  contract,  it  has  been  held,  in 
qaeattons  with  creditors,  that  a  moderate  pro- 
nikm  granted  to  her  during  her  husband's 
•oWency  will  be  effectual ;  and  to  the  extent 
of  a  moderate  aliment,  even  after  the  contrac- 
tion of  debt  by  the  husband.  And  as  to 
children,  it  is  held  that  provisions  to  them 
Bade  in  a  postnuptial  contract,  after  contrac- 
tion of  debt,  are  ineffectual,  although  granted 
io  implement  of  the  natural  obligation  to  ali- 
ment. Where  insolvency  does  not  follow, 
ud  where  the  provisions  are  reasonable  and 
ptttper,  the  rights  of  the  parties  (with  the  ex- 
ceptions above-mentioned)  may  be  effectually 
vttled  in  a  postnuptial  contract  of  marriage. 
See  Jeffrey  v.  Campbell's  Children,  24th  May 
1825, 4  S.  ds  D.  32.  It  may  be  proper  to 
obaerre  bere,  that  where  a  separation  has 
taken  place  between  the  husband  and  wife, 
*itlioat  a  dissolution  of  the  marriage, 
whether  the  separation  \aa  been  judicial  or 
by  deeree-arbitral,  or  by  voluntary  contract 
of  aeparatioD,  the  husband  may,  in  such  a 


case,  vest  his  wife  either  with  tkjus  erediti,  or 
a  preference  for  her  aliment  or  other  stipu- 
lated provision,  according  as  hjs  obligation  is 
personal,  or  completed  by  infeftment  in  se- 
curity, provided  such  provision  is  made  during 
solvency.  The  provisions  of  such  contracts 
are  of  course  revoked  by  a  reconciliation ; 
BetPs  Com.  vol.  i.  p.  641,  6th  edit.  The 
framing  of  the  contract  of  marriage,  so  as  to 
provide  for  the  various  events  contemplated 
by  that  deed,  and  to  secure  the  fulfilment  of 
the  different  stipulations,  is  one  of  the  most 
important  and  difficult  duties  of  a  conveyancer ; 
and,  as  it  is  a  duty  requiring  much  profes- 
sional circumspection,  it  may  not  be  impro- 
per to  close  the  present  short  notice  of  this 
important  deed  by  the  following  references  to 
authorities  on  this  subject  :-^Stair,  B.  ii.  tit. 
3,  §  41 ;  lb.  tit.  6,  passim;  lb.  B.  ii.  til.  5, 
§  19  ;  7J.  tit.  8,  §  45  ;  Ersk.  B.  i.  tit.  6 ;  lb. 
B.  iii.  tit.  3,  §  30  ;  lb.  tit.  8,  §  38,  et  seq.; 
Bank.  B.  i.  tit.  5,  §  1 ;  Bdl's  Com.  vol.  i.  p. 
636,  et  seq.,  5th  edit. ;  Bdl's  Princ.  §  1941, 
et  seq. ;  Jurid.  Styles,  173 ;  Menzies's  Lectures. 
See  Marriage. 

Contract  of  Copartnership.    See  Society, 

Contrario  Actio.    See  Actio  directa. 

Contravention ;  may  be  defined  generally 
to  be  any  act  done  in  violation  of  a  legal  con- 
dition or  obligation,  by  which  the  contra- 
vener  is  bound.  The  term,  however,  is  most 
frequently  applied  to  an  act  done  by  an  heir 
of  entail  in  opposition  to  the  provisions  of 
the  deed,  whereby  a  forfeiture  of  the  contra- 
vener's  right  may  be  incurred ;  or  to  acts  of 
molestation  or  outrage  committed  by  a  per- 
son in  violation  of  lawborrows,  whereby  the 
contravener  exposes  himself  to  the  penal 
action  of  contravention  of  lawborrows.  Stair, 
B.  i.  tit.  9,  §  30,  and  B.  iv.  tit.  48  ;  Jurid. 
Styles,  2d  edit.  vol.  iii.  pp.  96,  190.  See 
Tailzie.    Lawborrows. 

Contribution;  takes  place  where  several 
parties  pay  their  share  of  a  common  expense. 
The  term,  in  a  legal  sense,  is  generally  ap- 
plied to  contributions  made  for  equalizing 
the  loss  arising  from  sacrifices  made  for '  the 
common  safety  in  sea-voyages,  where  the  ship 
is  in  danger  of  being  lost  or  captured.  The 
basis  of  our  law  upon  this  subject,  is  the  cele- 
brated Lex  Rhodia  dejactu,  the  natural  equity 
of  which  has  led  to  its  adoption  in  the  mari- 
time law  of  most  European  states.  The 
general  rule  in  this  country  seems  to  be,  that 
where  any  part  of  the  ship  or  cargo  has  been 
sacrificed  to  save  the  rest,  the  loss  is  to  be 
adjusted  by  a  coutribution  from  all  who  have 
ptuiaken  of  the  benefit.  In  this  contribution, 
or  general  average,  as  it  is  also  termed,  the 
most  valuable  goods,  though  their  weight 
should  have  been  incapable  of  putting  the 
ship  in  hazard,  such  as  diamonds  or  other 

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precious  stones,  are  to  be  estimated  at  their 
JDSt  price,  on  the  ground,  that  they  could  not 
have  been  saved  but  for  the  ejection  of  the 
other  goods.  Persons  on  board,  however, 
bear  no  share  in  the  contribution,  quia  liberi 
corporis  nulla  ttt  ae$timatio.  The  ship's  pro- 
visions are  also  exempted  fh>m  contribution ; 
but  wearing  apparel  is  estimated,  ^nd  pays 
in  proportion  to  its  value.  In  this  estima- 
tion, the  goods  ejected  are  valued  at  prime 
cost,  and  the  goods  saved,  at  the  price  they 
would  bring  at  the  port  of  arrival — ^freight, 
duties,  &c.,  deducted.  If  a  mast  has  been  cut 
away,  or  an  anchor  parted  with,  in  order  to 
save  the  ship,  contribution  takes  place  ;  but 
if  they  have  been  lost  in  a  storm,  the  loss 
falls  on  the  ship  alone.  In  order  to  found 
the  right  to  contribution,  it  is  necessary  that 
the  goods  shall  not  have  been  rashly  or  un- 
necessarily sacrificed,  but  after  such  consul- 
tation as  the  exigencies  of  the  occasion  may 
admit  of ;  and  in  case  of  difference  of  opinion 
amongst  the  crew  as  to  the  necessity  of  the 
sacrifice,  a  majority  shall  determine.  In  such 
a  case,  the  opinion  of  the  master,  where  he 
had  no  adverse  interest,  would  be  entitled  to 
great  weight.  In  all  cases  in  which  a  part 
either  of  the  ship  or  cargo  has  been  sacrificed 
for  the  common  benefit,  an  account  of  the 
circumstance  under  which  it  happened  ought 
to  be  entered  in  the  log-book,  with  a  specifi- 
cation of  the  articles  thrown  overboard,  or 
otherwise  destroyed,  to  which  affidavit  should 
be  made  at  the  first  port,  otherwise  the  pre- 
sumption will  be  against  the  master  and  crew. 
Ersk.  B.  3,  tit  3,  §  56 ;  Bank.  i.  233  ;  BOPt 
Com.  i.  580, 5th  edit. ;  Prine.  §  437.  See  also 
Salvage.     Collision  of  Shift.    Jactus  Mereium. 

Contribatory.    See  JoinUSiock  Company. 

Contumacy;  is  a  wilful  disobedience  to 
any  lawful  summons  or  judicial  order.  In  a 
criminal  process, the  punishment  of  contumacy 
in  the  accused  person  is  sentence  of  fugitation. 
In  a  civil  action,  the  only  consequence  of  the 
defender's  contumacy,  in  refusing  obedience  to 
the  citation,  is,  that  the  judge  will  take  cog- 
nizance of  the  cause,  and  decern  in  his  absence. 
Stair,  B.  iv.  tit.  3,  §  27.  et  seg.,  and  tit.  38, 
(27  ;  Erst.  B.  iv.  tit.  1,  §  7.  See  Fugitation. 
Decree  in  absence.    Contempt  of  Court, 

ConTenticle ;  in  English  law,  a  private 
meeting  or  assembly  for  the  exercise  of  re- 
ligion ;  first  used  as  a  term  of  contumely  for 
the  meetings  of  Wickliffe  above  200  years 
ago  ;  and  now  applied  to  the  meetings  of  dis- 
senters from  the  Established  Church.  Tom- 
tin's  Diet.  h.  t. ;  Wharton's  Lex.  h.  t. 

ConTentioii  of  Eitatei.  In  Scotland,  be- 
fore the  Union,  a  convention  of  the  estates  of 
the  kingdom  was  in  use  to  be  summoned, 
for  the  purpose  of  imposing  a  taxation  to 
answer  a  present  exigency,  or  npon  any  special 


occasion  requiring  immediate  deliberation; 
Those  conventions  consisted  of  any  number  of 
the  estates  that  might  be  suddenly  called  to- 
gether without  the  necessity  of  a  formal  cita- 
tion, such  as  was  required  in  summoning  a 
regular  parliament.  The  power  of  the  con- 
vention was  limited  to  that  particular  boo- 
neas  for  which  it  had  been  assembled ;  and, 
regularly,  the  estates  could  be  so  convened 
only  by  roy^  authority ;  but,  in  case  of  ab- 
solute necessity,  they  met  without  it,  as  m 
the  convention  for  settling  the  government  st 
the  Revolution  of  1688.  Ersk.  B.  i.  tit  3,  § 
6 ;  Baink.  vol.  ii.  p.  449 ;  Mackenzie s  I%sL  6. 
i.  tit.  3,  §  5.    See  Parliammt. 

Conrentioii  of  Boyal  Burghs.  By  the  set 
1487,  c.  Ill,  the  royal  bnrghs  are  ordered  to 
meet  once  a-year,  by  commissioners,  to  tait 
of  the  "  welfare  of  merchandise,  the  gude  rule 
and  statutes  for  the  common  profite  of  bar- 
rows, and  to  provide  for  remeid  upon  the 
skaith  and  injuries  sustained  within  the  bar- 
rowes."  These  powers  are  renewed  by  later 
statutes;  and  accordingly,  commissionen from 
each  burgh  meet  annually  in  Edinburgh,  to 
treat  of  the  subjects  committed  to  their  charge. 
The  powers,  however,. of  this  convention  vere 
never  understood  to  be  final  or  nncontroUahie; 
consequently,  its  deliberations  excite  little 
interest,  and  are,  in  general,  directed  to  mat- 
ters of  no  public  importance.  See  on  thit 
subject,  Ersk.  B.  i.  tit  4,  §  23 ;  Bank,  vol  iL 
p.  679 ;  BeWs  Princ.  §  2175 ;  Eume,  i.  400; 
ii.  136  ;  Report  hy  the  Commissioners  on  Mmi- 
eipal  Corporations  (1835),  p.  52. 

ConTontioiUkl  OUigatioiui ;  are  obligations 
resulting  from  thespecial  agreement  of  partiet. 
The  term  is  generally  used  in  contradis- 
tinction to  natural  or  legal  obligations,  whieh 
arise  from  the  operation  of  the  law  itself^  in- 
dependently of  contract  Stem;  B.  L  tit  9; 
BdPs  Princ.  §  7  ;  Beff*  lUust.  p.  1.  See  OW- 
gationt,    Gontrad. 

CotiTeyanoe ;  is  a  deed  executed  according 
to  all  the  forms  required  by  law,  and  by  which 
a  right  is  either  created,  or  transferred,  or 
discharged. 

ConTeyanciiig.  The  literal  meaning  of 
this  term  is,  the  preparing  of  convejances; 
and,  in  professional  language,  the  word  mi- 
veyaneer  is  sometimes  used  as  contrasted  vith 
that  of  agent ;  the  one  being  regarded  as  a 
preparer  of  deeds,  and  the  other  as  a  oonda^ 
tor  of  law-suits.  But,  in  its  larger  accepta- 
tion, the  term  conveyancing  not  only  indndes 
the  preparation  of  all  voluntary  deeds,  con- 
stituting, transmitting.or  extinguishing  rights 
or  obligations,  but  extends  to  thoeefonns  pre- 
scribed by  law,  for  accomplishing  the  same 
objects,  when  the  party  is  either  unwilling  or 
unable  to  do  so  by  a  voluntary  act  The  ob- 
Iject  of  voluntary  written  deeds,  generally 


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ipesking,  is  to  express  the  purpose  of  the 
parties,  or  to  impose  obligations  on  them  in 
apt  terms,  so  as  to  insure  their  being  carried 
into  fiill  effect ;  and,  as  practice  and  adjudged 
cases  hare  attached  certain  determinate 
meanings  to  many  of  the  terms  employed  in 
deeds,  it  is  necessary  that  a  conveyancer 
should  be  intimately  acquainted,  not  only 
with  the  various  deieds  themselves,  and  the 
clauses  peculiar  to  each,  but  that  he  should 
lie  fully  aware  of  the  legal  import  of  every 
danse  or  expression  which  he  may  have  occa- 
sioD  to  use  in  expressing,  in  technical  and 
formal  language,  the  intentions  of  the  parties. 
In  Scotland,  as  in  every  other  country  of 
Europe,  the  forms  of  the  deeds  which  relate 
to  land  rights  hare  been  very  much  modi- 
fied by  the  feudal  system ;  and,  by  a  concur- 
rence of  circumstances,  partly  accidental,  the 
feadal  forms  hare,  in  this  country,  been  com- 
bined with  a  system  of  records,  remarkable 
twth  for  its  completeness  and  utility.  The 
titles  to  landed  property  in  Scotland  hare 
tbos  attained  a  rery  high  degree  of  security. 
The  forms  of  Scotch  deeds  concerning  more- 
able  property  are,  in  general,  simple  and 
nataral ;  and  the  authentication  or  testing 
of  all  formal  deeds,  whether  relating  to  heri- 
table or  moveable  property,  is  regulated  by 
siatatory  enactments,  calculated,  as  far  as 
seems  practicable  by  human  ingenuity,  to 
guard  against  fraud  or  interpolation.  These, 
however,  as  well  as  the  forms  of  roluntary 
and  judicial  conveyancing,  are  subjects  which 
are  necessarily  treated  of  in  separate  articles. 
See  Rot^t  L«ct.  i.  147 ;  ii.  1,  et  seq.  See 
abo  Ckarter.  Disposition.  Sasine.  Bond.  As- 
ttf»atioH.  Adjudication.  Ranking  and  Sale. 
Bmrds.   Registration.    Testing  Clause. 

Cwrict;  is  a  person  found  guilty  of  a  crime. 
Convictions  generally  proceed  on  the  verdict 
of  a  jury ;  but  our  law  also  admits  of  sum- 
■ary  convictions,  without  the  interrention  of 
a  juy,  in  cei:tain  circumstances,  as  in  cases  of 
ecmtempt  of  Court,  of  attempts  to  corrupt  or 
withhold  eridence,  of  malrersation  by  per- 
»B«  intrusted  with  the  criminal  police  of  the 
conntry,  of  certain  ofifences  against  the  re- 
venoe  laws  prorided  for  by  special  statute, 
»ad  in  proceedings  before  sheriffs,  police  ma- 
gutrstes,  and  justices  of  the  peace  for  minor 
offences.    See  Hume,  vol.  ii.  p.  138,  et  seq. 

CosTocation ;  in  England,  an  assembly  of 
tbe  representatives  of  the  clergy,  to  consult 
of  ecclesiastical  matters,  of  which  there  is  one 
in  each  province.  In  the  province  of  Can- 
terbury, it  consists  of  two  houses,  an  upper 
and  lower ;  in  that  of  York,  of  one  house  only. 
From  the  judicial  determinations  of  conroca- 
tioo,  an  appeal  lies  to  the  Queen  in  Council. 
TmUn's  Diet.  h.  fc 

CoiToeation  of  fhe  laegfes.    See  Moibivg. 


Convoy ;  is  the  name  given  to  the  ship  or 
ships  of  war,  appointed  by  Government,  to 
accompany  merchant  vessels  during  war,  as 
a  protection  against  capture.  During  the 
wars  with  France,  merchant  ships  were  pro- 
hibited by  statute  to  sail  without  convoy. 
During  war,  the  obligation  to  sail  with  con- 
voy is  ^n  implied  condition  of  the  contract 
of  affreightment ;  and,  in  case  of  insurance, 
it  is  a  warranty  in  the  contract  with  the  un- 
derwriters. It  is  suflScient  implement  of  this 
obligation  if  the  vessel  join  the  convoy  at  the 
usuid  place  of  assembling,  and  accompany  it 
as  far  as  it  goes  on  the  destined  voyage,  pro- 
vided it  is  the  only  convoy  appoiuted  for  ves- 
sels destined  to  that  port.  If,  however,  the 
convoy  have  sailed,  the  vessel  cannot  legally 
endeavour  to  overtake  it;  although,  if  the 
vessel  have  sailed  with  convoy,  and  is  driven 
back,  she  need  not  wait  for  new  conroy,  but 
may  proceed  on  the  voyage.  The  convoy 
must  be  the  naval  force  appointed  for  the 
purpose,  and  the  vessel  must  continue  with  it, 
unless  driven  off  by  stress  of  weather  or  other 
inevitable  accident.  It  is  not  sufficient  to 
sail  with  any  ship  of  war  about  to  undertake 
the  same  voyage,  unless  such  ship  be  also  ap- 
pointed a  convoy.  See  BelPs  Com,  vol.  i.  p. 
655,  5th  edit.;  Bell's  Priuc  §  408;  BeU'i 
lUust.  ^i08. 

Co-obligants ;  though  bound  in  solidim  to 
the  creditor,  are  liable  inter  se,  only  pr»  rata  ; 
and  any  one  df  them  paying  more  than  his 
share  is  entitled  to  relief  from  the  rest.  ielPs 
Prine.  §62;  lUust.  ib.  See  Conjunctly  and  S»)»- 
rally.    Correi  debendi,  and  authorities  there  cited. 

Ckqmrtiierdlip ;  is  a  contract,  by  which  the 
several  partners  agree  concerning  the  com- 
munication of  loss  or  gain  arising  from  the 
subject  of  the  contract.    See  Society. 

Copartner ;  is  a  member  of  a  copartner- 
ship. He  may  be  either  an  ostensible  part- 
ner known  to  the  public  as  such,  or  a  latent, 
dormant,  or  sleeping  partner,  as  he  is  collo- 
quially termed ;  and  in  either  case  he  is  liable 
in  all  the  legal  obligations  arising  out  of  the 
contract  of  society  or  copartnenhip.  See 
Society. 

Copyhold ;  is  a  tenure  in  English  law,  for 
which  the  tenant  has  nothing  to  show  but  the 
copy  of  the  rolls  made  by  the  steward  of  the 
lord's  court,  on  the  tenant  being  admitted  to 
the  possession  of  the  subject  as  a  part  of  the 
manor.  It  is  also  called  base  tenure.  Copy- 
hold property  cannot  now  be  created,  for  the 
foundation  on  which  it  rests  is,  that  the  pro- 
perty has  been  possessed,  time  out  of  mind, 
by  copy  of  court  roll,  and  that  the  tenements 
ara  within  the  manor.  Toman's  Diet,  ;  What' 
ton^s  Lex.  This  tenure  is  unknown  in  the 
law  of  Scotland.    Ross's  Lect.  ii.  479. 

Copyright ;  is  the  exclusive  right  of  print- 


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ing  and  publishing  any  literary  work;  ex- 
tended aliso  to  engravings  and  masic.  Jurid, 
Stylet,  2d  edit.  vol.  iii.  p.  10^  See  Literary 
Pnmertif. 

Com.    See  Orowing  Com. 

Comage,  Hom-gdd,  Newi-gdt,  ovNeai-gdit; 
an  ancient  English  tenure,  the  service  of  which 
was  to  blow  a  horn  when  any  invasion  of  the 
Scotch  was  perceived.  Tomlin^  Did.  h.  U; 
Camb.  Brit.  609. 

Coroner.  In  England,  the  coroner  isiui 
officer  who  possesses  both  judicial  and  minis- 
terial authority.  In  his  judicial  capacity, 
he  takes  inquisitions  in  cases  of  violent 
deaths :  it  is  his  duty  also  to  inquire  ailer 
the  lands  and  goods  of  murderers,  trea- 
sure trove,  wreck  of  the  sea,  deodands,  &c. 
The  coroner  acts  miniiterially  in  the  execution 
of  the  king'ii  writs,  when  the  sheriff  is  dis- 
qualified by  relationship  to  the  parties,  or 
interest  in  the  suit,  or  otherwise.  Coroners 
are  chosen  by  the  freeholders  in  the  county 
courts ;  and  four  are  usually  named  for  each 
county;  TonUins'  Diet.  They  may  also  be 
appointed  for  districts  within  counties ;  7  and 
8  Vict.,  c.  92.  County  coroners  may  appoint 
deputies;  6  and  7  Vict.,c.  83.  Even  boroughs 
having  a  separate  quarter  session  has  a  co- 
roner ;  5  and  6  WiU,  IV.,  c.  76.  See  /erw« 
on  Coroners;  2  Steph.  Com.  619.  The  office 
of  coroner  is  said  to  have  been  known  in  Soot- 
land  formerly.    See  Hume,  vol.  ii.  p.  24,  note. 

Coroner,  Crouner.  According  to  Skene 
the  coroner  is  he  who  inquires  by  an  inquest 
concerning  murder  and  slaughter.  Skene  de- 
fines this  word  as  one  of  those  which  occurs 
in  the  Regiam  Majestatem,  from  which  it  may 
be  inferred  that  the  coroner  was  a  func- 
tionary at  one  time  known  in  the  practice  of 
Scotland.  This,  however,  is  doubtful.  See 
Regiam  Majestatem  ;  see  also  Skene,  h.  t. 

Corpora  of  Moveables ;  are  moveable  sub- 
jects which  may  be  seen  and  felt,  as  corn,  fur- 
niture, &c.,  or  cattle,  which  move  of  them- 
eelves.  In  speaking  of  moveable  property, 
the  term  corpora  is  used  in  contradistinction 
to  nomina  ddntorum,  or  obligations  of  debt, 
which,  in  our  law,  also  fall  under  the  deno- 
mination of  moveables.  Ersk.  B.  ii.  tit.  2, 
§  1,  «<  teq. 

Corporaticm  or  Community ;  is  a  fictitious 
person  or  body  politic,  enduring  in  perpetual 
succession,  with  power  to  take  and  grant,  to 
sue  and  to  be  sued.    See  Community. 

Corporeal  and  InoorporeaL  Both  by  the 
Roman  law  and  by  the  law  of  England,  the 
subjects  of  rights  are  divided  into  corporeal 
and  incorporeal.  Corporeal  are  such  as  fall 
under  the  senses,  and  mav  be  seen  and  hand- 
led, as  the  ipsa  corpora  of  things  moveable  or 
immoveable.  Incorporeal,  are  things  not  sub- . 
ject  to  the  senses,  but  which  exist  in  law,  as 


rights  and  obligations  of  all  kinds.  This  dis- 
tinction is  not  much  regarded  in  the  law  of 
Scotland,  according  to  which,  the  great  diri- 
sion  of  rights,  and  the  subject  of  rights,  it 
into  heritable  and  moveable.  Erdc  B.  iLtit. 
2,  §  1,  rf  seq. ;  BeWsPrinc.  §  1455, 1471.  See 
Heritable  and  Moveable. 

Corpse.    See  Dead  Body. 

Corpus  BelictL  In  the  criminal  lav  of 
Scotland,  the  corpus  delicti  is  the  substance  or 
body  of  the  crime,  or  offence  charged,  with 
the  various  circumstances  attending  its  com- 
mission, as  specified  in  the  libel.  It  follows, 
that  before  a  conviction  can  take  place,  the 
corptit  delicti  must  be  clearly  made  out.  Thas, 
for  example,  if  a  person  be  charged  withmnr- 
der,  it  must  be  proved  that  the  deceased  came 
by  his  death  in  consequence  of  the  injury  li- 
belled, otherwise  the  corpus  delicti  will  not  be 
established.    Hume,  i.  115  ;  ii.  320,  391. 

Correi  Debendi.  Two  or  more  persons, 
who  are  bound  as  principal  debtors  to  pay  or 
to  perform,  are  termed  in  the  Roman  lav 
correi  debendi.  Where  the  obligation  is  indi- 
visible, e.g.,  an  obligation  for  the  delivery  of 
a  special  subject,  the  co-obligants  are  bonnd 
singuli  in  soltdum ;  but  where  the  obligation 
is  to  deliver  a  certain  quantity  of  com  or 
money,  the  obligation  may  be  divided  into 
parts,  and  each  obligant  can  be  sued  only  for 
his  own  share,  or  pro  rata,  unless  the  obli- 
gants  are  expressly  taken  bound  conjunctly 
and  severally.  From  this  rule,  however,  there 
are  excepted — 1st,  Contracts  importing  a  co- 
partnership ;  and,  2d,  Bills  of  exchange ;  in 
both  of  which  cases  the  co-obligants  are  bonnd 
singuli  in  solidum,  whether  the  obligation  be 
so  expressed  or  not.  By  the  Roman  law, 
every  one  of  several  cautioners  became  bonnd 
in  solidum ;  and  where  aU  the  cautioners  re- 
mained solvent,  any  one  of  them  who  was 
sued  had  the  equitable  remedy  of  the  beiu^ 
cium  divisionis.  But  where,  for  example,  all 
the  cautioners  but  one  became  insolvent,  the 
solvent  cautioner  might  be  sued  for  the  whole 
debt.  This  could  not  happen  with  us,  be- 
cause, if  the  cautioners  were  bonnd  severally, 
they  would  only  be  liable  pro  rata;  and  if 
bound  conjunctly  and  severally,  they  would 
be  liable  singuli  in  solidum,  and  could  not 
claim  the  benejicium  divisionis.  Stair,  B.  i. 
tit.  9,  §  9,  and  tit.  18,  §  20 ;  More's  Notes, 
pp.  Ivi.  and  exviii. ;  Erdi.  B.  iii.  tit.  §  74 ; 
Karnes'  Princ.  of  Equity  (1825),  78 ;  Jurid. 
Styles,  2d  edit.  vol.  ii.  p.  371,  87  ;  Ross's  Led. 
i.  76.    See  Conjunctly  and  Severally. 

Corroboration,  Bond  of.  See  Bond  of  Cor- 
roboration. 

Corruption  of  Judges.  By  a  variety  of 
acts  of  the  Scotch  Parliaments,  and,  in  par- 
ticular, by  1579,  c.  93,  and  1540,  c  104, 
judges,  whether  of  the  Court  of  Session,  or 


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io  inferior  courts,  who,  throagh  corraption 
or  pAftialitj,  use  their  authority  as  a  cover 
foriigiistice  or  oppression,  are  punishable  with 
confiseation  of  moveables,  loss  of  honour,  fame 
and  dignity,  besides  an  arbitrary  punishment 
in  the  person.     See  Hume,  i.  407< 

Cormptioii  of  Blood.  When  a  person  has 
been  attainted  of  treason,  his  blood  is  said  to 
be  corrupted ;  and  neither  his  children  nor 
any  of  his  blood  can  be  heirs  to  him  or  any 
other  ancestor.  If  the  attainted  person  be  a 
noUeman,  he  and  his  posterity  are  by  the  at- 
tainder rendered  base  and  ignoble.  Corrup- 
tion of  blood  cannot  be  entirely  removed,  ex- 
npt  by  act  of  Parliament ;  for  the  king's 
pudon  does  not  restore  the  blood,  so  as  to 
nake  the  attainted  person  "  capable  either  of 
inheriting  others,  or  being  inherited  himself 
bj  any  one  bom  before  the  pardon."  Stair, 
B.  iii.  tit  3,  §  37 ;  Mare's  Notes,  p.  cccxii. ; 
Ms  Prmc..  §  1645  ;  Tomiin^  Diet.  See 
alao  Bank.  vol.  it.  p.  275. 

Corvmiim  Pactnm.   See  Pactum  Corvinwm. 

Costi  of  Suits.     See  Expenses. 

Council  and  Session.  The  Judges  or  Se- 
nators of  the  College  of  Justice  are  also  called 
Lords  of  Council  and  Session.  The  "  Books 
tf  CoiMcil  and  Session"  is  the  name  given  to 
the  records  in  which  deeds,  and  other  writs 
competent  to  be  inserted  in  the  record  of  that 
(oort,  are  registered  in  virtue  of  the  clause 
of  registration.  See  Registration.  Session, 
Cimrtof. 

ConneQ  Privy.    See  Privy  CounciL 

ConncQlor  of  a  Boyal  BurgL  The  mu- 
nicipal affairs  of  royal  burghs  are  intrusted 
to  tiie  direction  of  a  provost,  magistrates, 
dean  of  guild,  and  councillors.  See  Bwrgh 
R^. 

Comifld;  an  advocate  or  barrister.  A 
eonnsel  is  not  responsible  for  the  result  of  the 
advice  he  gives,  provided  he  gives  it  honestly 
and  to  the  best  of  his  judgment ;  Bank.  vol. 
iii.  p.  76.  By  the  criminal  lav  of  Scotland, 
tiie  acensed  party  is  allowed  the  benefit  of 
connsel,  who,  if  not  retained  by  the  party, 
will  be  nominated  by  the  Court  to  undertake 
the  defence ;  an  advantage  which,  except  in 
eatec  of  treason,  was  not  enjoyed  in  England 
prior  to  1836.  6  and  7  Will.  JV.,  c.  114 ; 
Mtrft  Notes  to  Stair,  p.  ccccxv. ;  Eume,  1. 6, 
and  ii.  283  ;  Beffs  Princ.  §  2051.  See  Advo- 
tate.    Barrister. 

Comt  and  Seckoning ;  is  the  technical 
Mme  given  to  a  form  of  process,  by  which 
one  party  may  compel  another  judicially  to 
ueoont  with  him,  and  to  pay  the  baUnce 
vMch  may  appear  to  be  due.  The  summons 
in  this  process  calls  on  the  defender  to  pro- 
dace  a  full  statement  of  his  accounts  and  in- 
tromissions, BO  that  the  balance  may  he  ascer- 
tained ;  and  it  also  concludes  for  a  random 


sum,  as  the  amount  of  the  supposed  balance : 
for  which  sum  a  decree  will  be  given,  in  case 
the  defender  fails  to  appear,  or  to  render  the 
statement  required.  The  Act  of  Sederunt 
22d  Nov.  1711,  makes  various  regulations 
for  expediting  the  discussion  of  processes  of 
this  description  in  the  Court  of  Session ;  but 
according  to  the  present  practice,  such  actions 
proceed  according  to  the  ordinary  routine ; 
A.  S.  22d  Nov.  1711,  §  2.  In  actions  of  count 
and  reckoning  a  remit  to  an  accountant  is 
usually  made.  See  Ivory's  Form  of  Process, 
vol.  i.  p.  270,  et  seq. ;  Jurid.  Styles,  2d  edit, 
vol.  iii.  pp.  34,  et  seq.  60,  109, 113;  Shand^s 
Prae.  738,  and  note  to  p.  740.  See  Process, 
Record. 

Counterpart.  In  England,  when  the  se- 
veral parts  of  an  indenture  are  interchange- 
ably executed  by  the  several  parties,  that  part 
or  copy  which  is  executed  by  the  grantor  is 
usually  called  the  original,  and  the  rest  are 
comiterparts.  Tomlins'  Diet,  h.t.;  Wharton'sLex. 

County.  By  1  Vict,  c.  39,  it  is  enacted, 
that  the  word  "  county"  occurring  in  any  ex- 
isting or  future  act  shall  comprehend  and 
apply  to  any  stewartry  in  Scotland,  excepting 
where  otherwise  specially  provided,  and  ex- 
cepting cases  in  which  there  is  anything  in 
the  subject  or  context  repugnant  to  such 
meaning  and  application. 

County  Election.    See  Reform  Act. 

Conrt.  The  Courts  of  Scotland  have  been 
divided  into  superior,  inferior,  and  mixed. 
The  Court  of  Session,  in  which  the  Court  of 
Exchequer  is  now  merged,  is  the  Supreme 
Civil  Conrt  Its  jurisdiction  in  all  civil  and 
revenue  causes  is  universal  over  the  whole, 
kingdom;  the  sentences  of  all  the  inferior 
courts  of  Scotland  being  subject  to  its  review, 
unless  where  special  statute  interposes.  The 
Court  of  Justiciary  is  the  Supreme  Criminal 
Conrt.  Inferior  courts  are  those  of  which 
the  sentences  are  subject  to  the  review  of  one 
or  other  of  the  Supreme  courts,  and  whose 
jurisdiction  is  confined  to  a  particular  terri- 
tory,as  the  Sheriff-court,  Bailie-court,  Justice 
of  Peace  court..  The  courts  formerly  pos- 
sessed of  a  mixed  jurisdiction  were  the  High 
Court  of  Admiralty,  the  Commissary  Court 
of  Edinburgh,  both  of  which  had  an  universal 
jurisdiction  over  Scotland,  by  which  they  re- 
viewed the  decrees  of  inferior  admirals  and 
comiuissaries ;  but  as  their  own  decrees  were 
subject  to  the  review  of  the  Courts  of  Session 
or  Justiciary,  they  were  in  that  respect  in- 
ferior courts.  These  two  courts  are  now  abo- 
lished. Ersk.  B.  i.  tit.  2,  §  5  and  6 ;  Bell's 
Princ.  4th  edit,  art.  2205,  et  seq. ;  Shaw's  Di- 
gest, tit.  Jurisdiction,  See  Admiralty,  Pom- 
missary  Court. 
■  Court  of  Session,    ^a  Session,  Court  of  .     - 

Conrt  of  Justiciary.    See  Justiciary  Court. 


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Court  of  Ezcheqiier.    See  Exduqutr. 

Court  of  Admiralty.    See  AdmiraUy. 

Court-Martial ;  is  a  court  for  tryiDg  tbe 
military  offences  of  officers,  whether  naval  or 
military,  and  of  soldiers,  and  of  sailors  in  the 
royal  navy.  Military  Courts-Martial  are 
eiUier  regimental  or  general.  The  latter 
must  consist  of  at  least  thirteen  judges,  all 
commissioned  officers,  the  president  bising  a 
field-officer.  The  jurisdiction  of  these  courts 
is  limited  to  points  of  military  discipline ;  «.^., 
mutiny,  desertion,  neglect  of  duty,  beating  or 
insulting  an  officer  or  fellow-soldier,  &c.  In 
all  other  matters,  both  officers  and  soldiers 
are  amenable  to  the  ordinary  courts  of  law. 
No  capital  punishment  can  be  inflicted  by  a 
military  Court-Martial,  unless  nine  of  the 
judges  present  shall  concur.  Where  these 
courts'  do  not  exceed  their  powers,  no  appeal 
lies  to  any  other  court ;  the  only  remedy  rest- 
ing with  the  king,  to  whom  their  sentences 
are  reported,  before  they  are  promulgated. 
But,  if  they  exceed  their  powers,  the  party 
injured  may  obtain  redress  in  the  Civil  Court. 
The  rules  by  which  military  Courts-Martial 
are  to  be  guided  are  explicitly  stated  in  the 
annual  Mutiny  Act  and  the  Articles  of  War ; 
and  the  laws  in  relation  to  naval  Courts-Mar- 
tial were  reduced  into  one  act ;  22  Geo.  II., 
o.  33,  explained  and  amended  by  19  Geo.  III., 
c.  if.  See  also  24  Geo.  III.,  st.  2,  c.  56 ;  37 
Geo.  III.,  c.  140 ;  56  Geo.  III.,  c.  156 ;  and  56 
Geo.  III.,  c.  5.  See  on  this  subject,  Tytlar't 
Essay  on  Military  Law;  Adye^  Treatise  on 
Courts-Martial;  and  M' Arthur  on  Nasal  Courts- 
Martial;  Wickman  on  Naval  Courts-Martial; 
Simmons'  Prac.  of  Courts- Martial. 

Conrteiy  or  Cnriality.  The  courtesy  of 
Scotland,  as  it  is  termed,  is  a  liferent  conferred 
by  the  law,  on  the  surviving  husband,  of  all 
the  heritage  in  which  his  deceased  wife  died 
infeft,  as  heir  to  her  predecessors.  It  is  essen- 
tial to  the  existence  of  this  right — 1.  That 
there  shall  have  been  a  living  child  bom  of 
the  marriage,  and  heard  to  cry,  otherwise 
courtesy  is  not  due,  however  long  the  mar- 
riage may  have  subsisted;  2.  That  the  child 
shall  be  the  mother's  heir.  Thus,  if  there 
be  a  child  of  the  wife  in  existence  by  a  for- 
mer marriage,  who  is  her  heir,  courtesy  is 
not  due  to  the  second  husband,  while  such 
child  exists,  although  there  be  also  children 
of  the  second  marriage.  Hence,  it  has  been 
said,  that  courtesy  is  due  to  the  surviving 
husband,  rather  as  the  father  of  an  heir  than 
as  the  widower  of  an  heiress.  In  order  to 
confer  the  right,  however,  it  is  not  necessary 
that  the  child  survive :  it  is  enough  that  it 
was  once  in  existence,  although  it  should  have 
died  immediately  after  its  birth.  The  heri- 
tage, to  which  courtesy  extends,  is  that  to 
which  the  wife  succeeds  as  heir  of  line,  tailzie, 


or  provision,  to  her  ancestor,  whether  the 
succession  opens  to  her  before  the  marri^ 
or  during  its  subsistence.    But  it  does  not 
extend  to  conquest;  that  is,  the  heritage  ac- 
quired by  purchase,  donation,  or  other  singu- 
lar titles,  unless  where  the  heritage  has  been 
put  forward  to  the  wife  by  her  ancestor  prcs- 
ceptione  hcereditatis,  in  which  case  the  courtesy 
extends  to  the  property  so   put  forward; 
Primrose,  December  10, 1771,  Foe.  ColL,  Mer. 
App.  Courtesy,  No.  1.      Burgi^e  property 
also  falls  under  the  courtesy,  although  it  is 
excluded  from  terce.    The  wife's  sasine  is  the 
measure  of  the  courtesy ;  hence  any  real  bur- 
den or  infeftment,  preferable  to  her  sasine, 
excludes  the  courtesy;  and  as  the  husband 
enjoys  the  liferent  of  the  wife's  estate  titiile 
lucrativo,  he  is  considered  as  her  temporary 
reprMentative,  and,  as  such,  is  liable  not  only 
for  all  annual  burdens  affecting  the  lands,  bat 
also  for  the  current  interest  of  her  personal 
debts  while  his  rights  subsists,  in  so  fax, 
at  least,  as  he  is  lucraius.     But  he  will 
have  recourse  against  the  wife's  executors,  or 
her  heirs  succeeding  in  such  property,  as  does 
not  fall  under  the  courtesy,  for  the  persons! 
debts  which  he  may  thus  pay.    In  this  re- 
spect, courtesy  differs  from  the  widow's  terce, 
which  is  in  no  degree  affected  by  the  husband's 
personal  debts.     The  two  rights  also  differ  is 
this,  that  a  widow,  whose  right  of  terce  has 
been  declared  by  service,  transmits  to  her 
executors  the  right  to  receive  the  rents  fall- 
ing under  the  terce,  and  not  drawn  during 
her  life ;  whereas,  if  a  husband  has  not  exer- 
cised his  right  of  courtesy  during  his  life,  by 
drawing  the  rents,  his  exeqntors  will  have  no 
right  to  receive  them;   the  courtesy  being 
held  as  a  privilege  personal  to  the  husband, 
who  will  be  understood  to  have  renounced  it 
in  favour  of  the  heir,  if,  during  his  life,  he 
has  suffered  him  to  draw  the  rents.    The 
courtesy  vests  in  the  husband  ^so  jure;  and, 
immediately  on  the  wife's  death,  he  may  en- 
ter into  possession  of  her  lands,  without  ser- 
vice or  any'  other  legal  formality ;  and,  in 
virtue  of  this  right,  under  the  former  election 
law,  he  enjoyed,  not  only  during  the  marriage, 
but  after  the  wife's  death,  the  right  of  elect- 
ing and  being  elected  to  Parliament  on  her 
freehold;  1681,  c.  21 ;  12  Anne,  c.  6,  §  5.   But 
it  has  not  been  decided  whether  a  liferenter 
by  courtesy  is  entitled  to  any  of  the  casualties 
of  superiority.     It  would  rather  appear,  how- 
ever, that  as  the  person  entitled  to  those 
casualties  must  be  infeft,  the  husband  who  is 
not  infeft  can  have  no  right  to  them  under 
the  courtesy ;  but  he  is  entitled  to  the  fen- 
duties,  although  these  do  not  fall  under  terce. 
Stair,  B.  ii.  tit.  6,  §  19 ;  More's  Notes,  clxxxvii. 
et  seq.;  Ersk.  B.  ii.  tit  9,  §  52,  et  seq.;  ErA. 
Princ.  12th  edit.  244 ;  Bank.  i.p.  663;  BdTi 


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283 


Cem.  ToL  i.  p.  60,  5th  edit. ;  Befft  Princ. 
$  1065,  ei  $eq.,  1948 ;  Scmdfori  on  Heritable 
Stmum,  vol.  ii.  p.  117 ;  Earned  Princ.  of 
Ejm^  (1825),  86.     See  Reform  Act     Terce. 

Corenant ;  is  defined,  in  the  law  of  Eng- 
land, the  agreement  or  consent  of  two  or 
Dore,  bj  deed  in  writing,  sealed  and  delivered, 
Thereby  one  of  the  parties  promises  to  the 
other  that  something  is  or  shall  he  done.  The 
promiser  is  called  the  covenanter,  the  other 
ptrty  the  covenantee.     Tomlim?  Diet.  h.  t. 

Corin ;  in  English  law,  a  deceitful  compact 
between  two  or  more  to  deceive  or  prejudice 
others.    Tomlin^  Diet.  h.  t. 

Credit,  Letter  of.    See  Letter  of  Credit. 

Credolity,  Oath  of.    See  Oath  of  Credulity. 

CteSsra;  nsed  in  the  Leges  Burgorvm;  a 
crniffe  or  craive  for  swine,  otherwise  a  stye. 

Crew.  Under  the  contract  of  affreight- 
neot,  the  owners  and  master  are  honnd  to  he 
prorided  with  a  crew  of  sufficient  skill  and 
ttrength  for  the  voyage.  BelVs  Com.  i.  551, 
5th  edit. ;  Princ.  §  408,  and  cases  there  cited. 

Crime.  A  crime  may  he  defined  to  be  any 
Kt  done  in  violation  of  those  duties  which  an 
indiridual  owes  to  the  community,  and  for  a 
breach  of  which  the  law  hu  provided  that 
the  offender  shall  make  satisfaction  to  the 
pnhlic ;  besides  repairing,  where  that  is  pos- 
dble,  the  injury  done  to  the  individual.  Dole, 
or  eormpt  and  evil  intention,  is  essentisd  ttf 
the  guilt  of  any  crime.  It  is  not  necessary, 
however,  for  the  proeecutor  to  prove  the  in- 
tention to  commit  the  particular  offence,  out 
of  enmity  to  the  individual  injured ;  it  is 
enough  that  the  act  is  attended  with  circnm- 
itaneei  indicating  a  corrupt  or  malignant  dis- 
jMBtion,  regardless  of  order  and  social  duty. 
Thus,  it  is  murder  if  A  be  killed  by  mistake 
imtead  of  B,  unless  the  killing  of  B  would 
hare  been  justifiable  or  excusable.  So  also 
it  11  murder  to  fire  without  legal  cause,  into  a 
cnnrd  and  kill  a  person ;  Hume,  i.  21,  et  seq. 
In  order  to  constitute  a  crime,  there  must 
•IvajB  be  an  act  done  in  prosecution  of  the 
criminal  purpose.  This  gives  rise  to  several 
diSeolt  questions,  as  to  how  far  an  attempt 
to  commit  a  crime,  is  punishable ;  and  the 
general  rule  seems  to  be,  that  where  unequi- 
Tocal  acts,  indicating  the  criminal  intention, 
ue  proved,  they  are  punishable,  but  not  to 
the  tame  extent,  as  the  completed  offence ; 
hot,  on  the  other  hand,  the  law  takes  no  cog- 
■iuQce  of  remote  acts  of  preparation,  even  al- 
ttoogh  they  be  pretty  distinctly  referable  to  a 
crimmal  purpose ;  see  Hume,  ib.  See  Attempt. 
Where  dole  is  wanting,  either  entirely  or  to  a 
certain  extent,  there  is,  in  the  one  case,  no 
crime  at  all,  and,  in  the  other,  a  proportional 
nitigation  of  the  punishment.  Thus,  pupils 
Boder  seven  years  of  age  are  legally  incap- 


able of  crime ;  in  like  manner,  insane  per- 
sons  are  held  to  be  incapable  of  dole.  But, 
on  the  other  hand,  pupils  above  seven  years 
of  age,  and  minors  who  have  reached  puberty 
(which  in  this  question  is  fourteen  years  of 
age,  both  in  males  and  females),  are  held  to 
be  capable  of  dole,  and  are  consequently 
punishable  for  the  greater  crimes,  of  the 
guilt  of  which  they  must  be  presumed  to  be 
aware.  Minors  under  sixteen  years  of  age, 
however,  except  in  very  flagrant  cases,  seem 
hardly  liable  to  capital  punishment.  With 
regard  to  defect  of  intellect,  if  it  amount  to 
mere  weakness  or  craziness,  it  is  not  sufficient 
to  exempt  from  punishment,  but  may  be  <the 
ground  of  an  application  for  mercy.  The 
defence  of  compulsion,  where  vis  major  has 
been  used  wiU  be  sustained.  See  Compulsion- 
But  it  will  be  no  defence,  that  the  crime  was 
committed  by  a  wife  or  child,  under  the  in- 
fluence of  subjection  to  the  husband  or  father, 
if  it  be  one  of  the  greater  crimes ;  although 
such  subjection  may  perhaps  be  successfully 
pleaded  in  minor  delicts.  The  subjection  of  a 
servant  to  his  master  affords  no  defence  what- 
ever to  the  servant  who  has  committed  a 
crime,  unless  he  can  prove  coercion,  or  the 
fear  of  violence,  against  which  he  had  no  pro- 
tection'at  hand.  Magistrates  or  officers  of 
the  law,  acting  bonajide  in  the  administration 
and  execution  of  the  law,  unless  perhaps 
there  be'  gross  ignorance  or  carelessness, — and 
soldiers  acting  under  the  orders  of  their 
officers  in  the  known  and  customary  line  of 
their  duty, — are  not  liable  to  a  criminal  charge 
for  acts  done  under  such  circumstances.  The 
compulsion  of  extreme  want  is  held  to  be  no 
excuse  for  a  crime ;  but  it  maybe  the  ground 
of  an  application  for  mercy.  See,  on  the  sub- 
ject of  this  article,  Hume,  vol.  i.  p.  21  to  56  ; 
Ersk.  B.  iv.  tit.  4;  Erdc.  Princ.  614,  12th 
edit. ;  Taifs  Justice  of  Peace,  h.  t. 

Crimen  Falsi ;  the  crime  of  falsehood  or 
fraudulent  mutation,  or  suppression  of  the 
truth,  to  the  prejudice  of  another.  See  False- 
hood.   Forgery.     Perjury. 

Crimen  Violati  Sepidchri  See  Dead  Body. 

Crimen  Bepetnndamm.  By  the  Roman 
law,  all  judges  and  magistrates  who  accept 
bribes  to  pervert  judgment,  were  said  to  be 
guilty  of  this  crime,  and  punished  accordingly. 
With  us,  this  offence  is  known  by  the  name 
of  baratry  or  bribery.  See  BartUry.  Bribery. 
Corruption  ^Judges, 

Cruninal  Prowontion ;  includes  the  whole 
form  of  process  by  which  a  person  accused  of 
a  crime  is  brought  to  trial ;  and  the  proce- 
dure will  here  be  briefly  traced  from  its  com- 
mencement to  its  close  in  the  supreme  criminal 
court.  When  a  crime  has  been  committed, 
the  first  step  is  to  arrest  the  supposed  offen- 
der ;  and  this  may  be  done  under  authority 

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of  any  sheriff,  justice  of  peace,  or  other  magis- 
trate. Those  magistrates  may  grant  warrant 
to  arrest  persons  charged  with  offences,  in  the 
trial  of  which  they  have  themselves  no  juris- 
diction. Thus,  a  sheriff  may  commit  for 
treason,  or  the  magistrate  of  a  royal  hurgh 
for  pleas  of  the  Crown.  The  warrant  for 
apprehension  must  he  granted  on  sufficient 
information,  written  or  verbal;  but  there 
ought  to  be  a  formal  written  and  signed  ap- 
plication wherever  possible.  The  oath  of  the 
informer,  even  where  he  is  a  private  party,  is 
not  indispensable,  except  as  to  offences  under 
special  statutes;  and  when  the  procurator- 
fiscal  applies  for  the  warrant,  his  oath  is  never 
required.  The  warrant  must  bear  the  date 
and  place  of  granting,  and  be  under  the  hand 
of  the  magistrate  in  whose  name  it  runs.  It 
would  seem  that  it  may  be  general  as  to  the 
nature  of  the  crime  to  be  charged;  but  it 
must  not  be  general  in  the  description  of  the 
person  or  persons  to  be  apprehended,  nor 
leave  any  discretion  to  the  officer  to  arrest  all 
suspected  persons.  The  warrant  may  be,  to 
bring  the  accused  before  either  the  grantor 
of  the  warrant,  or  some  other  competent  ma- 
gistrate; and  it  may  be  addressed  either 
generally  to  the  officers  of  the  magistrate  who 
grants  it,  or  to  messengers-at-arms ;  or  even, 
in  case  of  need,  to  a  private  individual,  who 
is  thus  invested,  pro  hoc  vice,  with  the  powers, 
privileges,  and  protection,  given  to  an  officer, 
provided  the  person  intrusted  with  it  proceed 
regularly  in  the  execution  of  the  warrant.  In 
executing  the  warrant,  it  is  necessary  that 
the  officer  should  attend — Itt,  Not  to  execute 
it  beyond  the  jurisdiction  of  the  grantor, 
without  the  indorsation  of  a  magistrate  within 
the  jurisdiction  into  which  the  offender  has 
fled,  unless  where  such  indorsation  is  rendered 
unnecessary  by  special  statute,  as  in  the  case 
of  sheriffs'  warrants  under  1  and  2  Vict.,  c. 
119,  §25.  Soe  Backing  of  a  Warrant.  2d,  He 
must  communicate  to  the  party  the  import  of 
the  warrant ;  and  if  the  officer  be  acting  be- 
yond his  ordinary  bounds,  he  must  show  the 
warrant  on  demand,  but  he  is  not  bound  to 
part  with  it.  5d,  The  officer  has  no  authority 
to  break  open  doors,  unless  he  has  intimated 
to  those  within  the  purpose  of  his  errand ; 
and  after  that,  and  on  refusal  to  open,  he  may 
break  open  the  door,  and  take  the  party 
against  whom  the  warrant  is  directed,  or  the 
person  whom  he  has  probable  reasons  for 
believing  to  be  the  person  meant.  4th,  Hav- 
ing taken  the  person,  the  officer  cannot,  on 
his  own  authority,  commit  him  to  jail,  but 
must  take  him  before  a  magistrate,  to  be 
dealt  with  according  to  law ;  except  in  the 
case  where  the  warrant  contains  authority  to 
commit  de  piano,  as  is  the  case  with  justiciary 
warrants,  under  which,  of  course,  the  officer 


is  in  safety  to  commit  the  accused  to  prison 
at  once.  In  the  case  where  the  party  is 
brought  before  a  magistrat«  for  examination, 
it  is  the  duty  of  the  magistrat« — Itt,  To  see 
that  the  prisoner  is  in  a  fit  state  to  undergo 
an  examination ;  2d,  That  he  is  warned  of 
the  use  which  may  be  made  of  what  be  says ; 
and,  3d,  That  the  declaration  is  taken  down 
in  writing  in  the  presence  of  credible  wit- 
nesses, who  will  sign  it  along  with  the  magis- 
trate and  the  prisoner,  in  order  that,  if  neces- 
sary, they  may  be  able,  at  the  trial,  to 
authenticate  it  and  to  swear  to  what  passed. 
When  the  prisoner  cannot  or  will  not  sign. 
his  declaration,  the  magistrate  may  sign  it 
instead  of  him. 

Unless  the  magistrate  see  reason  imme- 
diately to  release  the  prisoner,  his  next  step 
is  to  commence  an  inquiry,  or  precognition  as 
it  is  termed,  concerning  the  grounds  of  suspi- 
cion, in  which  he  will  take  the  declarations 
of  such  persons  as  have  canse  of  knowledge  of 
the  offence,  and  the  prisoner's  participation  in 
it.  This  is  necessary,  not  only  in  order  that 
speedy  justice  may  be  done  to  the  aecnsed, 
but  also  for  the  information  of  the  public  pro- 
secutor, so  as  to  enable  him  to  lay  his  charge 
properly.  While  the  precognition  is  going 
on,  the  magistrate  may,  if  necessary,  commit 
the  accused  to  prison  for  further  examination, 
or  to  abide  the  result  of  the  precognition ; 
and,  in  that  case,  the  prisoner  is  not  entitled 
to  bail  under  the  act  1701,  c.  6,  although  it 
is  not  unusual  to  liberate  him  on  bail  at  this 
stage  of  the  proceedings.  The  magistrate 
must  proceed  with  the  precognition  withoat 
undue  delay,  otherwise  he  will  be  liable  ti 
common  law  for  malversation  and  oppression. 
Witnesses  may  be  compelled  to  attend  the 
precognition  by  letters  of  first  and  second 
diligence;  and,  in  extreme  cases,  the  wit- 
nesses may  be  examined  upon  oath,  although 
that  is  not  usual.  If  the  witnesses  refuse  to 
attend  or  to  swear,  they  may  be  imprisoned. 
Neither  the  accused  nor  his  friends  are  en- 
titled to  be  present  at  the  precognition ;  nor 
can  they  insist  for  a  copy  or  for  a  perusal  of  the 
declarations  of  the  witnesses.  The  precogni- 
tion must  be  finished  before  thelibelis  executed, 
because,  after  the  execution  of  the  libel,  the 
process  has  commenced,  and  all  intercoune 
with  the  witnesses  after  that^  is  suspected 
and  "  utterly  forbidden."  In  whatever  my 
the  examinations  of  the  witnesses  at  the  pre- 
cognition are  taken,  whether  by  oath  or  simple 
declaration,  they  never  cau  be  used  in  any 
shape  against  the  witnesses,  who  may  insist 
on  having  them  destroyed  before  they  gm 
their  testimony  on  the  trial.  Articles  to  be 
founded  on  as  proving  the  crime,  ought  to  be 
identified  at  the  precognition,  either  by  the 
subscription  of  the  judge  and  witnesses,  or  b; 


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tome  other  mark,  and  a  reference  to  the  de- 
claration of  the  witnesses ;  and  snch  articles 
ought  to  he  put  in  safe  custody.  The  entire 
charge  of  conducting  precognitions  is  now 
committed  to  the  procurator-fiscal,  sheriff, 
justices  of  the  peace,  and  other  inferior  magis- 
trates, although,  formerly,  precognitions  were 
Bometimes  conducted  by  the  Lord  Advocate, 
in  presence  of  the  Lords  of  Justiciary.  See 
Precognition.  The  precognition  being  con- 
cloded,  and  the  facts  being  such  as  to  warrant 
a  commitment,  the  accused  is  then  committed 
for  trial,  oo  a  regular  written  warrant,  spe- 
cifying the  offence  for  which  he  is  committed, 
and  proceeding  on  a  signed  information. 
With  regard  to  the  form  of  a  warrant  of 
commitment,  and  the  steps  necessary  to  be 
taken  in  order  to  obtain  bail,  or  liberation 
inder  the  act  1701,  c.  6,  see  Commitment  for 
Trial.    BaiU    Liberation. 

The  right  to  prosecute  for  a  crime  is  vested, 
by  the  law  of  Scotland,  either  in  the  party 
injared,  or  in  the  Lord  Advocate,  who  is  the 
only  prosecutor  for  the  public  interest;  the 
popular  actions  of  the  Roman  law  being 
onknown  in  our  practice.  A  criminal  prose- 
cution by  the  private  party  embraces  not  only 
tlie  private  interest  and  damages,  but  the  full 
pains  of  law.  But,  in  order  to  support  the 
private  instance,  the  party  must  be  able  to 
sbov  some  substantial  and  peculiar  interest 
b  the  issue  of  the  trial,  not  a  mere  remote 
interest  as  a  member  of  the  community,  or 
even  as  the  member  of  a  portion  or  class  of 
it,  which  has  been  particularly  injured.  It 
does  not  appear  to  be  quite  fixed,  what  de- 
gree of  relationship  to  an  injured  party  en- 
titles a  private  party  to  prosecute  ;  but  per- 
haps the  right  is  vested  in  the  next  of  kin, 
however  remote  in  degree ;  Hume,  vol.  ii.,  p. 
124.  But,  in  the  Court  of  Justiciary,  every 
libel  at  the  private  instance  must  be  raised 
with  concourse  of  the  Lord  Advocate ;  see 
Ctwmne.  The  Lord  Advocate  is  the  public 
sccDser,  who  insists  in  the  Sovereign's  name, 
and  for  his  (or  her)  Migesty's  interest,  in  the 
eiecBtion  of  the  law ;  and  he  is  vested  with 
an  uncontrolled  right  to  exercise  his  discre- 
tion, either  in  commencing  or  in  following 
forth  a  trial ;  and,  at  any  time  in  the  course 
of  it,  either  before  or  even  after  the  return 
of  the  verdict  of  the  jury,  he  may,  in  the  case 
of  a  capital  offence,  restrict  the  libel  to  an 
arbitrary  punishment.    See  Advocate,  Lord. 

The  trial  of  an  accused  party  proceeds 
before  the  Court  of  Justiciary,  either  on  in- 
di«fai«nt  or  on  criminal  letters.  The  process 
bj  indictment  is  the  exclusive  privilege  of  the 
Lord  Advocate,  in  whose  name,  as  public 
prosecutor,  it  proceeds.  Criminal  letters  re- 
semble a  SQmmons  in  a  civil  action ;  they 
proceed  in  the  Sovereign's  name,  and,  like  the 


sammons,  they  are  addressed  to  messengers, 
and  other  executors  of  the  law,  who  are  com- 
manded to  cite  the  accused.  See  Indictment. 
Criminal  Letteri.  The  form  of  indictment 
is  commonly  used  where  the  accused  is  in 
prison ;  and  that  of  criminal  letters  where 
he  is  at  large,  either  on  bail  or  otherwise, 
although  there  is  no  invariable  rule  on  that 
subject.  The  indictment  or  criminal  letters 
must  be  executed  against  the  accused  by  a 
messenger-at-arms,  or  by  a  macer  of  the  Court 
of  Justiciary,  or  other  ofBcer  properly  autho- 
rized, who  must  serve  the  party  with  a  copy 
of  the  libel,  with  a  notice  attached,  requir- 
ing him  to  appear  on  a  day  certain  to  take 
his  trial.  See  9  Geo. IV.,  c.  29,  §  36,  et  seg.,  and 
Schedules  thereto  annexed;  see  also  11  and  12 
Vict.,  c.  79,  §  6.  The  accused  must,  at  the 
same  time,  be  served  with  a  list  of  the  wit- 
nesses who  are  to  be  examined  against  him, 
and  of  the  whole  assize  of  forty-five,  out  of 
which  the  jury  is  to  be  selected.  If  the  ac- 
cused cannot  be  found,  he  must  be  cited  in  the 
same  form  at  his  dwelling-place,  and  at  the 
market-cross  of  the  head  burgh  of  the  county 
in  which  he  resides.  When  he  is  abroad,  an 
edictal  citation  of  sixty  days  at  the  market- 
cross  of  Edinburgh,  and  the  pier  and  shore  of 
Leith,  is  necessary.  The  diet  to  which  he  is 
cited  in  a  criminal  process  is  peremptory. 
See  Calling  of  Diet.  And,  on  the  day  fixed, 
the  accused  and  the  prosecutor,  whether  public 
or  private,  must  appear  in  the  Court,  the  Lord 
Advocate  having  the  privilege  of  appearing  by 
his  deputies ;  but  the  personal  presence  of  the 
private  party,  where  he  is  the  prosecutor, 
being  indispensable.  The  accused  must  also 
be  present,  otherwise  the  trial  cannot  proceed ; 
and,  if  he  is  wilfully  absent,  sentence  of  fugi- 
tation  will  he  pronounced.  See  Fugitation. 
When  both  parties  are  present,  and  the  trial 
is  not  adjourned,  the  Court,  upon  the  prose- 
cutor's application„and  on  cause  shown,  may 
desert  the  diet  pro  loco  et  tempore;  after  which 
the  accused  may  be  served  with  a  new  libel ; 
or  the  prosecutor  may  desert  the  diet  sm- 
pliciter,  which  puts  an  end  to  all  farther  pro- 
secution for  the  same  offence ;  Hume,  ii.  275, 
et  seq.  When  both  parties  are^resent  at  the 
calling  of  the  diet,  and  there  is  no  desertion, 
this  is  the  proper  time,  in  limine  of  the  pro- 
cess, to  state  all  objections  to  the  execution 
of  the  citation  of  the  party.  The  panel  is 
also  then  called  on  to  state  any  objection  to 
relevancy  of  the  libel,  and  the  relevancy, 
whether  objected  to  or  not,  is  disposed  of  before 
he  is  called  on  to  plead.  When  the  libel  is 
found  relevant,  the  same  is  read,  unless  the 
reading  is  dispensed  with  (which  is  always 
held  to  be  done  in  practice  unless  the  contrary 
is  stated) ;  the  panel  is  called  upon  to  plead 
guilty  or  not  guilty ;  and  his  plea  is  entered 


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on  the  record ;  if  he  plead  guilty,  the  Coort 
passes  sentence,  and  if  not  gnilty,  the  Court 
remits  him  and  the  iibel  to  an  assize ;  11  and 
12  Viet.,  c.  79,  §  9,  altering  9  Geo.  III.,  c. 
19,  §  12.  Objections  to  relerancy  are  dis- 
posed of  after  a  viva  voce  debate,  either  by 
iqimediate  decision,  or  by  an  order  for  far- 
ther pleadings  in  the  shape  of  printed  infor- 
mations, in  which  latter  case  the  trial  is  ad- 
journed. Even  where  the  accused  pleaded 
guilty,  it  was  formerly  the  practice  to  em- 

ganel  a  jury,  before  whom,  if  he  repeated 
is  plea,  he- was  found  guilty  by  the  jury  on 
his  own  confession  ;  but,  by  9  Q«o.  IV.,  c. 
29j  §  14,  the  necessity  of  empanelling  a  jury, 
where  the  accused  pleads  guilty,  is  dispensed 
with.  Where,  in  addition  to  the  general 
plea  of  not  guilty,  the  accused  means  to  insist 
on  some  special  defence,  he  must,  at  this  stage 
of  the  proceedings,  either  by  himself  or  his 
counsel,  state  generally  the  nature  of  the 
course  of  defence  he  means  to  adopt.  By  20 
Geo.  II.,  c.  43,  it  is  required,  that,  in^snch  a 
case,  the  accused  shall,  on  the  day  before 
his  trial,  lodge  with  the  clerk  of  Court  a  writ- 
ten statement  or  defence,  signed  by  himself 
or  his  counsel,  of  the  facts  he  alleges,  and  the 
heads  of  the  objections  or  defences  he  means 
to  maintain ;  and,  wherQ  such  a  defence  is 
not  lodged,  it  would  seem  that  the  prosecu- 
tor, on  the  day  of  trial,  may  at  least  insist 
on  having  an  outline  of  the  course  of  defence ; 
and,  accordingly,  in  all  cases  where  such  spe- 
cial defence  is  pleaded,  it  is  usual  either  to 
lodge  defences,  or  to  explain  the  nature  of  the 
defence  in  the  outset  of  the  trial.  A  list  of  any 
exculpatory  witnesses  must  also  be  lodged  the 
day  before  trial.  When  the  libel  is  remitted 
to  an  assize,  a  jury  of  fifteen  persons  from  the 
assize  of  forty-fire  is  ballotted  for ;  the  pro- 
secutor and  the  accused  having  each  of  them 
five  peremptory  challenges  and  an  unlimited 
number  of  challenges  upon  cause  shown ;  6 
Geo.  IV.,  c.  22.  As  to  the  mode  of  citing 
the  jury,  see  Jury.  The  jury  are  then  sworn 
in,  and  the  trial  proceeds, — ^the  prosecutor, 
in  ihefirtt  place,  leading  evidence  in  support 
of  the  libel,  after  which  the  exculpatory  evi- 
dence is  adduced.  After  the  proof  on  both 
sides  has  been  concluded,  the  counsel  for  the 
parties  address  the  jury,  on  the  import  of  the 
evidence,  the  counsel  for  the  accused,  except 
in  cases  of  treason,  having  the  last  word ;  Re- 
gulations, 1672,  No.  10.  The  presiding  judge 
then  sums  up  the  evidence,  and  states  the  law 
to  the  jury.  The  jury  need  not  be  unanimous 
in  their  verdict ;  and,  in  case  of  difference, 
the  majority  decide.  Formerly,  no  verdict 
of  a  jury  was  good  if  made  up  in  open  court ; 
but,  by  54  Geo.  III.,  c.  67,  the  Court  of  Jus- 
ticiary and  Circuit-courts  were  authorized  to 
receive  verdicts  from  the  jury,  by  the  month 


of  their  chancellor,  on  a  consultation  in  tlie 
jury-box,  provided  the  whole  jurymen  were 
agreed  in  their  verdict ;  and,  even  when  the 
jury  had  retired,  the  Court  was  antborized, 
by  the  same  statute,  to  receive  viva  voce  ver- 
dicts, provided  the  jury  were  all  agreed  in 
the  verdict,  and  that  the  judges  were  then 
sitting  in  Court.  And  now,  by  6  Geo.  IV,  «. 
22,  §  20,  all  verdicts  in  the  High  Coort  of 
Justiciary,  or  the  Circuit-court,  or  in  inferior 
courts,  whether  the  jury  are  unanimooi  or 
not,  and  whether  on  a  consultation  in  the 
jury-box,  or  after  having  retired,  may  be  re- 
turned by  the  mouth  of  the  chancellor  of  the 
jury,  unless  the  Court  has  directed  a  written 
verdict  to  be  returned.    But  where  the  jury 
is  not  unanimous,  the  chancellor  must  an- 
nonnce  the  fact  in  order  that  it  may  be  en- 
tered on  the  record ;  and  when,  in  such  cases, 
a  jury  is  inclosed,  the  jury  is  not  allowed  to 
separate,  or  to  hold  communication  with  other 
persons,  until  their  verdict  has  been  retnmed 
in  their  presence  by  their  chancellor.    The 
verdict  must  be  returned  to  the  Court  in  pre- 
sence of  the  accused  and  of  the  whole  jary. 
The  verdict,  when  in  writing,  is  authenticated 
by  the  sulMcriptions  of  the  chancellor  and 
clerk  of  the  jury,  and  accompanied  with  a  list 
of  the  names  of  the  jurors,  and  a  state  of  the 
vote  of  each  individual,  "  whether  condemn- 
ing or  assoilzieing ;"  Regviations,  1672,  No. 
9.    See  Verdict.    If  the  verdict  be  not  guHbf, 
or  not  proven,  or  in  any  other  way  amount  to 
an  absolvitor  of  the  crime  libelled,  the  aocnied 
is  immediately  dismissed  from  the  bar.    If 
the  verdict  be  condemnatory,  the  prosecutor 
then  moves  the  Court  to  apply  it.     If  there 
be  no  pleas  stated  by  the  accused  in  arrest  of 
judgment,  it  was  formerly  the  practice  for 
sentence  to  be  pronounced  by  the  presiding 
judge,  and  afterwards  read  out  by  the  clerk 
from  the  record,  and  subscribed  by  all  the 
judges  present.     Now,  however,  this  is  only 
necessary  in  cases  of  capital  sentence.     In  aU 
other  cases,  all  that  is  now  required  is  a  short 
entry  of  the  sentence  in  the  record,  signed  by 
the  clerk,  but  not  by  the  judge,  and  not  read 
out  by  the  clerk ;  11  and  12  Vid.,  c.  79,  § 
10;  and  Act  of  Adjournal,  1  Aug.  1849,  §  6. 
In   Scotland,  a  sentence  importing  capital 
punishment  cannot  be  carried  into  execution 
within  less  than  fifteen,  or  more  than  twenty- 
one  days  after  its  date,  if  pronounced  to  the 
southward  of  the  Forth,  or  within  leas  than 
twenty,  or  more  than  twenty-seven  days,  if  to 
the  north  of  that  river.    Inferior  corporal 
punishments  may  be  carried  into  execution 
after  the  lapse  of  eight  or  twelve  days  from 
the  passing  of  the  sentence,  according  as  it  is 
pronounced  on  the  south  or  north  of  the 
Forth ;llGeo.  I.,  c.  26, and  3  Geo.  II.,  e.  32 ; 
1  WiU.  IV.,  c.  37,  §  2.    See  Exectttion  <f  Sen- 


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Imca.  And  the  Conrt  of  Justiciary  has  a 
power  to  interfere  in  altering  the  day  for  the 
execution  of  sentences,  when  particular  cir- 
ennutances  render  such  an  interference  ne- 
eeasary ;  Hmne,  vol.  ii.  p.  473.  The  senten- 
ces of  the  Court  of  Justiciary  are  not  subject 
to  review,  or  to  appeal  to  the  House  of  Lords ; 
ud,  unless  the  royal  mercy  be  interposed, 
eieeation  will  follow  in  terms  of  the  sentence ; 
Htm,  vol.  ii.  p.  604.    See  Pardon. 

Tbe  account  of  criminal  process,  which  has 
BOW  been  given,  has  reference  to  proceedings 
is  the  High  Court  of  Justiciary  at  Edin> 
bwgh,  and  in  the  circnits  of  that  Court,  where 
the  forms  of  process  are  almost  precisely  si- 
milar. See  Circuit  Cowrt  of  Justiciary.  The 
iheriff  also  has  a  very  extensive  criminal  ju- 
liidietion,  extending  to  the  trial  of  many  of 
the  higher  crimes  by  means  of  a  jury,  and 
entitling  him  to  convict  summarily  without 
the  intervention  of  a  jury,  in  minor  offences ; 
the  privilege  of  summary  conviction  being  a 
brueh  of  the  criminsd  jurisdiction  of  the 
iheriff,  which  he  shares  with  justices  of  the 
peace  and  the  magistrates  of  royal  burghs. 
As  to  the  form  of  procedure  before  the  sheriff 
imder  criminal  libel,  see  16  and  17  Vict.,  c. 
80,  §  33,  et  seq.  With  regard  to  those  infe- 
rior jurisdictions,  it  may  be  observed  in  ge- 
oenJ,that,  where  express  statute  does  not  in- 
terfere, the  criminal  proceedings  in  all  of 
them  are  subject  to  the  review  of  the  High 
Court  of  Justiciary.  See. Sharif.  Justice  of 
Pttee.  Review.  Bill  of  Advocation.  BM  of 
StupentioH.   Circuit  Court.  Proeurator-Fiical. 

The  Court  of  Session,  partly  by  usage  and 
partly  by  statute,  may  take  cognizance  of  the 
crimes  of  forgery,  perjury,  deforcement,  frau- 
dulent bankruptcy,  contempts,  &c.  This  Conrt 
tries  and  punishes  those  offences  without  the 
iatervention  of  a  jury ;  and  itssentences  are  not 
•object  to  review  in  the  Court  of  Justiciary ; 
Emu,  vol.  ii.  p.  609.  But  the  criminal  juris- 
diction of  the  Court  of  Session  is  never  exer- 
cised, unless  where  the  offence  has  been  com- 
mitted or  discovered  in  the  course  of  proceed- 
ings in  a  civil  action  before  it ;  and,  even  in  that 
csee,  the  practice  now  is  to  remit  the  criminal 
part  of  the  ease  to  the  Court  of  Justiciary. 
See  Court  of  Setsion,    Contempt  of  Court. 

Ctiaiinal  Letters.  In  the  preceding  article 
it  has  been  stated  that  a  criminal  process  may 
he  brought  into  the  Court  of  Justiciary  either 
hy  criminal  letters,  or  by  indictment.  In 
&)nn,  criminal  letters  resemble  a  summons  in 
so  ordinary  civil  action.  They  run  in  the 
Sovereign's  name,  state  the  charge  laid  against 
the  accused,  and  the  conclusions  founded  on 
the  charge,  and  they  conclude  with  the  royal 
riB,  commanding  the  officers  of  the  law  to 
summon  the  accused  party  to  appear  on  a  day 
named,  and  find  caution  to  underlie  tbe  law. 


They  also  contain  a  warrant  for  citing  the 
witnesses  and  the  jury,  according  to  correct 
lists  which  accompany  the  criminal  letters. 
These  letters  pass  the  signet  of  the  Court  of 
Justiciary,  on  a  bill  presented  to  the  Court,  in 
which  the  tenor  of  the  criminal  letters  is  en- 

frossed  at  large.  The  bill  is  signed  by  the 
lord  Advocate,  or  some  of  his  deputies,  when 
he  is  the  sole  prosecutor ;  and,  when  the  pro- 
secution is  at  the  instance  of  a  private  party, 
the  bill  must  be  signed  by  the  party,  with  the 
Lord  Advocate's  conconrse.  A  deliverance 
on  the  bill,  signed  formerly  by  one  of  the  Jus- 
ticiary Judges,  now  by  one  of  the  clerks  of 
conrt  (11  and  12  Vict.,  c.  79,  ^  3),  authorizes 
the  criminal  letters  to  be  raised,  and  is  the 
warrant  for  their  passing  the  signet  of  tbe 
Court ;  Hume,  vol.  il  p.  164.  The  record 
copy  of  the  letters  may  now  be  printed  in 
whole  or  in  part ;  §  1  ^  said  stat.  As  to  the 
form  of  executingcrimioal  letters,  see  Criminal 
Prosecution.    See  also  Concourse.    Indictment. 

Criminal  Conversation;  is  the  technical 
term,  in  questions  of  divorce,  applied  to  the 
criminal  intercourse  of  the  party  charged  with 
incontinence.    See  Divorce. 

Cro;  in  the  Scotch  acts  of  Parliament, 
signifies  the  satisfaction  or  assythment  for  the 
slaughter  of  a  man.     Skene,  h.  t. 

Croft ;  in  England,  a  little  close  adjoining 
to  a  dwelling-house,  and  inclosed  for  pasture, 
or  arable,  or  any  particular  use.  TomMns' 
Diet.,  h.  t. 

Crop.  The  landlord  has  a  hypothec  over 
the  crop,  for  the  rent  of  the  year  of  which  it 
is  the  crop ;  and  so  long  as  that  crop  remains 
in  the  tenant's  possession,  the  right  continues 
in  force.  The  landlord,  under  his  right  of 
hypothec,  cannot  sequestrate  the  crop  of  any 
one  year,  in  security  or  payment  of  the  rent 
of  a  preceding  or  following  year,  although,  of 
course,  the  crop  on  the  ground,  like  any  other 
moveable  property  belonging  to  the  tenant, 
although  it  may  not  be  hypothecated,  may  be 
open  to  the  diligence  of  poinding  at  the  in- 
stance of  the  landlord,  as  an  ordinary  creditor. 
BelPs  Princ.  §  1239 ;  Bdl  on  Leases,  i.  362, 
et  seq.  430, 499,  613 ;  ii.  26 ;  Huntet's  Land- 
lord and  Tenant,  ii.  370.  See  Hypoihtc. 
Currents  termino.    Waygoing  Crop.    Furniture. 

Cropping.  An  important  clause,  termed 
the  clause  of  management,  is  now  generally  in- 
serted in  leases,  providing,  among  other  things, 
for  the  rotation  of  crops,  and  prohibiting  the 
taking  of  certain  crops  in  succession.  It  varies 
according  to  the  soil,  climate,  and  other  cir- 
cumstances of  the  farm.  But,  even  in  the 
absence  of  such  a  clause,  there  is  an  implied 
obligation  on  the  tenant  to  cultivate  accord- 
ing to  the  rules  of  good  husbandry  ;  and,  by 
the  common  law,  a  tenant  is  restrained  from 
deteriorating  a  farm   by  mis-labonring  or 

Digitized  byCjOOQlC 


24U 


CUL 


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plaee  through  the  paners  want  of  caution ; 
2,  When  the  panel  has  committed  slaughter 
vhile  prosecuting  an  illegal  act ;  3,  When 
the  panel  had  intent  to  do  some  bodily  harm, 
from  which  it  was  not  probable  that  death 
would  follow ;  and,  4,  W  hen  the  killer  was 
actuated  by  a  mort^  purpose,  arising,  not 
from  hatred  to  the  deceased,  but  from  sudden 
resentment  for  high  and  real  injuries  sus- 
tained, accompanied  by  such  terror  and  per- 
turbation of  spirits  as,  in  a  certain  sense, 
deprived  him  of  the  nse  of  reason.  The 
punishment  of  culpable  homicide  is  arbitrary, 
varying  from  imprisonment  for  a  few  weeks 
to  transportation  for  life.  Scourging  was,  in 
a  few  instances,  formerly  added.  Ewne,  i. 
191-3,  233-52;  Alison,  92,  ei  teq.;  BwneU, 
6, 14 ;  St^me,  255,  321 ;  SteeU,  76. 

Cnlpnt ;  is  an  English  law  term,  signifying 
a  prisoner  accused  for  trial ;  TomUns'  Diet. 

Cvlraoli ;  is  defined  by  Skene,  a  backburgh 
or  cautioner,  for  the  appearance  of  a  party 
who  has  been  repledged  from  one  Court  to  an- 
other; the  culrach  being  answerable  in  the 
event  of  wrongful  repledging;  Skene,  h.  L 

Cnmolo  Venation.  See  Teinds.  Valua- 
tion. 

CniiTiiTigharai ;  rabbit  warrens.  See  Rob- 
bits. 

Cnratory.  To  persons  who  of  themselves 
are  incapable  of  managing  their  affairs,  the 
law  affords  the  means  of  doing  so  by  the  ap- 
pointment of  curators.  The  powers  and  duties 
of  curators  differ  according  to  the  nature  of 
their  appointment,  and  the  condition  of  the 
parties  to  whom  their  curatory  extends. 
Their  several  denominations  may  be  classed 
under  these  heads, — 1.  Curator  to  a  minor. 
2.  Curator  to  an  idiot.  3.  Curator  bonis. 
4.  Curator  ad  litem. 

1.  Curator  to  a  minor.  A  minor,  until  he 
arrives  at  the  age  of  puberty,  has  no  persona 
standi  in  judicio ;  and,  therefore,  during  his 
pupillarity,  both  his  person  and  his  property 
are  placed  under  the  guardianship  of  tutors. 
See  Pupil,  also  T^Uor.  At  the  age  of  pu- 
berty, which  in  males  is  fourteen,  and  in  fe- 
males twelve  years,  a  minor,  although  he 
becomes  invested  with  certain  powers  in  the 
management  of  his  own  affairs,  is  stUl  held  to 
be  a  proper  object  of  the  protection  of  the  law 
against  deception  on  his  inexperience.  The 
father,  while  alive,  is  the  natural  guardian 
and  administrator-in-law  for  his  lawful  child- 
ren who  are  minors ;  the  father's  guardian-, 
ship  comprehending  the  characters  of  tutor 
to  his  children  while  they  are  pupils,  and  of 
curator  to  them  after  they  become  puberes, 
and  until  their  majority,  which,  in  both  sexes, 
is  fixed  at  twenty-one  years  of  age.  The 
natural  guardianship  of  the  father,  however, 
is  restricted  by  the  Scotch  law  to  those  child- 


ren who  are  not  forisfamiliated.  See  Foritf^. 
miliation.  It  vests  in  the  father  without  any 
form  of  legal  process ;  and  he  ia  exempted 
from  the  o^rvance  of  certain  formalities,  u 
well  as  from  the  strict  responsibility  required 
of  other  curators.  1st,  Ue  is  not  bound  to 
take  the  oath  de  fideli  administrations;  nor, 
2dly,  to  make  up  inventories;  nor,  Si^, to 
find  caution,  unless  where  he  is  in  embamis- 
ed  circumstances ;  and,  4thly,  he  is  not  held 
liable  for  omissions.  Although  the  curatory 
of  the  father  may,  with  his  own  consent,  hi 
superseded  by  the  minor  pubes  making  choieo 
of  other  curators,  in  the  manner  to  be  after- 
wards explained,  yet  this  cannot  be  done  by 
the  minor  without  the  concurrence  of  his  fa- 
ther as  curator.  But  the  father's  office  of 
administrator-in-law  is  excluded  where  pro- 
perty has  been  left  to  the  minor  under  other 
administrators,  or  exclusive  of  the  fsther'i 
administration;  and  upon  the  marriage  of  a 
daughter,  the  curatorial  office  is  by  law  trans- 
ferred from  the  father  to  the  husband,  if  be 
be  major,  although  it  will  revert  to  the  father 
if  the  husband  die  before  his  wife  attain  ma> 
jority.  When  the  minor  has  a  claim  against 
his  father,  a  curator  ad  litem  may  be  appoint- 
ed to  him.  The  father's  powers  of  adminis- 
tration have  been  extended  by  the  statate 
1696,  c.  8,  by  which  a  father  is  empowered, 
while  in  liege  poustie,  to  name  tutors  and  cu- 
rators to  act  for  his  children  afler  his  o*n 
death.  The  powers  conferred  on  caraton  so 
nominated  are  as  extensive  as  those  posseaed 
by  the  father  himself;  but  the  curators  ac- 
cepting the  office  subject  themselves  to  the 
same  formalities  and  responsibilities  which 
are  required  of  other  curators,  except  that 
they  are  not  bound  to  find  caution ;  and  no- 
der  the  statute,  their  nomination  may  contain 
a  declaration  that  they  shall  not  be  liable  for 
omissions  nor  singuli  in  solidum,  but  each  for 
his  own  actual  intromissions  only.  But  this 
power  of  dispensation  is  limited  by  the  statute 
to  the  means  and  estate  descending  from  the 
father  himself.  The  effect  of  the  statute 
being  to  confer  authority  upon  the  father  to 
delegate  and  continue  his  own  curatorial 
power,  a  nomination  by  him  precludes  any 
choice  of  curators  by  the  minor  himself,  un- 
less with  the  consent  of  the  curators  named 
by  his  father ;  Pitcaim,  Feb.  1731,  Mor.  p. 
16339 ;  Drumore,  27th  Jan.  1744,  KUL  p. 
586  ;  Jfor.  16349  ;  Ersk.  B.  i.  tit.  7,  §  U. 
A  father,  however,  has  not  the  same  power  to 
name  curators  to  his  natural  children,  who 
are  in  law  regarded  as  strangers  to  him; 
Wilson,  10th  March  1819,  Fac.  CoU. 

A  minor  whose  father  has  not  named  cu- 
rators may  take  the  management  of  his  es- 
tate upon  himself,  or  put  himself  under  the 
direction  of  curators,  in  the  manner  prescribed 


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bj  the  act  1555,  c  35.    This  act,  as  it  has 
been  judicially  interpreted,  requires  that  the 
minor  shall  cite  at  least  two  of  his  nearest  of 
kin  on  the  father's  side,  and  two  on  the  mo- 
ther's side,  personally,  or  at  their  dwelling- 
places,  and  all  others  having  interest,  edict- 
ally,  at  the  head  hurgh  of  the  jurisdiction 
witiiin  which  the  minor's  lands  lie,  to  appear 
before  his  own  judge  ordinary ;  Wcdlaee,  29th 
Jnly  1674,  Mor.  p.  16290.     In  case  the  mi- 
nor has  no  heritable  property,  the  publica- 
tion of  the  edict  is  made  at  the  head  burgh 
of  his  own  domicile.    On  the  day  of  appear- 
ance, the  minor,  in  presence  of  the  judge, 
chooses  his  curators;  and  such  of  them  as  are 
Tilling  to  undertake  the  o£Bce,  sign  their  ac- 
ceptance, take  the  oath  de  fideli  administra- 
tioae,  and  give  security  to  account  for  their 
intromissions.    Upon  this  being  done,  the 
jndge  interpones  his  authority  to  the  appoint- 
ment, and  an  act  of  curatory  is  thereupon  ex- 
tracted, which  is  sufficient  to  vest  the  legal 
powers  in  the  curator.    Curators,  whether 
nominated  by  the  father,  or  chosen  by  the 
minor,  are  required,  by  the  act  1672,  c.  2,  to 
make  up  a  complete  inventory  of  the  minor's 
estate,  of  which  inventory,  three  copies,  all 
signed  by  the  curators  and  the  next  of  kin  on 
both  sides,  must  be  judicially  produced  before 
the  minor's  judge  ordinary ;  and  after  being 
signed  by  the  clerk  of  court,  one  copy  is  given 
to  the  next  of  kin  by  the  father,  another  to 
those  by  the  mother,  and  a  third  to  the  cu- 
rators.   See  Inventory.    In  case  of  neglect 
to  comply  with  this  requisite,  the  statute  de- 
clares,— 1st,  That  the  curators  shall  not  be  al- 
lowed credit  for  any  expense  incurred  in  the 
minor's  affairs,  which,  by  Act  of  Sederunt, 
25th  Feb.  1693,  has  been  explained  to  mean, 
neh  expenses  as  have  been  laid  out  in  law- 
nits  and  legal  diligence ;  2d,  That  they  shall 
be  liable  for  omissions,  a  liability  to  which,  it 
may  be  observed,  that  they  are  at  any  rate 
rabject  at  common  law ;  and,  3d,  That  they 
may  be  removed  from  their  office  as  suspect. 
The  statute  farther  declares  that  curators 
shall  hare  no  power  to  act  until  the  inven- 
tories be  made  up.    Yet  a  payment  made  to 
a  curator,  who  had  not  made  up  inventories, 
was  sustained ;  Logan,  Dec.  1772,  cited  in 
A*fc,  B.  i.  tit.  7,  §  23.   When  a  minor  names 
cantors,  he  sometimes  declares  them  exempt 
fnm  liability  singuli  in  solidum;  but  it  has 
been  held  that  curators  cannot  be  so  exempted 
from  liability  for  omissions;  Watson,  16th  July 
1773,  Foe.  CoU.,  M.  16369 ;  and  the  efficacy 
of  an  exemption  from  any  of  the  legal  respon- 
nbilities  of  the  office  by  the  minor's  declara- 
tioa,  when  he  appoints  them,  is  extremely 
qnestionable. 

There  is  still  another  mode  by  which  mi- 
nors, in  the  management  of  their  property, 
4 


may  be  put  under  the  direction  of  adminis- 
trators, which,  although  it  does  not  appear  to 
faU  properly  under  the  character  of  curatoc}', 
has  yet  been  treated  in  our  law  books  under 
that  title.  A  person  making  a  gratuitous 
conveyance  of  property  to  a  minor  is  held 
to  be  entitled  to  appoint  curators  for  him,  to 
the  effect  of  managing,  on  his  behalf,  the  pro- 
perty BO  conveyed.  Such  an  appointment  can 
only  infer  a  partial  power  of  administration, 
which,  although  it  excludes  the  management 
of  ordinary  curators  as  to  the  property  so 
conveyed,  is  not  incompatible  with  the  exist- 
ence of  proper  curatoi-s,  either  by  the  father's 
nomination  or  the  minor's  choice.  A  stranger 
has  no  power,  either  at  common  law  or  by 
statute,  to  appoint  curators  to  a  minor ;  but, 
on  the  other  hand,  any  one  in  gifting  his  pro- 
perty is  entitled  to  annex  to  the  gift  whatever 
legal  conditions  he  may  think  proper  as  to 
the  administration  or  management  of  it.  And 
as  the  deed  under  which  administrators  ap- 
pointed in  this  manner  are  to  act,  must  itself 
show  the  extent  of  the  property  placed  under 
their  management,  it  seems  not  to  be  clear 
that  curators  so  appointed  (if  they  can  be 
called  curators),  are  bound  to  make  up  in- 
ventories, or  to  comply  with  the  other  statu- 
tory requisites.  It  rather  appears  that  they 
are  to  be  regarded  as  ordinary  managers, 
liable  to  be  called  to  account  by  the  proper 
curators  of  the  minor.  Accordingly,  it  has 
been  held  that  a  nomination  of  this  kind  does 
not  prevent  the  minor  from  choosing  curators 
for  himself.  This  was  decided  in  a  case  where 
the  minor  was  a  natural  child,  and  where  the 
nomination  of  administrators  was  made  by  the 
reputed  father;  Wikon,  10th  March  1819, 
Fac.  Coll. 

Although,  after  curators  have  been  ap- 
pointed, their  consent  is  essential  to  the  vali- 
dity of  every  act  of  the  minor,  yet,  a  minor 
to  whom  no  curators  have  been  nominated, 
and  who  has  not  chosen  curators  for  himself, 
may  do  every  act  which  the  consent  of  cura- 
tors, if  he  had  any,  would  warrant ;  and  the 
interposition  of  curators  will  not  protect  the 
acts  of  the  minor,  from  any  challenge  to 
which  they  would  have  been  liable,  had  they 
flowed  from  a  minor  without  curators.  Thus, 
in  both  cases,  the  deeds  of  a  minor  may  be 
reduced  on  the  head  of  lesion.  See  Minor. 
Curators,  whether  nominated  by  the  father  or 
chosen  by  the  minor,  must  be  governed  as  to 
their  manner  of  proceeding  by  the  tenor  of 
their  appointment.  In  general,  the  minority 
are  entitled  to  act,  unless  a  certain  number 
has  been  declared  to  be  a  quorum,  or  one  of 
the  curators  named  nn«  ^  non;  and  in  these 
cases,  the  quorum,  or  tine  quo  non,  must  accept 
and  continue  to  act,  otherwise  the  nomination 
falls.  A  curator  sine  quo  non  cannot  act  byhim- 


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self,  bat  he  has  a  negatiTe  on  the  acts  of  the 
other  curators ;  Vere,  1st  June  1791;  Mor. 
16,378 ;  Befft  Prine.  §  2064.  See  Quorum. 
Sine  quo  non. 

The  object  of  the  cnratorial  office  being  the 
control  and  management  of  the  minor's  af- 
fairs, it  is  the  duty  of  the  carators  to  advise 
with  the  minor  as  to  all  deeds  required  to  be 
granted  by  him,  and  to  concur  with  him  in 
snch  as  are  proper;  and  any  deed  granted, 
or  contract  entered  into,  without  their  con- 
sent, is  null  by  way  of  exception,  in  so  far  as 
the  minor  is  concerned;  although,  if  bene- 
ficial for  the  minor,  it  may  be  held  obligatory 
on  the  other  contracting  party.  For  a  minor, 
even  without  the  consent  of  his  carators,  may 
better  his  condition,  although  he  may  be  re- 
poned  against  transactions  which  make  it 
worse;  SteiV.B.  i.  tit.  6,  §  33 ;  Enk.  B.  i.  tit. 
7,  §  88.  On  the .  other  hand,  the  curators 
cannot  act /or  the  minor,  who  is  himself  vested 
in  the  right  of  his  own  property ;  they  can 
merely  authorize  his  acts  by  their  consent.  If, 
however,  the  minor  will  not  act  as  his  cura- 
tors advise,  they  may  apply  for  exoneration 
from  their  office.  It  is  not  the  duty  of  cara- 
tors to  dispose  of  the  minor's  property,  unless 
under  circumstances  of  necessity,  or  where 
the  transaction  is  for  the  manifest  advantage 
of  the  minor ;  and,  in  such  uircnmstances,  cu- 
rators have  frequently  applied  to  the  Court 
of  Session  for  their  sanction  to  any  extraordi- 
nary step  of  this  kind ;  but  the  Court  have 
refused  to  interpone  their  anthority  as  "  un- 
necessary," on  the  ground  that  "  the  minor 
and  his  carators  oonld  sell  without  judicial 
anthority,  and  that  no  decree  of  the  Court 
could  prevent  a  reduction  by  the  minor;" 
Wallace,  8th  March  1817,  Fae.  CcU.  See  /«- 
dicial  Factor.  Such  is  the  rule  of  law,  so  far 
as  relates  to  the  disposal  or  transference  of 
the  minor's  property ;  but,  in  the  general 
management  of  the  minor's  affairs,  a  wider 
power  seems  to  be  intrusted  to  carators.  Thus, 
although  they  cannot  by  themselves  grant 
discharges  for  money,  which  has  been  invested 
on  behalf  of  the  minor,  it  rather  appears  that 
they  may  of  themselves  receive  the  interest ; 
and  further,  when  the  money  has  been  up- 
lifted, they  are  intrusted  with  the  disposal 
and  reinvestment  of  it.  In  like  manner,  they 
are  entitled  to  uplift  rents  falling  due  from 
the  minor's  estate,  and  even  to  grant  leases. 
There  is  this  distinction,  however,  to  be  ob- 
served, that  a  lease  granted  by  curators  alone, 
necessarily  determines  with  their  office,  Ruo- 
luto  enim  jure  dantit  resolvitur  jus  aceipieniis ; 
while  a  lease  by  a  minor  himself,  with  consent 
of  his  curators,  will  be  as  effectual  for  the 
whole  stipulated  period  of  endurance,  as  it 
would  be,  if  granted  after  a  majority,  pro- 
vided there  be  no  objection  on  the  head  of 


lesion ;  ErA.  B.  i.  tit.  7,  §  16.  It  is  the  dutj 
of  curators  to  see  that  the  title-deeds  sod 
writings  belonging  to  the  minor  are  preserred, 
and  his  titles  completed.    Such  of  his  more- 
ables  as  cannot  be  preserved  must  be  disposed 
of;  and  the  curators  will  be  liable  for  any 
damages,  arising  from  neglect  in  either  of 
those  points.    The  curators  must  pay  off  til 
burdens  affecting  the  estate  of  the  minor,  and 
perform  the  acts  which  the  minor  is  bonnd  to 
perform.     They  must  see  the  minor's  money 
lent  out  on  good  securities,  and  draw  the  inte- 
rest of  the  money  and  rents  of  the  heritage 
regularly  as  they  fUl  due ;  and,  in  so  &r  is 
those  exceed  the  annual  expense  of  thenunor, 
the  surplus  must  be  lent  out  on  proper  seen- 
rities;  and  where  the  minor  has  reeeired 
interrat,  rents  or  principal  sums  from  hia 
debtors,  withont  the  curators'  consent,  they 
most  prosecute  the  debtors  for  payment,  as  if 
no  snch  payments  had  been  made  to  the  minor, 
unless  the  money  has  been  profitably  em- 
ployed for  the  minor's  use ;  Stair,  B.  i.  tit. 
6,  §  33 ;  Erik.  B.  i.  tit  7,  §  33.    The  mle 
with  regard  to  the  laying  out  of  money  re- 
covered by  the  curators,  seems  to  be  tiiis : 
When  the  money  arises  from  moveables  sold, 
a  year  is  allowed  for  recovering  the  prioe, 
and  procuring  proper  securities ;  where  rents 
are  payable  in  grain,  the  same  period  is  al- 
lowed ;  where  the  rent  is  payable  in  mooej, 
half  a  year  only  is  given  ;  but  although  the 
accruing  interest  on  money  lent,  over  and 
above  what  is  neeeesary  for  a  pupil's  annnal 
expenses,  must  be  brought  into  a  capital  Ban, 
either  before  or  at  the  expiration  of  the  office 
of  tutory,  curators  are  under  no  snch  obliga- 
tion.   It  is  sufficient  that  the  money  remain 
in  the  hands  of  the  debtors,  undrawn  by  the 
curator ;  if  it  have  been  drawn,  it  ought  to 
be  laid  out  within  a  reasonable  time.    Cura- 
tors may  better  the  minor's  condition,  by  con- 
verting moveable  debts  into  theritable ;  bat 
they  cannot,  by  any  act  in  which  the  minor 
does  not  take  a  part,  make  any  change  on  the 
nature  of  the  succession  to  the  minor.    Snch 
debts  will  remain  moveaible  as  to  succession ; 
Ersl.  B.  i.  tit.  7,  §  18.    See  also  Ross,  Slst 
Jan.  1793,  Mor.  p.  5645 ;  Oraham,  6th  March 
1798,  Mor.jf.  6599;  and  Morton,  11th  Feh. 
I^IZ,  Fae.  CM.    Curators  are  allowed  to  em- 
ploy, not  only  the  annnal  income  of  the  mi- 
nor's estate  on  his  education  and  maintenance, 
but,  should  it  be  requisite,  they  may  encroach 
on  the  principal,  in  order  to  put  the  minor 
into  a  profession,  or  to  establidi  him  in  life ; 
Ersk.  B.  i.  tit.  7,  §  24.    Curators  have  no 
control  over  the  minor's  person.    A  minor 
puhes  may  marry  without  the  consent  of  the 
curators,  but  cannot  make  any  conventional 
provisions  by  marriage-contract  without  their 
concurrence.     A  minor  may  also  bequeath 


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hii  moTesble  estate  by  teiriiament,  without  the 
eoDMnt  of  hiB  curators ;  but  he  cannot,  even 
with  their  consent,  make  a  settlement  of  his 
heritage;  Ersk.  B.  i.  tit.  7,  §  14  and  33. 
Cnrators  are  liable  smyrtU  in  solidvm  for  their 
intromissions  and  for  diligence,  unless  where 
this  responsibility  is  restricted  in  the  manner 
ab-eady  explained.    They  are  entitled  to  no 
salary  or  allowance  for  their  trouble ;  but  it 
has  been  held,  that  they  may  appoint  a  factor 
with  a  proper  salary ;  Erdc.  ib.,  §  16 ;  Lord 
MaeioMid,  13th  Not.  1780,  Mot.  p.  13437. 
In  no  case  can  a  curator  be  aiutor  tn  rem 
pum;  Ertk.  ib.  §  19.  Any  one  of  full  age  may 
eompetently  be  appointed  to  the  office  of  cura- 
tor, excepting  married  women,  who,  by  law,  are 
tkenuelves  placed  under  the  curatory  of  their 
husbands;  .»wfc.E.i.  tit.  7, §12.  Hence,  where 
u  unmarried  woman  has  been  nominated,  and 
has  acted,  her  office  falls  on  her  marriage.  Pro- 
eoratoiB, — that  is,  persons  who,  without  any 
legal  title,  hare  taken  upon  themselves  to  act 
in  the  capacity  of  curators, — are,  by  act  of  Se- 
iennt,  10th  Jnne  1665,  subjected  to  the  same 
liability  in  all  points,  with  proper  curators ; 
Bnk  ih.  §  28.  See  on  the  subject  of  this  article, 
Sittir,  B.  i.  tit.  6,  §  29,  et  toq. ;  ErsL  B.  i.  tit. 
7, 5  11,  a  teq.;  Ersk.  Princ.  12th  edit  90-91 ; 
AmtToL  i.  p.  17 4,  et  teq. ;  BeU's  Frinc  §  2087, 
^  uq. ;  ShaneTs  Prac  141,  560,  et  teq. ;  Brown 
M  Sale,  p.  194.    See  also  Minor. 

2.  Cwrator  to  an  idiot  or  to  an  intane  perton. 
Idiots  or  insane  persons  are  another  class 
to  whom  the  law  of  Scotland  provides  cura- 
Un.  It  does  not  appear,  however^  that  the 
panots  of  such  persons  have,  tjpso  jwe,  any 
ri^t  of  administration  for  them  after  they 
attain  m^ority.  Neither  is  there  any  in- 
stance of  a  testamentary  nomination  of  such 
curators,  although  Erskine  seems  to  think 
this  competent  in  our  law,  as  it  was  in  the 
Soman  law ;  Ertk.  B.  i.  tit.  7,  §  49.  The 
oethod  pointed  out  by  our  law,  for  declaring 
fatnity  or  furiosity,  is  by  a  brieve  issuing 
from  Chancery,  directed  to  the  judge  ordinary 
of  the  territory  within  which  the  person  re- 
sides. The  judge  is  directed  to  hold  an  in- 
qmst,  f<H-  inquiring — 1st,  Into  the  state  of 
■iad  of  the  person;  and  2d,  Who  is  the 
next  male  agnate  on  whom  the  office  of  cura- 
tory may  be  conferred.  The  person  to  be 
cegngaeed  most  be  brought  before  the  inquest; 
ikuar,  26th  Feb.  1809,  Foe.  Coll. ;  and,  by 
tiie  act  1475,  c  66,  the  verdict  of  the  jury 
■■st  state,  not  only  his  present  condition  of 
■ind,  but  how  long  he  has  been  fatuous  or 
iasue.  The  same  statute  declares  that  no 
alienation  made  by  him,  after  the  time  fixed 
by  the  inquest  as  the  commencement  of  his 
distemper,  ahall  be  valid.  It  may  be  observed, 
however,  that  the  verdict  of  the  inquest,  fix- 
ing retro^ectively  the  date  of  the  insanity. 


will  not  preclude  a  person  interested  in  any 
deed,  falling  within  the  period,  from  proving 
that,  at  the  date  of  that  particular  deed,  the 
granter  was  of  sane  mind.  The  only  effect 
of  the  verdict  seems  to  be,  to  reverse  the  or- 
dinary presumption  of  sanity,  and  to  lay  the 
burden  of  proving  the  sanity  of  the  granter 
on  the  person  who  founds  on  the  deed.  The 
next  male  agnate  of  twenty-five  years  of  age, 
who  is  himself  capable  of  managing  his  own 
affairs,  is  the  person  entitled  to  the  office; 
1474,  c.  52,  and  1585,  c.  18.  The  guardian- 
ship of  insane  persons,  although  generally 
treated  of  under  curatory,  seems  rather  to  cor- 
respond with  tutory.  The  curator  to  an  idiot 
is  intrusted  with  the  charge  of  the  person, 
as  well  as  the  estate  of  his  ward ;  and  a  per- 
son under  such  guardianship,  being  incapable 
of  will  or  consent,  the  curator  mnst  transact 
everything  in  his  own  name.  In  every  other 
respect,  the  powers  and  duties  of  the  office 
are  similar  to  those  which  have  been  already 
explained  in  treating  of  cnrators  to  a  minor. 
The  persons  entitled  to  institute  proceedings 
for  having  a  curator  appointed  to  an  insane 
person,  are  his  next  of  kin ;  and  the  curator- 
at-law  is  the  nearest  male  agnate,  except 
where  a  wife  is  fatuous,  in  which  case  the 
husband,  as  her  administrator-in-law,  excludes 
&gneAea;HaliburUm,  June  1791 ;  Mor.  p.  16379. 
Curators  to  insane  persons  are  subject  to  the 
provisions  of  12  and  13  Vict.,  c.  51*  See  also 
Ersk.  B.  i.  tit.  7,  §  50 ;  Bell's  Princ.  §  2104, 
et  teq. ;  Jurid.  Styles,  4th  edit.  vol.  i.  p.  308. 
3.  Curator  bonit.  Where  an  heir  is  deli- 
berating whether  or  not  he  shall  enter, — or 
where  an  infant  is  without  tutors, — or  where 
a  succession  opens  to  one  who  is  resident 
abroad, — or  where  a  person  is  labouring  under 
some  temporary  incapacity  to  conduct  his  own 
affairs, — ^and  in  other  cases  of  a  similar  de- 
scription,— the  Court  of  Session  may  appoint  a 
curcUor  bonit  to  manage  and  preserve  the  pro- 
perty, until  the  person  to  whom  it  belongs  is 
in  a  situation  to  act  either  for  himself  or  by 
means  of  other  managers.  Curators  bonis  are 
also  named  for  the  management  of  trust- 
estates,  where  the  trustees  have  all  declined 
to  accept,  or  cannot  legally  do  so.  The  office 
of  curator  bonit  is  conferred  by  the  Court  on 
a  summary  application,  when  unopposed,  on 
the  production  of  medical  certificates ;  but  if 
opposed  and  counter  medical  certificates  are 
produced,  inquiry  will  be  requisite.  See 
Loekhart  v.  Moss,  July  17,  1857,  19  D. 
1075.  The  curator  so  appointed  is  subjected 
to  all  the  rules  prescribed  by  the  act  of  Se- 
derunt, 13th  Feb.  1730,  relative  to  judicial 
factors ;  and  a  curator  bonis  for  imbecile  or 
absent  persons  is  subject  to  the  provisions  of 
12  and  13  Vict.,  c.  51.  See  Ertk.  B.  ii. 
tit.  12,  §  58 ;  Bank,  vol  i.  p.  179 ;  Kamei' 

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Prme.  of  SquUif  (1925),  124U.    See  Judicial 
Factor. 

4.  Curator  ad  litem.  Judicial  proceedings, 
in  wliich  a  minor  is  interested,  may  be  of  so 
serious  importance  to  him,  that,  in  every 
case,  our  lav  requires  that  a  curator  for  the 
minor  be  made  a  party.  Where  the  minor 
has  already  curators,  they  are  his  proper  ad- 
Tisers  in  the  law-suits  in  which  be  may  be 
engaged,  and  must  be  cited  along  with  him; 
M'Twk,  7th  Feb.  1815,  Fac.  CoU.  Where  the 
minor  has  no  tutors  or  curators,  it  is  neces- 
sary not  only  that  tutors  and  curators  be 
cited  edictally,  but  also,  when  appearance  is 
made  for  the  minor,  that  a  curator  ad  litem 
be  appointed  for  him  ;  and,  if  this  be  omitted, 
any  decree  tn  foro  against  the  minor  may  be 
opened  up  as  a  decree  in  absence ;  Sinaair, 
16th  Jan.  1828,  6  S.  and  D.  336 ;  Dick,  15th 
May  1828,  6  S.  and  D.  798,  and  5th  Feb. 
1829,  7  S.  and  D.  364.  In  like  manner,  if 
a  minor  be  engaged  in  a  law-«uit  with  his 
tutors  or  curators,  or  a  wife  in  a  suit  with  her 
husband,  a  curator  ad  litem  must  be  ap- 
pointed to  conduct  the  process.  The  appoint- 
ment is  made,  on  the  motion  of  either  party, 
by  the  judge  before  whom  the  process  already 
depends.  The  Court  will  not  appoint  a  cu- 
rator to  concur  in  raiting  an  action.  The  ap- 
pointment is  confined  to  the  particular  suit 
in  which  it  is  made ;  and  the  curator  ad  litem 
appears  at  the  bar,  and  takes  the  oath  de 
JuMi  administratione,  of  which  proceeding  a 
minute  is  made  by  the  clerk  of  Court,  which 
completes  the  curator's  title.  A  curator  ad 
litem  having  no  authority  to  intromit  with  the 
minor's  estate,  is  not  under  the  necessity  of 
finding  caution ;  nor  is  he  liable  for  the  ex- 
penses of  Process;  Frater,  9th  March  1847, 
IX.  D.  903.  Where  a  motion  for  the  appoint- 
ment of  a  curator  ad  litem  is  not  made  by 
either  party,  the  judge  ought  to  make  the 
appointment  ex  propria  motn;  Ersk.  £.  i.  tit. 
7. 1 13.  See  also  Stair,  B.  i.  tit.  6,  §  31,  and 
Bank,  vol  i.  p.  175.  See,  on  the  subject  of 
curatory  generally,  More't  Notes  to  Stair,  pp. 
xvi.  xxxriii.,  et  teq.,  Ixxvi. ;  BeHft  Com.  5th 
edit.;  BfU's  Pr«B«.§^2087,  «<  uq.;  Watton's 
Stat.  Lata,  h.  t.;  Kama'  Prine.  of  Equity, 
(1826),  467,  490. 

Cwatorial  InTentory.    See  Inventory. 

Cnrfen;  in  England,  a  bell  which  rang  at 
eight  o'clock  in  the  evening,  in  the  time  of 
William  the  Conqueror ;  on  hearing  which 
every  person  was  obliged  to  rake  up  or  cover 
over  hit  fre,  and  put  out  his  light.  Tomlint' 
Diet.  h.  t. 

Curia;  a  court  civil  or  ecclesiastical. 
Skene,  h.  t. 

Cnrialitas;  the  courtesy  of  Scotland. 
Skene,  h.  t.    See  Courtety. 

Cnrrente  Temuno ;  in  reference  to  leases, 


means  "during  the  currency  of  a  tera." 
Poinding  currente  termino  may  be  warrsntsblj 
stopped  by  sequestration  under  the  landlord's 
hypothec,  unless  the  creditor  offers  consigna- 
tion, or  BufSoient  security  for  the  hypotheMted 
rent.  In  the  general  case,  the  bmdlord  can- 
not apply  for  sequestration  currente  tenmt, 
or  before  the  rent  falls  due ;  but  he  may  do 
so  on  cause  shown.  It  has  been  doubted 
whether  the  furniture  of  a  dweUlng-hoose 
can  be  sequestrated  current  termino,  even  al- 
though the  tenant  be  vergent  ad  itiopiam,  since 
a  dwelling-house  cannot  be  possessed  without 
furniture.  Bell  on  Leatet,  i.  369, 3S9 ;  iu  25 ; 
Hunter,  ii.  377,  404. 

Curnng  of  Ood.  Those  who, "  not  being 
distracted  in  their  wits,"  rail  upon,  or  curse 
God,  or  any  of  the  persons  of  the  Blessed 
Trinity,  are,  by  1661,  c.  21,  punishable  with 
death.    Hume,  vol.  i.  p.  568. 

Ouning  of  Farentt.  The  statute  1661, 
0.  20,  provides  the  punishment  of  death  for 
every  child  above  the  age  of  sixteen  year^ 
who,  not  being  distracted,  shall  curse  or  beat 
a  parent.  Children  under  that  age,  and  past 
pupilarity,  who  may  be  guilty  of  this  offence, 
are  punishable  arbitrarily.  It  seems  to  be  a 
good  defence  against  the  capital  charge,  that 
the  parent  has  provoked  the  injury  by  treat- 
ing the  child  with  unreasonable  harshness 
and  severity.    Hume,  i.  324. 

Curtiiig  and  Sweaiing.  The  offence  of 
profane  cursing  and  swearing  is  punishable 
by  certain  pecuniary  penalties,  proportioned 
to  the  rank  of  the  offender ;  and,  on  failure 
to  pay,  by  imprisonment,  or  setting  in  the 
stocks,  or,  in  cases  of  obstinate  perseverance 
in  the  offence,  by  banishment.  The  statutes 
imposing  the  penalties  are,  1551,  c  16,  and 
1581,  c  103.  The  more  recent  statutes  are, 
1661,  0. 19,  and  1661,  c.  38,  f  25,  by  which 
the  execution  of  those  laws  is  particularly 
committed  to  justices  of  the  peace ;  and,  by 
1696,  c.  31,  it  is  made  competent  for  any  per- 
son to  pursue.  Hume,  vol.  i.  p.  572 ;  HutA. 
Juttiee  0^  Peace,  vol.  iii.  p.  332, 2d  edit. 

Cnnmg,  Letten  o£  Letters  of  excom- 
munication were  anciently  termed  letten  of 
cursing.  Those  letters  passed  on  the  decrees 
of  Church  courts ;  and,  if  the  person  against 
whom  they  were  directed  remained  for  forfy 
days  contumacious  and  unrepentant,  letters  of 
caption  were  issued  against  him  at  the  King's 
instance,  not  on  account  of  his  failure  to  pay 
or  perform  in  terms  of  his  obligation,  but  as 
a  punishment  for  his  impious  contempt  of  the 
censures  of  the  Church.  At  the  Eeformatira, 
letters  of  cursing  were  abolished,  along  with 
the  ecclesiastical  system,  of  which  they  formed 
a  part ;  and  afterwards,  on  the  establishment 
of  the  commissary  courts  in  1563,  the  place 
of  letters  of  cursing  was  supplied  by  letten  of 


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horning  and  caption,  which  the  Court  of  Ses- 
sion was  directed  by  Queen  Mary  to  award  on 
the  decrees  of  the  commissaries.  Ross's  Led. 
ToL  i.  p.  100  and  269;  Jurid.  Styles,  2d 
edit.  iii.  570.  See  also  Balfour's  Praetkks,  p. 
564. 

Custom  or  Customary  Law;  is  the  un- 
written law  of  the  country,  founded  on  imme- 
morial custom,  in  contradistinction  to  the 
statutory  or  mritUn  law,  as  it  is  termed.  Cus- 
tomary law  derives  its  force  from  being  con- 
sidered as  the  implied  ordinance  of  the 
legislative  power.  Uniform  custom  has,  in 
some  respects,  the  same  effect  with  express 
statute ;  thus,  it  will  afford  a  rule  in  inter- 
preting statutes  contrary  to  the  words  of  the 
enacteent ;  and  an  immemorial  and  uniform 
enstoffl  to  the  contrary  will  even  have  the 
effect  of  abrogating  a  statute.  Ersk.  6.  i.  tit. 
1,  §  30,  43,  et  seq.;  Bank.  vol.  i.  p.  24 ;  BeWs 
Cm.  vol.  i.  p.  433,  5th  edit. ;  Brown's  Synop. 
tit  Cvametttde,  and  pp.  308,  1105  ;  Shavfs 
Digest,  tit.  Consuetude.  See  also  Desuetude. 
Usage.    Decisions. 

Customs ;  are  duties  imposed  by  authority 
of  Parliament  on  the  importation  and  espor- 
tatioD  of  certain  commodities.  Those  duties 
depend  upon  the  particular  statutes  in  force 


at  the  time,  and  vary  with  the  exigencies  of 
the  state,  or  with  the  views  of  policy  which 
may  render  it  expedient  to  encourage  or  dis- 
courage particular  exports  or  imports.  By 
the  Treaty  of  Union,  the  laws  in  relation  to 
customs  are  made  the  same  in  Scotland  as  in 
Eiigland.  In  1845  a  consolidation  of  the 
whole  laws  relative  to  the  customs  was  effected 
by  eleven  separate  acts  of  Parliament,  which 
form  8  and  9  Vict,  c.  84  to  c.  94  iuclusive. 
See  Barclays  Digest,  h.  t. 

Cnstos  Sotulomm ;  the  keeper  of  the  rolls 
or  records  of  the  county;  the  officer  intrusted 
with  the  custody  of  the  rolls  of  the  sessions  of 
the  peace,  and  also  of  the  commission  of  the 
peace.  He  is  always  a  justice  of  the  peace  of 
the  quorum  of  the  county,  and  generally  some 
person  of  quality.  He  is  appointed  by  a 
writing,  signed  by  the  Sovereign,  which  is  a 
warrant  to  the  Lord  Chancellor  to  put  him 
on  the  commission.  He  may  execute  his  office 
by  deputy,  and  has  power  to  appoint  the  clerk 
of  the  peace;  Tomlin^  Diet.  This  office  is  not 
now  in  use  in  Scotland,  although  it  is  men- 
tioned in  the  statutes  1617,  c.  18,  and  1661, 
c.  38,  and  also  in  Cromwell's  instructions  to 
the  justices  of  the  peace.  ZfutcA.  Justice  of 
Peace,  B.  i.  o.  1,  §  10. 


D 


SaOyConnelL  By  the  act  1503,  c.  58,  the 
power  which  had  been  formerly  vested  in  the 
&utim-w88  transferred  to  a  new  court,  to  be 
named  by  the  King,  called  the  Daily  Council, 
which  was  appointed  to  hold  its  sittings  at 
Edinburgh,  or  where  the  King  should  direct, 
for  the  purpose  of  deciding  in  civil  causes, 
daily  as  they  should  occur.  This  was  the 
court  which  immediately  preceded  the  insti- 
tution of  the  College  of  Justice,  and  from 
which  the  present  court  derives  its  title  of 
"Council  and  Session."  Stair,  B.  iv.  tit.  1, 
5  18;  Ersk.  B.  i.  tit.  8,  5  11.  See  College  of 
Justice.    Session,  Court  of. 

Damages.  In  legal  phraseology,  the  term 
damages  is  usually  applied  to  the  pecuniary 
reparation  due  for  loss  or  injury  sustained  by 
one  person,  through  the  fault  of  another. 
Every  illegal,  unwarrantable,  or  malicious 
set,  whether  fraudulent  or  not,  by  which  an- 
other is  injured,  either  in  his  patrimonial 
interests,  or  in  his  person  or  feelings,  founds 
a  civil  claim  for  damages 'against  the  person 
who  has  caused  the  loss  or  injury.  This  claim 
may  bo  grounded  on  a  breach  of  contract,  or 
on  a  crime  or  delict,  or  quasi  delict,  or  on  any 
hlameable  omission  or  neglect  of  duty ;  the 
fivil  claim  for  reparation,  at  the  instance  of 
the  private  party  who  has  suffered,  not  being 


incompatible  with  proceedings  ad  vindietam 
publicam,  at  the  instance  of  the  private  party, 
or  of  the  public  prosecutor.  Damages  for 
breach  of  contract  are  due  only  where  it  is  im- 
possible to  enforce  specific  performance ;  for  it 
is  not  optional  to  the  obligant  to  perform  his 
obligation,  or  to  pay  damages ;  and  even  where 
a  specific  penalty  is  annexed  to  a  failure  in  per- 
formance, so  long  as  performance  is  possible, 
the  debtor  in  the  obligation  is  not  entitled. to 
pay  the  penalty,  and  so  to  get  quit  of  his  obli- 
gation. The  damages  cover  the  loss,  together 
with  the  expense  of  the  proceedings  necessary 
for  obtaining  reparation ;  but,  where  there  is 
no  fraud  or  delinquency,  remote  or  consequen- 
tial damages  will  not  be  giveu.  Where.forex- 
ample,  the  claim  is  founded  on  a  failure  to 
pay  a  sum  of  money,  the  principal  sum,  with 
the  legal  interest,  is  all  that  can  be  demanded 
as  damages;  not  the  possible  profit,  which 
the  creditor  might  have  derived,  from  the  use 
of  the  money,  had  it  been  paid  in  terms  of  the 
obligation.  In  the  same  manner,  where  a 
a  particular  subject  has  been  lost,  destroyed, 
or  injured,  without  fraud  or  criminality,  the 
person  who  has  sustained  the  loss,  in  claiming 
reparation,  must  estimate  the  subject  at  its 
real  value,  and  not  at  the  pretium  afectionis, 
or  imaginary  value,  which  he  may  himself 

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put  upon  it.  Where,  on  the  other  hand,  the 
loss  or  injury  has  arisen  from  fraud  or  delict, 
the  sufferer  is  not  only  entitled  to  demand  a 
pretium  afectionit,  but  may  insist  for  conse- 
quential damages,  subject  to  the  modification 
of  a  judge  or  of  a  jury.  Culpable  neglect  or 
ignorance,  without  any  positive  criminality, 
is  also  a  ground  for  damages.  Thus,  a  jailer 
who,  through  negligence,  sdlows  an  imprisoned 
debtor  to  escape,  will  be  liable  for  damages ; 
which  will  be  estimated  at  the  full  amount  of 
the  debt,  even  although  the  debtor  may  have 
been  utterly  bankrupt.  In  like  manner,  a 
clerk  of  Court  will  be  liable  in  damages  if, 
through  carelessness,  he  lose  the  documents 
produced  by  a  party  in  a  process.  So  also, 
if  a  coal-pit  be  left  improperly  fenced,  or  if  an 
opening  be  made  in  the  streets  of  a  town, 
without  due  precautions  being  taken  to  guard 
against  accidents,  the  proprietor  of  the  coal- 
pit, or  the  magistrates  of  the  burgh,  will  be 
liable  in  damages  for  any  loss  or  injury  which 
may  arise  from  such  neglect ;  Black,  9th  Feb. 
1804,  Mor.  p.  13905 ;  ajirmed  on  appeal,  20th 
Feb.  1812 ;  Inna,  6th  Feb.  1790,  Mor.  p. 
13189.  A  professional  person,  or  an  artist, 
or  a  tradesman,  on  the  samo' principle,  is  liable 
for  damages  occasioned  by  his  ignorance  or 
want  of  skill  in  his  calling.  As  to  injuries 
done  by  domesticated  animtds,  or  by  animals 
which  have  been  appropriated,  our  law  is  not 
so  well  digested  as  the  Roman  law  was.  By 
that  law,  when  cattle  were  driven  illegally 
into  pastures,  the  driver  was  responsible  for 
the  diEimages :  when  they  strayed  in,  of  their 
own  accord,  the  action  lay  against  their  owner. 
He  who  provoked  an  animal  until  it  hurt  him, 
had  no  claim  for  reparation ;  but  if  the  ex- 
cited animal  injured  some  one  else,  the  pro- 
voker was  liable.  The  owner  of  an  animal 
which,  unprovoked,  inflicted  bodily  iiyury  on 
some  one,  was  liable  in  damages.  In  case  of 
a  scuffle  between  two  animals  in  a  pasture,  in 
which  one  of  them  was  slain,  no  action  was 
competent,  either  when  it  was  not  ascertained 
which  of  them  was  the  aggressor,  or  when  it 
was  known  that  the  slain  animal  was  the 
aggressor.  But  if  the  aggressor  killed  his 
opponent,  the  owner  of  the  slain  animal  had 
an  action  against  the  aggressor's  owner.  If 
a  savage  dog  had  been  let  loose  in  a  court, 
and  bit  one  coming  in,  the  sufferer  had  aa 
action,  but  not  if  the  dog  was  chained.  One 
who  was  leading  a  dog,  which  made  its  escape 
and  injured  any  one,  was  liable,  if  he  were  at 
all  careless,  or  wei;e  leading  it  where  it  should 
not  be.  The  tenor  of  these  actions  generally 
allowed  the  defender  the  alternative  of  de- 
livering up  the  animal,  or  paying  the  damages. 
The  distinction  between  an  animal  which  was, 
and  one  which  was  not  previously  known  to 
be  vicious,  is  not  recognised  in  the  Roman 


law.  In  the  law  of  Scotland,  these  rules  have 
not  been  uniformly  adopted;  but  they  are 
valuable,  as  suggesting  the  principles  which 
govern  such  cases.  Dogs  and  cattle  are  the 
animals  from  which  injury  is  most  frequently 
sustained  in  this  country,  and  the  general  rule 
appears  to  be,  that  where  the  animal  u  vieious, 
the  owner  is  answerable ;  Bank.  B.  i.  tit  10, 
§47,  et  seq.;  TwnOuU,  6th  Dec  17Sb,Eldaa, 
Reparation,  No.  1.  In  Fleming  v.  Orr,  5th 
March  1853, 15  D.  486,  the  Court  found  that 
the  owner  of  a  dog  which  had  destroyed 
sheep  was  liable,  although  it  was  not  proved 
that  the  owner  knew  the  dog  to  be  vicious ; 
but  the  judgment  was  reversed  by  the  Hooae 
of  Lords,  April  3, 1855 ;  1  Maequeen. 

A  master  is  civilly  liable  for  the  negli- 
gence of  his  servants,  or  others  employed  by 
him.  Thus,  the  proprietors  of  stage-coaches 
will  be  subjected  in  damages  for  iiguries  aris- 
ing from  careless  driving ;  Drutmond,  26th 
Feb.  1813,  Foe.  Coll.  This  liability,  how- 
ever, may  be  said  to  arise  ex  coniractu,  mnce 
such  persons  engage  to  convey  passengers  in 
safety.  But,  independently  of  any  ezprea 
contract,  a  master  has  been  found  liable  for 
damages  done  by  those  employed  by  him, 
although  he  was  absent,  and  they  were  acting 
against  his  orders ;  Lord  Keith,  10th  June 
1812,  Fac.  CoU.  The  correctness,  however, 
of  that  decision  was  questioned  in  a  more  re- 
cent case,  in  which  a  landed  proprietor  was 
held  not  to  be  liable  in  damages,  for  an  acci- 
dent which  occurred  from  cutting  a  tree  on 
his  estate,  through  the  negligence  of  those 
employed  by  him,  while  he  was  residing  at  a 
distance,  and  not  aware  that  the  operation 
which  led  to  the  injury  was  going  on ;  Li%. 
wood,  14th  May  1817,  Fae.  Coll.,  termed  rn 
Ae  HmiH  of  Lords.  A  person  is  also  liable 
in  damages  for  the  negligence  of  persons  em- 
ployed by  him  ;  «.  ^.,  a  creditor  will  be  respon- 
siblefor  the  illegal  proceedings  of  a  messenger- 
at-arms,  whom  he  has  employed  to  execute 
diligence  against  his  debtor;  and  one  mes- 
senger was  held  liable  for  a  loss  arising  from 
the  insolvency  of  another  messenger,  to  whun 
he  had  committed  the  duty  assigned  to  him- 
self; HamUton,  14th  Feb.  1817,  Fae.  CoU. 
By  the  law  of  England  a  master  is  not  liable 
to  a  servant  for  damages  occasioned  by  a 
fellow-servant,  if  he  has  taken  reasonable  care 
to  protect  his  servants  from  the  risk  of  in- 
jury, by  associating  them  only  with  servants 
of  ordinary  skill  and  care — a  servant  being 
held  to  run  the  risk  arising  from  negligence 
of  his  fellow-servants.  See  the  ease  of 
Priestly  v.  Fowler,  3  Mees.  and  Wels.  1 ;  also 
the  case  of  Hutchison  v.  York  and  Berwick  Rail- 
way  Company,  U&j  22,  1860,  19  L.  J.  Ex. 
296.  A  different  rule,  however,  prevails  in 
the  law  of  Scotland.    See  the  case  of  Gray  v. 


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Brauty,  Dec  1, 1852, 15  D.  135 ;  also  3  Ross, 
L.  G.  296,  etseq.;  see  also  the  cases  of  Reid  \. 
BartmskiH  Coal  Company,  July  3,  1855, 17 
D.  1017,  and  M'NaugMon  r.  Caledonian  Rail- 
wmf  Compam/,  Jan.  16,  1867,  19  D.  271. 
SIdpowners  are  liable,  to  the  extent  of  the 
ralne  of  the  ship  and  freight,  for  injuries  done 
to  goods  on  board,  through  the  negligence  of 
the  master  or  mariners,  with  the  exception  of 
losses  by  fire  in  the  ship,  and  the  loss  of  gold, 
silrer,  precious  stones,  dec,  unless  entered  as 
such ;  7  Geo.  IL,  c  15,  §  I ;  26  Geo.  III.,  o. 
86,  §§  1,  2,  3 ;  63  Geo.  III.,  c  159.  Special 
statutes  have  introduced  certain  responsi- 
bilities in  the  reparation  of  particular  in- 
juries; such,  for  example,  as  the  statutes  about 
destroying  plantations,  and  the  damages  done 
by  rioters.    &e»  PlanUng  and  Indosing.   Riots. 

A  principal  is  not  liable  for  any  damages 
occasioned  by  the  acts  of  a  sub-agent ;  Qvar- 
«Ms  v.  Cwnett,  1840,  9  M.  and  W.;  Rap- 
m.  T.  Gobm,  AprU  2,  1842,  Q  M.  and  W. 
716 ;  M'Lean  v.  RwteU,  March  9,  1860,  12 
i>.  887.  See  3  Rms,  L.  C.  266.  A  principal 
is  not  liable  for  damages  occasioned  by  his 
agent  on  any  matters  beyond  his  agency; 
oor  is  a  master  liable  for  the  wilful  and  ma- 
licious acts  of  his  servant,  although  committed 
by  him  while  acting  in  the  service  of  his 
master;  M^Mmut  r.  CWcfostt,  1  E.  106; 
Cnft  T.  AUison,  4  B.  and  Aid.  590.  See  3 
Ron,  L.  C.  291. 

By  the  Jury  Court  Act,  59  (5eo.  Ill,  c.  35, 
{ 1,  actions  of  damages,  where  the  title  was 
not  in  question,  and  where  the  conclusion  was 
for  damages  and  expenses  merely,  were  directed 
to  be  remitted  to  the  jury  court  as  soon  as 
defences  were  lodged.  But  this  enactment 
was  so  far  repealed  by  the  Judicature  Act,  6 
Geo.  IY.,c.  120,  which  provides  that  the  fol- 
knring  actions  shall  be  held  as  appropriate  to 
the  jury  court,  viz.,  "  All  actions,  on  account 
of  iigury  to  the  person,  whether  real  or  verbal, 
tt  assault  and  battery,  libel  or  defamation ; 
all  actions  on  account  of  any  injury  to  move- 
ables, or  to  land,  where,  in  this  last  case,  the 
title  is  not  in  question ;  all  actions  for  dam- 
ages on  account  of  breach  of  promise  of  mar- 
riage, or  on  account  of  seduction  or  adultery ; 
all  actions  founded  on  delinquency,  or  quasi 
delinquency  of  any  kind,  where  the  conclusion 
shall  be  for  damages  and  expenses ;  all  actions 
on  the  responsibility  of  shipmasters  and  own- 
ers, carriers  by  land  or  water,  inn-keepers  or 
stablers,  for  the  safe  custody  and  care  of  goods 
and  commodities,  horses,  money,  clothes,  jewels, 
and  other  articles,  and  in  general  all  actions 
founded  on  the  principle  of  the  edict,  Nautos, 
caitponet,  stabtdarii;  all  actions  brought  for 
nuisance  ;  all  actions  of  reduction,  on  the 
head  of  furiosity  and  idiotcy,  or  on  facility 
and  lesion,  or  on  force  and  fear ;  all  actions 


on  policies  of  insurance,  whether  for  maritime, 
or  fire,  or  life  insurance ;  all  actions  on  char, 
ter  parties  and  bills  of  lading ;  all  actions  for 
freight ;  all  actions  on  contracts  for  the  car- 
riage of  goods  by  land  or  water ;  and  actions 
for  the  wages  of  masters  and  mariners  of  ships 
or  vessels."  By  13  and  14  Vict.,  c.  36,  §  49, 
the  Court  may  allow  a  proof  by  commission 
in  any  of  the  above  enumerated  causes,  where 
the  action  is  not  one  for  libel  or  nuisance,  or 
properlyitnd  in  substance  an  action  of  damages. 
See  Ma^arlane's  Jury  Prac.  27,  et  seq. 

Actions  for  damages  are  also  competent 
before  the  sheriff-court,  and  other  inferior 
courts.  With  regard  to  the  jurisdiction  of 
the  High  Court  of  Justiciary  in  such  action^, 
it  seems  to  be  settled,  that  if  the  libel  raised 
in  that  Court  embrace  both  the  public  and 
private  interest,  although  the  prosecution  for 
the  public  interest  should  be  disappointed  by 
the  plea  of  res  jvdicata,  or  by  a  pardon,  yet 
the  process  may  be  proceeded  in  to  the  effect 
of  recovering  the  damages  and  expenses  due 
to  the  private  party.  But  there  is  no  instance 
of  a  prosecution  in  the  Court  of  Justiciary, 
with  a  conclusion  for  pecuniary  reparation 
merely,  to  the  private  party,  without  regard 
to  the  punishment  of  the  9ffender ;  Sume,  ii. 
S3  and  34.  All  the  parties  concerned  in  com- 
mitting a  wrong  are  liable,  singuli  in  solidum, 
for  the  pecuniary  reparation  to  the  party  in- 
jured ;  and,  although  no  criminal  prosecution 
for  a  delict  can  be  instituted  after  the  death 
of  the  offender,  yet  the  civil  claim  for  damages, 
at  the  instance  of  the  private  party,  is  not 
affected  by  the  delinquent's  death,  but  may 
be  made  effectual  against  his  representatives, 
like  an  ordinary  civil  debt ;  and  this,  whether 
the  action  for  reparation  has  been  commenc- 
ed before  or  after  his  death  ;  Morrison  v. 
Cameron,  <tc.,  25th  May  1809,  Fac.  CoU,  and 
note  to  the  report  of  that  case.  See,  on  the 
subject  of  this  article.  Stair,  B.  i.  tit.  9,  §  3, 
et  seq. ;  Mor^s  Notes,  pp.  Ivii.  Ixi.  xcii. ;  Bro- 
die's  Supp.  1003 ;  Ersk.  B.  iii.  tit.  1,  §  12,  et 
seq. ;  Bank.  vol.  i.  p.  252 ;  Earned  Equity,  41 , 
62,  211 ;  Shand's  /Vac.,  passim;  BeU's  Princ. 
§29,  et  seq,,  645,  et  seq.  See  Malice.  Jury 
Trial.    D^amation. 

Damnum ;  in  the  Boman  law,  signified  any 
loss  sustained  in  person  or  property.  Damnum 
was  either  in^ria  datum  or  absque  ityuria. 
Damnum  injuria  datum,  was  any  loss  occasioned 
by  a  free  person,  versans  in  ilUcito,  and  conse- 
quently guilty  either  of  dole  or  culpa.  Damnum 
aisque  iiyuria,  meant  a  loss  which  a  person 
sustained  through  no  illegal  or  unjust  act  on 
the  part  of  another  firee  and  responsible  being; 
e.g.,  loss  inflicted  by  an  animal  or  a  slave,  or 
happening  accidentally,  or  occasioned  by  a  free 
person  in  the  prosecution  of  a  justifiable  act. 
The  loss  inflicted  by  a  slave  was  called  noxia. 


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by  an  animal  pauperies,  and  for  ttiese  the  pro- 
prietor was  responsible.  But  with  us,  al- 
though perhaps  incorrectly,  the  expression, 
Damnum  absque  injuria,  is  sometimes  applied 
to  those  losses  for  which  the  sufferer  can  make 
no  legal  claim  for  reparation  against  any  one. 
An  illustration  given  of  such  a  loss,  is  the 
establishment  of  a  riral  school  which  draws 
away  the  scholars  from  a  school  previously 
established ;  Tomlins,  h.  t.  Damnum  infectum 
was  a  term  used  to  express  loss  not  yet  suf- 
fered, but  only  apprehended ;  as,  for  instance, 
if  persons  were  mining  below  a  house,  or  heap- 
ing up  materials  against  a  wall,  or  had  thres^ 
teued  some  one;  the  prtetor  was  accustomed  to 
demand  from  them  cautio  damni  infecti.  See 
Damaget.    Suspension  and  Interdict. 

DaTnnnin  Fatale;  is  a  loss  arising  from 
inevitable  accident,  such  as  no  human  pru- 
dence can  prevent ; — such,  for  example,  as  the 
losses  occasioned  by  storms  or  tempests,  light- 
ning, floods,  over-blowing  with  sand,  or,  in 
general,  by  any  calamity  falling  within  the 
legal  description  of  an  act  of  Qod.  BelVs  Com. ; 
BM  on  Leases,  4th  edit.  vol.  i.  p.  429 ;  Hun- 
ter's Landlord  and  Tenant ;  Brodie's  Supp.  to 
Stair,  989.    See  A  ct  of  God. 

Date  of  a  Deed.  It  is  the  invariable  prac- 
tice to  insert  the  date  of  the  deed,  in  the 
testing  clauso,  either  by  specifying  the  day  on 
which  the  deed  has  been  signed,  or  by  refer- 
ring to  the  date  prefixed  to  the  deed,  or  men- 
tioned in  the  course  of  it.  But  although  this 
is  now  the  practice,  the  date  is  not  a  statutory 
requisite,  and  the  want  of  it  would  not,  of 
itself,  be  fatal  to  the  deed.  Yet,  if  there  be 
circumstances  of  suspicion  attending  the  omis- 
sion of  the  date,  every  presumption  will  be 
admitted  against  the  deed;  or,  at  least,  it 
will  be  hold  to  be  of  the  date  most  unfavoui^ 
able  to  its  validity.  If  the  date  be  fraudu- 
lently falsified  to  serve  a  purpose — as,  for  ex- 
ample, to  secure  a  preference  in  a  competition 
— such  a  fraud  will  be  fatal  to  the  deed ;  Stair, 
B.  iv.  tit.  42,  §  19 ;  More's  Notes,  p.  coccvii.; 
Ersk.  B.  iii.  tit.  2,  §  18  ;  Bank.  vol.  ii.  p.  634; 
Ros^s  Lect.  vol.  i.  p.  132 ;  BelVs  Com.  6th 
edit. ;  Dickson's  Evidence,  passim ;  Thomson  on 
BiUt ;  Menzies^s".  Lectures  on  Conveyancing ; 
Duff's  Feudal  Conveyancing ;  Duff  on  Deeds. 
See  also  Testing  Clause.  In  questions  of  re- 
duction on  bankrnpcty,  under  the  act  1696, 
c.  5,  all  deeds  relating  to  heritable  rights 
which  require  to  be  complete  I  by  infeflment, 
-.  are  reckoned  of  the  date  of  the  registration 
of  the  sasine  following  on  them ;  and  all  dis- 
positions, assignations,  and  venditions,  which 
do  not  require  sasine,  but  to  the  completion 
of  which,  as  transferences  or  securities,  inti- 
mation or  delivery  is  requisite,  are  held  to 
be  of  the  date  of  the  intimation,  delivery,  or 
other  act  requisite  for  completing  the  right 


under  them ;  without  prejudice  to  the  validity 
of  all  such  deeds  in  other  respects ;  54  Qto. 
III.,  c.  137,  §§  12  and  13.  By  19  and  20 
Yict.,  c.  79,  §  6,  it  is  enacted  that  the  date  of  t 
deed  under  that  act  (the  new  Bankruptcy  Act), 
or  under  the  act  1696,  c.  5,  shall  be  the  date 
of  recording  the  sasine,  where  sasine  is  requi- 
site, and,  in  other  cases,  of  registration  of  the 
deed,  or  of  delivery,  or  of  intimation,  or  of 
such  other  proceeding  as  shall,  in  the  parti- 
cular case,  be  necessary  for  rendering  soch 
deed  completely  effectual.  See  Brnknift. 
Holograph  deeds  without  witnesses  do  not 
prove  their  own  dates,  where  the  date  is  of 
consequence,  as  in  questions  under  the  law  of 
deathbed,  or  in  competitions,  but  the  date 
may  be  proved,  aliuvde,  by  adminicles  (frsL 
B.  iii.  tit.  2,  §  22) ;  or  by  two  unexeeptioD- 
able  witnesses  {Bank.  vol.  i.  p.  833).  And 
in  re  mereatoria,  holograph  writings  will  prore 
their  date,  to  the  effect  at  least  of  throwing 
the  onus  probandi  on  the  objectoi;.  Stair,  B. 
iii.  tit  4,  §  29;  Mor^s  Notes,  p.  ccavi.; 
BeWs  Com.  p.  53,  6th  edit  See  also  Heio- 
graph  Writings. 

Day.  The  day  is  either  natural  or  arti- 
ficial. The  artificial  day  is  the  time  from 
sunrise  to  sunset.  The  natural  day  consisti 
of  twenty-four  hours;  which  period  is  alio 
termed  the  astronomical  day,  or  the  civil  day. 
The  astronomical  day  begins  at  noon;  tlie 
civil  day  is  reckoned  by  some  nations  from 
sunrise,  by  others  from  sunset,  and  by  others 
from  midnight.  By  the  Roman  calendar, 
the  civil  day  commenced  at  midnight;  and 
the  British  and  most  other  European  Datiou 
reckon  in  the  same  manner.  All  the  dajtof 
the  week  except  Sunday,  or  the  fastdaji 
appointed  by  Government,  are  called  lav^ 
days ;  and  no  legal  diligence,  either  agauist 
person  or  property,  can  be  executed  except 
on  a  lawful  day.  But  criminal  warrants,  ud 
warrants  for  apprehending  a  debtor,  as  m 
meditatione/ugoB,ma,j\ioth  be  granted  and  exe- 
cuted upon  a  Sunday,  or  upon  a  fast-dsj,  u 
well  as  on  a  lawful  day.  Bell's  Com.  6th  edit ; 
BelPs  Princ.  §  431 ;  Ross's  Lect.  vol.  i.  p.  329. 

Day-Writ  or  Day-£nle ;  in  England,  a 
rule  or  order  of  Court,  permitting  a  prisoner 
in  custody  in  the  King  s  Bench  prison,  Sk., 
u>  go  without  the  bounds  of  his  prison  fmm> 
day.    Tomlins'  Diet.  h.  t. 

Days  of  Grace  of  a  Bill ;  a  prolongation 
of  the  time  of  payment  of  a  bill  formerly 
granted  as  a  mere  iudulgenot,  but  now  as  a 
matter  of  legal  right,  wherever  the  bill  ia 
drawn  payable  at  a  certain  distance  of  time 
after  date,  or  after  sight.  The  number  of 
these  days  differs  in  different  countries.  In 
Scotland,  three  days  of  grace  are  allowed. 
When  the  bill  is  drawn  payable  at  sight,  or 
on  demand,  there  are  no  days  of  grace.     A 


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bill  may  be  protested  for  non-payment  on  tbe 
day  after  the  nominal  day  of  payment ;  but 
the  practice  is  to  present  the  bill  for  payment 
on  the  last  day  of  grace,  or,  if  that  should 
fall  upon  a  Sunday,  on  the  Saturday  preced- 
ing, and  if  not  then  paid,  to  protest  it  for  non- 
payment ;  Enk.  B.  iii.  tit.  2,  §  33 ;  BeWs  Com. 
p.  324, 6th  edit. ;  BdPs  Princ.  §  327  ;  Thom- 
son <m  Bilk,  p.  405,  et  seq. ;  Memia's  Lectures, 
p.  354.    See  BiU  of  Exchange. 

Deacon.  Before  the  passing  of  the  Burgh 
Reform  Act,  the  deacons  of  the  crafts  formed 
a  constituent  part  of  the  town  council  in  royal 
bni^^iis,  and  represented  the  trades.  They 
were  elected  by  their  respective  incorpora- 
tions, generally,  if  not  universally,  under  the 
control  of  the  town  council.  The  sabordinate 
incorporations,  prior  to  the  election  of  dea- 
cons, made  up  a  list  of  six  of  their  members, 
which  they  presented  to  the  council,  who 
struck  off  three  from  the  number,  and  re- 
tamed  the  remaining  three  names  to  the 
incorporatioii,  as  a  le^  or  list,  out  of  which 
the  incorporation  should  elect  their  deacon 
for  the  ensuing  year.  The  election,  when 
nude,  wag  reported  to  the  council,  and  ap- 
proved of;  aftor  which  the.new  deacon  entered 
upon  the  duties  of  his  office ;  or,  if  any  dis- 
pute arose  as  to  the  election,  the  council  had 
power,  in  the  first  instance,  to  hear  and  deter- 
mine it ;  their  decision  being  subject  to  review 
by  summary  complaint  to  the  Court  of  Session, 
provided  the  complaint  were  presented  within 
two  calendar  months  after  the  annual  election 
of  magistrates  and  councillors ;  16  Ow.  II., 
«.  11.  But  by  the  Burgh  Reform  Act,  3  and  4 
WiU.  IV^  c  76,  §  19,  it  is  enacted,  that  the 
deacons  shall  no  longer  be  recognised  as  ofiScial 
and  constituent  members  of  the  town  council ; 
but  the  rights  of  the  crafts  to  elect  their  dea- 
Mns  and  other  officers,  for  the  management  of 
then-  affairs,  in  such  form  as  they  were  in  use 
to  adopt,  are  preserved,  and  are  exercised, 
without  control  on  the  part  of  the  town 
counciL  Tbe  deacon-convener  of  the  trades 
in  Edinburgh  and  Glasgow  still  continues  a 
constituent  member  of  the  town  council.  The 
<leaeon  is  proses  of  his  own  incorporation ;  and 
signs  the  record  of  its  acts.  Some  of  our  older 
statutes  confer  on  deacons  a  mastership  or 
jorisdietion  over  the  rest  of  their  trade,  and  a 
power  to  essay  their  work ;  but  at  present  they 
exercise  no  such  power  or  jurisdiction.  Bank. 
B,  L  tit  1,  §  20  ;  BeWt  Princ.  §§  2176,  2186 ; 
WitM  on  El^ctioM,  340,  and  Supplement,  141. 

Bead  Body.  The  offence  of  disinterring  a 
dead  body,  or  crimen  violaii  sepukhri,  is  punish- 
able arbitrarily,  by  fine,  imprisonment,  whip- 
^g,  or  transportation,  according  to  the  eir- 
comstances  attending  the  commission  of.  the 
crime.  This  offence  is  not  regarded  properly 
as  a  theft,  but  as  a  great  iudecerxy,  and  a 


crime  of  its  own  nature.  The  stealing  of  a 
corpse  before  interment  seems  to  be  punish- 
able on  the  same  principle.  In  England,  if 
the  shroud  or  other  apparel  be  carried  off 
with  the  body,  an  indictment  lies  for  theft ; 
but  the  carrying  away  of  the  body  itself,  is 
not  held  to  be  theft  either  by  the  English 
or  Scotch  law.  Sume,  i.  85 ;  Move's  Notes  to 
Stair,  p.  cclxxxvii ;  Tomlins'  Bid.  voce  Corpse. 
See  also  the  Anatomy  Ad,  2  and  3  WHl.  IV., 
c.  75,  which  provides  regulations  as  to  bodies 
intended  to  be  made  use  of  for  anatomical 
purposes,  which  must  be  observed  under  sen- 
tence of  fine  or  imprisonment. 

Dead  Freight  A  merchant  who  freights 
a  whole  ship  is  liable  to  pay  tVeight  for  the 
goods  transported,  and  a  compensation  for  any 
loss  arising  from  his  failure  to  supply  a  full 
cargo.  The  sum  paid  for  the  unoccupied 
space  is  ca,\leA  dead  freight ;  it  is  not,  however, 
properly  freight,  but,  strictly  speaking,  a 
claim  of  damages  for  the  loss  of  freight ;  and, 
therefore,  the  shipmaster  has  no  lien  over  the 
goods  on  board,  entitling  him  to  retain  them 
against  the  consignee  in  security  of  this  claim, 
which  must  be  made  effectual  by  a  personal 
action  against  the  freighter.  But,  although 
there  be  no  such  lien  by  implied  contract,  it 
may  be  constituted  by  an  express  stipulation 
to  that  effect,  in  the  charter-party.  BelPs  Com. 
p.  430,  6th  edit ;  Brodi^s  Sxtpp.  to  Stair,  918. 

Dead's  Fart ;  is  that  part  of  a  man's  move- 
able succession  which  he  is  entitled  to  dispose 
of  by  testament.  If  a  man  liave  neither  wife 
nor  children,  or  is  not  survived  by  either,  his 
whole  free  moveable  estate  (with  the  excep- 
tion of  heirship  moveables),  is  called  dead's 
part,  and  he  may  bequeath  the  whole  of  it. 
If  he  leave  a  widow  and  no  childreuj  the 
widow  is  entitled  to  one-half  of  the  free  move- 
ables, as  her  jus  rdidce;  and  the  other  half 
is  dead's  part  If  he  leave  a  child  or  childreu 
but  no  widow,  the  one-half  of  the  free  move- 
able estate  is  dead's  part,  and  the  other  goes 
to  the  child  or  children  as  legitim.  Where, 
again,  he  leaves  both  a  widow  and  a  child  or 
children,  the  widow  has  a  third  as  her  jus 
relictce ;  the  child  or  children  a  third  as  Ugi- 
tim;  and  the  remaining  third  is  the  dead's 
part.  But  this  legal  disfaribution  of  the  move- 
able estate  may  be  affected  by  special  provi- 
sions in  a  contract  of  marriage,  which  may 
increase  or  diminish  the  share  of  the  move- 
able estate  at  the  father's  disposal  by  testa- 
ment ;  or  the  same  consequence  may  result 
from  renunciations  or  discharges  of  their  legal 
rights  by  the  wife  or  the  children.  On  the 
father's  death,  the/»s  relictce  and  legitimymt, 
ipso  jure,  in  the  wife  and  in  the  children, 
without  confirmation;  but  it  is  otherwise 
with  the  dead's  part,  which,  in  so  far  as  un- 
disposed of  by  testament,  must  be  taken  up 

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by  the  next  of  kin  by  confirmation.  Stair, 
B.  iii.  tit.  4,  §  24,  and  tit  8,  §  54 ;  Enk.  B. 
iii.  tit  9,  §  18,  et  seq.,  and  §  30 ;  Bank.  B. 
iii.  tit  8,  ToL  ii.  pp.  379  and  407.  See  also 
ConJirmUiott  ■of  Executor.  Jut  Rdictie.  Legi- 
tim.  Good*  tin  Contmunum.  Contract  of  Mar- 
rioM, 

Deaf  and  Snmb.  Persons  who  had  been 
deaf  and  duiab  from  their  birth,  were  held 
by  the  Roman  law  to  be  incapable  of  consent, 
and  consequeintly  nnfit  to  enter  into  a  legal 
obligation  or  contract.  But,  by  the  law  of 
Scotland,  such  persons  may  contract,  if  they 
have  the  use  of  reason,  and  if  it  appear  that 
they  understand  the  nature  of  the  engage- 
ment which  they  are  undertaking,  and  that 
they  have  e.tpressed  their  consent  by  the 
usual  signs.  The  law  provides  tutors  to  such 
deaf  and  dumb  persons  as  are  incapable,  from 
that  infirmity,  of  managing  or  understanding 
their  own  affairs.  Those  tutors  are  appointed 
in  the  same  manner  as  tutors  to  idiots  or 
insane  persons.  Stair,  B.  i.  tit.  6,  §  25,  and 
B.  i.  tit  10,  §  13 ;  Ertk.  B.  iii.  tit  1, 6  16; 
Bank.  B.  i.  tit  7,  §  11 ;  Fra$et's  Domcstu  Re- 
latiam,  ii.  133.  In  one  instance,  a  woman 
bom  deaf  and  dumb  was  subjected  to  a  cri- 
minal  trial  for  murder,  proof  being  offered 
that  she  knew  right  from  wrong,  and  that 
punishment  is  the  consequence  of  guilt,  and 
that  she  was  able  to  conduct  herself  properly 
in  all  the  ordinary  affairs  of  life.  She  pleaded 
not  guilty  by  si;pts ;  and  the  evidence  on  the 
trial  having  turned  out  favourably  for  her, 
she  was  acquitted ;  Huwie,  i.  45,  ii.  278,  noti ; 
AUton^s  Princ.  667.  It  is  almost  superfluous 
to  observe  that  it  is  a  valid  objection  to  a 
juryman  that  ho  is  deaf  or  dumb ;  Evme,  ii. 
310.  By  the  law  of  England,  a  man  bom 
deaf,  dumb,  and  blind,  is  looked  upon  in  the 
lame  light  as  au  idiot.     Toffiiint'  Diet.  k.  t. 

Dean  of  Ghiild ;  the  head  of  the  Guild- 
brethren  or  Mordant  Company.  By  1593, 
c  180,  power  waa  conferred  on  the  dean  of 
guild  to  judge,  ia  mercantile  and  maritime 
canaes,  within  bnrgh  ;  but  it  is  long  since  he 
ceased  to  exercise  that  branch  of  his  jurisdic- 
tion. The  proper  duty  of  this  magistrate 
now  is,  to  take  care  that  boildlDgs  within 
burgh  are  snfScient ;  that  they  are  erected 
agreeably  to  law ;  and  that  they  do  not  en- 
croach  either  on  private  or  public  property. 
He  may  order  insufScient  buildings  to  be 
taken  down  ;  but  in  other  respects,  his  juris- 
diction is  strictly  confined  to  possessory  ques- 
tions. Although  the  dean  of  guild  was  for- 
merly a  magistrate  of  a  royal  burgh,  and,  in- 
deed, in  certain  of  the  burghs  still  continues 
to  be  so,  his  jurisdiction  is  unconnected  with 
the  bailie  court.  His  judgments  are  liable  to 
review  in  the  Court  of  Session,  by  advocation, 
suspension,  or  reduction.    By  the  Burgh  Re- 


form Act,  3  and  4  Will.  IV.,  c.  76,  it  is  de- 
clared, that  while  the  right  of  the  guildrj  to 
elect  their  dean  shall  be  preserved,  he  riiall 
no  longer  be  recognised  as  an  ofBcial  and  con- 
stituent member  of  the  town  council,  and  that 
his  functions  shall  be  performed  by  a  member 
of  the  council,  elected  by  the  majority  of 
councillors.  But  the  deans  of  guild  in  Edin- 
burgh, Glasgow,  Aberdeen,  Dundee,  and 
Perth,  elected  as  heretofore,  are  continued  as 
constituent  members  of  the  council,  to  per- 
form all  the  functions  of  their  ofice.  Sttk. 
B.  i.  tit  4,  §  24 ;  Bank.  B.  ir.  tit  22;  Mt 
Princ.  §§  2176,  2184 ;  Jwid.  Stylet,  ui.  678, 
756.     See  Burgh  Royal. 

Dean  of  Quid  Conit  In  Edinburgh,  tbe 
dean  of  guild  court  consists  of  the  dean  of 
guild,  the  old  dean  of  guild,  and  a  conncil  of 
merchants  and  tradesmen  annually  chosen. 
The  law  assessors  of  the  magistrates  of  Edin- 
burgh act  as  assessors,  and  the  usual  prac- 
titioners before  the  court  are  the  members 
of  the  society  of  solicitors-at-law.  The  ju- 
risdiction of  the  court  is  confined  to  the  rep- 
lation  of  buildings  within  the  royalty ;  to  the 
prevention  of  obstractions  in  the  streets ;  t« 
the  removal  of  old  and  ruinous  tenements; 
and,  in  general,  to  such  matters  of  police 
as  have  any  connection  with  buildings;  in- 
cluding the  enforcement  of  the  act  1698,  c  8, 
as  to  the  height  and  stmcture  of  houses  in 
Edinburgh.  No  building  can  be  erected,  de- 
molished, or  materially  altered,  within  burgh, 
without  a  warrant  from  this  court,  after  all 
parties  interested  have  been  cited.  The 
court  has  also  a  jurisdiction  in  regnlatiog 
weights  and  measures.  Where  not  moved  in 
by  private  parties,  these  matters,  so  far  is 
regards  the  public  interest,  are  brought  under 
the  notice  of  the  dean  of  guild  court  bj  th» 
procurator-fiscal  of  that  court.  The  juris- 
diction is  confined  to  possessory  questions ; 
and  the  decrees  of  the  court  may  be  enforced 
by  letters  of  homing,  obtained  on  a  bill  at  tiie 
Bill-Chamber,  as  in  the  ordinary  case  of  the 
decrees  of  magistrates  of  royal  burghs.  The 
dean  of  guild  courts  in  other  royal  burghs,  of 
sufficient  size,  have  an  analogous  jurisdiction ; 
and  the  form  of  process  before  the  dean  of 
guild  is  similarto  that  in  other  inferior  courts; 
except  that,  in  processes  of  lining,  the  action 
may  proceed  on  the  original  petition  alone, 
without  any  farther  written  pleadings;  the 
parties  or  their  procurators  being  heard  ewa 
voce.  The  facts,  and  the  rights  of  the  parties, 
may  also  be  ascertained,  when  it  shall  appear 
proper,  by  judicial  inspection  of  the  premises, 
or  by  judicial  remits  to  skilful  tradesmen,  »ho 
may  be  put  on  oath  if  required,  and  by  the 
exhibition  of  plans.  See  authorities  at  i»  pre- 
ceding article.  See  also  Boyd^t  Judicial  Prth 
ceedingt,  B.  v.  tit  3 ;  Ertk.  B.  i.  tit  4,  §  24, 


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t»d  tuttt;  and  B.  ii.  tit.  9,  §  9 ;  Jwrid.  Stt/la, 
iil  678;  A.  S.  12th  Nov.  1825  {Bnrgh  Courts), 
p(rtiiL,e.l.  See  Jedge  and  Warrant.  Weighis 
and  Meuura.    Edmbuiyh.    lAning. 

Dean  of  Paonlty.  The  corporation  of  ad- 
roMtes  or  barristers  in  Edinburgli  is  called 
the  FttMlhi  of  Advocates,  and  the  Dean  of 
Faculty  is  one  of  their  number  elected  an- 
Doailj  to  preside  at  their  meetings,  and  to 
<ign  the  acts  of  the  Faculty.  BatJi.  B.  ir. 
tit.  3,  §  8.    See  Advocate. 

Dean;  is  an  ecclesiastical  dignitary  in  the 
Cbareh  of  England,  next  in  degree  to  a  bishop. 
See  2Wtru'  Diet. 

Seau  of  the  Chapel-BoyaL  The  Chapel- 
Royal  in  Scotland  was  a  coUegi«te  church, 
fonsded  by  the  Scottish  kings  for  their  own 
ue,  the  superior  of  which  was  called  Dean 
of  the  Chapel-RoyaL  This  benefice  was,  after 
the  Reformation,  conferred  first  on  the  Bishop 
of  Galloway,  and  afterwards  annexed  to  the 
see  of  Dunblane.  Since  the  abolition  of 
Episcopacy,  the  revenues  of  the  benefice  have 
been  in  the  Grown ;  and  the  Sovereign  be- 
stows them  on  one  or  more  clergymen  of  the 
Charck  of  Scotland,  who  are  denominated 
deans  and  chaplains,  and  Who  hold  the  ap- 
pointment during  pleasure.  The  patronage 
of  the  churches  which  belonged  to  the  ancient 
deanery  is  now  in  the  Crown,  unless  expressly 
conveyed  to  the  chaplains,  in  their  gift  of  the 
profits  and  emoluments  of  the  deanery.  Bank. 
&.  il  tit  8,  §  101. 

Death,  PnniBhiiunt  o£  See  Capital  Pun- 
uhmmL 

Death ;  is  either  natural  or  civiL  Natitrd, 
is  when  life  is  actually  extinct ;  civil,  is  when 
a  peraoD  is  adjudged  dead  by  the  law.  Death 
hag  varioos  effects,  according  to  the  circum- 
stances in  which  it  takes  place.  The  death 
of  the  person  behaving  as  heir  purges  vicious 
piaive  titles.  The  death  of  a  partner  dis- 
solves a  company,  in  absence  of  agreement  to 
the  contrary.  Death  obliterates  crimes  as  to 
the  punishment ;  but  the  right  arising  to  the 
soperior  in  the  fee,  from  the  delinquence,  as 
a  resolutive  condition,  is  not  excluded  by  the 
vassal's  death.  The  case  of  the  death  or 
aidnesB  of  any  of  the  judges  of  the  Court  is 
provided  for  by  2  Will.  IV.,  c.  5.  See  Shand!s 
Ptoc  p.  &4.  Where  either  of  the  parties  to 
a  process  dies,  the  proceedings  must  stop  till 
his  representatives  are  cited ;  for  any  judg- 
ment pronounced  in  an  action  against  a  party 
previously  dead  is  null.  Formerly  an  action 
of  transference  was  necessary,  in  case  of  either 
the  pursuer's  or  defender's  death;  but  the 
neeeasity  was  taken  away  in  the  case  of  the 
pnrsDers  by  1693,  c.  15,  which  allows  his 
"  heir,  executor,  or  assignee,  upon  production 
of  his  service  or  retour,  or  confirmed  testa- 
ment, or  special  assignation,  though  not  inti- 


mate, to  insist  in  the  principi.l  cause ;"  and 
snccesBors  or  purchasers  may  pi  oceed  with  the 
action  on  producing  their  ti:tle,  and  being 
sisted  by  a  minute.  On  the  de  fender's  death, 
however,  and  on  the  refusal  oU  his  represen- 
tative to  sist  himself,  an  action  of  transference 
is  necessary,  and  the  principsl  cause  cannot 
be  proceeded  in  till  decree  of  transference  is 
pronounced.  Provision  is  made  for  the  sub- 
stitution, at  some  future  day,  of  services  and 
notices  in  lieu  of  actions  of  ti  ansference,  by 
13  and  14  Vict.,  c.  36,  §  54.  A  forthcoming 
may  be  raised  on  an  arrestment  .notwithstand- 
ing the  death  of  the  arrester,  arrestee,  or 
common  debtor.  For  the  rnU  s  on  this  sub' 
ject,  see  Arrestment.  A  presiamption  exists 
in  favour  of  life  for  a  reasonable  number  of 
years,  so  as  to  throw  the  onus  probandi  upon 
the  party  alleging  death.  But'this  presump- 
tion may  be  overcome  by  a  cou  nter  presump- 
tion of  death,  arising  from  the  circumstances 
of  the  case.  No  general  rules  can  be  given 
upon  this  point ;  but  a  numlxer  of  decisions 
will  be  found  cited  in  Dickson  on  Evidence,  p. 
183,  et  seq.  The  registration  of  deaths,  as 
well  as  of  births  and  marriage:'',  is  regulated 
by  17  and  18  Vict.,  c  80,  which  contains  pro- 
visions for  making  registration  compulsory. 
See  Dickson  on  Evidence,  p.  578,  and  Seton'g 
Analysis  of  this  statute;  Stair,  11.  ii.  tit.  11,  § 
33 ;  B.  iii.  tit.  5,  §  34,  tit.  6,  §  16 ;  Morels  Notes, 
pp.  oii.  ccvii.  ccclxv. ;  Ersk.  B.  iii.  tit.  3,  §  42 ; 
B.  iv.  tit.  1,  §  61;  BeiPs  Com.,  passim;  Frinc. 
§§  228,  375, 1628 ;  Illust.  §S  2ii8,  376 ;  Wat- 
son's Stat.  Law,  h.  t. ;  Kamer  Stat,  Law,  h.  (.; 
Sband's  Frac.,  passim ;  Chambers'  Election  Law, 
h.t.  See  Transftfrence.  Forthcoming.  Waken- 
ing.   Registration. 

Deathbed,  Law  of.  By  the  law  of  death- 
bed (which  is  peculiar  to  Scotland),  the  heir 
in  heritage  is  entitled  to  reduce  all  voluntary 
deeds  granted  to  his  prejudice  by  his  prede- 
cessor, within  sixty  days  preceding  the  prede- 
cessor's death;  provided  the  maker  of  the 
deed,  at  its  date,  was  labouring  under  the  dis- 
ease of  which  he  died,  and  did  not  subse- 
quently go  to  kirk  or  market  unsupported. 
Such  deeds,  granted  in  lecto,  as  it  is  called,, 
are  contradistinguished  from  deeds  granted 
by  a  person  in  what  is  termed  liege  poustie, 
{legitima  potestate) ;  that  is,  where  the  grantor 
is  legally  presumed  to  have  been  of  a  sound 
and  disposing  mind.  But  deathbed  deeds, 
although  challengeable  by  the  heir,  are  effec- 
tual, unless  challenged  by  way  of  reduction, 
and  are  not  null  ope  exceptionis.  The  law  of 
deathbed,  which  is  part  of  our  ancient  com- 
mon law,  is  of  uncertain  origin ;  but  some  in- 
teresting speculations  concerning  the  principle 
on  which  it  is  supposed  to  rest,  will  be  fouiidi 
in  the  following  authorities : — Reg.  Majestatem, 
tit.  ii.  c.  18,  §§7  and  9  ;  Craig  de  Feudis,  lib. 

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i.  dieg.  12,  §  36 ;  lib.  11.  dieg.  1,  §  28  ;  Dirh- 
ton's  Doubtt,  voce  Legitima  Liberorum;  Stair,  B. 
iii.  tit.  4,  §  28  ;  Mor^s  Notes,  cccxiii.  et  teg., 
and  B.  iv.  tit.  20,  §  41 ;  Mackenzie s  Inst.  B. 
ill.  tit.  8 ;  Bank.  B.  iii.  tit  4,  §  32 ;  Ersk.  B. 
iii.  tit.  8,  §  95,  et  seq. ;  1696,  e.  4 ;  A.  S.  29th 
Feb.  1692.  The  leading  rules  of  the  doctrine, 
as  now  settled,  may  be  thus  arranged : — 

1.  Nature  of  the  disease.  It  is  not  sufficient 
to  invalidate  the  deed,  that  death  has  hap- 
pened within  sixty  days  after  its  date,  if  the 
grantor  was  then  in  good  health,  although  he 
may  have  afhirwards  died  from  accident  or 
supervening  disease.  Neither  is  it  sufficient 
that,  at  the  date  of  the  deed,  the  grantor  was 
ill  of  one  disease,  if  he  died  of  a  different 
disease  (see  Mackny  v.  Davidson,  17th  Jan. 
1828, 6  S.  369,  Otfirmed  on  appeal,  1831) ;  pro- 
vided the  latter  disease  was  completely  dis- 
tinct from,  and  not  a  manifest  sequel  of,  that 
under  which  he  was  labouring  at  the  date  of 
the  deed,  or  bo  connected  with  it  as  to  have 
been  accelerated  or  increased  by  it.  If,  how- 
ever, the  disease  existing  at  the  date  of  the 
deed  has  been  clearly  the  immediate  or  ulti- 
mate canse  of  death,  its  character  is  imma- 
terial. Thus,  it  is  of  no  consequence  whether 
it  have  been  slow  or  acute,  constant  or  recur- 
ring, local  or  general ;  and  even,  extreme  old 
age  alone,  if  attended  with  appearances  ob- 
viously indicating  the  approach  of  death,  is 
sufficient.  Nor  is  it  necessary  that  the  dis- 
ease shall  have  confined  the  party  to  bed  or 
to  the  house,  and  still  less,  that  it  shall  have 
affected  his  judgment,  or  incapacitated  him 
for  managing  his  affairs,  the  meaning  of  the 
law  being  to  exclude  such  investigations  by  a 
general  presumption  of  incapacity. 

2.  Exception  of  kirk  or  market.  The  deed 
will  not  be  reducible  ex  capite  lecii,  if  it  can  be 
proved  that  after  the  date  of  the  deed  the 
granter  appeared  publicly  at  kirk  or  market ; 
it  being  absolutely  presumed,  that  if  he  was 
able  to  do  so,  he  was  not  in  such  a  state  of 
weakness  as  to  fall  within  the  reason  of  the 
law.  And  as,  on  the  one  hand,  this  excep- 
tion of  kirk  or  market  is  admitted  (although 
Krskine  seems  to  state  a  contrary  doctrine, 
B.  iii.  tit.  8,  §  96),  whaterer  may  have  been 
the  state  of  health  at  the  time ;  so,  on  the 
other  hand,  the  wtuit  of  this  act  cannot  be 
supplied  byproof  of  capability  to  execute  the 
deed.  It  is  declared,  by  Act  of  Sederunt,  29th 
Feb.  1692,  that  in  order  to  be  effectual,  the 
act  of  going  to  kirk  or  market  must  be  per- 
formed "in  the  day-time,  and  when  people 
are  gathered  together  in  the  church  or  church- 
yard for  any  public  meeting,  civil  or  eccle- 
siastic ; "  or,  "  in  the  market-place  for  public 
market;"  and  that  no  instrument  taken  on 
the  fact  shall  bear  faith,  unless  it  expressly 
set  forth  "  that  It  was  taken  in  the  audience 


and  view  of  the  people  gathered  together  u 
aforesaid."  Thu  public  appearance,  besidet, 
must  be  proved  satisfactorily  to  have  been 
such  as  to  indicate  a  certain  degree  of  bodily 
ability ;  for  the  person  must  nave  gone  to 
church  or  market,  and  returned  unsupported. 
But  the  circumstance  of  his  having  been  (m 
horseback  is  not  regarded  as  support,  nnles 
he  has  been  helped  on  and  off.  If  he  hare 
continued  in  the  kirk  or  market  long  enongh 
to  afford  evidence  of  his  having  been  there,  it 
is  unnecessary  that  he  shall  have  continned 
for  any  definite  time,  or  that  he  shall  bare 
transacted  business  in  the  market.  Neither 
is  it  required  that  he  shall  have  exhibited  the 
appearance  of  recovery,  the  act  not  being 
legally  regarded  as  symptomatic  of  re-conrs- 
lescence,  but  as  affording  an  insuperable  pre- 
sumption of  capability  to  execute  the  deed. 
On  this  point  the  following  cases  may  be  con- 
sulted:— Faichney,  9th  July  1776,  ifor.  App. 
Deathbed,  No.  1 ;  MaiOand,  16th  May  1815, 
Fac.  Con.;  Rait,  27th  Nov.  1818,  Fac  (M., 
and  other  authorities  infra  eit. 

B.  Period  of  sixty  days.  If  the  granter  nr- 
vive  for  sixty  days  after  the  date  of  the  deed, 
that  alone,  by  stat.  1696,  c.  4,  "  shall  be  a 
sufficient  exception  to  exclude  the  reason  of 
deathbed."  In  computing  this  period,  ike 
day  of  signing  the  deed  is  not  reckoned; 
but  it  is  sufficient,  on  the  other  hand,  that  the 
granter  has  survived  until  the  runningofany 
part  of  the  sixtieth  day.  See  CompuUUum  y 
Time.  If  the  deed  have  been  ante-dated  to 
provide  against  the  objection  of  deathbed,  it 
seems  to  be  subject  to  reduction,  whatever  may 
have  been  its  true  date;  Merry  r.  Ewe, 
6th  Feb.  1801,  Mor.  App.  voce  Writ,  No.  3; 
affirmed  in  the  House  cf  Lords.  Holograph 
deeds  not  tested  do  not  prove  their  dates  in 
questions  under  the  law  of  deathbed.  See 
Holograph  Deeds.  Some  authorities  mention 
the  cases  of  deeds  granted  by  persons  nnder 
sentence  of  death,  and  by  persons  who  hare 
fallen  in  duels  within  the  sixty  days,  as  sub- 
ject to  this  law,  but  without  any  good  reason, 
so  far  as  regards  the  latter  class  of  deeds ; 
and  with  regard  to  the  former,  they  may  be 
reducible,  but  obviously  not  on  the  bead  of 
deathbed.  See  Bank.  B.  iii.  tit.  4,  §  33; 
Belt's  Com.  vol.  i.  p.  87,  et  seq.  6th  edii 

4.  Deeds  affected  by  this  law.  These  are  in 
general  all  deeds  to  the  heir'ks  prejudice,  and 
all  deeds  done  in  consequence  of  them ;  sncb, 
for  example,  as  a  sale  by  trustees  under  a 
deathbed  settlement.  Generally  speaking, 
the  dSeds  struck  at  by  the  law  of  deathbed,  are 
settlements  and  alienations,  onerous  or  gra- 
tuitous, in  property,  or  in  security,  or  sub- 
jects heritable  ex  sua  natura,  or  by  destina- 
tion ;  conveyances  for  a  tract  of  years  of  the 
profits  of  such  subjects ;  leases  of  extraordi- 


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Dirj  dnration,  or  for  unusually  low  rents,  or 
forgraonms;  but  leases  for  adequate  rents, 
u^  in  ihe  ordinary  course  of  management, 
are  not  reducible,  althongb  granted  in  lecto ; 
Se»^  1st  June  1813,  Fac.  CoU.    Aliena- 
tions of  heirship  moveables  made  mi  lecto  are 
also  under  the  lav  ;  likewise  gratuitous  dis- 
charges or  renunciations  of  heritable  rights 
or  claims ;  gratuitous  bonds  or  obligations  to 
the  prejudice  of  the  heir,  whether  taken  pay- 
able br  the  heir  in  heritage,  or  by  heirs  in 
general,  if  the  grantor's  moveable  funds  are 
iunfficient  to  discharge   them ;    gratuitous 
bonds  of  corroboration  of  prior  debts  creating 
an  obligation  on  the  heir,  in  which  he  would 
not  have  been  otherwise  liable,  and  legacies 
and  bequests  made  a  burden  on  him ;  volun- 
tary provisions  to  his  prejudice  in  favour  of 
wives  or  children;  and  generally,  all  such  al- 
terations in  the  nature  of  the  subject  as  pre- 
jodice  the  heir's  interest.    If  the  effect  of  the 
deed  be  injurious  to  the  heir,  it  is  of  no  con- 
Kquence  whether  it  has  been  granted  hf  the 
deceased,  or  to  him,  in  a  form  dictated  by 
himself,  or  whether  the  subjects  were  vested 
in  the  deceased,  or  in  a  trustee  for  his  behoof, 
sad  who  has  acted  in  obedience  to  his  direc- 
tions given  t»  lecto.    Even  a  deathbed  alter- 
ation of  a  previous  nomination  of  curators  is 
reducible.    Crawford,  Feb.  1751 ;  Mor.  3230. 
On  the  other  hand,  it  is  necessary  that  the 
deed  be  strictly  of  a  voluntary  kind,  and  such 
as  the  party  could  not  have  been  compelled 
to  grant.    Thus  a  disposition  executed  on 
deathbed,  in  implement  of  missives  executed 
is  liege  poustie,  is  not  struck  at ;  because, 
even  had  no  disposition  been  granted  by  the 
ancestor,  the  heir  would  have  been  bound,  as 
his  representative,  to  implement  any  liege 
jmfUe  obligation  incumbent  on  his  ancestor. 
5.  riifa  to  jpw»w.    "  The  right  of  reduc- 
tion es  capite  lecti  is  introduced  in  favour  of 
that  heir  who  was  alioqui  successurui,  in  the 
nibject  alienated    by  the   deathbed  deed." 
ErA.  B.  iii.  tit.  8,  §  100 ;  provided  always 
that  the  heir  has  done  nothing  to  ratify  or 
homologate  the   deed.     Such  homologation, 
however,  will  not  be  inferred  from  his  having 
previondy  accepted  a  provision  of  other  pro- 
perty from  his  ancestor,  as  in  full.    The  pri- 
rQege  of  reducing  a  deathbed  deed  may  be 
exercised  by  an  apparent  heir ;  and  it  is  not 
limited  to  the  immediate  apparent  heir  at 
the  time  of  the  grantor's  death;  if  that  heir 
die  without  ratifying  or  homologating  the 
deathbed  deed,  and  if  the  deed  be  to  the  pre* 
jadice  of  the  next  heir  also.    That  next  heir's 
right, however,  is  excluded  by  the  prior  heir's 
litfe  pouttie  ratification  or  homologatioh ;  if 
the  prior  heir  be  legally  capable  to  ratiiy  or 
homologate,  and  that  even  although  the  deed 
should  have  been  to  the  prejudice  of  the  re- 


moter heir  only,  and  not  to  that  of  the  heir 
homologating.  The  privilege  is  also  compe- 
tent to  the  creditors  of  the  heir  possessing  it, 
who  may,  according  to  Erskine  (B.  iii.  tit.  8, 
§  100),  exercise  it  without  any  previous  ad- 
judication of  the  faculty  to  reduce,  if  the  heir 
himself  have  not  homologated  the  deathbed 
deed.  The  privilege  of  reducing  ex  capite  lecti 
is  also  competent  to  the  Crown  as  ultimus 
hceret,  or  to  the  Crown's  donator ;  Brodc,  2d 
Feb.  1809,  Fac.  Coll.  Wives  and  children 
have  the  privilege  of  setting  aside  deathbed 
settlements  of  moveables,  in  so  far  as  such 
deeds  affect  their  legal  provisions  of;M»  relictce 
and  legitim ;  Ersk.  B.  iii.  tit.  9,  §  16.  See 
Legitim.    Jus  Rdictce, 

It  is  incumbent  on  the  pursuer  of  a  reduc- 
tion ex  capite  lecti  to  show  that  the  prejudice 
to  him  arises  from  the  particular  deed  sought 
to  be  reduced,  and  that  such'  prejudice  would 
be  removed  by  the  reduction,  otherwise  he 
has  no  interest  to  challenge  it.  On  this  sub- 
ject, it  is  sufBciently  plain  that  no  mere  dis- 
ponee  (not  being  heir  aliogui  successurut) 
under  a  deed  executed  in  liege  poustie,  has 
a  right  to  challenge  a  deathbed  exercise  of  a 
faculty  of  revocation,  contained  in  the  dispo- 
sition. But  questions  of  more  difficulty  have 
occurred  regarding  the  effect  of  deathbed  re- 
vocations, of  prior  liege  poustie  deeds  to  the 
heir's  prejudice,  when  the  deeds  containing 
such  revocations  also  exclude  the  heir.  In 
cases  of  this  kind  one  difficulty  is  founded  on 
the  doctrine  of  approbate  and  reprobate,  it 
having  been  at  one  time  thought  that  the 
heir  could  not  challenge  the  deathbed  deed, 
in  so  far  as  it  was  to  his  prejudice,  while,  at 
the  same  time,  he  tcok  the  benefit  of  the  re- 
vocation contained  in  it.  Another  difficulty 
arose  from  the  supposed  want  of  interest  in 
the  heir,  to  reduce  the  deathbed  deed,  since 
by  doing  so  he  would  revive  the  prior  liege 
poustie  deed  which  excluded  him.  The  result 
of  a  good  deal  of  discussion  on  this  subject, 
both  in  the  Court  of  Session  and  in  the 
House  of  Lords,  seems  to  be,  that  the  heir  is 
entitled  to  take  the  benefit  of  the  deathbed 
deed,  in  so  far  as  it  revokes  prior  deeds,  while 
he  may  reduce  it  in  so  far  as  it  is  to  his  pre- 
judice; and  this  even  where  it  appears  to 
hare  been  the  grantor's  meaning,  that  if  the 
deathbed  deed  should  prove  ineffectual,  the 
liege  poustie  deed  should  revive.  The  follow- 
ing cases  maybe  consulted: — M'Kean,  16th 
Jan.  1740,  Mor.  p.  3277  ;  Rowan,  22d  Nov. 
1775,  Mor.  p.  11371;  Finlay,  29th  July 
1779,  Mor.  p.  3188;  Crawford  r.  Coutts, 
17th  Nov.  1795,  and  3d  Feb.  1801,  ifor.  p. 
14958;  and  App.  Deathbed,  No.  3;  Signet 
Cases,  p.  207,  reversed  in  the  Bouse  of  Lords, 
14th  March  1806 ;  Lockhart  Muir,  1st  June 
1813,  Fac.  CoU.;  Bailey,  2d  Feb.  1815,  Fac 


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DEB 


DBB 


CoU.;  Duke  of  Roxhwrghe,  13th  Deo.  1816, 
Fae.  CoU.;  Motr,  2d  March  1820,  Fae.  CoU.; 
S.  ToL  xi.  p.  6L2;  xii.  669.  See  1  Eoss,  L. 
C.  594,  et  seq.  With  regard  to  the  rariouB 
devices  by  which  it  has  been  attempted  to 
elide  the  lav  of  deathbed, — as,  for  example, 
by  reserved  powers  to  dispone,  etiam  m  artietUo 
m»rtu ;  by  tmst-deeds,  with  directions  to  the 
trostees,  given  in  leeto ;  by  dispensations  with 
the  law  in  Crown  charters,  and  similar  expe- 
dients/roiKi«m  legifaeere, — it  may  be  observed 
in  general,  that  all  snoh  devices  have  proved 
unavailing.  This  salntarr  provision  of  the 
law  cannot  be  evaded  either  directly  or  per 
tmb4ftt;  for  it  has  been  jostly  held  that  (me 
night  as  well  think  of  reserving  a  power  to 
dispone  after  he  shall  have  become  no»  compos 
hmnIw,  as  attempt  to  secure  to  himself,  dar- 
ing a  mortal  disease,  a  capacity  which  the 
law  holds  one  in  that  extremity  not  to  possess. 
See  FountatTihall,  vol.  i.  p.  479 ;  vol.  ii.  p. 
324,  and  Jfor.  p.  3254 ;  Stair,  B.  iii.  tit.  4,  § 
29;  DitieUm  and  Steuart,  voce  Reiudion  ex 
tapite  tecti,  and  Faculty  to  alter ;  and  Davidson, 
17th  Not.  1687,  Mor.  p.  8256.  Sometimes 
the  heir  himself  has  been  prevailed  upon  to 
approve  of  a  deed  already  executed  by  his 
ancestor,  or,  prospectively,  to  renounce  his 
right  to  reduce  any  deed  to  be  made  by  the 
ancestor  even  in  lecto.  In  such  cases  the  rule 
seems  to  be,  that  although  the  heir  may  be 
harred,  personali  exceptione,  from  challenging 
a  particular  deed  which  he  has  seen  and  ap- 
proved of,  yet  no  antecedent  general  renun- 
ciation of  his  right  to  reduce  ex  capite  lecti 
will  deprive  him  of  that  privilege ;  Ersk.  B. 
iii.  tit.  8,  §  99.  See  also  Murray,  2lBt  Jan. 
1826,  4  5.  374.  The  title  to  pursue,  a  re- 
duction ex  capite  lecti  is  lost  by  the  currency 
of  the  long  negative  prescription.  The  Scotch 
law  of  deathbed  has  been  extolled  by  some  of 
the  highest  authorities  in  the  law  of  England, 
and  ridiculed  by  others ;  and  certainly  it  pre- 
sents this  anomaly,  that,  while  a  dying  man 
may  dispose  of  his  moveable  property,  so  far 
as  subject  to  his  testamentary  disposal,  and 
however  valuable,  within  the  last  hour  of  his 
life,  he  cannot  prejudice  his  heir-at-law  quoad 
his  heritage,  no  matter  how  trifling  its  value 
may  be,  by  any  deed  done  in  lecto  cegritudinis. 
See  Lord  Chancellor  Eldon's  encomium  on 
the  Scotch  law  of  deathbed,  in  Crawford  v. 
Cowtts,  2  Eligh's  Reports  in  House  of  Lords, 
660 ;  and  see,  on  tiie  subject  of  this  article 
generally.  Stair,  B.  iii.  tit.  4,  §  27,  et  seq. ; 
B.  iv.  tit.  20,  §  37,  e<  seq. ;  Morels  Notes,  p. 
cccxiii.  et  seq. ;  Ersk.  B.  iii.  tit.  8,  §  95<  et  seq.; 
Bank.  B.  iii.  tit.  4,  §  32,  et  seq. ;  Bell's  Com. 
p.  1050,  et  seq.,  6th  edit. ;  BelPs  Princ.  §  1182, 
1786,  et  seq. ;  Sandford  on  Heritable  Succession, 
▼ol.  i.  p.  81,  «f  seq. ;  Karnes'  Equity,  282, 462. 
Debating  Sodetdes.    Debating  societies  or 


dubs,  whose  ostensible  object  was  the  reform 
of  pretended  political  abuses,  hut  which,  in 
reality,  aimed  at  the  subversion  of  the  exist- 
ing form  of  government,  had  become  ao  nu- 
merous in  this  country  about  the  time  of  the 
French  Revolution,  and  threatened  come- 
quences  so  alarming,  that  it  became  necetatuy 
to  strengthen  the  common  and  the  older  ststo. 
tory  law,  by  several  enactments  for  the  sop- 
pression  of  those  associations.  By  36  Gto. 
III.,c.  7  ;  37  Geo.  III.,c.  137 ;  39<Jeo.in., 
c.  79,  and  52  Geo.  III.,  c.  104,  the  memben 
of  clubs  or  societies  in  which  unlawful  ostis 
are  administered,  or  seditious  engi^ments 
entered  into,  are  punishable  with  trso^p. 
tation.  The  lUt  39  Geo.  III.,  e.  79,  contains 
the  regnlations  under  which  a  lawful  aocietj 
may  be  formed ;  and  persons  entering  into  the 
combinations  prohibited  by  that  act,  msy  be 
proceeded  against,  either  snmmarily  before 
one  justice  of  tiie  peace,  or  by  indictmest 
before  the  Court  of  Justiciary,  aad  pnsiehed 
by  fine  or  imprisonment.    See  StUtiM. 

Se  Bens  Esse.  In  English  law,  to  iske 
or  do  any  thing  de  bene  esse,  is  te  admit  it  «s 
well  done  for  the  present,  on  the  nndentsnd- 
ing,  that  when  it  comes  to  be  mere  fully  ex- 
amined or  tried,  it  shall  stand  or  fall  aceonl- 
ing  to  its  own  merits.  Thus,  in  Chaneety, 
upon  motion  to  have  one  of  the  defendsoto  in 
a  cause  examined  as  a  witness,  the  Court,  not 
then  thoroughly  examining  the  justice  of  it, 
or  before  answer,  as  we  should  say,  will  often 
order  such  a  defendant  to  be  examined  ie  beu 
esse;  that  is,  his  deposition  will  be  taken, 
and  allowed  or  suppressed,  at  the  hearing  d 
the  cause,  as  the  Court  shall  think  fit ;  Ton- 
tins'  Diet.  h.  t.  The  analogous  Scotch  law  ex- 
pression is,  "  Before  answer,"  which  see. 

Debenture ;  an  instrument  of  the  natsre 
of  a  bond  or  bill  to  charge  Government,  &c 
"  The  forging  of  custom-^ouse  debentarei  it 
felony."    Tomlins'  Diet. 

Debitor  Von  FrsBeimitar  Dcmare.  A 
debtor  is  not  presumed  to  make  a  gift  to  his 
creditor  while  his  debt  remains  unextin- 
guished. Thus,  where  a  debtor  gives  monej 
or  goods,  or  grants  a  bond  or  an  assignatioa 
to  his  creditor,  without  assigning  any  special 
reason  for  so  doing,  the  legal  presumption  i^ 
that  he  has  done  so  in  payment  or  extiaetisD 
of  his  debt.  This,  however,  is  merely  apra- 
sumptie  juris,  which  will  yield  to  contrary 
proof,  or  to  stronger  presumptions  the  other 
way.  Where,  for  example,  the  oblipitioii 
expresses  a  special  cause  of  granting,  as  where 
a  bond  bears  to  be  for  borrowed  money,  with- 
out mentioning  the  former  debt,  it  will  not  be 
presumed  to  have  been  granted  in  extinction 
of  (that  debt,  but  will  constitute  a  new  and 
separate  obligation  against  the  borrower.  In 
like  manner,  bonds  of  provision  by  a  father 


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to  a  child,  are,  from  the  presnmption  of  pa- 
ternal alTection,  preanmed  to  be  granted,  Dot 
in  utisfaction  of  former  bonds,  but  as  an  ad- 
dition to  the  child's  patrimony.  Even  this 
prwnmption,  however,  may  be  overcome  by 
cimunstances  proving  the  father's  intention 
to  mclude  the  flrst  bond  in  the  last.  Thus, 
»  aettlement  on  a  daughter  in  a  contract  of 
marriage,  is  held  to  be  granted  in  full  of  all 
former  provisions  in  favour  of  the  daughter, 
although  it  should  not  bear  to  be  in  satisfac- 
(i«A,  &C.,  "  because,  provisions  granted  by  fa- 
thers in  marriage-contracts,  are  generally  in- 
tended to  comprehend  the  whole  estate  that 
ii  to  be  expected  by  the  husband  from  the 
wiA  or  her  father  in  name  of  tocher."  Erik. 
&  iil  tit  3,  §  93.  But  sueh  provisions  will 
not  be  presumed  to  be  in  extinction  of  any 
nidetennined  general  claim,  such  aa  legitm 
or  a  clause  of  conquest,  which  is  merely  in 
hope.  Dtm,  24th  June  1681,  Mor.  p.  11478 ; 
aimm,  4th  Feb.  1726,  Mor.  p.  11481,  voce 
Prawmftwfi.  See  also  Kipjpen's  Truttee$  t. 
Kimen,  3d  July  1856, 18  D.  1137. 

Oebitaai  TvaSi ;  is  a  real  debt  or  lien  over 
land,  which  attaches  to  the  land  itself,  into 
whose  hands  soever  it  may  come.  Such  a 
bnrden  is  constituted  either  ex  lege,  or  by  pac- 
tioa.  Thus,  fen-duties,  and  arrears  of  feu- 
dnties  due  to  the  superior,  and  the  relief  and 
loa-eotry  duties  before  declarator,  are,  by  law, 
real  debts,  or  debHa  fundi,  which  the  superior 
is  entitled  to  make  effectual,  not  only  by  a 
personal  action  against  the  vassal,  but  by  an 
Mtion  of  poinding  of  the  ground.  In  the 
iuoe  way,  an  annoalrenter,  or  a  creditor  by 
heritable  bond,  or  under  a  reserved  burden, 
whose  right  is  feudally  constituted,  is,  by  pac- 
tion, a  real  creditor ;  and  such  debts  also  are 
termed  debita  fundi,  and  may,  in  like  manner, 
be  made  effectual  by  poinding  of  the  ground. 
See  Poinding  of  the  Growid.  All  debita  fnndi, 
» long  as  they  remain  undischarged,  are  ef- 
fectual against  the  land,  preferably  to  the 
rights  of  the  proprietor,  and  all  deriving 
right  from  him.  In  competition  amongst 
themselves,  the  superior,  for  his  feu-duties 
and  easnalties,  is  ranked  in  the  first  place, 
his  right  being  founded  on  the  original  grant 
to  the  vassal ;  and  conventional  ddiiia  fundi 
are  preferable  according  to  the  dates  of  the 
registration  of  the  infeftments,  by  which  they 
are  made  reaL  See  Burdens.  Rents,  tithes,  the 
land-tax,  the  expense  of  repairing  churches, 
Bunses,  die,  and  similar  burdens,  although 
ill  claims  connected  with  land,  are  not  ddnta 
fiadL  Stair,  B.  iv.  tit.  35,  §  24;  Mor(^t 
-y**,  p.  clxzii. ;  Er$k.  B.  iv.  tit.  1,  §  11 ; 
Batik.  B.  iu  tit.  5,  §  18,  et  teq. ;  BeiPs  Com. 
p.  735,  786,  945,  6th  edit. ;  BdPt  Princ.  § 
699 ;  JBoss's  Leet.  vol.  ii.  p.  892,  et  seq. ; 
<Si«ur<  Prac    See  Absolute  Ditpotition. 


Debts,  Small.  See  Small  Debt.  Impriton- 
ment. 

Deceit.  Any  snbtle  trick  or  artifice,  inelnd- 
ing  all  kinds  of  craft  or  collusion,  used  to 
defraud  another,  called  in  the  Roman  law, 
dolus  malus.  Deeds  or  obligations  obtained 
by  deceit  are  reducible  on  the  head  of  fraud, 
at  the  instance  of  the  party  imposed  upon, 
but  not  at  the  instance  of  the  deceiver ;  for, 
in  such  a  case,  the  maxim,  "  DecepHs  nen 
decipientibvs  jura  subveniunt,"  is  applicable. 
Ersk.  B.  iii.  tit.  1,  §  16 ;  Bank.  B.  i.  tit.  10, 
§  62,  and  B.  i.  tit.  7,  §  80 ;  Earned  Efuittf^ 
66.  See  also  Fraitd.  Circumvention.  Ctl- 
lusion. 

DeceriL.  To  decern  is  to  decree.  Befer* 
the  judgment  or  interlocutor  of  any  court  in 
Scotland  can  be  extracted,  to  the  effect  of 
warranting  execution,  it  must  import  a  decree. 
Hence,  all  extractable  judgments  close  with 
the  word  "  decern."  Barclay's  M'Glash.  Sherif 
Court  Ptae.  297 ;  Shand's  Prac.  pp.  347,  594, 
note.     ^66  Extract.    Interim-decree.    Decree. 

DecimsB  Bectories ;  parsonage  tithes ;  i.e., 
the  tithes  formerly  payable  to  the  parsons  of 
parishes,  and  which  are  due  from  ul  species' 
of  grain  produced  by  culture.    See  Teinds. 

DedmsB  Oarbalea ;  teind-sheaves  ;  i.e.,  the 
tenth  sheaf  of  the  cut  com  which  the  rector 
of  the  parish  had  a  right  to  draw,  or  lead  off 
from  the  ground.    See  Teinds. 

DeoimsB  Vicaiis ;  vicarage  tithes ;  i.e.,  the 
tithes  formerly  payable  to  the  vicars  of  pa- 
rishes, which  are  due  only  according  to  use 
and  wont,  from  such  articles  as  wool,  grass, 
flax,  hemp,  fish,  eggs,  &c.    Beo  Teinds. 

Deoimse  IncluseB ;  teinds  which  have  never 
been  separated  from  the  stock,  and  which  are 
not  demandable  by  the  titular  or  minister. 
Stair,  B.  iv.  tit.  24,  §  8 ;  More's  Notes,  p. 
ccxxxix. ;  Bell's  Princ.  §  1149 ;  Connell  on 
Tithes;  Ersk.  Inst.  iii.  10,  §§  10-13.  See 
Teinds. 

DecimsB  Debentnr  Farocho.  The  mean- 
ing of  this  maxim  is,  that  teinds  belong  to 
the  minister  of  the  parish,  where  the  subject 
from  which  they  arise  was  produced  ;  and  that, 
consequently,  he  cannot  be  deprived  of  them 
by  any  species  of  alienation  ;  which  is  to  have 
a  permanent  effect  to  his  prejudice.  More's 
Notes  to  Stair,  p.  ccxli. ;  Con^l  on  Tithes.  See 
Teinds. 

DeclBions.  The  decision  of  a  court  is  the 
judgment  pronounced  in  a  cause  depending 
before  it ;  but,  in  Scotland,  the  term  Decisions 
is  usually  applied  to  the  printed  reports  of 
cases  dwided  in  the  Court  of  Session.  It  has 
been  said,  that  a  uniform  tract  of  decisions 
of  that  Court  is  to  be  held  as  law ;  Mackenzi^s 
Inst.  B.  i.  tit  1,  §  10.  But  even  Mackenzie 
admits  that  the  judges  are  not  absolutely 
bound  to  receive  the  judgments  of  their  pre- 

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decessors  as  law  ;  and  all  that  can  safely  be 
said  seems  to  ba,  that,  although  those  deci- 
sions are  not  to  be  held  as  equal  in  authority 
to  our  customary  or  unwritten  law,  yet  they 
serve  to  explaia  the  law,  and  to  ascertain 
ancient  usages ;  and  a  series  of  them,  uniform 
npoa  the  same  point,  is  held  to  have  the  force 
of  law,  more  especially  where  the  practice  or 
the  conveyancing  of  the  country  has  been  re- 
gulated  by  such  precedents.  In  such  cases, 
two  or  more  solemn  and  consecutive  decisions 
of  the  Court  of  Session,  not  altered  by  the 
House  of  Lords,  appear  to  be  held  as  abso- 
lutely fixing  the  law.  Where,  again,  there  is 
not  the  sam«  uniformity  in  the  course  of  de- 
cisions, or  where  the  precedent  has  fixed  no 
rule  on  which  the  country  has  acted,  a  greater 
latitude  will  be  taken,  agreeably  to  the  maxim, 
Non  exemplis  ted  legibus  judicandum ;  Stair,  B. 
j.  tit.  1 ;  §  16;  Erik.  B.  i.  tit.  1,  §  47 ;  Bank. 
B.  i.  tit.  1,  §  74.  It  appears  that  in  Eng- 
land the  decisions  of  courts  of  law  are  of 
greater  authority ;  that  they  are  the  evidence 
of  what  is  common  law ;  and  that,  in  order 
to  give  permanence  and  consistency  to  the 
law,  it  is  an  established  rule  to  abide  by  pre- 
cedents, unless  the  former  determination  be 
evidently  contrary  to  reason ;  Blackstone'i  In- 
trod.,  §  3,  vol.  i.  p.  69,  et  teq. 

Deolaratioii ;  in  the  law  of  England,  a 
legal  specification,  on  record,  of  the  cause  of 
action,  by  a  plaintiff  against  a  defendent; 
Tomlin't  Diet.  A.  t. ;  YHMrton's  La.  h.  L 

Declaration.  In  criminal  proceedings  the 
account  which  a  prisoner,  who  has  been  ap- 
prehended on  suspicion  of  having  committed 
a  crime,  gives  of  himself  on  his  examination, 
is  t-aken  down  in  writing,  and  called  a  decla- 
ration. It  is  the  duty  of  the  magistate  to 
take  the  declaration  immediately  on  the  pri- 
soner being  brought  before  him ;  but,  before 
doing  so,  he  must  ascertain  that  the  prisoner 
is  in  a  fit  state  of  mind  to  undergo  an  exami- 
nation ;  that  he  is  not  intoxicated  nor  dis- 
ordered in  his  intellect,  nor  under  the  in- 
fluence of  promises  or  threats.  A  declara- 
tion runs  every  chance  of  being  cast,  if  the 
prisoner  was  induced  bythe  magistrate  to  emit 
it,  when  he  would  otherwise  not  have  done 
so,  though  neither  promises  nor  threats  were 
used ;  Wihon't  ease,  noted  in  Etme,  ii.  331. 
The  magistrate's  proper  duty  is  distinctly  to 
inform  the  prisoner  not  only  that  it  is  op- 
tional for  him  to  make  a  declaration  or  not 
as  he  pleases,  but  also  that  what  he  says  may 
be  afterwards  used  against  him  on  his  trial. 
After  those  preliminaries,  without  attending 
to  which  the  declaration  will  be  of  no  value, 
the  examination  will  be  proceeded  with  in 
the  presence  of  the  magistrate.  It  is  in  prac- 
tice generally  conducted  by  the  fiscal,  who 
knows  the  particulars  of  the  case  more  fully 


than  the  magistrate ;  but  the  latter  mnst  of 
course  see  that  the  questions  are  confined  to 
the  particular  charge,  and  are  made  intelli- 
gible to  the  accused ;  and  so  a  declaration, 
not  emitted,  but  only  adhered  to,  before  the 
magistrate,  is  inadmissible  evidence.     The 
declaration  must  be  taken  down  at  large  in 
writing,  as  given  by  the  prisoner.    It  onght 
to  be  written  by  a  neutral  person  appointed 
by  the  magistrate  for  the  purpose,  and  not 
by  a  clerk  or  apprentice  of  the  party  con- 
ducting the  prosecution.    It  ought  to  contain 
the  name,  designation,  and  age  of  the  de- 
clarant ;  and  the  parish  and  county  in  which 
the  crime  is  said  to  have  been  committed 
should  be  distinctly  and  carefully  specified. 
The  declaration  itself  should  be  written  on  a 
sheet  or  sheets  of  paper  distinct  from  the  rest 
of  the  precognition ;  and  after  it  is  written 
out  it  must  be  read  over  to  the  declarant, 
who,  along  with  the  magistrate,  must  sign 
every  page  of  it ;  or,  if  the  declarant  cannot 
or  will  not  write,  the  magistrate  signs  the 
declaration  in  his  stead.    All  this  ought  to 
take  place  in  the  presence,  of  two  or  more 
creditable  witnesses  who  have  heard  and  teen 
the  whole  examination,  and  who  must  sign 
each  sheet  as  witnesses,  not  to  the  subscrip- 
tions merely  of  the  prisoner  and  the  magis- 
trate, but  in  order  that,  if  necessary  on  the 
trial,  they  may  be  able  to  authenticate  the 
declaration,  and  bear  testimony  to  what  passed 
on.the  occasion.    A  formal  testing  clause  with 
the  writer's  name  is  not  required;  but  the 
declaration  onght  to  conclude  with  a  docquet-, 
mentioning  the  names  and  designations  of  the 
magistrate  and  witnesses,  the  number  of  pages,  . 
and  any  alterations  by  way  of  marginal  addi- 
tion, deletion,  erasure,  or  otherwise.    If  the 
prisoner  does  not  understand  English,  the 
use  of  a  sworn  interpreter  is  necessary,  and 
the  witnesses  must  also  understand  the  foreign 
language,  because  they  must  know  all  that 
is  taking  place.     It  frequently  happens  that 
more  than  one  declaration  is  emitted  by  the 
prisoner.    This  is  quite  competent ;  and  such 
declarations  may  be  taken  even  after  com- 
mitment for  trial,  but  not  after  the  libel  has 
been  served.    Care,  however,  should  be  taken 
that  all  the  prisoner's  previous  declarations  ~ 
are  read  over  to  him  before  another  is  taken ; 
and  the  previous  declarations  ought  to  be 
referred  to  in  the  last  declaration.     All  the 
declarations  must  be  preserved.    The  decla- 
ration will  not  be  allowed  to  be  produced  on 
the  trial,  if  the  magistrate  have  delegated  the 
taking  of  it  to  the  clerk  or  to  any  one  else 
not  a  magistrate. 

With  regard  to  the  use  to  be  made  of  the 
declaration  on  the  trial,  it  is  settled,  that 
although  a  confession  made  by  the  prisoner 
out  of  the  presence  of  the  jury  is  not  of  itself 


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» sufficient  ground  of  conviction,  yet  it  does 
not  follow  that  a  solemn  and  deliberate  ac- 
knowledgment of  gnilt,  proved  to  have  been 
made  before  a  magistrate,  is  to  have  no  effect 
when  corroborated  by  the  other  evidence  ad- 
duced; and,  accordingly,  the  panel's  decla- 
ration is  now  invariably  received  as  an  article 
of  evidence  on  his  trial,  althoagh  it  will  have 
no  effect  as  evidence  against  any  other  person 
whom  the  declarant  may  have  named  as  par- 
ticipating in  his  ^uilt.  Further,  the  prose- 
cutor can,  as  he  chooses,  put  in  the  declara- 
tion or  not  at  the  trial,  while  the  declarant 
cannot  call  for  it ;  Kennedy,  1  Broun's  Rep. 
497.  But  if  one  of  several  declarations  is 
laid  before  the  jury,  all  the  others  must,  if 
the  panel  wishes  it,  be  produced  also.  Hume, 
voL  iL  p.  324,  et  seg. ;  Burnett,  Or.  Law,  488 ; 
Alitm't  Prae.  557;  Bell's  Notes  to  Hume,  239  ; 
Dickson  on  Evidence,  p.  711.  See  Criminal 
ProteeutioH.     Confession. 

Deelaration,  Dying.  The  law  of  Scotland 
properly  rejects  hearsay  evidence,  i.e.,  the  tes- 
timony of  a  witness  to  that  which  he  has 
heard  from  another.  But  to  this  rule  there 
is  a  general  exception  in  cases  where  the  per- 
son whose  statenkent  is  narrated  was  admis- 
sible when  he  spoke,  but  died  before  the 
trial ;  Bell's  Princ.  p.  2259.  Such  evidence 
is  especially  necessary  to  secure  the  ends  of 
JQitice  in  criminal  cases,  where  a  party  has 
died  from  the  result  of  injuries  made  the  sub- 
ject of  triaL  Thus,  in  cases  of  murder,  the 
dying  declaration  of  the  sufferer  as  to  the 
eircnmstances  of  the  mortal  injury,  is  always 
admitted  as  evidence  on  the  trial  of  the  per- 
son charged  with  the  murder,  provided  the 
declaration  has  been  deliberately  emitted 
wbQe  the  deceased  was  in  the  possession  of 
his  faculties,  and  that  it  is  proved  by  credit- 
able witnesses.  Where  the  declaration  has 
not  been  committed  to  writing,  its  import 
may  be  proved  by  parole  evidence ;  but  much 
more  weight  will  be  given  to  it  where  it  has 
been  written  down  at  the  time  it  was  made, 
in  the  presence  of  those  who  heard  it,  and  who 
can  swear  to  the  circumstances  under  which 
it  was  emitted.  In  committing  such  decla- 
rations to  writing, '  it  is  not  necessary  to  ob- 
serve the  same  formalities  which  are  required 
in  the  authentication  of  the  declaration  of  a 
prisoner.  On  the  contrary,  it  is  enough  that 
the  dying  declaration  be  proved  to  have  been 
freely  given  and  fairly  taken  down  in  the 
presence  of  the  witnesses,  and  that  the  wit- 
netses  can  identity  the  writing  produced  on 
the  trial  as  that  which  was  drawn  up  on  the 
oeessioo.  Evidence  of  this  kind  may  be  ad- 
duced ybr  as  well  as  against  the  accused ;  and 
there  are  several  instances  on  record  in  which 
the  dying  declarations  of  persons  who  have 
met  their  death  by  accident  have  been  suc- 


cessfully used  to  exculpate  from  a  charge  of 
murder.  Hume,  ii.  406,  et  seg. ;  Alison's  Prac. 
515 ;  Beli's  Notes,  291 ;  Dickson  on  Evidence, 
p.  66.    See  Hearsay. 

Declaratioii,  Judicial  In  civil  causes, 
both  in  the  Court  of  Session  and  in  the  in- 
ferior courts,  it  sometimes  happens,  that  where 
the  statements  of  the  parties  in  point  of  fact 
are  at  variance,  the  judge  ordains  one  or  other 
of  them  to  be  judicially  examined  as  to  the 
particular  facts  on  which  the  case  rests.  This 
form  of  proceeding  is  not  confined  to  any  par- 
ticular class  of  cases,  but  may  be  resorted  to 
wherever  the  circumstances  are  such,  in  the 
opinion  of  the  judge,  as  to  render  that  mode 
of  investigation  expedient.  It  is  a  matter 
solely  within  the  discretion  of  the  judge,  and 
is  only  resorted  to  when  he  has  solid  grouud 
for  suspicion  of  the  undue  concealment  of 
material  facts  within  the  knowledge  uf  the 
party.  A  party  failing  to  appear  may  be 
held  as  confessed ;  but  no  one  is  forced  to 
undergo  a  judicial  examination  in  any  matter 
on  which  he  may  be  criminally  prosecuted. 
A  declaration  made  in  this  way  can  never  be 
regarded  as  any  thing  more  than  the  delibe- 
rate declaration  of  the  party  making  it.  It 
is  not  given  upon  oath ;  nor  is  it  exclusive  of 
other  proof;  and  it  is  in  the  power  of  the 
opposite  party  to  rebut  the  statement  of  the 
declarant,  if  he  can,  by  legal  evidence.  The 
examination  in  the  ordinary  case  is  taken 
down  in  writing  by  the  clerk  of  Court  as  com- 
missioner, the  judge  not  being  present.  In 
practice,  the  interrogatories  are  usually  put 
by  the  counsel  or  agent  for  the  adverse  party. 
Judicial  examinations  are  regarded  unfa- 
vourably by  the  Court;  and  are  now  of 
less  consequence  than  formerly,  since  the  en- 
actments under  which  a  party  to  a  cause 
may  now,  in  general,  be  examined  as  a  wit- 
ness. Dickson  on  Evid.  705.  See  Calumny, 
Oath  of. 

Declaration.  In  English  judicial  proceed- 
ings, the  declaration  is  a  legal  specification, 
on  record,  of  the  cause  of  action  by  a  plaintiff 
against  a  defendant.     Tomlifis'  Diet. 

Declarator ;  a  declaratory  action.  This 
is  a  form  of  action  by  which  some  right  of 
property,  or  of  servitude,  or  of  status,  otr  some 
inferior  right  or  interest,  is  sought  to  be  ju- 
dicially declared.  Such  are — declarators  uf 
property,  where  the  property  of  one  person 
is  illegally  in  the  possession  of  another, — of 
trust  and  denuding,  where  a  trustee  holds 
property  by  titles  ex  facie  absolute,  and  ille- 
gally refuses  to  divest  himself  in  favour  of  the 
real  proprietor  (see  Trust)^ — of  contravention 
under  an  irritancy  in  an  entail, — of  irritancy 
ob  non  solutum  canonem, — of  non-entry, — of 
tinsel  of  superiority,— of  servitude, — of  expiry 
of  the  legal, — of  marriage, — of  bastardy,  and 

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many  others.  Declaratory  conclngiona  are 
generally,  though  not  necessarily,  folloired 
up  by  petitory  or  possessory  ones,  to  give 
effect  to  the  right  declared.  Declarators  of 
property  of  heritable  subjects,  by  persons  <n 
petitorio,  are  now  rare ;  an  action  of  reduc- 
tion-improbation  being  in  that  ease  a  more 
eff'ectual  method  of  attaining  the  object.  Bat 
it  frequently  happens  that  a  person  in  pos- 
session, who  is  doubtful  of  his  right,  has  it 
'  ascertained  by  a  declaratory  action  ;  and  such 
an  action  may  he  brought,  although  there  be 
no  one  disputing  the  right,  and  even  although 
no  immediate  interest  to  challenge  it  has 
emerged.  In  order,  however,  to  entitle  a 
party  to  bring  an  action  of  declarator,  he 
must  show  that  he  has  a  substantial  interest 
to  insist  in  the  declaratory  conclusions,  and 
that  it  is  an  interest  of  which  the  Court  of 
Session  can  competently  judge.  It  is  not  com- 
petent to  ask  the  Court  to  declare  a  fact  or  a 
right  in  the  abstract,  without  pointing  out 
the  consequent  right  to  the  party  who  con- 
cludes for  such  declarator ;  Oifford,  8th  July 
1829,  7  S.  864;  Ljfk,  17th  No?.  1830,  9  S. 
22.  Under  the  class  of  declaratory  actions 
may  be  comprehended  such  rescissory  actions 
as  merely  conclude  that  the  deed  or  right 
libelled  may  be  declared  null,  without  any 
conclusion  against  the  defender  himself.  De- 
crees upon  actions  properly  declaratory  con- 
fer no  new  right,  but  only  declare  that  a  right 
exists  in  the  pursuer ;  and,  consequently,  such 
decrees  have  a  retrospective  operation  to  the 
period  at  which  the  right  commenced.  De- 
claratory actions,  properly  so  called,  are  not 
competent  except  in  the  Court  of  Session. 
But  it  is  competent  for  a  party  to  ask  an  in- 
ferior court  to  pronounce  declaratory  findings, 
leading  to  the  conclusions  in  law  deduced  in 
the  summons ;  for  declaratory  findings  do  not 
necessarily  infer  a  declaratory  summons,  so  as 
to  render  the  action  incompetent  in  an  in- 
ferior court ;  HM,  19th  May  1831,  9  S.  612. 
It  would  appear  that  a  declarator  of  servitude, 
or  immunity  from  servitude,  is  competent  be- 
fore the  Sheriff  under  1  and  2  Vict.,c.  119,  § 
15 ;  and  an  action  equivalent  to  a  declarator 
of  irritancy  ob  non  solututn  canonem,  under  16 
and  17  Vict.,  o.  80,  §  32.  Declaratory  ac- 
tions, although  they  form  a  great  and  valuable 
class  of  actions  in  the  law  of  Scotland,  are 
unknown  in  the  English  practice.  Stair,  B. 
iv.  tit.  3,  §  47  ;  Ersk.  B.  i.  tit  3,  §  19 ;  B. 
iv.  tit.  1,  §  46 ;  Bank,  B.  iv.  tit.  24,  §  21 ; 
Bell's  Com.  vol.  i.  p.  751,  6th  edit. ;  BelPs 
Princ.  §§  706,  735,  830,  906 ;  Jurid.  Styles, 
iii.  p.  135,  etseq.;  M'Glashan's  Sher.  Court 
Prac.  16-18, 175.  See  Marriage.  Commissaries. 
Irritancy. 

Declaratory  AJIindioation.    See  Adjudi- 
cation, Declaratory, 


Deelinatnie ;  is  the  term  applied  to  <k 
privilege  which  a  party  has,  in  certain  circam- 
stances,  to  decline  judicially  the  jarisdietioD 
of  the  judge  before  whom  he  is  cited.  A 
judge  may  be  declined, — ls(.  On  aecoant  of 
incompetency  to  decide  the  particular  action 
brought  before  him.  Thus,  a  sheriff  may  be 
declined  in  an  action  of  declarator  of  property 
in  heritage,  such  an  action  being  competent 
only  in  the  Court  of  Session.  2d,  A  jodge 
may  be  declined  where  the  party  is  exempted 
by  special  privilege  from  his  jurisdiction. 
Thus,  members  of  the  College  of  Justice  for- 
merly might  decline  the  jurisdiction  of  sU 
courts  inferior  to  the  Court  of  Session ;  bnt 
this  privilege  was  abolished  as  to  small  debt 
courts  by  6  Geo.  IV.,  c.  48,  §  24,  and  1  Vi«t, 
e.  41,  §  35 ;  and  as  to  sheriff  courts  generally, 
by  16  and  17  Vict.,  c  80,  §  48.  It  maybe 
observed,  however,  that  there  is  a  disttaction 
between  the  former  and  the  latter  groond  of 
declinature.  In  the  former  case,  where  tbe 
jndge  is  incompetent  to  decide,  his  proeeedingi 
are  null,  whether  the  party  appears  and  pleads 
the  declinature  or  not ;  whereas,  if  the  de- 
clinature be  founded  on  a  special  personal 
privilege,  the  privilege  must  be  pleaded  before 
it  can  operate.  Thus,  formerly,  a  decree  of  an 
inferior  court,  pronounce  in  absence,  against 
a  member  of  the  College  of  Justice,  would  be 
effectual,  the  declinature  not  having  been 
pleaded ;  Ersk.  B.  i.  tit.  2,  §  24.  A  judge  may 
also  be  declined  ratione  suspecti  judicis,—lii, 
Where  he  bears  capital  enmity  to  one  of  tbe 
parties,  such  enmity  beingqualified  and  proved 
by  facts  and  circumstances  importing  it ;  Ba*k. 
B.  iv.  tit.  2,  §  37.  2d,  Where  either  the 
judge  or  his  near  kinsman  has  an  interest  in 
the  cause.  But,  although  a  judge  who  ii  a 
partner  in  a  private  trading  company  may  be 
declined  in  a  question  where  the  interest  of 
that  company  is  concerned,  yet,  where  tbe 
company  is  a  public  one,  constituted  either 
by  patent  or  by  act  of  Parliament,  it  is  no 
ground  of  declinature  that  the  judge  is  a  pnn 
prietor,  director,  or  shareholder;  seeA. i'l 
1st  Feb.  1820 ;  and  Blair,  26th  Feb.  1814, 
Fae.  CoU.App.  to  vol.  for  1814-15.  In  oerUin 
cases,  indeed,  even  where  the  interest  of  tbe 
judge  was  more  of  a  private  nature,  the  Conrt 
repelled  the  declinature,  on  the  special  gronnd, 
that,  if  it  were  sustained,  there  would  not 
be  a  quorum  of  the  judges  left  to  decide  the 
cause.  See  A.  S.,  22d  July  1774,  and  22(J 
Jan.  1789 ;  Printed  Acts,  p.  644.  U,  The 
relationship  of  the  judge  to  one  or  both  of  the 
parties  is  a  ground  of  declinature.  By  the 
law  of  Scotland,  no  judge,  supreme  or  inferior, 
can  judge  in  the  cause  of  his  father,  brother, 
or  son,  whether  by  consanguinity  or  afSoity ; 
nor  in  the  cause  of  his  uncle  or  nephew  by 
consanguinity ;  1594,  c.  212,  and  1681,  c.  13. 

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Some  anthorities  hold  that  this  ground  of  de- 
clinature is  remored,  where  the  judge  stands 
m  the  same  degree  of  relationship  to  both 
parties  (Stair,  B.  iv.  tit.  39,  §  14);  but 
the  statutes  make  no  snch  exception ;  and 
were  a  case  of  that  kind  to   occur,   no 
doabt  the  statutes  would  be  taken  as  the 
Dile.    See  Ersk.  B.  i.  tit.  2,  §  26,  and  Bank, 
B.  iv.  tit.  2,  §  38.     It  is  no  ground  of  de- 
clinature that  the  defender's  wife  is  the  sister 
of  the  judge's  wife,  the  relation  there  being 
only  afinitas  qffinitatis;  Binny,  Dec.   1687, 
lf«r.  p.  3420;  Goldie,  16th  Feb.  1816,  Fac. 
CM.  and  A.  S.,  16tt  Feb.  1816.      But,  in 
a  competition  of  brieres  as  to  the  sncoes- 
tion  of  an  entailed  estate,  a  declinature  of 
one  of  the  judges  of  the  Court  of  Session  was 
BDstained  in  one  of  the  Divisions  of  the  Court, 
00  the  ground  that  the  second  son  of  one  of 
the  claimants  had  married  the  judge's  daugh- 
ter; Sir  M.  ShatB  Stewart,  30th  May  1820, 
Foe.  CoU.     In  this  case,  however,  as  to  which 
the  whole  judges  were  consulted,  eight  of  the 
fifteen  (which  was  at  that  time  the  number  of 
the  judges)  were  of  opinion  that  there  was  no 
ground  of  declinature.    But,  according  to  the 
regulations  then  in  force,  the  decision  of  the 
Dirision  of  the  Court  in  which  the  ease  oc- 
earred,  differed  from  that  of  the  majority  of 
the  whole  judges.     See  Session,   Court  of. 
Consultation  of  Judges.    It  seems  to  be  quite 
miderstood,  that  where  there  is  ground  tor  a 
declinature  of  this  kind,  it  cannot  be  waived 
by  consent  of  parties   (see  Sir  M.  Shaw  Steto- 
arfs  ease,  ut  supra,  note)  ;  and  where  ground 
for  declinature  of  a  judge  has  existed,  the 
proceedings  before  him  are  null,  though  the 
objection   be  not  taken  at  the  time;   Om- 
•wnqr,  13th  Feb.  1861, 13  D.  678.    A  judge, 
it  is  said,  may  be  declined,  «t  fovet  consimilem 
csHtam ;  that  is,  if  the  judge  have  a  cause  of 
his  own,  to  be  decided  by  the  same  rule  which 
is  applicable  to  the  case  brought  before  him  ; 
BaA.  B.  ir.  tit.  2,  §  37.     With  regard  to  the 
declinature  of  a  deputy,  in  a  cause  where  the 
principal  judge  is  a  party  concerned,  the  rule 
^ipears  to  be,  that  the  deputy  may  be  declined 
as  suspected,  where  the  principal  is  a  party 
(1555,  c  39) ;  except  in  certain  cases,  in  which 
the  deputy  is  authorized  to  judge  by  special 
statute ;  1579,  c.  84.    See,  on  the  subject  of 
this  article,  Stair,  B.  ir.  tit.  39,  §  14,  et  seq.; 
Mor^s  Notes  to  Stair,  p.cccixxvi. ;  Ersk.  B.  i. 
tit  2,  §  24,  et  seq. ;  Bank.  B.  iv.  tit.  2,  §  37, 
«*  seq. ;  Kames'  Stat.  Law  Ahridg.  h.  t. ;  Shand's 
Prac.  59,  et  seq.    See  Small  DebU.    College  of 
Justice.     Advocation. 

Deeree.  A  decree  or  decreet  is  the  final 
judgment  or  sentence  of  a  court,  whereby  the 
question  at  issue  between  the  parties  is  de- 
cided. Decrees  are  said  to  be  either  condem- 
Mtor  m  absohitor:  the  former  term  being 


applied  where  the  decision  is  in  favour  of  the 
pursuer,  the  latter  where  it  is  in  favour  of 
the  defender.  The  decree,  of  course,  partakes 
of  both  characters,  when  the  defender  is  ab- 
solved in  part  and  condemned  in  part ;  Bank. 
B.  iv.  tit.  36,  §  3.  Decrees  of  the  Court  of 
Session  are  pronounced  either  by  a  Lord 
Ordinary,  or  by  one  or  other  of  the  Divisions 
of  the  Court ;  and  a  decree  pronounced  by  a 
Lord  Ordinary,  if  allowed  to  become  final,  is 
as  effectual  as  one  pronounced  by  either  of  the 
Divisious ;  Ersk.  B.  iv.  tit.  3,  §  5.  See  Ap- 
peal. Decrees  are  either  in  absence,  or  inforo 
coniradictorio,  as  they  are  termed.  A  decree 
in  absence  is  a  decree  pronounced  against  a 
defenderwho  has  not  appeared,  and  pleaded  on 
the  merits  of  the  cause.  Such  a  decree  may 
be  opened  up,  or,  if  the  decree  has  been  ex- 
tracted, the  defender  or  his  representative  has 
the  remedy  of  suspension  or  reduction,  at  any 
time  within  the,period  of  the  long  prescription 
of  forty  years,  unless  the  party  entitled  to  re- 
duce or  suspend,  or  the  person  through  whom 
he  derives  right,  has  deprived  himself  of  his 
right  of  chsdienge  by  homologation,  or  ia 
otherwise  barred  trom  insisting  in  the  action. 
A  decree  in  foro  coniradictorio  or  conteniioso 
is  a  decree  in  a  cause  which  has  been  litigated 
by  both  parties.  Decrees  inforo  of  the  Court 
of  Session  operate  as  res  judicatcB,  and  cannot 
be  reduced  or  suspended,  or  submitted  to  re- 
view, reversed,  or  altered,  unless  by  appeal  to 
the  House  of  Lords,  except  on  the  ground, — 1st, 
That  the  decree  is  uUra  petita ;  or,  2d,  That 
it  is  disconform  to  its  warrants ;  or,  Zd,  That 
it  is  founded  on  an  error  ealcuU;  or,  4th, 
That  the  party  against  whom  the  decree  is 
obtained  has,  after  its  date, recovered  evidence 
sufficient  to  overturn  it,  of  which  he  knew  not 
before ;  Stair,  B.  iv.  tit.  1,  §  44,  50,  et.  seq.  ; 
Ersk.  B.  iv.  tit.  3,  §  3.  See  also  Competent 
and  Omitted.  Questions  have  sometimes  arisen, 
as  to  what  sort  of  appearance  for  the  defender 
in  an  action  will  be  sufficient  to  render  the 
decree  pronounced  a  decree  inforo;  and  it 
seems  tohavebeen  settled, — 1st,  That  the  mere 
act  of  taking  out  a  summons  to  see  for  the  de- 
fender, and  returning  it  without  a  defence,  is 
not  sufficient.  2d,  That  putting  in  a  dilatory 
defence  is  not  sufficient ;  Stair,  B.  iv.  tit.  40,  § 
12 ;  Ersk.  B.  iv.  tit.  1,  §  69  ;  and  Ibid.  tit.  3,  § 
6  ;  but  now  both  dilatory  and  peremptory  de- 
fences are  stated  above ;  Shanes  Brae.  p.  311. 
Zd,  It  is  not  even  sufficient  that  an  inter- 
locutor refusing  a  short  representation  for  the 
defender,  has  been  allowed  to  become  final,  if 
the  cause  has  never  been  argued  on  its  merits; 
Young,  10th  Feb.  1803,  Mor.  voce  Process,  p. 
12178.  See  also  Litiscontestation.  Res  judi- 
ca'a.  Decrees  of  inferior  courts,  whether  in 
foro  or  not,  have  so  little  the  character  of  res 
judicata,  that  a  competent  defence,  although 

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omitted  through  negligence  in  the  inferior 
court,  may  be  the  ground,  in  the  Court  of 
Session,  of  reversing  the  inferior  court  de- 
cree ;  because  it  is  said  there  is  not  presumed 
to  be  a  copia  perHorum  in  inferior  courts,  and 
parties  are  not  to  suffer  from  employing  igno- 
rant procurators  in  a  court,  where  perhaps  no 
better  are  to  be  had ;  Ertk.  B.  iv.  tit.  3,  §  7  ; 
Stair,  B,  iv.  tit.  1,  §  60.  In  the  Court  of 
Session,  and  also  in  inferior  courts,  after  any 
judgment  has  been  pronounced  (prior  to  th,e 
judgment  which,  according  to  the  forms  of 
proceeding  in  the  particular  court,  must  be 
the  final  one),  a  certain  time  is  generally  al- 
lowed for  submitting  the  judgment  to  the 
review,  either  of  the  judge  by  whom  it  was 
pronounced,  or,  if  it  be  the  judgment  of  a  Lord 
Ordinary  in  the  Court  of  Session,  to  the  re- 
view of  the  Division  of  the  Court  to  which  he 
belongs ;  and,  if  such  judgment  be  not  sub- 
mitted to  review  within  the  time  allowed,  it 
becomes  the  final  judgment  in  the  cause.  In 
the  Court  of  Session,  the  time  allowed  for  this 
purpose  is  twenty-one  natural  days  for  inter- 
locutors disposing,  in  whole  or  part,  of  the 
merits  of  the  cause,  and  ten  days  for  other  in- 
terlocutors (13  and  14  Vict.,  c.  36,  §  11);  and, 
if  the  judgment  be  not  reclaimed  against 
within  that  period,  or  (if  the  days  expire  in 
the  vacation)  against  the  first  box-day  in  the 
vacation,  the  judgment  becomes  a  final  judg- 
ment of  the  Court  of  Session.  See  Reclaiming 
Days.  Reponing.  When  it  becomes  necessary 
to  enforce  implement  of  a  decree,  the  proper 
and  only  regular  warrant  under  which  legal 
execution  can  be  obtained,  is  an  extract  of 
the  decree,  authenticated  according  to  the 
forms  of  the  particular  court  in  which  the  de- 
cree has  been  pronounced.  The  extracts  of 
the  decrees  of  the  Court  of  Session  formerly 
contained  a  minute  detail  of  all  the  steps  in 
the  process  from  first  to  last,  with  the  plead- 
ings and  various  interlocutors  engrossed  ver- 
baiim ;  and  although  this  cumbrous  and  ex- 
pensive practice  was  reprobated  by  Lord  Stair 
(B.  iv.  tit.  46,  §  27),  it  was  not  until  the  50 
Geo.  III.,  c.  112,  that  those  long  extracts  were 
abolished,  and  certain  abridged  forms  of  ex- 
tracts substituted,  in  which  the  object  and 
conclusions  of  the  action  are  shortly  narrated, 
followed  by  the  decree  ordaining  execution  to 
follow  in  terms  of  the  judgment  of  the  Court. 
Those  extracts  were  formerly  authenticated 
by  the  subscription  of  one  of  the  principal 
clerks  of  Session  ;  but  now,  by  1  and  2  Qeo. 
IV.,  c.  38,  §  17,  extracts  of  decrees  are  authen- 
ticated by  the  signature  of  the  extractor  by 
whom  they  are  prepared.  A  final  decr«e  of 
the  Court  of  Session  was  always  extractable, 
bat  an  interim  decree  formerly  could  not  be 
extracted  without  a  judicial  warrant  to  ex- 
tract it,  which,  however,  was  rendered  un- 


necessary by  13  and  14  Vict.,  c.  36,  §  2?. 
Under  1  and  2  Vict.,  c  114,  extract  decreet 
now  contain  warrant  to  charge,  arrest,  poiiul, 
and  imprison,  upon  which  diligence  may  pro^ 
ceed  as  formerly  on  letters  of  homing  and 
caption.  See  Caption;  Tait  on  Evtdm*; 
Dickson  on  Evidence ;  Jurid.  Styles,  vol  iii.  p. 
233,  et  seq.  See  Diligence.  Interim  Decree. 
Execution.     Signet  Letters. 

Decree  of  Begistration ;  is  a  decree  /o 
tione  juris  of  the  Court  of  Session,  or  of  any 
other  competent  court,  interposed  without  the 
actual  intervention  of  a  judge,  in  virtue  of 
the  party's  consent  to  decree  going  out  against 
him  in  terms  of  his  obligation.  This  consent 
is  expressed  in  the  clause  of  registration 
usually  inserted  in  all  formal  deeds  import- 
ing an  obligation,  and  an  extract  of  the  deed 
from  the  Court  books  is  tantamount  to  an  ex- 
tracted decree  of  the  Court  in  the  books  of 
which  it  has  been  recorded.  See  Extract.  Bj 
this  expedient,  the  expense  and  delay  of  an 
action  for  constituting  the  obligation  is  avoid- 
ed, and  summary  execution  obtained  at  once. 
Such  decrees  have  not  the  effect  of  decrees  m 
foro,  and  they  may  therefore  be  brought  undw 
review  of  the  Court  of  Session  by  suspension. 
It  is  upon  the  principle  of  the  decree  of  regis- 
tration that  the  benefit  of  summary  exeentioR 
has  been  extended  in  Scotland  to  bills  of  ex- 
change and  promissory  notes ;  1681,  o.  20 ; 
1696,  c.  36 ;  12  Geo.  III.,  c.  72  ;  ErsL  B.  ii. 
tit.  5,  §  54,  et  seq.,  and  B.  iii.  tit  2,  §  35; 
Belt's  Princ.  §  68.  See  this  subject  more  fully 
explained,  under  the  article  RegistraUon. 

Decree ;  in  English  law,  the  judgment  of 
a  court  of  equity  on  any  bill  preferred.  Tom- 
lins'  Diet.  h.  t 

Deoree-ArbitraL    See  Arhttration. 

Decree  Cognitionis  Causa.  See  Cegti- 
tionis  Causa. 

Decree-Dative;  is  the  technical  name  given 
to  the  decree  of  the  commissaries  conferring 
on  an  executor  (not  being  an  executor-nomi- 
nate) the  ofiBce  of  executor.  See  Execuior. 
Confirmation  of  Executor. 

Decree  of  Modifioation ;  is  a  decree  of  the 
Teind  Court  modifying  a  stipend  to  the  clergy- 
man, but  not  allocating  it  upon  the  different 
heritors.     See  Teinds. 

Decree  of  Locality;  is  a  decree  of  the 
Teind  Court  allocating  the  modified  stipend 
on  the  different  heritors,  in  the  proportions 
in  which  they  are  to  pay  it.    See  Teinds. 

Decree  of  Talaation  of  Teinds ;  is  a  de- 
cree of  the  Teind  Court,  determining  the  ex- 
tent and  value  of  an  heritor's  teinds.  For 
the  rules  according  to  which  this  is  done,  see 
Teinds. 

Decreet  Conform.  Decreets  conform  were 
decrees  of  the  Court  of  Session,  formerly  in 
use. to  be  issued,  when  diligence  under  the 

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Signet  was  required  on  the  decrees  or  precepts 
of  inferior  coorts.  The  Royal  Signet  in  Scot- 
land is  under  the  control  of  the  Court  of 
Session :  and  all  diligences,  as  they  are  termed, 
—that  is,  letters  nnder  the  Signet  authorizing 
execution,  either  against  person  or  property, — 
must  proceed  on  a  warrant  from  the  Court  of 
Session,  interposed  either  in  the  shape  of  a 
decree  of  that  Court,  or  of  a  deliverance  on 
a  bill, — ).&,  a  petition  to  the  Court  praying  for 
the  letters.  Sheriff  and  other  inferior  judges 
(the  magistrates  of  royal  burghs,  and  justices 
of  the  peace,  or  sheriff  nnder  the  small  debt 
acts,  excepted],  have  no  power  to  grant  exe- 
cution against  the  person  of  the  debtor  :  they 
canonly  authorize  poinding  and  arrestment 
vithin  their  owd  jurisdictions.  But  the  Court 
o!  Session  has  always  been  in  the  practice  of 
interposing  its  authority  in  aid  of  the  decrees 
of  inferior  judges ;  and  this  was  formerly 
done  upon  a  second  summons  against  the 
debtor,  citing  him  to  appear  in  the  Court  of 
Session,  and  show  cause  why  that  Court 
ahoald  not  authorize  all  legal  execution  to 
follow  on  the  inferior  court  decree.  The  de- 
cree issued  by  the  Court  of  Session  in  aid  of 
the  inferior  court  decree,  was  called  a  decree 
on/brm — i.e.,  a  decree  in  the  precise  terms  of 
the  former  decree,  with  the  additional  sanc- 
tion of  the  Court  of  Session,  which  warranted 
all  execution  competent  upon  a  decree  of  the 
Sopreme  Court.  This  practice  yielded  long 
ago  to  the  shorter  course,  of  bills  presented 
to  the  Court  of  Session,  through  the  Bill- 
Chamber,  which  pass  of  course,  and  the  de- 
lirerance  on  which  authorizes  diligence  under 
the  Signet,  on  the  same  principle  with  the 
ancient  decrees  conform ;  Ross's  Led.  vol.  i. 
pp.  237  and  270.  This  practice  has,  in  its 
turn,  been  practically  superseded  by  the  Per- 
sonal Diligence  Act  1  and  2  Vict.,  c.  114. 
Sheriff-court  decrees  now  contain  warrant  to 
charge,  arrest,  poind,  and  imprison ;  and  when 
the  decree  is  to  be  executed  in  a  different  ter- 
ritory, a  warrant  of  concurrence  is  obtained 
in  the  Bill-Chamber.  See  Caption;  see  also 
BiUt  of  Signet  Letters.  BilUGhamher.  Mi- 
jeiK*.    Act  of  Warding.    Small  Debt  Court. 

It  was  also  the  practice,  formerly,  for  the 
minister  of  a  parish,  whose  predecessor  had 
?et  a  decree  of  locality  for  payment  of  his 
stipend,  to  obtain  a  decree  conform  from  the 
Court  of  Session,  in  order  to  authorize  exe- 
cution at  his  own  instance  on  the  decree  in 
favour  of  his  predecessor.  But  by  the  Act 
of  Sederunt,  22d  June  1687,  this  practice  was 
abolished ;  and  it  was  provided,  that  the  suc- 
Meding  minister,  upon  presenting  a  bill  at 
the  Bill-Chamber,  in  the  ordinary  way,  and 
producing  bis  presentation,  collation,  and  in- 
stitution, with  the  decree  of  locality  obtained 
by  his  predecessor,  may  have  a  warrant  for 


letters  of  horning  against  those  liable  to  pay 
the  stipend.     See  Teinds.    Locdity. 

Decretom  et  Deoretalia.  The  body  of 
the  canon  law  consists,  first,  of  the  Deeretum, 
which  is  a  collection  of  the  opinions  of  the 
fathers,  popes,  and  church  councib  made  by 
a  Benedictine  monk,  towards  the  close  of  the 
twelfth  century,  in  imitation  of  the  Roman 
Pandects;  and,  seconflly,oitiieDecretalia,  which 
were  collected  by  Pope  Gregory  IX.,  nearly 
a  century  afterwards,  from  the  decretal  re- 
scripts or  epistles  of  the  popes ;  as  Justinian's 
code  was  from  the  imperial  constitutions ;  to 
which  decretals  new  collections  were  made 
by  succeeding  popes.  Ersk.  B.  i.  tit.  1, 
§28. 

Deed  FolL  In  the  law  of  England  a  deed 
poll,  as  contradistinguished  from  an  indenture, 
is  a  unilateral  deed,  executed  by  a  party 
whose  consent  or  act  alone  is  sufficient  to  com- 
plete the  right  or  obligation,  and  testifying 
accordingly  that  the  party  has  put  his  seal  to 
the  deed.  The  etymological  derivation  of  the 
term  is,  that  a  deed  poll  is  close  cut,  or  sitaved, 
as  it  is  expressed ;  whereas  an  indenture  is 
indented  at  the  top.  Tomlint,  voce  Deed;  also, 
voce  Poll.    See  Indenture. 

Deeda.  In  law  language,  a  deed  is  a  for- 
mal written  instrument,  executed  and  authen- 
ticated according  to  certain  technical  forms, 
setting  forth  the  terms  of  an  agreement,  con- 
tract, or  obligation,  whether  in  relation  to 
persons  or  things,  and  comprehending  every 
description  of  formal  writing  required  for  the 
voluntary  constitution,  transmission,  or  dis- 
charge of  rights  or  obligations  inter  vivos  or 
mortis  causa,  relating  either  to  heritable  or 
moveable  property ;  with  all  the  modifications, 
qualifications,  and  combinations  of  which  such 
documents  are  susceptible,  in  order  to  fit 
them  for  the  various  and  complicated  trans- 
actions to  which  they  may  be  applied.  The 
particular  deeds  known  in  the  law  of  Scot- 
land will  be  more  appropriately  treated  of 
under  their  respective  heads ;  but  there  are 
certain  essentials  common  to  all  deeds,  to 
which  it  may  be  proper  here  shortly  to  ad- 
vert. Thus,  1st,  Every  deed  requires  a  party 
or  parties  capable  of  contracting  obligation, 
and  subject  to  no  legal  disqualification,  either 
actual  or  presumed.  See  Consent.  Idiot.  Pupil. 
Minor.  Marriage,  Deathbed.  Bankrupt.  Con- 
junct  and  Confident.  Fraud.  Force  and  Fear. 
2d,  It  is  essential  to  a  deed,  whatever  be  its 
nature,  that  it  contains  a  definite  aud  distinct 
obligation  or  agreement,  capable  of  explica- 
tion, either  judicially  or  otherwise  ;  that  the 
subject-matter  of  the  deed  be  legally  in  the 
possession,  or  at  the  disposal  of  the  party  who 
contracts  in  regard  to  it ;  and  that  neither 
party  be  bouud  to  do  an  act  which  is  frau- 
dulent, or  contra  bonos  mores,  or  otherwise  in- 


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eonsistent  with  established  law.  See  Pactum 
JllicHum,  Sd,  Every  deed  must  be  legally 
authenticated  as  the  deed  of  the  party  or 
parties  who  become  bound  by  it.  The  rules 
prescribed  for  the  authentication  of  deeds  are 
partly  statutory  and  partly  consuetudinary ; 
and,  in  practice,  those  rules  hare  been  found 
exceedingly  well  adapted  to  the  object  in 
view.  See  Testing  Claute.  With  regard  to 
delivery,  considered  as  essential  to  the  vali- 
dity of  deeds,  see  Delivery.  In  Scotland  we 
have  not  the  technical  distinction  recognised 
in  the  law  of  England  between  deeds  poll  and 
deeds  by  indenture;  the  former  being  unila- 
teral deeds,  or  deeds  by  one  party,  whose 
consent  or  act  alone  is  sufficient,  as  is  the  case 
in  our  charters,  dispositions,  bonds  for  bor- 
rowed money,  and  the  like;  the  latter  being 
deeds  in  which  two  or  more  parties  become 
bound  to  each  other,  as  in  the  contract  of 
lease  or  of  copartnership.  Neither  is  it  ne- 
cessary, in  Scotland,  that,  in  every  case,  a 
deed  should  be  granted  for  a  valuable  consi- 
deration. If  there  be  no  fraud,  or  illegal 
preference  in  contemplation  of  bankruptcy, 
or  if  the  maker  of  the  deed  be  not  otherwise 
incapacitated  from  granting  it,  the  circum- 
stance of  its  being  gratuitous  will  have  no 
effect  on  its  validity.  See  Gratuittmt  Deed. 
Conjunct  and  Confident.  'Apparent  Heir.  Ex- 
cept in  deeds  relating  to  heritage,  or  by  which 
an  obligation  is  constituted,  we  have  not  in 
our  deeds  any  settled  and  precise  clauses  of 
form.  Wherever  words  are  used  sufficiently 
explicit  to  bind  the  party,  and  to  confer  a 
right  known  and  acknowledged  in  law,  the 
deed  will  constitute  a  valid  obligation,  effec- 
tual until  set  aside  on  legal  grounds;  the 
burden  of  reducing  or  setting  aside  an  ex  facie 
regular  deed  being  laid  on  the  party  who 
calls  it  in  question.  And,  in  general,  it  may 
be  observed,  that  all  our  deeds  are  appro- 
priate and  simple  in  their  structure  and 
phraseology,  and  comparatively  free  of  the 
technicalities  and  redundancies,  which  are 
remarkable  in  the  conveyancing  of  other 
countries.  The  clause  of  registration,  which 
is  introduced  in  all  formal  deeds  importing 
obligation,  is  a  valuable  expedient,  peculiar 
to  the  law  of  Scotland,  for  giving  summary 
execution,  without  the  expense  or  delay  of  a 
regular  action.  See  Decree  of  Registration. 
The  deeds  of  greatest  nicety  in  our  practice, 
and  the  construction  of  which  have  most  fre- 
quently required  the  intervention  of  courts  of 
law,  are  deeds  containing  destinations  of  he- 
ritable property,  particularly  contracts  of 
marriage,  family  settlements,  and  deeds  of 
entail.  But  even  as  to  those  the  legal  rules 
of  interpretation  are  not  complicated,  nor,  in 
the  ordinary  case,  difficult  of  application,  al- 
though the  haste  or  negligence  with  which 


deeds  of  this  kind  are  sometimes  prepared, 
combined  with  the  difficulties  inseparable 
from  every  attempt  to  regulate  prospectively 
the  various  conflicting  interests  which  nay 
emerge  in  the  course  of  a  destination,  or  which 
a  marriage-contract  or  family  settlement  may 
create,  naturally  give  rise  to  questions  which 
can  be  solved  only  by  judicial  interposition. 
Holograph  deeds — that  is,  where  the  whole 
deed  is  in  the  handwriting  of  the  granter— sre 
exempted  from  the  rules  with  regard  to  tii« 
authentication  of  ordinary  deeds.  Thus,  ho- 
lograph deeds  do  not  require  to  be  executed 
before  witnesses,  although,  without  witaesiei, 
they  do  not  prove  their  own  dates.  See  Ho- 
lograph Deed.  So  also  bills  of  exchange,  and 
other  documents  or  writings  in  re  mercatoria, 
are,  by  the  usage  of  trade  (which,  from  favonr 
to  commerce,  has  to  this  extent  become  part 
of  our  common  law),  exempted  from  the  sta- 
tutory regulations  as  to  authentication.  See 
Bilit  of  Exchange.  Evidence.  And  even  deeds 
possessing  none  of  those  privileges,  and  defec- 
tive in  the  legal  solemnities,  or  otherwise  in- 
formal, may  acquire  all  the  efficacy  of  regular 
deeds  by  a  rei  interventut,  or  by  homologation 
on  the  part  of  the  person  entitled  to  call  them 
in  question.  Bell's  Com.  i.  323 ;  BelTt  Pme. 
§18,  et  seq.;  Kames'  Equity,  128, 154, 168; 
Ross's  Leet.  i.  94,  et  seq.  See  HomokgatiM. 
Bei  Interventus. 

Deemsten ;  sre  a  kind  of  judges  is  the 
Isle  of  Man,  who  elect  their  successors,  and 
who,  without  process,  or  any  charge  to  the 
parties,  decide  all  controversies  in  that  isUnd. 
Tomlint'  Diet.  h.  t. 

Deer.  The  hunting  or  killing  of  deer  teems 
to  be  inter  r^a/ia,  except  as  to  those  who  bare 
the  deer  within  proper  inclosures.  But  al- 
though one  is  not  entitled  to  kill  deer  found 
trespassing  upon  his  property,  he  may  drive 
them  off;  Stair,  B.  ii.  tit.  3,  §  68 ;  Ertk. 
B.  ii.  tit.  6,  §  14.  The  offence  of  brealiing 
into  a  deer  park,  whether  belonging  to  the 
Crown  or  to  a  private  party,  and  shooting 
or  stealing  deer,  is  punishable  as  theft.  The 
shooting  of  stray  deer  without  the  owner's 
consent  seems  to  be  punishable  by  fine,  bnt 
not  as  theft.  The  statutes  relating  to  offences 
of  this  description  are,  1503,  c.  69 ;  1635,  c 
13 ;  1579,  c.  84 ;  1587,  c.  59;  and  1607,  c.  3. 
See  also  Hume,  vol.  i.  p.  81 ;  BeWs  Princ.  § 
1290. 

De  Facto  ;  signifies  a  thing  actually  done; 
that  is,  done  in  deed.  It  also  signifies  in  fad, 
A  king  de/acto,  as  contrasted  with  a  king  d« 
jure,  is  a  king  in  the  actual  possession  of  the 
crown,  which  of  right  belongs  to  the  other. 
Tomlins,  k.  t. 

Defamation ;  is  the  uttering  of  reports  in- 
jurious to  the  good  name  and  reputation  of 
an  individual,  whether  they  affect  his  life, 


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liberty,  estate,  character,  trade,  or  profession; 
or  are  calculated  or  intended  merely  to  render 
him  ridiculous  or  contemptible.    This  offence 
may  be  the  ground  either  of  a  criminal  pro- 
iecatioD,  or  of  a  civil  action  for  reparation,  or 
of  a  combination  of  both.    If  a  criminal  pro- 
lecation  be  resorted  to,  the  libel  may  con- 
elnde  not  only  for  punishment  ad  vindictam 
publican,  but  also  for  damages  to  the  private 
party.    In  the  Court  of  Session,  or  in  any 
other  civil  conrt,  the  conclusion  is  usually  for 
reparation  or  damages  to  the  private  party 
only.    Prosecutions  for  verbal  injuries  occnr 
bnt  rarely  in  the  Court  of  Justiciary.    The 
verbal  injoriea  which  seem  to  be  properly 
cognisable  before  the  Supreme  Criminal  Court 
are,  —  Isl,    Defamation  of  magistrates    or 
jodges,  such  as  charging  them  with  neglect  of 
duty,  corruption,  partiality,  or  oppression. 
2i,  Defamation  in  the  shape  of  false  and  ma- 
licious proeecntions  for  crimes,  or  defamatory 
and  calumnious  information  of  crime,  such  as 
falsely  and  maliciously  charging  one  with  a 
crime  of  which  he  is  not  guilty.    LasUi/,  The 
Court  of  Justiciary  will  take  cognisance  of 
the  offence  where  the  defamatory  words  are 
uttered  in  presence  of  the  injured  party,  and 
accompanied  with  circumstances  of  outrage 
or  violence  likely  to  be  productive  of  farther 
mischief ;  Hume,  i.  333,  et  teq.     The  punish- 
ment for  this  offence  is  arbitrary,  and  gene- 
rally consists  of  fine  or  imprisonment,  accord- 
ing to  the  condition  of  the  parties  and  the 
circDmstances  of  the  case.   In  the  commissary 
court  (uow  abolished),  it  was  usual  to  con- 
clode  also  for  a  palinode  (see  Palinode) ;  and 
in  a  late  case  it  was  held  that  the  sheriff,  as 
coming  in  place  of  the  commissary,  under  the 
statute  4  Geo.  IV.,  c.  97,  might  competently 
entertain  an  action  for  slander,  concluding, 
with  eoucoarse  of  the  procurator-fiscal,  for 
damages,  fino,  and  palinode ;    Turner,  21st 
June  1831,  9  S.  774.    The  animus  injuri- 
ftdi,  which  is  the  essence  of  this  crime, 
must  necessarily  be  matter  of  inference,  and 
vill,  in  the  ordinary  case,  be  presumed  from 
the  injurious  words  themselves ;  although  that 
)*  a  presamption  which  may  be  weakened  or 
elided,  by  special  circumstances  indicating  the 
abaence  of  any  deliberate  intention  to  injure. 
But  although  the  offender  may  be  thus  freed 
of  the  criminal  charge,  it  does  not  necessarily 
follow  that  he  is  discharged  of  his  obligation 
to  repair  the  injury  done  to  the  private  party; 
for,  if  what  is  said  be  injurious,  mere  petu- 
lance or  indiscretion  in  uttering  it,  without 
positive  malice,  may  be  the  ground  for  award- 
ing damages;  Hume,  i.  340;  Erdc.  B.  iv.  tit. 
4>  $  80.    The  question  of  greatest  difficulty, 
in  prosecutions  or  actions  on  account  of  de- 
wation,  relates  to  the  defender's  right  to 
prove,  in  bar  of  the  action,  the  verit<  iconvidi. 


or  truth  of  the  offensive  words  which  he  has 
uttered.  In  England,  if  the  party  defamed 
resort  to  a  civil  process  for  damages,  the  de- 
fendant may  prove  what  he  has  said  to  be 
trae,  and  if  he  succeed  in  doing  so,  the  action 
falls ;  for,  although  damage  may  have  been 
suffered,  the  law  of  England  holds  it  to  be 
a  damage,  for  which  no  reparation  can  be 
claimed.  If,  on  the  other  hand,  the  defamer 
be  proceeded  against  by  a  criminal  prosecu- 
tion, it  was  formerly  the  law,  that  what  he 
had  said,  being  criminal  in  its  nature,  and 
calculated  to  create  animosities,  and  to  disturb 
the  public  peace,  he  was  not  entitled  to  prove 
its  truth  ;  Blackstone,  B.  iv.  c.  11,  p.  150,  and 
B.  iii.  c.  8,  p.  125.  This,  however,  has  been 
modified  by  6  and  7  Vict.,  c  96.  In  Scot- 
land the  Veritas  convidi,  or  even  a  probable 
ground  of  suspicion,  is  a  justification,  and  may 
be  pleaded  as  a  defence  in  bar  of  the  action, 
wherever  the  injury  has  been  done  by  the 
defender  in  the  discharge  of  a  public  duty,  or 
in  a  bona  fide  endeavour  to  detect  malversa- 
tion or  crime  ;  Bank.  B.  i.  tit.  10,  §  31 ;  Ersk. 
B.  iv.  tit  4,  5  80 ;  Thomson,  16th  May  1810, 
Fac.  Coll.  Where  the  words  said  to  be  inju- 
rious are  uttered  by  a  party  in  a  process,  and 
appear  to  have  some  foundation  in  fact,  an 
intention  to  defame  will  not  be  presumed ; 
for  statements  made  in  a  court  of  law,  how- 
ever injurious  they  may  be  to  another,  if  they 
be  pertinent  to  the  cause,  and  not  imputable 
to  malice  against  the  party  who  is  the  object 
of  them,  are  privileged,  and  found  no  action 
for  defamation ;  Ersk.  ib. ;  Forteath,  18th  Nov. 
1819,  Fac.  Coll. ;  Davidson,  12th  May  1821, 
1  IS.  and  D.  7.  At  one  time,  it  appears  to 
have  been  thought  that  a  party  not  in  a  pri- 
vileged position  was  not  entitled  to  plead  the 
Veritas  convidi  in  bar  of  an  action  for  repara- 
tion. But  it  is  now  settled,  that  an  issue  iu 
justification  on  this  ground  is  competent.  See 
Tat/lor  V.  Anderson,  Mar.  19, 1844, 6  D.  1026 ; 
M'NdU  V.  R<Aison,  Nov.  12, 1847, 10  D.  15 ; 
and  M'Rostie  v.  Ironside,  Nov.  14,  1849, 12 
D.  75.  By  the  Jury  Court  Act,  59  Geo.  III.,, 
c.  35,  §  1,  actions  of  defamation  were  specially 
included  in  the  list  of  actions  which  were  to 
be  remitted  de  plaru)  to  the  Jnry  Court ;  and 
under  the  Judicature  Act,  6  Geo.  IV.,  c.  120, 
§  28,  actions  on  account  of  libel  or  defamation 
are  enumerated  as  appropriate  for  jury  trial. 
Macfarlane's  Practice,  pp.  18,  23,  70.  See 
Injuries.  Scandalum  Magnatum.  Leasing-mak- 
ing.     Veritas  Convidi. 

De£Ellllt ;  is  an  English  law  term,  commonly 
taken  for  nonappearance  in  Court  at  a  day 
assigned ;  though  it  extends  to  any  omission 
of  that  which  we  ought  to  do.  If  a  plaintiff 
makes  defaidt  in  appearance  in  a  trial  at  law, 
he  will  be  non-suited ;  and  where  a  defendant 
makes  d^avlt,  judgment  will  be  had  against 


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him  by  default.  In  judicial  procedure  in  Scot- 
land, Kimilar  consequences  resnlt  from  failure 
in  compliance  with  the  rules  or  orders  of 
Court.  Thus  in  the  Court  of  Session,  where 
a  party  fails  to  lodge  papers  against  the  day 
appointed,  or  where  he  improperly  refuses  to 
close  the  record,  judgment  may  in  general  be 
pronounced  against  him.  In  these  and  simi- 
lar cases  the  party  may  be  reponed  against 
the  judgment  by  default,  on  presenting  a  re- 
claiming note,  with  the  requisite  paper,  or 
stating  his  readiness  to  comply  with  the  order. 
But  this  indulgence  is  not  granted  except  on 
payment  of  such  expenses  as  may  be  thought 
reasonable ;  and  in  the  particular  case  of  fail- 
ure to  lodge'  Cases,  where  they  have  been  or- 
dered, the  party  cannot  be  reponed  but  on 
payment  of  the  whole  previous  expenses. 
Tomlins'  Diet.  h.t.  See  i.  -S.  lltt  Jnly  1828, 
§S  67,  60,  62,  112.  ShciuTs  Prae.  961.  See 
also  Decree.  Absence.  Reponing.  Reclaming 
Note. 

Defences.  The  term  Defences  is  a  general 
name  given  to  the  pleas  offered  for  the  defen- 
der, in  order  to  elide  or  exclude  the  action, 
and  comprehending  all  exceptions,  objections, 
or  allegations  of  wbatever  kind,  which  may 
be  stated  against  the  conclusions  of  the  libel. 
Those  pleas  are  generally  all  stated  in  the 
first  paper  which  is  put  into  process  on  the 
part  of  the  defender ;  and  in  the  judicial 
procedure  in  all  ordinary  actions,  that  paper 
is  called  the  Defences.  Defences  are  either 
dilatory  or  peremptory.  Dilatory  defences  are 
those  which  have  the  effect  of  absolving  the 
defender  without  cutting  off  the  pursuer's 
right  to  bring  a  new  action :  such  are  all  ob- 
jections to  the  competency  of  the  action  as 
laid,  or  to  the  title  of  the  pursuer,  or  to  the 
formality  of  the  execution  of  the  summons, 
&c.  Peremptory  defences,  on  the  other  hand, 
are  positive  allegations  which  enter  into  the 
merits  of  the  cause  itself,  and  have  the  effect 
either  of  taking  away  the  ground  of  action, 
or  of  extinguishing  its  effects.  Such  are  the 
exceptions  of  payment, — of  compensation, — 
of  homologation  or  ret  interventus, — of  res  ju- 
dicata,— of  lis  alibi  pendens, — of  prescription, 
— of  fraud,  force  or  fejvr.  These,  and  all  si- 
milar defences,  if  established,  not  only  absolve 
the  defender  from  the  action  as  laid,  but  to- 
tally extinguish  the  pursuer's  right  of  action 
on  that  claim.  It  may  be  observed,  however, 
that  the  exception  of  fraud,  or  force  and  fear, 
IS  not  relevant  against  all  actions ;  for,  if  the 
pursuer's  title  be  a  right  to  land,  or  other 
heritable  right,  which  is  alleged  to  have  been 
fraudulently  obtained,  it  is  not  competent  to 
plead  frattd  by  way  of  exception,  but  only  by 
reduction,  unless  where  the  deed  is  ejr  facie  in- 
complete. See  Stair,  B.  iv.  tit.  -10,  §  21.  Cor- 
rectly speaking,  no  defence  ought  to  got  the 


name  oi  km  exception  which  does  not  expressly, 
or  by  implication,  admit  the  relevancy  of  the 
libel  and  the  justice  of  the  conclusion,  if  it 
were  not  elided  by  the  exception  pleaded.  All 
other  pleas,  such  as  incompetency,  irrelevancy, 
want  of  title,  and  the  like,  ought  properly  to 
be  called  allegations,  objections,  or  answers ;  bnt, 
in  the  judicial  proceedings  in  our  Courts,  thia  is 
a  distinction  not  much  attended  to ;  although, 
with  a  view  to  accuracy  and  precision  in  plesd- 
ing,  it  seems  deserving  of  attention ;  see  Siair, 
B.  iv.  tit.  40,  §  15 ;  Ersk.  B.  iv.  tit.  1,  §  68,  et 
seq.  Seo  Decree.  Stairclasses(fecZtnature«aiiiong 
dilatory  defences;  but  itisobservedby  Erskine, 
that  a  declinature  is  not  a  defence  at  all,  bat, 
on  the  contrary,  an  express  refusal  to  state 
defences ;  Stair,  B,  iv.  tit.  39,  §  44 ;  ErsL  B. 
iv.  tit.  1,  §  67.  See  Declinature,  The  lime 
within  which  defences  must  be  lodged,  sc- 
cording  to  the  regulations  of  the  Court  of 
Session,  is  mentioned,  voce  Galling  of  a  Sum- 
mens ;  and  in  the  defences,  the  defender,  ac- 
cording to  the  directions  of  the  judicature  sod 
Court  of  Session  acts,  must  state,  in  explicit 
terms,  every  defence,  both  dilatory  and  per- 
emptory, on  which  he  means  to  rely.  In  par- 
ticular, he  must  meet  the  statement  of  facts, 
and  the  conclusions  deduced  from  them  in  the 
summons,  by  either  denying  or  admitting  the 
alleged  facts  in  articulate  answers  to  the 
condescendence,  by  setting  forth,  in  explicit 
terms,  the  facts  on  which  he  founds  his  de- 
fence in  an  articulate  statement  of  facts,  and 
by  subjoining  a  note  of  pleas  in  law,  and  pro- 
ducing the  writings,  if  any,  founded  on,  so 
far  as  in  his  custody  or  within  his  power.  If 
the  defences  are  improperly  prepared,  theymay 
be  ordered  to  be  amended  ;  the  defender  being 
subjected  in  the  expenses  thence  resulting. 
Admissions  made  in  defences  will  not  be  easily 
allowed  to  be  retracted ;  and  where  falsehood 
or  forgery  is  alleged  in  defence,  exceptio  fahi 
est  omnium  ultima;  so  that  if  the  defender 
propone  improbation,  and  fail  in  this  defence, 
he'  cannot  make  any  other  objection  against 
the  writing, — e.g.,  that  it  was  extorted,  or  the 
like.  This  rule,  however,  applies  only  where 
forgery  is  pleaded  as  a  defence,  or  reply ;  for, 
when  brought  forward  in  the  form  of  an  ac- 
tion of  reduction-improbation,  the  pursuer, 
though  he  fail,  may  plead  other  nullities. 
When  a  number  of  defenders  are  called  in 
separate  actions  relating  to  the  same  matter, 
and  where  they  have  all  precisely  the  same 
defences,  one  defence  should  be  lodged,  con- 
taining the  defence  which  is  applicable  to  the 
whole,  and  separate  pro  forma  defences  lodged 
for  each  defender ;  and  where,  after  defences 
have  been  lodged,  one  of  several  pursuers 
withdraws,  the  defender  is  entitled  to  lodge 
additional  defences  applicable  to  the  altered 
circumstances  of  the  case.    If  there  be  dila-- 


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tory  defences,  tbey  mnst  be  disposed  of  before 
the  record  is  closed,  nnless  they  require  pro- 
bation ;  and  if  the  dilatory  defences  are  sus- 
tained,  the  action  w91  be  dismissed,  and  the 
question  of  expenses  decided.  If  the  dilatory 
defences  are  ropelled,  it  is  not  competent  to 
proDonnce  any  decision  at  that  stage  of  the 
Mose  on  the  qnestion  «f  expenses,  unless  the 
defender  annoances  his  intention  of  reclaim- 
iog,  in  which  case  the  liord  Ordinary  will 
sward  expenses  against  him ;  and  if,  after 
such  notice,  the  defender  should  not  reclaim 
within  the  usual  period  (see  Reclaming  Days), 
the  decree  for  expenses,  and  for  the  expense 
of  extract,  will  be  allowed  to  go  out  and  be 
ntracted  as  an  interim  decree.  On  the  other 
hand,  if  the  defender  reclaim,  and  if  the  Court 
adhere,  sucb  adherence  now  carries  with  it  a 
finding  of  the  additional  expenses  under  the 
note ;  the  clerks  being  authoriEed  to  insert 
a  finding  to  this  efifect  in  the  interlocutor 
adhering.  Where  the  action  is  not  dis- 
missed on  the  dilatory  defences,  no  appeal 
to  the  Honse  of  Lords  against  the  judgment 
can  he  taken  without  the  leave  of  the  Court ; 
hot  the  effect  of  the  defence  is  reserved  in 
ease  of  an  appeal  after  a  final  decision  on 
the  merits;  6  Geo.  fV^  c.  120,  §  61.  Dila- 
tory defences  in  jury  causes  are  disposed  of  in 
the  same  manner.  When  a  dilatory  defence 
has  neither  been  repelled  nor  «xpres8ly  re- 
serred,  but  has  been  repeated  in  the  pleas  in 
law  in  the  closed  record  en  the  merits,  it  is 
held  as  reserved.  But  it  is  for  the  interest 
of  both  parties,  and  particularly  of  the  pur- 
sner,  to  have  all  dilatory  defences  disposed  of 
before  incurring  the  expense  of  making  np  a 
record  on  tbe  merits;  which  record,  if  the  di- 
latery  defence  is  ultimately  sustained,  may 
prove  useless.  Such  dilatory  defences,  how- 
ever, as  require  probation,  may  be  reserved 
antii  the  record  is  made  np ;  and  when  there 
are  no  dilatory  defences,  or  when  they  have 
been  all  repelled  or  otherwise  disposed  of,  in 
practice,  the  record  is  either  closed  on  the  sum- 
mons and  defences,  and  decided  ia  the  usual 
way,  or  (which  is  by  far  the  most  frequent 
conrse)  the  record  is  made  up  by  revised  con- 
descendence and  revised  defences,  in  the  manner 
explained,  voce  Record.  In  the  special  case  of 
actions  of  reduction  (which  are  peculiar  to  the 
Court  of  Session),  if  the  defender  is  to  object 
tothe  title  of  the  pursuer,  or  to  plead  on  an  ex- 
elosive  title,  or  to  state  any  other  objection 
against  satisfying  the  production,  he  must  re- 
tnm  defences  confined  to  these  points;  but 
otherwise,  no  defences  need  be  given  in  before 
the  production  is  satisfied.  It  is  competent, 
however,  to  the  Lord  Ordinary,  on  cause 
shown,  and  even  although  no  defences  should 
have  been  given  in  before  satisfying  the  pro- 
duction, to  reserve  all  objections  to  the  title 


till  the  cause  is  heard  on  the  merits.  These 
defences  against  satisfying  the  production, 
are  usually  called  preliminary,  not  dilatory  de- 
fences ;  and  if  no  such  defences  are  lodged, 
it  is  held,  that  the  production  is  to  be  satis- 
fied, and  that,  if  the  defender  is  to  make 
any  defence  at  all,  it  is  to  be  a  defence  on 
the  merits  of  the  reduction,  after  the  pro- 
duction is  satisfied.  In  such  cases,  accord- 
ingly, the  practice  is,  in  the  first  place,  to  get 
the  production  satisfied  in  the  manner  else- 
where explained,  and  then  to  take  an  order 
for  defences  against  the  reasons  or  summons 
of  reduction,  which  defences  may  be  both  di- 
latory and  peremptory ;  6  Geo.  IV.,  c.  120,  § 
5,  27,  50;  A.  S.  Uth  Julyl82S.  See  Re- 
duction. In  the  inferior  courts,  where  the 
record  is  not  closed  on  the  SherifiTs  minute, 
the  regulations  concerning  defences  are  similar 
to  those  of  the  Supreme  Court  See,  on  this 
subject,  6  Oeo.  IV.,  c.  120 ;  A.  S.  Uth  July 
1828,  A.  S.  12th  Nov.  1825,  and  A.  S.  10th 
July  1839,  as  to  inferior  courts;  also  Sharul^s 
Prac.  287,  317,  et  teq. ;  M'Glashan,  198,  et 
teq. ;  Barclay's  Notes,  p.  15,  et  seq. ;  and  for 
the  older  regulations,  see  A.  S.  11th  Aug. 
17S7,  7th  Feb.  1810,  Uth  Jfar.  1814;  Stair, 
B.  iv.  tifc  39  and  40  ;  Ersk.  B.  iv.  tit.  1,  §  66, 
et  seq. ;  Bank.  B.  iv.  tit.  25. 

Procedure  in  the  Court  of  Session  is  now 
regulated  by  the  act  13  and  14  Vict.,  c.  36., 
1850,  and  in  the  Sheriff  Courts,  by  the  act 
16  and  17  Viet.,  c.  80,  1853.  See  also 
Record.  Condescendence.  Replies.  Calling  of 
a  Summons.    Defender. 

In  a  criminal  prosecution  before  the  Court 
of  Justiciary,  when  the  panel,  besides  the 
general  plea  of  not  guilty,  means  to  maintain 
some  special  defence,  the  statute  20  Geo.  II.,  c. 
43,  No.  41,  requires  that,  on  the  day  before 
the  trial,  he  shall  lodge  with  the  clerk  of 
Court  a  written  statement,  signed  by  himself 
or  his  counsel,  setting  forth  the  facts  he  al- 
leges, and  the  heads  of  the  objections  or  de- 
fences he  means  to  maintain.  In  practice, 
however,  instead  of  lodging  written  defences, 
it  is  usual  for  the  counsel  for  the  panel,  in 
the  outset  of  the  trial,  orally  to  explain  to 
the  Court  the  course  of  defence  which  is  to 
be  followed.  Were  the  panel  or  his  counsel, 
in  the  hope  of  gaining  some  advantage,  to 
withhold  this  explanation,  and  not  to  lodge 
written  defences,  the  Court,  or  the  public  pro- 
secutor, might  insist  for  a  written  defence  in 
terms  of  the  statute,  the  departure  from  which 
is  an  indulgence  to  the  panel.  Hume,  ii. 
283.     See  Criminal  Prosecution. 

Defendant;  an  English  law  term,  signi- 
fying the  party  sued  in  a  personal  action. 
Tomlins'  Diet. 

Defender ;  is  the  party  against  whom  the 
conclusions  of  a  process  or  action  are  directed. 


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Where  a  minor  U  called  as  a  defender,  his 
father,  or,  if  the  father  be  dead,  the  tutors  or 
curators  of  the  minor,  must  be  cited  along 
with  him,  otherwise  any  decree  pronounced 
against  him  in  the  action  will  be  reducible  on 
that  ground.  See  Curatory.  Pupil.  Tutor. 
In  like  manner,  when  a  married  woman  is 
sued  (where  that  is  competent),  her  husband 
must  be  cited  for  his  interest.  See  Marriage. 
Where  a  pursuer  is  abroad,  or  a  foreigner,  his 
mandatory  who  conducts  the  action  for  him  in 
this  country  is  personally  liable  for  the  ex- 
penses of  process,  in  case  they  may  be  awarded 
to  the  defender ;  CHaggeu,  Slst  July  1761, 
Xor.  p.  4644.  A  different  rule  waa  at  one 
time  recognised  in  the  case  of  the  mandatory 
of  a  defender  abroad,  or  a  foreigner  ;  Ltigh, 
19th  Dec.  1792,  Mar.  4646.  Now,  however, 
it  is  settled  that  the  mandatory  of  a  defender 
is,  in  this  respect,  in  the  same  situation  with 
the  mandatory  for  a  pursuer ;  Shand's  Prac. 
160,  and  cases  there  cited.  If  the  defender  die 
in  the  course  of  a  process,  the  action  must  be 
transferred  against  his  representatives.  See 
Trans/eretice.  No  more  than  six  defenders, 
with  separate  and  distinct  interests,  can  be 
sued  in  one  and  the  same  summons  {Art  of 
Reg.  2d  Not.  1695,  §  28) ;  and  the  same  rnle 
applies  in  inferior  courts;  A.  S.  12th  Nov. 
1825.  See  Summons.  Mandatory.  Foreigner. 
Forum  eompetens.  In  a  criminal  prosecution, 
whether  against  a  minor  or  a  married  woman, 
there  is  no  occasion  to  call  either  the  tutors 
or  curators,  or  the  husband  {Hume,  vol.  ii.  p. 
162) ;  and  where  such  an  action  concludes  for 
a  fine,  and  is  purely  criminal,  it  falls  by  the 
death  of  the  defender,  and  cannot  be  trans- 
ferred against  his  representatives,  even  after 
litiscontestation  ;  Oray,  18th  Feb.  1773,  Mor. 
p.  10361.  But  the  civil  claim  for  damages 
at  the  instance  of  the  private  party  is  trans- 
mitted to  representatives,  like  an  ordinary 
debt,  whether  the  action  has  been  raised  be- 
fore or  after  the  death  of  the  delinquent.  See 
Damages.    Delict. 

Defender  of  the  Faitii;  is  a  title  pe- 
culiar to  the  King  or  Queen  of  England. 
It  was  first  conferred  by  Pope  Leo  A.  on 
Henry  VIII.  in  1521,  as  a  reward  for  writ- 
ing against  Luther;  and  it  has  been  used 
by  the  Kings  of  England  ever  since.  Tomlins' 
Diet. 

Defending  Foreibly.  Forcible  defence,  or 
resistance  against  the  execution  of  personal 
diligence  by  horning  and  caption,  is  one  of  the 
equivalents  to  imprisonment,  mentioned  in  the 
act  1 696,  c.  5,  and  also  in  19  and  20  Vict.,  c. 
79, 1856,  in  specifying  the  requisites  of  notour 
bankruptcy.  See  Bankrupt.  And  by  the  said 
statute  of  Victoria,  such  resistance  will  entitle 
a  creditor,  to  the  requisite  extent,  to  apply  for 
mercantile  sequestration  of  the  estates  of  his  I 


debtor,  provided  the  debtor  fall  within  the  de- 
scription of  persons  against  whom  sequestra- 
tion may  be  awarded.  See  Sequestration.  The 
fact  of  forcible  resistance  can  hardly  be  am- 
biguous ;  and  the  proper  evidence  of  it  is  the 
attestation  of  the  messenger  and  witnesses, 
contained  in  an  execution  or  return.  But  a 
general  proof  will  also  be  admitted.  BdTs 
Com.  vol.  ii.  p.  172-6-7,  5th  edit.  See  /si- 
prisonment.     Apprehending  a  Debtor. 

De  Fideli  The  oath  de  fiddi  administr*. 
tione  is  an  oath  taken  by  persons  on  entering 
on  the  duties  of  professions  or  offices  of  public 
trust.  Thus,  this  oath  is  administered  to  the 
judges  and  other  members  of  the  College  of 
Justice,  including  all  practitioners  before  the 
Court  of  Session.  The  takers  of  the  oath 
simply  swear  to  be  faithful  in  the  discharge 
of  the  duties  of  the  office.  A  breach  of  the 
oath  de  fideli  does  not  amount  to  the  crime 
of  perjury.  See  Hume,  vol.  i.  p.  371.  See 
Oaths. 

Deforcement ;  is  an  act  of  contempt  of  the 
law,  consisting  of  a  violent  opposition  and  hin- 
drance to  an  officer  of  the  law  in  the  execution 
of  his  official  duty.  The  officer  must  be  a 
lawful  officer,  either  a  messenger-at-arms,  or 
other  Officer  to  whom  the  execution  of  tiw 
diligence,  or  other  warrant  or  order,  may  be 
legally  intrusted ;  and  the  resistance  must  be 
offered  to  him  while  engaged  either  in  the  forr 
mal  execution  of  the  official  act,  or  after  he 
has  assumed  the  official  character,  and  is  in 
immediate  preparation  (in  act*  proximo)  to 
enter  on  the  formalities.  The  officer  mast 
notify  who  he  is,  and  the  purpose  of  h  is  errand ; 
and,  if  required,  he  must  exhibit  his  warrant, 
although  he  need  not  part  with  it.  A  mes- 
senger-at-arms must  also  exhibit  his  blazon, 
and  an  inferior  officer  his  baton  or  other  badge 
of  office ;  and,  in  the  attempt  to  execute  his 
duty,  he  must  have  been  himself  proceeding, 
in  every  other  respect,  in  a  lawful  manner. 
The  obstruction  offered  must  relate  to  the  daty 
in  which  the  officer  is  engaged ;  and  it  must 
be  such  an  act  of  violence  as  to  create  either 
an  actual  impediment,  or  to  excite  a  well- 
grounded  alarm  for  his  personal  safety.  It 
must  be  an  actual  hindrance ;  for,  if  the 
officer  proceed  and  accomplish  his  object,  the 
offence  will  amount  to  no  more  than  an  at- 
tempt to  deforce,  or  an  assault.  All  parties 
concerned  in  the  resistance,  whether  the  party 
against  whom  the  proceeding  is  directed,  or 
others,  are  guilty  of  the  deforcement ;  ifu«»«, 
vol.  i.  p.  386,  et  stq. ;  Ersk.  B.  iv.  tit  4,  §  33, 
et  seq.  The  statutes  relating  to  the  pnnish- 
ment  of  this  offence  are — 1581,  c.  118,  which 
provides  that  those  convicted  be  punished  by 
escheat  of  moveables,  the  creditor  being  pre- 
ferable for  his  debt,  expenses,  and  damages; 
1587,  c.  84,  which  provides  that  persons  guilty 


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of  deforcement  be  prosecuted,  either  civilly 
or  erimiDally,  at  the  option  of  the  parsuer, 
and  that  their  liva  and  goods  be  at  the  King's 
will ;  and  1592,  c  150,  which  makes  deforce- 
bg  an  officer  of  the  law,  or  molesting  him  to 
tiie  effusion  of  bis  blood,  punishable  by  for- 
feitare  of  moveables,  one-half  to  the  king, 
and  the  other  to  the  pursuer.  It  does  not 
appear,  however,  that,  under  these  statutes, 
anything  more  than  an  arbitrary  punishment 
hat  ever  been  inflicted.  The  ordinary  punish- 
ment is  fine  or  imprisonment,  suMSompanied 
with  damages  to  the  private  party.  It  might 
be  inferred,  from  the  words  of  the  act  1592, 
e.  150,  and  from  Ersk.  B.  iv.  tit.  4,  §  34,  that 
the  deforcement  must  be  accompanied  with 
effusion  of  the  officer's  blood,  before  it  can  be 
the  ground  of  a  prosecution  ad  vindktam  pub- 
Ueom;  but,  from  a  more  recent  authority,  it 
appears  that  this  is  not  necessary.  See  Hume, 
i.  394.  The  competent  prosecutors  for  deforce- 
ment are  either — ls(.  The  Lord  Advocate; 
or,  2d,  The  aiessenger-at-arms  and  the  Lord 
Ljon,  even  without  the  concurrence  of  the 
Mrty  employer ;  or,  3d,  The  party  employer. 
The  competent  court  is  either  the  Court  of 
Justiciary  or  the  Court  of  Session ;  and  in- 
ferior courts  may  also  protect  their  officers 
from  injury  in  the  execution  of  their  duty ; 
Hume,  i.  399.  The  statutes  referred  to  re- 
cognise the  jurisdiction  of  the  Court  of  Session 
io  cases  of  deforcement ;  but,  according  to  the 
present  practice,  when  the  action  is  brought 
in  that  Court,  the  conclusion  is  not  for  the 
statutory  pains,  but  merely  a  civil  action  for 
payment  of  the  debt,  with  interest,  damages, 
and  expenses ;  although,  were  an  aggravated 
ea«e  to  occur  before  the  Court  of  Session,  the 
Court  might  no  doubt  remit  it  to  the  Lord 
Advocate,  with  a  view  to  his  instituting  pro- 
ceedings ad  vindktam  publkam.  Formerly,  the 
employer  of  the  officer  who  had  been  deforced 
could  not  be  s  witness,  even  in  a  prosecution 
by  the  poblic  prosecutor,  unless  he  discharged 
hii  interest  in  the  escheat,  and  for  the  recovery 
of  his  debt;  but  all  objections  to  the  admis- 
Ability,  as  witnesses,  of  the  employer,  and  of 
near  relations  of  the  party  prosecuting,  have 
been  removed  by  the  recent  Evidence  Amend- 
ment Acts.  It  would  appear,  that  although 
the  defender  be  assoilzied  in  the  criminal  pro- 
cees,  yet  he  may  be  pursued  civilly,  and  the 
fact  of  the  deforcement  referred  to  his  oath ; 
Maeketuie,  B.  iv.  tit.  2,  §  39.  See  also  Ersk. 
B.  iv.  tit.  1,  §  64.  The  deforcement  or  forci- 
ble resistance  of  revenue  officers  in  the  execu- 
tion of  their  official  duty,  or  such  resistance 
offered  to  any  of  Her  Majesty's  naval  or  mili- 
tsiy  forces,  or  to  any  other  person  or  persons 
acting  in  aid  of  the  revenue  officers,  is,  in  some 
cases,  a  capital  crime,  as  to  which  there  have 
been  varioas  statutes.     By  the  statute  62 


Geo.  III.,  c  143  (which  appears  to  be  still  in 
force),  it  was  provided  that  where  a  person 
has  been  killed  in  the  execution  of  this  duty, 
if  any  individual  shall  be  charged  on  oath, 
before  a  justice  of  peace  or  other  competent 
person,  with  having  been  concerned  in  the  re- 
sistance which  led  to  the  death,  Her  Majesty's 
Council  may  issue  an  order  on  the  person  so 
charged,  to  surrender  himself  within  sixty 
days ;  and  if,  after  due  publication  of  this 
order,  in  the  manner  pointed  out  by  the  act, 
he  fail  to  do  so,  "  he  shall  then  be  adjudged, 
decerned,  and  taken  to  be  convkted  of  a  capital 
crime,  and  shall  suffer  the  pain  of  death  and 
confiscation  of  moveables,  as  in  the  case  of  a 
person  found  guilty  of  a  capital  crime,  and 
under  sentence  for  the  same  ;  and  it  shall  be 
lawful  for  the  Court  of  Justiciary,  or  the 
Lords  of  Justiciary,  in  their  circuits  in  Scot- 
land,to  award  execution  against  such  offender, 
in  such  manner  as  if  he  had  been  found  guilty 
and  condemned  in  the  said  Court  of  Justiciary, 
or  Circuit  Courts  respectively;"  4  and  5  Wtll. 
IV.,  e.  13,  §  2.  See  also  Hume,  vol.  i.  p.  488, 
«( »eq.  See,  on  the  subject  of  this  article.  Stair, 
B.  i.  tit,  9,  §  29,  and  B.  iv.  tit.  49  ;  Mackenzie, 
B.  iv.  tit.  4,  §  17;  Ersk.  B.  iv.  tit.  4,  §  32,  «< 
seq.;  Bank.  B.  i.  tit.  10,  §  190,  e<««g.;  Ross's 
Led.  vol.  i.  p.  338 ;  Taies  Just,  of  Peace,  h.  t. ; 
Eutcheson's  Just,  of  Peace,  vol.  i.  p.  325,  2d 
edit. ;  Jurid.  Stj^les,  vol.  iii.  p.  102. 

Se&auding  of  Creditors.  Creditors  may 
be  defrauded  by  the  funds  of  their  debtor 
being  concealed,  or  illegally  diminished,  or  by 
their  being  conveyed  to  favourite  creditors, 
to  the  prejudice  of  the  rest,  or  by  the  un- 
due increase  of  debts  or  claims  against  the 
debtor's  estate.  Wherever  any  of  those  ob- 
jects has  been  fraudulently  accomplished,  re- 
dress may  be  had  either  at  common  law  or 
under  the  bankrupt  statutes.  If  debts  be 
improperly  increased,  or  if  any  other  fraudu- 
lent device  be  fallen  upon,  either  to  conceal 
the  debtor's  funds,  or  to  confer  undue  pre- 
ferences (where  the  case  does  not  fall  within 
any  of  the  statutes^,  the  common  law  affords 
a  remedy;  the  burden  of  proving  the  fraud 
being  laid,  in  common  law  actions,  on  the  per- 
son objecting  to  it.  But  besides  an  action  for 
fraud  at  common  law,  the  several  bankrupt 
statutes  have  introduced  certain  legal  frauds, 
or  presumptions  of  fraud,  which  either  have 
the  effect  of  annulling  entirely  the  transactions 
in  which  they  occur,  or  which  lay  the  onus 
probandi  on  the  person  favoured  by  the  deed. 
Thus,  the  act  1621,  c.  18,  provides  that  all 
alienations  granted  after  the  contraction  of 
debt  in  favour  of  a  conjunct  or  confident  per- 
son, without  necessary  cause  or  a  just  price, 
shall  be  null ;  the  burden  of  proving  an  oner- 
ous cause  being  laid  on  the  person  founding 
on  the  deed.     See  Conjunct  and  Confident. 


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Another  branch  of  this  statute  entitles  a 
creditor,  who  has  begun  diligence  against  his 
debtor's  person  or  estate,  to  reduce  any  volun- 
tary security  or  payment  subsequently  made, 
in  defraud  of  the  begun  diligence,  unless  there 
has  been  undue  delay,  or  mora  in  the  prose- 
cution of  the  diligence.  See  Dili^enee.  Mora. 
And  the  act  1696,  c.  5,  which  was  intended  to 
guard  against  fraudulent  alienations  by  bank- 
rupts, to  the  prejudice  of  their  creditors,  pro- 
vides that  all  voluntary  alienations  or  other 
deeds  (whether  fraudulent  or  not),  granted, 
either  directly  or  indirectly,  by  a  bankrupt, 
within  sixty  days  of  his  bankruptcy,  in  favour 
of  a  creditor,  either  for  his  satisfaction  or 
further  security,  in  preference  to  other  cre- 
ditors, shall  be  void  and  null.  See  Bankrupt. 
Seguettration.    Fraudulent  Bankruptcy. 

OefiraQding  the  Beyenne.  Any  fraudulent 
contrivance,  by  which  the  payment  of  a  tax 
or  duty  imposed  by  G-overnroent  is  evaded, 
falls  under  the  general  description  of  a  fraud 
against  the  revenue.  The  penalties  inflicted 
upon  persons  guilty  of  such  offences  are  re- 
gulated by  the  particular  statute  imposing  the 
tax  or  duty.  It  does  not  fall  within  the  plan 
of  this  work  to  attempt  a  summary  of  the 
numerous  revenue  statutes  ;  but  it  may  be  ob- 
served— 1st,  That  the  laws  upon  this  subject, 
and  the  forms  under  which  they  are  adminis- 
tered, are,  by  the  Treaty  of  Union,  made  the 
same  in  Scotland  as  in  England,  with  certain 
unimportant  exceptions  specified  in  the  treaty; 
2J,  That  the  question,  whether  a  fraud  has 
been  committed,  must,  of  course,  depend  upon 
the  terms  of  the  particular  statute  imposing 
the  tax,  and  the  circumstances  under  which 
an  evasion  has  been  attempted;  and,  M, 
That  the  Supreme  Court  in  Scotland  for  the 
trial  of  offences  against  the  revenue  is  now 
the  Court  of  Session ;  the  Court  of  Exchequer 
being  now  merged  in  the  Court  of  Session. 
But  particular  statutes  sometimes  confer  a 
subordinate  jurisdiction  on  commissioners  to 
be  appointed  under  the  statute ;  and  the 
power  of  snmmary  conviction  is  also  vested  by 
some  of  the  statutes  in  justices  of  the  peace, 
as  to  certain  offences,  particularly  in  the  case 
of  offences  against  the  laws  relating  to  the 
excise  and  customs.  In  such  case.i,  the  statute 
commonly  pcescribes  rules,  both  as  to  the  form 
of  the  prosecution  and  the  evidence  necessary 
for  a  conviction.  See  Smwigling.  Excise. 
Revenue.  Exchequer.  .Justice  of  the  Peace. 
Quarter  Sessions. 

Defonot ;  a  deceased  person ;  see  Stair,  B. 
iv.  tit.  43,  §  21.     See  Confirmation. 

Deg^radation ;  a  term  used  in  English  law 
to  signify  an  ecclesiastical  censure,  by  which 
a  clergyman  is  divested  of  his  holy  orders. 
There  are  two  sorts  of  degrading  by  the  canon 
law, — one  snmmary,  by  word  only ;  the  other 


solemn,  by  stripping  the  party  degraded  of 
those  ornaments  and  rights  which  are  the  en- 
signs of  his  order  or  degree.  Analogoos  to 
the  latter  form  of  degradation  is  the  degra- 
dation of  a  nobleman,  or  of  a  knight,  at 
common  law,  when  attainted  of  treason.  A 
similar  degradation  may  also  be  inflicted  by 
act  of  Parliament.    See  TomUns'  Did.  k  t. 

D^;rees  of  Kindred.  Persons  standing  in 
certain  degrees  of  relationship  to  each  other 
cannot  lawfully  intermarry.  Thus,  that  con- 
nection cannot  be  formed  between  parties 
nearer  in  degree  to  each  other  than  cousins- 
german,  whether  by  consanguinity  or  affinity. 
See  Marriage.  In  like  manner,  a  jadge  who 
stands  in  certain  degrees  of  relationship  t«  a 
party  is  disqualified  to  judge  in  his  came. 
See  Declinature.  So  also,  under  the  bankrupt 
statutes,  gratuitous  alienations  in  favour  of 
relations  are,  in  certain  circumstances,  re- 
ducible. See  Conjunct  and  Confident.  As  to 
degrees  of  kindred  considered  in  relation  to 
succession,  see  Succession.  Heir.  ExectioT. 
Consanguinity.     Affinity. 

Deinn;  is  the  opinion  of  those  who  ac- 
knowledge the  existence  of  a  God,  without 
admitting  the  truths  of  Christianity.  Any 
attempt  to  propagate  this  doctrine  would  be 
punishable  as  an  offence  against  the  estab- 
lished religion.  See  Atheism.  Blasphemy. 
Religion, 

Delay.    See  Mora. 

Del  Credere ;  is  an  Italian  mercantile 
phrase,  similar  in  import  to  the  English  term 
guarantee.  It  has  been  adopted  in  this  coun- 
try, and  is  used  amongst  merchants  to  express 
the  obligation  undertaken  by  a  factor,  broker, 
or  mercantile  agent,  when  he  becomes  bound, 
not  only  to  transact  sales,  or  other  bosines 
for  his  constituent,  but  also  to  guarantee  the 
solvency  of  the  persons  with  whom  he  con- 
tracts. On  account  of  this  guarantee,  a  higher 
commission,  called  a  del  credere  commission,  it 
paid  to  the  factor.  The  most  ordinary  ex- 
amples of  this  obligation  occur  in  cases  of  sales 
made  by  a  factor  or  agent  to  whom  goods  have 
been  consigned  for  sale.  The  usual  commis- 
sion paid  to  the  factor  for  his  trouble  in  ef- 
fecting sales  and  remitting  the  money,  or  pro- 
curing bills  for  the  price,  is  two-and-a-half 
per  cent,  on  the  price,  and  two-and-a-half  ptr 
cent,  more  is  generally  paid  as  del  credere  com- 
mission, where  the  factor  guarantees  the  sol- 
vency of  the  purchasers.  The  obligation  thus 
undertaken  by  the  factor  is  not  a  cautionary 
obligation,  in  the  ordinary  sense  of  that  ex- 
pression ;  for  the  factor  is  liable  directly,  and 
without  the  benefit  of  discussion.  Neither  is 
it  properly  a  ddegatio  debiti ;  for,  if  the  factor 
fail,  the  principal  is  entitled  to  recover  from 
the  purchaser.  In  cases  of  insolvency,  the 
following  seem  to  be  the  rules  of  ranking  :— 


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iti.  If  the  factor  continue  solvent,  he  is  en- 
titled ti>  claim  on  the  bankrupt  estate  of  the 
buyer,  or  other  person,  whose  solrencj  he  ha^ 
guaranteed,  provided,  however,  that  the  prin- 
tipal  do  not  himself  rank  on  the  buyer's  estate 
for  the  same  debt ;  2d,  If  the  agent  or  factor 
be  insolvent,  the  principal  may  claim  on  the 
estate  of  the  proper  debtor,  unless  the  proper 
debtor  has  already  paid  the  price  to  the  factor ; 
and,  Sd,  If  both  the  factor  and  the  pur- 
chaser be  insolvent,  the  principal  may  rank  for 
tlie  whole  debt,  both  on  the  estate  of  the 
factor,  who  stands  dd  credere,  and  on  the  estate 
of  the  purchaser  ;  so,  however,  as  not  to  draw 
more  than  twenty  Shillings  in  the  pound  on 
his  whole  debt ;  see  Bell's  Com.  i.  377.  See 
also  Ranking.  As  to  the  cases  in  which  pay- 
ment to  the  factor  discharges  the  purchaser, 
see  Factor.  See  also  Brodie's  Supp.  to  Stair, 
p.  921, 941 ;  BelVs  Princ.  §§  222, 286 ;  BeU's 
Ittnst.  §  286. 

SelMtna  Persons ;  is  the  choice  or  selec- 
tion, either  express  or  presumed,  of  a  par- 
ticular indiridual,  on  account  of  some  personal 
qnalification.  Thus,  in  the  case  of  an  agri- 
coltural  lease  ofordinary  endurance,  the  land- 
lord is  presumed  to  have  chosen  his  tenant 
with  a  special  view  to  his  personal  qualifica- 
tions ;  and  although  the  deleclus  personce  does 
not  now  exclude  the  tenant's  heirs,  yet,  with- 
out the  landlord's  consent,  either  express  or 
implied,  such  a  lease  cannot  be  voluntarily 
assigned  or  subset.  But  an  express  exclusion 
of  assignees  is  required  in  order  to  prevent 
the  creditors  of  the  tenant  from  adjudging  the 
lease.  The  ddecttts  persona,  however,  is  not 
presumed,  if  the  lease  exceed  the  ordinary  en- 
dnrance  (nineteen  or  twenty-one  years) ;  and 
m  leases,  however  short,  of  urban  subjects,  it 
is  never  presumed.  In  the  same  manner,  under 
the  contract  of  society,  there  is  an  implied 
idectttt  pertoncB  inseparable  from  the  nature  of 
the  contract,  which  bars  the  admission  of  new 
partners,  either  by  succession  or  by  alienation, 
nnless  the  contract  contain  an  express  stipula- 
tion entitling  the  heirs  of  partners  to  succeed 
to  their  predecessor's  share  in  the  concern,  or 
empowering  the  partners  themselves  to  assign 
their  shares.  See  Sodetp.  So  also  ofBces  in 
which  there  is  a  personal  trust  reposed,  are 
neither  saleable  or  adjudgeable  for  debt,  al- 
though, in  the  ordinary  case,  the  emoluments 
of  an  ofBce  are  attachable  by  diligence.  Ersk. 
B.  ii.  tit.  6,  §  31,  «<  seq. ;  BeWs  Com.  i.  76,  et 
tq.  126 ;  Bdl  on  Leases,  4th  edit.  vol.  i.  p. 
180,  et  seq.;  Hunter's  Landlord  and  Tenant, 
i.  171, 203,  222 ;  BeU's  Prine.  §  358,  1215 ; 
M"!  KM.  §358;  Ross's  Lect.  ii.  481,  See 
Q^«e*.    Lease. 

Delegate ;  a  person  deputed  to  act  for  an- 
other, or  for  others.  The  delegate  of  a  royal 
hnrgh,  under  the  old  election  law,  was  a  per- 


son appointed,  according  to  certain  statutory 
forms,  by  the  town  council  of  the  burgh,  to 
meet  with  the  delegates  from  the  other  burghs 
of  the  district,  and  to  vote  iu  the  election  of  a 
member  to  represent  the' district  of  burghs  in 
Parliament  See  Wight  on  Elections,  B.  iv,  c. 
2,  p.  362  ;  BeU's  Election  Law,  p.  509.  See 
also  Election,    Laws. 

Delegated  Jurisdiction.  Delegated  juris- 
diction, as  contradistinguished  from  proper 
jurisdiction,  is  that  which  is  communicated  by 
a  judge  to  another,  who  acts  in  his  name,  called 
a  depute  or  deputy.  One  named  by  a  deputy, 
who  has  himself  the  power  of  deputation,  is 
called  a  snlstilute.  Jurisdiction  being  an  office 
implying  certain  qualifications  personal  to  the 
judge,  cannot  be  delegated  without  an  express 
power  of  delegation  contained  in  the  grant. 
Such  a  power  is  given  in  all  personal  grants 
of  sheriffship  or  stewartry,  admiralty,  Sec. ; 
but  justices  of  the  peace  and  magistrates  of. 
burghs  have  no  power  of  delegation.  Before 
the  abolition  of  heritable  jurisdictions,  it  fre- 
quently happened  that  the  inheritor  of  a  juris- 
diction was  unfit  to  discharge  his  judicial 
duties  in  person ;  hence  the  act  1424,  c  6, 
empowered  those  possessing  patrimonial  juris- 
diction to  appoint  deputies,  for  whom  they 
should  be  answerable,  and  to  whom  they  com- 
municated the  entire  jurisdiction  which  was 
vested  in  themselves.  The  sheriffs  of  counties 
in  Scotland,  appointed  under  the  Jurisdiction 
Act,  20  Geo.  II.,  c.  43,  are  improperly  called 
deputies  in  that  statute  ;  for  they  have  not  a 
delegated  but  a  proper  jurisdiction  conferred 
upon  them  by  the  Sovereign,  not  by  the  high- 
sheriff  of  the  county,  and  are  authorized  to 
appoint  deputies,  who  are  called  substitutes,  to 
exercise  jurisdiction  over  the  whole,  or  over 
particular  districts  of  the  county.  It  is  of 
importance  to  observe,  that  delegated  juris- 
diction is  not  held  in  law  to  be  the  jurisdic- 
tion of  the  substitute,  who  has  no  proper  juris- 
diction, but  of  the  judge  who  appoints  him. 
Hence  the  acts  of  the  substitute  are  held  to 
be  the  acts  of  the  principal  judge,  who  is  re- 
sponsible for  them  ;  1424,  c  6 ;  1469,  c.  26. 
Here  also  the  maxim.  Delegatus  non  potest  de- 
legare applies,  the  substitute  having  no  power 
to  delegate  his  duties  to  another.  In  delegated 
jurisdiction  the  appeal  must  not  be  from  the 
substitute  to  the  principal  judge ;  for  the  de- 
cree of  the  depute  is  held  to  be  the  decree  of 
the  principal ;  and  no  inferior  judge,  without 
express  powers,  can  review  his  own  decrees. 
Ersk.  B.  i.  tit.  2,  §  13,  «t  seq. ;  Karnes'  Stat. 
Law,  voce  Jurisdiction.  See  Appeal.  Jurisdiction. 

Delegai&OR ;  is  a  method  of  extinguishing 
an  obligation  by  substituting  one  debtor  for 
another,  with  the  creditor's  consent,  and  there- 
by discharging  tiie  first  debtor ;  as  where  the 
debtor  in  a  bond  substitutes  a  third  party, 


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who  becomes  boand  in  his  place  to  the  cre- 
ditor. Bnt  an  arrangement  of  this  kind  re- 
quires the  express  consent  of  the  creditor; 
for  DO  debtor  can  relieTO  himself  of  his  obli- 
gation without  the  creditor's  consent,  except 
by  actual  payment  or  performance ;  and  no 
creditor  can  be  compelled  to  accept  of  one 
debtor  for  another.  Delegation  is  not  pre- 
sumed ;  for  a  creditor  cannot  lose  his  right 
by  implication;  hence  the  new  obligation 
will,  in  dubio,  be  accounted  merely  corrobo- 
rative of  the  old ;  although,  if  the  new  obli- 
gation bear  to  be  granted  in  satisfaction  of 
the  former,  this  will  be  construed  to  be  a  dis- 
charge of  the  first  obligant.  Stair,  B.  i.  tit. 
18,  §  8 ;  Mortal  NoUt,  p.  ciixvi. ;  Ertk.  B. 
iii-  tit.  4,  §  22 ;  Bank.  B.  i,  tit.  24,  §  38 ; 
Beir$  Princ.  §  677  ;  BdPt  lUust.  §  676.  See 
Novation.    Innovation.    Expr<mi*tor. 

Del^fatofl  non  Potest  Delegare;  a  law 
maxim,  importing  that  a  party  to  whom  any 
office  or  duty  is  delegated  cannot  lawfully  de- 
volve the  duty  on  another.  This  maxim  ap- 
plies especially  in  matters  of  jurisdiction; 
and  although  jurists  have  differed  on  the 
point,  the  principle  of  the  maxim  is  univer- 
sally applicable ;  «.  g.,  in  the  case  of  mandate 
and  the  like.  See  Stair,  B.  i.  tit.  12,  §  7. 
See  also  Delegation.    Jurisdiction. 

Seletioii  in  Writs.  See  Vitiation.  Writ. 
Erasure*. 

Deliberandi  Jos.    See  Jm  Deliberandi. 

Delict  and  Delinquency.  These  terms, 
used  comprehensively,  include  all  wrongs  of 
the  nature  of  crimes  or  offences,  inferring 
punishment  ad  vindictam  publieam,  in  contra- 
distinction to  mere  civil  wrongs.  A  person 
guilty  of  a  deliuquency  is  held  to  have  in- 
curred an  obligation  to  atone  for  his  offence 
against  the  public,  by  suffering  punishment, 
and  at  the  same  time  to  repair  the  injury  he 
may  have  done  to  the  private  party,  by  pay- 
ing damages.  Delinquencies,  considered  as 
the  grounds  of  civil  claims  for  reparation, are 
divided  into  deliets  and  quasi  delicts, — the  for- 
mer being  offences  committed  with  a  malicious 
or  criminal  purpose,  the  latter  including  in- 
juries arising  from  a  degree  of  culpable  neg- 
ligence, amonnting  almost  to  crime,  and  in- 
ferring an  obligation  to  repair  the  injury, 
although  there  may  be  no  ground  for  a  cri- 
minal prosecution.  If  more  persons  than  one 
have  been  guilty  of  the  crime  or  delinquency, 
they  are  all  held  asco-obligants,  liable  singuli 
in  solidum  for  the  civil  debt  of  reparation ; 
although  he  who  pays  seem  to  have  an  equit- 
able claim  for  a  proportional  relief  from  his 
accomplices.  But  where  a  fine  is  imposed 
ad  vindietain  publieam,  the  co-delinquents  are 
only  liable  pro  rata  for  their  proportions  of 
the  penalty,  unless  the  fine  be  otherwise  allo- 
cated by  the  judgment  of  the  Court.   On  the 


same  principle  the  obligation  to  repair  the 
injury,  considered  as  a  civil  debt,  transmits 
to  representatives,  whether  proceedings  have 
been  commenced  during  the  delinquent's  life 
or  not ;  whereas  all  proceedings  ad  vindictam 
publieam,  fall  by  the  death  of  the  delinquent 
The  civil  claims  for  reparation  on  account  of 
delinqnencies  have  been  classed  by  law  autho- 
rities under  the  following  heads: — Aasyth- 
ment,  Claims  arising  from  Injuries  verbal 
or  real.  Damage,  Extortion,  Circumvention, 
■"^pnilzie,  Intrusion,  Ejection,  Molestation, 
Contravention  of  Lawburrows,  Battery  pen- 
dente  lite.  Breach  of  Arrestment,  Deforcement, 
Escape  of  a  Prisoner,  Excessive  and  deceitful 
Gaming,  Forgery  of  Writing,  and  Perjury. 
See,  on  the  subject  of  this  article.  Stair,  B.  i. 
tit.  9,  §  4,  et  seq.  ;  Ersk.  B.  ili.  tit.  1,  §  12,  «t 
seq. ;  Bank.  B.  i.  tit.  4,  §  26,  et  seq.,  and  tit. 
10,  §§  4,  14,  et  seq. ;  Mor.  voce  Delinquency, 
Reparation,  Damage  and  Interest ;  and  in  the 
Dictionary  the  different  articles  in  the  fore- 
going classification.  BeWt  Princ.  §  643,  et 
seq. ;  BeWt  lUutt.  §  643 ;  i%,  11th  Jan.  1763, 
Mor.  14668;  Gray,  18th  Feb.  1773,  Mor. 
10361 ;  X'Naughton,  17th  Feb.  1809,  Fac. 
CoU.;  Morrison,  25th  May  1809,  Fae.  CM. 
Also  Crime.  Defamation.  Seduction.  Damages. 
Delirerj.  Delivery,  either  actual  or  con- 
structive, or  symbolical,  is  the  test  of  the 
transfer  of  property,  whether  heritable  or 
moveable.  Actual  delivery  of  heritage  is  im- 
practicable ;  bnt  the  law  of  Scotland  has  re- 
cognised a  symbolical  delivery,  which  is  in- 
dispensable in  the  transference  of  such  pro- 
perty, and  the  want  of  which  cannot  be  sup- 
plied by  acquiring  actual  possession.  See 
Sasine.  Moveables,  on  the  other  hand,  may 
be  actually  delivered ;  and  without  actual  de- 
livery, or  a  delivery  which  the  law  holds  equi- 
valent to  actual  delivery,  the  property  of 
moveables  cannot  be  effectually  transferred. 
In  the  Roman  law,  delivery  was  of  two  kinds, 
traditio  vera,  or  true  or  actual  delivery,  and 
traditio  fieta,  or  constructive  delivery ;  and 
the  same  distinction  is  recognised  in  Uie  law 
of  Scotland.  Thus,  under  the  contract  of 
sale,  aetuai  delivery,  in  our  acceptation  of 
the  term,  consists  in  giving  real  possession  to 
the  purchaser,  or  his  servants,  or  special 
agents  who  represent  him ;  and  constructive 
delivery  comprehends,  generally  speaking,  all 
those  acts  which,  although  they  do  not  confer 
on  the  purchaser  the  actual  possession  of  the 
thing  sold,  have  been  held,  constructione  juris, 
equivalent  to  acts  of  real  delivery.  The  fol- 
lowing are  examples  of  actual  delivery: — I. 
Delivery  de  manu  in  manum.  2.  Delivery 
into  the  hands  of  the  buyer's  clerks  or  ser- 
vants, or  special  agents,  or  into  his  warehouse, 
or  his  carts  or  vessels,  under  the  direction  of 
I  his  servants,  or  of  others  hired  by  him.    3. 


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Delirery  into  a  wharfinger's  warehouse,  which 
the  bnyer  has  been  accustomed  to  hold  as  his 
oTii.  4.  Delivery  of  goods  into  the  king's 
warehouse  for  behoof  of  the  buyer.  6.  De- 
livery of  the  key  of  the  cellar  or  other  repo- 
sitory where  the  goods  are  deposited.  And, 
in  general,  all  deliveries  analogous  to  any  of 
those  now  specified.  The  examples  of  con- 
ttructive  idivery  are, — 1.  Marking  or  setting 
apart  the  goods  for  the  purchaser;  e.g.,  mark- 
ing trees  or  cattle  purchased  by  him  with  his 
peculiar  mark,  or  setting  apart  the  goods  for 
the  buyer  in  the  seller's  warehouse,  and  charg- 
ing the  buyer  with  warehouse  rent  for  them. 
2.  Intimating  a  delivery  order  to  the  custo- 
dier of  the  goods.  3.  Transferring  the  goods 
in  the  custodier's  books  from  the  name  of  the 
seller  to  that  of  the  buyer ;  and  similar  acts. 
While  the  parties  remain  solvent,  the  dis- 
tinction between  <ui»al  and  constructive  deli- 
very is  not  of  much  consequence,  since  it  is 
at  least  quite  certain  that,  if  the  price  be  paid, 
either  the  one  delivery  or  the  other  is  suffi- 
cient to  transfer  the  property.  But  questions 
of  considerable  difficulty  have  arisen  out  of 
the  seller's  right,  in  case  of  the  buyer's  insol- 
vency after  the  sale,  but  before  the  transfer, 
to  retain  the  undelivered  goods,  or  to  stop 
them  on  their  way  to  the  buyer,  or  »n  transitu, 
as  it  is  termed,  until  he  either  pays  the  price, 
or  gives  security  to  pay  it  at  the  stipulated 
time.  The  English  law  doctrine  of  stoppage 
in  transitu  was  introduced  into  the  law  of 
Scotland  by  a  judgment  of  the  House  of  Lords 
in  1790,  reversing  the  judgment  of  the  Court 
of  Session  in  Alkin  v.  Stewart  and  Company, 
4th  Dec  1788,  ifor.  p.  4949.  Our  law  writers, 
in  endeavouring- to  give  a  systematic  classifi- 
cation to  the  decisions  which  have  been  pro- 
nounced in  questions  of  actual  and  construc- 
tive delivery,  seem  to  be  in  some  danger  of 
&lling  into  a  controversy.  According  to  one 
authority,  stoppage  in  transitu  is  absolutely 
barred  by  actual  delivery ;  but  constructive  do- 
livery  completes  the  transfer,  so  as  to  prevent 
stoppage  tn  transitu,  only  where  the  price  has 
been  paid ;  BdVs  Com.  i.  166,  et  seq.  On  the 
other  hand,  a  very  able  writer  on  the  subject 
holds  that  constructive  as  well  as  actual  de- 
livery completes  the  transfer,  whether  the 
price  has  been  paid  or  not,  and  absolutely 
bars  the  seller's  privilege  of  stoppage  tn  tran^ 
situ,  or  of  retention ;  Brotm  on  Sale,  p.  451, 
«t  teq.  The  latter  doctrine  is  perhaps  more 
consonant  with  principle;  and  Mr  Brown's 
illostration  of  it  may  have  the  effect  of  giving 
to  future  determinations  more  of  a  systematic 
character ;  but  it  is  obvious,  from  the  autho- 
rities cited  by  him,  that  the  law  upon  this 
subject  has  been  only  progressively  acquiring 
consistency,  and  that  the  decisions  hitherto 
prmionnctNi  are  not  easily  reducible  to  one 


uniform  principle.  See  2  Ross,  L.  C.  92,  et 
seq. ;  also  p.  585  and  p.  784,  «<  seq.  See  Sale. 
Stoppage  in  transitu.  With  regard  to  false 
credits  raised  by  apparent  or  reputed  owner- 
ship, after  constructive  or  symbolical  delivery 
of  moveables,  see  Possession.  On  the  subject 
of  this  article,  see  Stair,  B.  i.  tit.  1,  §  15 ; 
More's  Notes,  p.  Ixxxix. ;  Brodie's  Supp.  p.  876, 
etseq.;  Ersk.  B.  ii.  tit.  1,  §  19;  BeWs  Prine. 
§§  108,  114,  120,  13Q0,  etseq.;  BelPs  lllust. 
ll  108, 120, 1299,  et  seq. ;  Eames'  Equity,  325, 
387. 

Goods  sold  but  not  delivered  are  not  noir 
attachable  by  the  seller's  creditors;  and  a 
seller  is  not  now  entitled  to  retain  goods  sold, 
against  any  subsequent  purchaser  on  account 
of  any  separate  debt  or  obligation  due  to  him 
by  the  original  purchaser,  but  must  make 
delivery  on  the  price  being  paid,  and  the 
conditions  of  the  contract  of  sale  being  per- 
formed by  the  subsequent  purchaser.  See 
19  and  20  Vict.,  c.  60, 1856. 

Delivery  of  Deeds.  While  a  deed  or  writ- 
ing remains  in  the  custody  of  the  grantor  or 
of  his  agent  undelivered,  it  is  not  obligatory; 
for,  so  long  as  it  remains  within  the  grantor's 
power,  he  cannot  be  said  to  have  finally  re- 
solved to  be  bound  by  it.  In  order  to  render 
the  deed  effectual,  it  must  have  been  delivered 
either  to  the  grantee  or  to  a  third  party ;  and 
where  it  has  been  put  into  the  hands  of  a 
third  party,  the  presumption  of  law  rather 
seems  to  be,  that  it  has  been  delivered  to  him 
unconditionally  for  the  grantee's  behoof.  But 
this  presumption  may  be  elided  by  the  grantee's 
writ  or  oath,  and,  in  special  cases,  even  by 
the  evidence  of  the  writer  of  the  deed,  and 
the  instrumentary  witnesses ;  Drummond,  5th 
July  1662,  Mor.  p.  12309.  And  where  the 
depositation  is  either  acknowledged  by  the 
grantee,  or  otherwise  sufficiently  verified,  the 
conditions  under  which  the  deed  is  to  he  de- 
livered, if  not  stated  in  writing  by  the  grantor, 
may  be  proved  by  the  oath  of  the  depositary. 
Where  the  deed  is  gratuitous,  and  deposited 
with  a  person  who  is  a  stranger  both  to  the 
granter  and  the  grantee,  it  appears  that  it 
will  be  held  to  have  been  deposited  under  the 
implied  condition,  that  it  is  to  be  returned  to 
the  granter,  if  he  require  it  during  his  life, 
but  that  if  he  do  not,  the  depositary  shall 
deliver  it  to  the  grantee ;  Ker,  25th  Jan. 
1677,  Mor.  p.  3249.  A  deed  put  by  thegranter 
into  the  hands  of  a  person  who  is  agent  for 
both  granter  and  grantee,  will  be  presumed 
to  have  been  delivered  for  behoof  of  the 
grantee ;  Ramsay,  15th  Jan.  1828,  6  S.  343. 
And  if  the  deed  be  found  in  the  custody  of 
the  grantee  himself,  the  presumption  of  de- 
livery cannot  be  elided  but  by  the  writ  or 
oath  of  the  grantee.  Deeds  so  found  in  the 
hands  of  the  grantee  are  presumed  to  have 

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been  delivered  at  their  dates,  especially  where 
they  are  onerous  or  rational.   See  Ersk.  £.  iiL 
tit.  2,  §  43.     The  following  are  exceptions  to 
the  rule  with  regard  to  delivery : — lit,  Where 
the  deed  contains  a  clause  dispensing  with 
delivery,  it  is  effectual  although  found  in  the 
grantor's  repositories  after  his  death.     2d,  No 
deed  of  a  testamentary  nature  requires  de- 
livery ;  because  such  deeds  take  effect  only  at 
the  period  of  the  grantor's  death.    3d,  Bonds 
and  other  writings  by  parents  in  favour  of 
their  children  require  no  delivery,  because 
parents  are  the  natural  custodiers  of  their 
children's  writs.    Children,  although  forisfa- 
miliated, and  even  natural  children,  have  the 
benefit  of  this  exception.     On  the  same  prin- 
ciple, postnuptial  settlements  by  a  husband  in 
favour  of  his  wife  do  not  require  delivery,  the 
husband  being  the  legal  custodier  of  the  writ- 
ings belonging  to  his  wife.     4th,  A  deed  in 
'which  the  granter  himself  has  an  interest  re- 
quires no  delivery,  e.g.,  a  reserved  liferent ; 
because  the  presumption  there  is,  that  the 
grantor  holds  the  deed,  not  because  his  mind 
is  not  made  up  in  regard  to  it,  but  in  order 
to  secure  his  own  reserved  liferent.  5th,  Deeds 
which  the  grantor  lies  under  an  antecedent 
obligation  to  execute  require  no  delivery. 
6(A,  A  mutual  obligation  or  contract,  signed 
by  two  or  more  parties  for  their  respective 
interests  requires  no  delivery ;  because  such 
a  deed,  when  executed,  becomes  a  common 
right  to  all  the  contractors ;  the  mere  sub- 
scription of  the  several  parties  proving  the 
delivery,  by  the  other  subscribers,  to  him  in 
whose  hands  the  deed  is  found ;  and  if  the 
holder  of  the  deed  can  useit  as  effectual  to  him, 
it  most  be  effectual  to  the  rest  of  the  con- 
tracting parties.    Lastly,  If  the  grantor  in- 
serts the  deed  in  a  public  record,  it  is  held  to 
be  equivalent  to  delivery ;  Er$k,  ibid.  §  44. 
Lord  Kames  attempts  to  deduce  the  doctrine 
of  the  delivery  of  deeds  from  the  grantor's 
right  of  property  in  the  paper  or  other  ma- 
terial on  which  the  deed  is  written ;  but  there 
is  no  occasion  for  resorting  to  a  subtlety  of 
this  kind,  the  principle  of  which,  if  introduced 
into  conveyancing,  would  be  attended  with 
very  pemicions  consequences.     See  Kames' 
Elucimtions,  art  iv.    Delivery  renders  a  deed 
obligatory  on  the  grantor ;  but,  in  order  to 
bind  the  grantee,  the  deed  must  be  accepted. 
See  Acceptance.     See  Meiizies'  Gonva^anciHg; 
Stair,  B.  iv.  tit.  42,  §  8,  and  B.  i.  tit  7,  § 
14;  Mare's  Notes,  p.  li.  and  ccccviii.;  Mac- 
kenzie, B.  iii.  tit.  2,  §  6  ;  Bank.  B.  i.  tit.  11, 
§§  36  and  48,  et  seq. ;  and  B.  ii.  tit  i.  §  25 ; 
Ersk,  B.  iii.  tit.  2,  §  43,  et  seq. ;  Mot.  Diet, 
voce  WrU,  §  10  ;  BdVs  Prine.  §  23,  et  seq.  84  ; 
BeWs  Illust.  §  23;  Jurid.  Styles^  vol.  iii.  p. 
900. 
Demand ;  a  call  upon  a  person  for  anything 


alleged  to  be  due.  This  term  can  hardly  %« 
said  to  have  any  technical  meaning  in  the 
law  of  Scotland  different  from  its  ordinary 
acceptation.  In  England  it  is  a  legal  term, 
and  may  either  be  in  deed  or  in  Ua.  De- 
mand in  deed  is  an  express  demand ;  in  low  it 
is  implied,  as  by  distress  for  rents,  taking  of 
goods,  &C.    See  TonUin^  Diet. 

Demembratioiu  This  term,  as  used  in  l&v, 
is  applied  to  the  offence  of  ntaliciously  cutting 
off,  or  otherwise  separating  any  limb,  or  mem- 
ber, from  the  body  of  another.  Demembra- 
tion was  at  one  time  regarded  as  a  capital 
crime  (1491,  c,  28);  but  there  appears  to  be 
no  instance  en  record  of  a  capital  conviction. 
The  punishment  has  long  been  arbitrary,  and 
depends  upon  the  circumstances  attending 
the  commission  of  the  offence,  and  the  degree 
of  injury  inflicted.  Besides  a  prosecntiw  ai 
vir^ictam  pMican,  an  action  for  damages  at 
the  instance  of  the  injured  party  is  competent. 
By  the  former  practice,  a  prosecution  for  de- 
membration could  not  be  instituted  until  year 
and  day  after  the  date  of  the  injury ;  but  snch 
a  delay  is  not  now  required.  Eume,  i.  330, 
et  seq.  ;  Ersk.  B.  iv.  tit  4,  §  50. 

De  Tfinimnii  ITon  Curat  FrsBtor ;  a  Ro- 
man law  maxim,  importing  that  coarts  of 
justice  do  not  take  trifling  and  immaterial 
matters  into  account  Stair  applies  the  maxim 
to  the  ease  of  an  apprizing,  where  the  debt 
has  been  extinguished,  to  {dl  but  a  trifle,  dar- 
ing the  legal,  by  the  creditor's  intromissions 
with  the  rents ;  and  observes,  that  in  such  a 
case,  even  under  the  old  law,  a  small  remain- 
der, or  balance,  outstanding  after  the  expiry 
of  the  legal,  would  not  have  been  sufficient  to 
exclude  the  debtor's  right  of  redemption ; 
SUir,  B.  iii.  tit.  2,  §  39.     See  Legal. 

Demise  of  the  Crown.  In  law,  the  Sove- 
reign never  dies ;  for,  immediately  on  the 
decease  of  the  reigning  monarch,  the  royal 
dignity  is,  by  the  act  of  the  law,  vested  in  his 
successor,  who  is  eo  instante  Sovereign  to  all 
intents  and  purposes ;  or,  as  it  is  expressed  in 
the  law  of  England,  the  kingdom  is  danisd, 
or  transferred  to  the  heir  to  the  Crown,  so  that 
the  royal  dignity  remains  perpetual;  Blad- 
stone,  vol.  i.  249.    See  King. 

Demission.  A  clergyman  of  the  Esta- 
blished Church  of  Scotland  may  voluntarily 
demit  his  charge;  and,  in  such  cases,  the 
presbytery  judges  whether  or  not  the  demis- 
sion ought  to  be  accepted.  If  the  minister 
has  pursued  schismatical  and  divisive  counes, 
the  presbytery  cannot  competently  accept  his 
demission,  but  may  consult  the  commission  of 
the  General  Assembly,  and,  if  necessary,  pro- 
ceed against  the  minister  by  libel,  censure,  or 
even  deposition ;  HUFs  Prac.  56,  and  authori- 
lies  there  cited.  See  Deposition. 
Demnrrage ;  is  the  allowance  or  compen- 


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ntion  due  to  tbe  master  or  owners  of  a  ship, 
by  the  freighter,  for  the  time  the  vessel  may 
have  been  detained  heyond  the  time  specified, 
or  implied,  in  the  contract  of  affreightment 
or  charter-party.  In  charter-parties,  there  is 
osaally  a  clause  regelating  the  time  during 
which  the  master  shall  be  obliged  to  remain 
with  his  ship,  for  the  purpose  of  receiring  a 
cargo,  or  sailing  with  convoy,  or  of  unload- 
ing at  the  port  of  delivery.  In  the  ordinary 
case,  it  is  stipulated  that  the  vessel  shall  re- 
main for  so  many  days,  called  lay  days,  the 
nomher  being  fixed  according  to  the  custo- 
mary time  required  for  receiving  or  deliver- 
ing the  cargo;  and  also,  that  it  shall  be  in  the 
power  of  the  ireighter,  or  his  correspondents 
or  assignees,  to  detain  the  vessel  for  so  many 
days  longer,  called  days  of  demurrage,  at  a 
certam  rate  of  demurrage  for  each  day.  The 
following  points  with  regard  to  the  claim  for 
demurrage  seem  deserving  of  attention  : — 1<(, 
If  the  ship  be  improperly  detained,  demur- 
rage is  due,  not  only  under  the  express  or 
implied  contract  of  charter-party,  but  on  the 
principle  of  damage,  arising  to  the  owners 
fi^m  the  undue  detention.  2d,  If  the  charter- 
party  or  bill  of  lading  contain  no  stipula- 
tion of  lay  days,  or  if  it  be  merely  provided 
that  the  nsueJ  time  for  loading  and  unload- 
ing shall  be  allowed,  the  customary,  or  a  rea- 
(onable  time,  or  (where  a  delay  arises  from 
so  fault  of  the  freighter)  the  time  necessary 
for  loading  or  unloading,  will  be  given.  After 
the  elapse  of  that  time,  the  master  will  be 
entitled  to  sail,  if  no  demurrage  has  been  sti- 
pulated ;  or,  if  he  be  detained  longer,  he  may 
claim  damages.  It  follows,  from  this  rule, 
that  no  demurrage  will  be  due  where  the  de- 
lay has  been  occasioned  by  the  crowded  state 
of  the  docks,  or  where  the  customary  mode  of 
delivery  of  the  particular  cargo  requires  more 
time  than  an  ordinary  delivery.  But,  wher- 
ever the  delay  is  imputable  to  any  fault  of 
the  freighter  or  the  consignee,  demurrage  will 
be  due.  3d,  It  a  specific  number  of  lay  days 
he  allowed,  the  days  of  demurrage  will  com- 
mence on  the  expiration  of  the  lay  days,  how- 
ever blameless  the  freighter  or  consignee  may 
have  been.  As  to  this,  the  rule  is,  that,  dur- 
ing the  loading  or  unloading  of  the  ship,  the 
freighter  runs  all  the  risk  of  necessary,  or 
of  accidental,  interruptions  ;  bat,  after  the 
loading  or  unloading  is  complete,  the  risk  of 
interruptions  is  transferred  to  the  shipmaster 
or  owners.  4ih,  The  indorsee  of  a  bill  of 
lading  will  have  no  defence  against  a  claim 
for  demnrrage,  on  the  gronnd  that  he  got  no 
notice  of  the  arrival  of  the  vessel ;  for  it  is 
the  duty  of  the  indorsee  or  consignee  to  watch 
tiie  arrival.  But  if  tbe  ship's  name  be  incor- 
Kctly  entered  at  the  customhouse,  so  that  the 
eon^^nee,  »fler  due  inquiry,  cannot  discover 

8 


the  arrival,  that  will  liberate  him  from  any 
claim  for  demurrage  arising  out  of  such  in- 
accurate entry.  5th,  In  settling  the  lay 
days  and  the  days  of  demnrrage,  the  charter- 
party  specifies  "  working  days"  or  "  running 
days."  The  former  stipulation  excludes  Sun- 
days and  customhouse  holidays  ;  under  the 
latter,  the  days  are  reckoned  as  in  a  bill  of 
exchange.  Where  the  expression  nsed  is 
"  dm/s"  merely,  running  days  are  presumed ; 
but  special  usage  may  overcome  this  presump- 
tion. 6th,  If  there  be  no  stipulation  for 
demurrage,  the  master  may  sail  on  the  ex- 
piration of  the  lay  days  stipulated  or  reason- 
able ;  or  if  he  stay  voluntarily,  or  otherwise, 
he  will  be  entitled  to  damages  of  the  nature 
of  demurrage.  7th,  If  the  days  of  demur- 
rage be  limited,  and  the  ship  be  detained  be- 
yond (hem,  the  sum  fixed  for  demurrage  will 
be  taken  as  the  best  measure  of  the  com- 
pensation due  for  the  damage  arising  from 
longer  delay.  But  it  will  be  open  to  the 
shipowners  to  show,  that  greater  damage  has 
been  sustained ;  and  to  the  freighter,  to  show 
that  an  allowance,  at  the  rate  of  the  stipu- 
lated demurrage,  will  do  more  than  compen- 
sate the  damage.  8th,  Demurrage  is  due 
even  in  the  case  of  a  general  ship.  This  may 
arise  from  the  delay  of  a  merchant  who  has 
engaged  freight  in  a  general  ship,  and  has 
failed  to  bring  forward  his  goods  in  due  time. 
Or  it  may  arise  where,  in  the  delivery  of  the 
cargo  from  a  general  ship,  delay  has  arisen 
in  consequence  of  the  several  parties  to  whom 
the  goods  are  addressed  not  being  ready  to 
receive  them.  In  either  of  those  cases,  de- 
murrage is  sometimes  stipulated ;  and,  in  such 
a  case,  where  the  demurrage  is  incurred  in 
unloading  the  cargo,  it  seems  to  be  settled 
that  the  merchant  whose  goods  are  last  de- 
livered, or  lowest  in  the  hold,  is  liable  for  the 
demurrage,  even  although  the  delay  may 
have  been  occasioned  by  no  fault  whatever  of 
his.  The  person  who  pays  the  demurrage, 
however,  will  be  entitled  to  recourse  against 
the  parties  in  fault.  9<A,  Demurrage  stipu- 
lated to  be  paid,  for  the  time  spent  in  waiting 
for  convoy,  ceases  as  soon  as  the  convoy  is 
ready  to  depart ;  and,  in  the  ordinary  case, 
after  the  ship  is  laden,  and  has  got  the  neces- 
sary clearances,  the  claim  for  demurrage  stops. 
IOh,  a  protest  on  account  of  demurrage, 
although  not  indispensable,  ought  always  to  be 
taken.  The  protest  ought  to  set  forth  the 
circumstances  attending  the  delay,  and  such 
other  facts  as  are  material,  and  indispu- 
table at  the  time,  although  the  want  of  an 
instrument  of  this  kind  may  render  the  proof 
of  them  difficult  afterwards.  Lastly,  The 
doctrine  of  the  law  of  England,  which  is  of 
high  authority  with  us  in  such  cases,  seems  to 
be,  that  the  freighter  is  responsible  for  all  the 


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various  rislcs,  vicigsitudes.  or  casualties  which 
may  prevent  him  from  returning  the  vessel  to 
the  owners  within  the  stipulate  time,  includ- 
ing the  case  of  the  vessel  being  frozen  up. 
The  shipmaster  has  no  implied  lien  over  the 
goods  f«r  demurrage ;  but  a  lien  may  be  created 
for  this  daim  by  an  express  and  unambi- 
guous stipulation.  Brodie^s  Supp.  to  Stair, 
981 ;  Bell't  Gem.  vol.  i.  p.  575,  et  seq.,  and 
vol.  ii.  p.  100,  5th  edit.;  Tondin^  Did.  k.  t. ; 
Holt  on  Shipping,  ii.  13,  et  teq. ;  Jurid.  Stales, 
ii.  539  and  552, 2d  edit. ;  Bell's  Princ,  §  431, 
et  seq.;  BeWs  Illust.  §  431.  See  Charter- 
Party. 

Demurer ;  is  an  English  law  term,  signi- 
fying a  pause  or  stop  put  to  any  action  upon 
a  point  of  difficulty  in  law,  which  must  be 
determined  by  the  Court  before  any  farther 
proceedings  can  be  had.  A  demurrer,  there- 
fore, is  an  issue  in  point  of  law.  Conceding 
the  fact  as  stated  by  the  opposite  party,  it 
denies  the  legal  inference  thence  deduced. 
Tondins'  Did.  h.  t. 

Denial.  Denial  in  law  imports  no  more 
than  ixot  confessing.  It  does  not  amount  to  a 
positive  assertion  of  the  falsehood  of  that 
which  is  denied.  In  the  judicial  procedure 
of  the  Court  of  Session,  where  a  fact  is,  or 
ought  to  be,  within  the  knowledge  of  his 
opponent.,  is  averred  by  one  party,  and  not 
explicitly  denied  by  the  other,  he  is  held  as 
confessed,  and  the  fact  taken  as  definitely 
proved  against  him.  Stair,  B.  iv.  tit.  44,  §  1 ; 
Ersk.  B.  iv.  tit.  2,  §  16  ;  A.  S.  \sl  Feb.  1715, 
§6;  7th  Feb.  1810,  and  Uth  July  1828,  § 
105.  See  Calumny,  Oath  of.  Condescendence. 
Confession. 

Denizen;  is  an  alien  born,  who  has  ob- 
tained from  the  Sovereign  letters  of  deniza- 
tion, in  virtue  of  which  he  is  entitled  to  pur- 
chase and  transmit  lands,  although  he  cannot 
take  by  inheritance.  The  right  to  grant 
letters  of  denization  is  a  high  and  incommu- 
nicable prerogative  of  the  Crown.  Bell's  Princ. 
§  2136  ;  Hunter's  Landlord  and  Tenant.  See 
Ad  7  and  8  Vict,,  c.  66;  Meuzies'  Convey- 
ancing, p.  46.     See  also  Alien. 

De  Hon  ./Ipparentibot  et  If  on  Ezistenti- 
bUB  Eadem  Est  Eatio;  a  maxim,  importing, 
as  usually  applied  in  law,  that  deeds  or  writ- 
ings founded  on  by  a  party,  but  not  produced 
or  recovered,  or  the  loss  of  which  cannot  be 
supplied,  in  the  manner  which  the  law  has 
prescribed,  are  to  be  treated  precisely  as  if 
Don-existeut>    See  Proving  of  Tenor. 

Dennnoiation ;  is  the  act  by  which  a  per- 
son who  has  disobeyed  a  charge  is  proclaimed 
a  rebel.  The  act  was  performed,  before  the 
recent  Diligence  Act,  by  a  messenger-at-arms, 
who  proceeded  to  the  cross  of  Edinburgh, 
or  to  the  market-cross  of  the  head  burgh  of 
the  county  within  which  the  party  charged 


resided,  and  there,  in  presence  of  two  wit- 
nesses, cried  three  several  oyesses  with  an 
audible   voice,  and  then  read  publicly  the 
letters  of  homing  and  the  execution  of  charge, 
and  thereafter  denounced  the  debtor  rebel,  and 
put  him  to  the  horn,  as  it  is  termed,  by  three 
blasts  of  a  horn.     If  the  debtor  was  fiirth 
of  the  kingdom,  the  denunciation  was  pro- 
claimed at  the  cross  of  Edinburgh  and  the 
pier  and  shore  of  Leith.     The  execution  re- 
turned by  themessengerdetailed  this  solemnity 
as  having  been  actually  gone  through ;  and 
should  the  execution  not  specify  the  several 
formalities,  the  omission  could  not  be  supplied 
by  parole  proof  that  they  were  observed.  The 
denunciation  was  declared  null,  if  the  letters  of 
horning  and  the  execution  were  not  registered 
within  fifteen  days  after  the  denunciation,  in 
the   sheriff-court  books  of  the  jurisdiction 
within  which  the  debtor  resided,  or  in  the 
Gener^  Register  at  Edinburgh  ;  1579,  c.  75; 
1597,  c.  265 ;  1600,  c  13 ;  and  where  the 
registration  had  been  omitted, the  practieewas 
to  denounce  of  new,  and  register  the  second 
execution.    Denunciations  may  also  proceed 
against  persons  cited  to  the  Court  of  Jus- 
ticiary on  account  of  crimes, — 1st,  Where  they 
appear  there  with  more  followers  than  are 
permitted  by  1555,  c  41  ;  or,  2d,  Where, 
in  consequence  of  a  failure  to  appear,  sentesee 
of  fugitation  has  been  pronounced  against 
them.     In  the  first  case,  the  denunciation 
must  take  place  at  the  market-croes  of  the 
head  burgh  of  the  shire  where  the  court  is 
held,  and  must  be  registered,  either  in  the 
books  of  the  shire  of  the  rebel's  domicile,  or 
in  the  books  of  adjournal  of  the  Court  of  Jus- 
ticiary.    In  the  case  where  denunciation  has 
followed  a  sentence  of  fugitation,  it  is  as  ef- 
fectual if  it  be  made  at  the  market-cross  of 
Edinburgh  within  six  days  aft-er  the  sentence 
of  fugitation,  as  if  it  had  been  made  at  the 
county  town  of  the  domicile  ;  1584,  c.  140 ; 
1 592,  c.  126.    The  chief,  and  almost  the  only 
purpose  to  which  denunciation  on  account  of 
a  civil  debt  was  applied,  was  to  warrant  the 
issuing  of  letters  of  caption  against  the  party 
denounced.     See  Caption.      But  the  conse- 
quences of  denunciation, whether  on  account  of 
civil  or  criminal  matters,  were  formerlyhighly 
penal.  Thus, — 1st,  The  rebel's  single  escheat 
fell, — that  is,  his  whole  moveable  effects  were 
forfeited  to  the  Crown,  and  his  liferent  escheat 
fell  to  the  superior,  if  he  remained  a  year  and 
a  day  unrelaxed  (see  Escheat);  2d,  Prior  to 
1612,  persons  denounced,  even  for  a  civil  debt, 
might  be  put  to  death  with  impunity ;  and, 
3d,  After  denunciation,   the   rebel  had  no 
persona  standi  in  judicio.    But  the  severity  of 
those  provisions  has  been  much  mitigated, 
both  by  legislative  enactments  and  by  the  pro- 
gress of  civilization.    By  the  statute  20  Geo. 


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II.,  c.  50  (1748),  escheat  upon  denunciation 
for  cirii  causes  is  entirely  abolished.  The  act 
1612,  c.  3,  provides  that  denunciation  for  a 
ciril  cause  shall  be  no  justification  for  any 
personal  injury  to  the  party  denounced  ;  and 
the  provision,  that  the  rebel  shall  have  no 
pmoaa  standi  in  judicio,  is  not  now  favoured 
by  the  law.  It  is  merely  personal,  and  cannot 
be  pleaded  against  the  rebel's  assignee,  even 
although  the  assignation  should  be  dated  after 
the  commencement  of  the  action ;  and  it  is 
probable  that,  if  pleaded  against  a  person 
denounced  on  account  of  a  civil  debt,  the  plea 
would  be  repelled ;  Ersk.  B.  ii.  tit.  5,  §  60. 
If  00  denunciation  be  made  within  year  and 
day  of  the  date  of  the  execution  of  the  horn- 
ing, the  charge  falls,  and  the  homing  must 
be  executed  of  new.  By  1621,  c.  20,  it  is 
provided,  that  after  denunciation,  the  sum  in 
the  homing  shall  bear  interest  until  paid; 
and  the  construction  put  on  this  statute  is, 
that  denunciation  operates  as  an  accumulation 
of  the  principal  and  interest  due  at  the  date 
of  the  denunciation  into  a  principal  sum  bear- 
ing interest.  But,  in  order  to  produce  this 
effect,  the  denunciation  must  have  been  per- 
formed precisely  in  terms  of  the  statutes ;  for, 
altboogh  ,a  denunciation  at  the  oross  of  Edin- 
bnigh,  even  where  the  debtor  resides  beyond 
the  county,  will  be  sufficient  to  warrant  letters 
of  caption ;  yet,  in  order  to  accumulate  prin- 
cipal and  interest,  the  denunciation  must  be 
made  at  the  head  burgh  of  the  debtor's  resi- 
dence, or  at  the  market-cross  of  Edinburgh 
and  the  pier  and  shore  of  Leith,  if  he  be  furth 
of  the  kingdom  ;  Cochran,  7th  July  1743, 
Mor.  p.  494 ;  BeWs  Com.  vol.  i.  p.  652-653, 
and  voL  ii.  p.  543, 5th  edit.  Registration  of 
the  extract,  and  execution  of  an  expired  charge 
in  the  register  of  homiugs,  has  now  the  same 
effect  as  if  the  debtor  or  obligant  had  been 
denounced  rebel  in  virtue  of  letters  of  hom- 
ing, and  has  the  effect  of  ttccumulating  the 
debt  and  mterest  into  a  oapital  sum  on  which 
interest  shall  become  due ;  1  and  2  VicL,  c 
1 14,  §{  5  and  10.  This  statute  has  practically 
superseded  the  procedure  for  recovery  of  civil 
debt  by  homing,  denunciation,  and  caption, 
though  that  is  still  competent.  See  Caption. 
Dennnciation  on  account  of  crimes  is  still  fol- 
lowed by  escheat  and  the  other  penal  conse- 
quences already  mentioned,  except  that  it  is 
not  allowable  for  any  one  to  kill  or  mutilate 
the  rebel,  unless  he  has  been  denounced  for  a 
capital  crime,  and  has  been  killed  or  injured 
while  making  a  forcible  resistance  to  those 
who  were  pursuing  him  for  the  ends  of  justice ; 
1661,  c.  22  ;  Hume,  vol.  i.  p.  182,  et  seq.  See, 
on  the  subject  of  this  article.  Stair,  B.  iii.  tit. 
3,  §  7,  «<  teq.  ;  Bank.  B.  iii.  tit  3,  §  2,  ^  teq. ; 
Ertk.  B.  ii,  tit.  5,  §  56,  et  seq. ;  Ross's  Led. 
vol  i.  p.  305 ;  BdCs  Princ.  §  2397  ;  Brown's 


St/nop.  pp.  27,  585, 1272  j  Jurid.  Styles,  2d 
edit.  vol.  iii.  pp.  737-989. 

Deodand.  The  literal  meaning  of  this  term 
is,  dedicated  or  devoted  to  God.  By  the  law 
of  England,  any  of  the  lower  animals,  as  a 
horse  or  ox,  or  any  moveable  subject,  such  as 
a  cart  or  carriage,  which  has  been  the  imme- 
diate cause  of  the  death  of  a  human  being,  is 
forfeited  to  the  Crown  to  be  applied  to  pious 
uses.  Deodands  were  originally  designed  as 
an  expiation  for  the  souls  of  those  who  were 
cut  off  by  accident,  and  were  devoted  to  the 
purchase  of  masses.  It  is  now  the  practice 
for  the  jury  who  declare  the  deodand,  to  fix  a 
certain  value  upon  it,  which,  when  there  has 
been  blame  imputable  to  the  owner,  operates 
as  a  fine ;  and,  where  no  blame  attaches,  the 
jury  usually  make  the  deodand  merely  elusory, 
by  declaring  some  trifling  thing,  or  a  part  of 
an  entire  thing,  to  have  been  the  occasion  of 
the  death.  There  can  be  no  deodand  unless 
it  is  declared  such  by  a  jury ;  and  the  verdict 
of  the  jury  on  that  point  will  be  with  diffi- 
culty interfered  with;  Blackstone,  vol.  i.  p. 
300,  «t  seq.  See  also  Tomlins'  Diet.  h.  t.  A 
similar  forfeiture  is  said,  on  the  authority  of 
the  Rcffiam  Majestatem,  to  have  been  known  in 
our  older  law ;  Bank.  B.  i.  tit.  8,  §  10. 

Bepending  Aotion.  An  action  is  held  to 
be  in  dependence  from  the  moment  of  the  cita- 
tion, until  the  final  decision  of  the  House  of 
Lords;  and,  upon  such  a  dependence,  it  is 
competent  for  the  pursuer  to  use  either  inhi- 
bition or  arrestment,  as  a  security  to  him  for 
implement  of  the  decree,  in'  case  he  shall  suc- 
ceed in  obtaining  one.  Warrant  for  an  in- 
hibition on  the  dependence  will  be  obtained 
upon  production,  at  the  Bill  Chamber,  of  the 
summons  duly  executed.  The  inhibition  must 
bear  a  distinct  reference  to  the  action  on  which 
it  proceeds.  Where  the  summons  concludes 
for  a  precise  sum,  the  sum  must  be  specified 
in  the  inhibition ;  and  where  it  is  impossible 
to  specify  any  sum,  the  nature  of  the  action 
must  be  particularly  mentioned.  The  effect 
of  an  inhibition  on  the  dependence  rests  en- 
tirely on  the  decree ;  and  where  the  action 
does  not  terminate  in  a  decree,  the  inhibition 
is  not  effectual.  Thus,  if  the  case  be  taken 
out  of  Court  by  arbitration,  the  inhibition 
will  not  cover  the  sum  decerned  for  by  the  ar- 
biter ;  Reids,  &c.,  3d  July  1761,  Mor.  p.  6993, 
and  Elchies,  Inhibition,  No.  XVII.  But  in 
such  a  case  the  effect  of  the  inhibition  may  be 
reserved  by  an  express  stipulation  that  the 
pursuer  shall  consent  to  a  judicial  decree 
in  terms  of  the  arbiter's  award;  Stewart, 
16th  Feb,  1770,  Mor.  p,  7004;  Anderson, 
25th  May  1821,  1  S.  31.  The  same  rules 
ap{tly  to  arrestment  on  the  dependence  of  an 
action.  Warrant  for  the  arrestment  may  be 
obtained  summarily  on  production  of  the 


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libelled  summons  before  it  is  executed ;  54 
Geo.  HI.,  c.  137,  §  2.  So  also  the  wills  of 
summonses,  both  in  the  Court  of  Session  and 
in  the  Sheriff-court,  may,  and  usually  do,  con- 
tain a  warrant  to  arrest  on  the  dependence ; 
and  whererer  an  arrestment  on  the  depen- 
dence is  used  on  the  unexecuted  summons,  if 
the  summons  is  not  executed  within  twenty 
days  next  after  the  date  of  executinK  the  ar- 
restment, and  the  summons  called  within 
twenty  days  after  the  diet  of  compearance,  or 
if  the  vacation  intervenes,  on  the  first  calling 
day  thereafter,  the  arrestment  is  null,  with- 
out prejudice  to  any  subsequent  arrestment  on 
the  same  precept ;  1  and  2  Viet,,  o.  114,  §§ 
16  and  17  ;  A.  S..  lOih  My  1839,  §  12 ;  16 
and  17  YieU,  c.  80,  §  1.  See  Arrutment. 
Arrestments  on  the  dependence  do  not  pre- 
scribe in  three  years  from  their  date,  but  in 
three  years  from  the  date  of  the  decree  in  the 
action;  and  all  arrestments  on  the  dependence 
may  be  loosed  on  caution.  Between  the  final 
decree  in  the  Court  of  Session  and  the  entry 
of  an  appeal,  the  creditor  may  inhibit  or  ar- 
rest as  upon  a  final  decree ;  but  the  appeal 
revives  the  depending  process.  See  BdVs 
Com.  ii.  144,  et  seq.  and  67,  et  seq.  5th  edit. ; 
Jwrid.  Styles,  vol.  ii.  pp.  185, 196;  Ross's  Lect. 
i.  449,  485,  490.  See  also  Arre^ment.  Loos- 
ing  Arrestment.    Inhibition. 

Deponent ;  a  person  who  makes  oath  judi- 
cially. The  term  is  usually  applied  to  a  wit- 
ness whose  testimony  is  taken  down  in  writ- 
ing, and  authenticated  by  his  subscription. 
See  Deposition. 

Depositation  or  Deposit;  is  a  contract, 
by  which  a  subject,  belonging  to  one  person, 
is  intrusted  to  the  gratuitous  custody  of  an- 
other, to  be  re-delivered  on  demand.  He  who 
deposits  or  gives  in  custody,  is  called  the  de- 
positor; and  the  person  with  whom  the  de- 
posit is  made,  is  called  the  depositary.  The 
contract  is  completed  by  delivery  of  the  sub- 
ject. The  property  of  the  subject  and  the 
risk  remain  with  the  depositor;  consequently, 
if  the  subject  perish  accidentally,  it  perishes 
to  him.  The  depositary,  until  the  subject  is 
demanded  back,  is  liable  only  for  gross  neg- 
ligence, and  bound  to  such  diligence  as  he 
uses  in  his  own  affairs ;  but  if  he  unduly  de- 
lay to  re-deliver  the  subject,  after  requisition, 
he  will  be  liable  in  the  most  exact  diligence ; 
and  if,  after  that,  the  subject  should  perish, 
even  accidentally,  he  will  be  answerable  for 
its  value.  Where  a  box  or  other  repository, 
aoder  lock  and  key,  is  deposited  without  de- 
livery of  the  key,  the  depositary  will  be 
answerable  only  for  the  repository  itself,  and 
not  for  its  contents.  If,  on  the  other  hand, 
the  key  be  delivered,  the  rales  just  explained 
as  to  diligence  will  apply.  Where  a  subject 
is  committed  to  the  custody  of  two  persons, 


they  are  liable  tingvU  in  solidutn  for  restitn- 
tion.    Depositation  is  divided  into  proper  and 
improper.  The  former  is  where  a  special  subject 
is  deposited,  to  be  restored  without  alteration ; 
the  latter  where  money,  or  other  fungibles, 
are  deposited  to  be  returned  in  kind.    In  pn- 
per  depositation,  the  real  right  of  the  sabject 
remains  with  the   depositor,  the  depositarj 
having  neither  the  use  nor  the  disposal  of  it; 
and  although  it  seems  to  be  doubtful,  whether 
a  bona  fide  purchaser  from  a  depositary,  who 
has  fraudulently  sold  the  subject,  will  be  safe 
from  the  owner's  claim  for  restitution,  it  ii 
certain  that,  where  there  has  been  no  frand, 
and  while  the  subject  remains  with  the  deposi- 
tary himself,  his  creditors  have  no  right  to  it 
in  competition  with  the  owner.    In  improper 
depositation,  however,  the  rule  is  different;  for 
there  the  real  right  is  transferred  to  the  de- 
positary, and  the  depositor  becomes  a  creditor 
merely  for  the  quantity  of  fungibles,  or  money, 
deposited.    But  there  may  be  proper  deposi- 
tations even  of  money  or  other  fungibles,  pro- 
vided they  are  delivered  as  a  specific  subject, 
marked  so  as  to  be  distinguishable  from  tbe 
depositary's  ordinary  stock.     So  also  bills  and 
other  negotiable  instruments  may  be  the  sub- 
ject of  proper  depositation,  provided  the  power 
of  negotiation   is  not  with   the  depositary. 
The  result,  therefore,  is, — 1st,  That  where  de- 
posited goods  are  extant  and  distinguishable, 
the  depositor,  in  all  cases  of  proper  deposita- 
tion, is  entitled  to  have  them  set  apart  from 
the  common  fund,  and  re-delivered  to  him; 
and,  2d,  That  where  the  sabject  deposited 
is  to  be  returned  in  kind,  the  depositor  is  only 
a  personal  creditor  of  the  depositary.    The 
depositary  is  bound  to  restore  the  subject  vitli 
all  its  fruits  and  accessaries ;  and  this  obliga- 
tion is  enforced  by  the  actio  directa.    Tbe  actit 
contraria  of  depositation  is  competent  to  the 
depositary  against  the  owner,  for  indemnifi- 
cation of  any  loss  or  expense,  which  he  may 
have  incurred  through  the  custody  of  the  sub- 
ject.   On  account  of  the  exuberant  trust  im- 
plied in  this  contract,  the  depositary  is  not 
entitled,  either  in  proper  or  improper  deposi- 
tation, to  plead  compensation  or  retention 
against  the  depositor,  in  payment  or  security 
of  another  debt,  due  by  the  depositor  to  the 
depositary.    But  where  the  depositary's  claim 
arises  from  damage,  occasioned  by  the  subject 
of  the  depositation  itself,  or  on  account  of 
money  disbursed  in  the  custody  of  it,  the  de- 
positary may  retain  the  subject,  until  he  is 
fully  indemnified  for  such  loss  or  expense. 
If,  on  the  depositary's  death,  his  heir,  igno- 
rant of  the  depositation,  bona  fide  bbU  the  sub- 
ject, he  is  accountable  only  for  the  price  re- 
ceived by  him,  or,  if  he  have  not  received  the 
price,  he  will  be  discharged  of  his  obligation, 
by  assigning  his  claim  for  the  price  to  the 


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depositor.  There  are  Mveral .  special  kinds 
of  depositation,  which  will  be  more  appropri- 
ately considered  under  separate  articles.  Such 
are  depositations  giving  rise  to  claims  under 
the  edict  Nautas,  cauponex,  stabvlarii, — seques- 
tration, voluntary  and  judicial, — consignation 
of  money, — and  trust,  which  is  a  sort  of  de- 
positation. These,  however,  although  classed 
by  our  law  writers  under  depositation,  differ 
in  some  essential  particulars  from  depositation 
properly  so  called.  See  the  following  articles 
in  this  Dictionary : — Consignation.  Nautce, 
eaufona,  Ac.  Sequestration.  Trust.  See,  on 
the  subject  of  this  article,  Stair,  B.  i.  tit.  13 ; 
Mort't  Notes,  p.  Ixxvii ;  Bank.  B.  i.  tit.  15 ; 
£rtt  B.  iii.  tit.  1,  §26,  et  seq.;  BeWs  Com.  i. 
257,  et  teq.;  BeWs  Frine.  §  210,  «( seq.;  BelFs 
Ilhut.  §  212. 

S^rasition ;  is  the  testimony  of  a  witness, 
who  is  called  also  a  deponent,  put  down  in 
writing.  Prior  to  the  introduction  vf  jury 
trial  in  civil  causes,  all  proofs  by  witnesses, 
whether  taken  before  the  Court  of  Session  or 
before  an  inferior  court,  or  before  a  commis- 
sioner named  by  the  Court  to  take  the  proof, 
were  committed  to  writing,  for  the  considera- 
tion of  the  Conrt  which  was  to  decide  on  the 
import  of  the  proof  adduced.  This  mode  of 
taking  evidence  has  been  to  some  extent  super- 
aeded  in  the  Court  of  Session  by  the  introduc- 
tion of  jury  trial ;  but  it  is  still  competent, 
even  forthat  Conrt,  to  authorize  the  testimony 
of  witnesses  to  be  taken  according  to  the  old 
form,  and  it  is  proper  to  explain  the  manner 
in  which  it  is  done.  The  deposition  is  taken 
in  presence  of  the  parties,  or  their  counsel  or 
agents,  either  by  the  judge,  or  by  a  commis- 
sioner, who  admiuisters  the  oath  to  the  de- 
ponent. The  interrogatories  are  put  by  the 
counsel  or  agent  of  the  parties,  under  the 
control  of  the  Conrt  or  of  the  commissioner, 
and  the  answers,  as  given  by  the  witness,  are 
taken  down  in  writing  by  the  clerk  to  the 
proof.  If  there  be  any  objection  to  the  com- 
petency of  the  questions,  or  to  the  admissi- 
bility of  the  witness,  the  objection  is  stated 
to  tiie  judge,  or  to  the  commissioner,  who 
either  disposes  of  it  immediately,  or  reserves 
il  for  the  opinion  of  the  Court,  his  judgment 
either  repelling  or  sustaining  the  objection, 
being  subject  of  course  to  the  review  of  the 
Court.  Those  objections,  with  the  whole  plead- 
ings upon  them  before  the  commissioner,  were 
formerly  in  use  to  be  engrossed  verbatim  in 
the  report  of  the  proof;  but  the  act  of  Sede- 
runt 11th  March  180U,  in  order  to  put  an 
end  to  this  practice,  directs  that,  in  proofs 
taken  on  commission  from  the  Court  of  Ses- 
sion, the  commissioner  shall  exercise  his  own 
judgment  in  excluding  from  the  report  of  the 
proof  all  unnecessary  pleading  or  altercation 
about  the  competency  of  questions,  or  the  ad- 


missibility of  witnesses,  and  that  be  shall 
take  separate  notes  of  such  objections  as  he 
thinks  of  importance,  for  the  information  of 
the  Court.  He  is  also  directed  to  take  a  note 
of  any  peculiarity  in  the  witness's  manner  of 
giving  his  testimony.  The  examination  of 
the  witness  being  finished,  the  deposition  is 
read  over  to  him,  so  as  to  give  him  an  oppor- 
tunity of  correcting  any  error  which  may 
have  been  fallen  into  in  taking  it  down ;  and 
it  is  closed  by  a  declaration  that  the  whole  of 
it  is  truth,  as  the  deponent  shall  answer  to 
God.  The  deposition  is  authenticated  by 
the  subscriptions  of  the  deponent,  and  of  the 
judge  or  commissioner,  and  the  clerk  to  the 
proof.  If  the  deponent  cannot  write,  that 
circumstance  is  mentioned  in  the  deposi- 
tion ;  and  the  subscriptions  of  the  judge  or 
commissioner,  and  the  clerk,  are  sufficient. 
By  the  act  16  and  17  Vict,  c.  80,  §  10  (1853), 
the  notes  of  the  evidence  led  in  the  Sheriff- 
courts  must  be  taken  by  the  Sheriff  with  his 
own  hand.  In  the  Court  of  Justiciary,  the 
testimony  of  the  witnesses,  as  delivered  to  the 
jury,  was  taken  down  at  large  in  writing, 
until  the  statutes  21  Geo.  II.,  c.  19,  and  23 
Geo.  III.,  0.  45,  put  an  end  to  the  practice; 
leaving  to  the  Court  an  option  to  proceed 
according  to  the  old  form,  if  they  see  cause ; 
Hume,  ii.  382.  A  similar  change  was  made 
in  criminal  trials  by  jury  before  sheriffs,  by 
9  Geo.  IV.,  c.  29,  §  17.  Where  it  is  found 
necessary  to  take  the  depositions  of  the  wit- 
nesses examined  on  a  precognition,  in  ordinary 
criminal  cases,  the  formalities  just  explained 
are  observed.  In  criminal  trials  before 
sherifis,  justices,  and  other  inferior  judges, 
without  a  jury,  the  depositions  are  taken 
down  by  the  clerk  of  Court,  and  signed  by  the 
witnesses  and  judge.  See  9  Geo.  IV.,  c.  29. 
As  to  the  mode  of  taking  proofs  in  consis- 
torial  causes,  see  Commission/or  taking  Proof; 
and  as  to  depositions  of  witnesses  taken  to  lie 
in  retentis,  see  Evidence.  See  also,  on  the  sub- 
ject of  this  article,  Dickson  on  Evitknce,  p.  120, 
et  teq, ;  Mor^s  Notes  on  Stair,  cccxcv.  See 
also  Reprobator.  Precognition.  Criminal  Pro- 
secution.   Evidence. 

Deposition  of  a  Clergyman.  The  minister 
of  a  parish  who  has  been  guilty  of  scandalous 
or  immoral  conduct,  or  of  any  other  offence 
against  the  Presbyterian  scheme  of  ecclesiasti- 
cal discipline,  may  be  deposed  from  his  holy 
office  by  sentence  of  the  Church  judicatories, 
and  BO  deprived  of  the  temporalities  of  his 
benefice.  After  the  Reformation,  sentence 
of  deposition  by  a  Church  court,  did  not  dis- 
qualify the  deposed  minister  from  enjoying 
tlie  beneSce  for  life,  that  being  considered  aa 
a  civil  right  conferred  on  him  by  the  patron. 
But  the  statute  1592,  c.  115,  declares,  that 
sentence  of  deposition  by  a  Church  court  shall 


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have  the  effect  of  depriTing  the  depoBed  minis* 
ter  of  the  rents  and  emoluments  of  his  benefice, 
and  that  the  benefice  shall  thereby  become 
vacant.  The  steps  are  in  all  respects  similar 
to  those  taken  on  the  occasion  of  a  vacancy 
by  death  or  translation.  After  the  sentence 
of  deposition  is  extracted  and  shown  to  the 
patron,  he  is  allowed,  by  the  same  statute, 
six  months  to  supply  the  vacancy  ;  and  if  he 
fail  to  present  within  that  time,  the  riglit  to 
supply  that  vacancy  devolves  upon  the  pres- 
bytery within  which  the  benefice  is  situated. 
A  minister  once  deposed,  may  be  restored  to 
tlio  exercise  of  bis  ministry  by  the  General 
As&embly ;  but  regularly  he  ought  not  to  be 
settled  in  the  same  church,  because  it  is  held 
that  the  stigma  attached  to  his  character 
by  the  deposition,  is  likely  to  impair  the  use- 
fulness of  his  ministry  in  that  parish.  Some- 
times, instead  of  sentence  of  deposition  or 
deprivation,  the  Church  judicatory  takes  a 
more  lenient  course,  and  merely  declares  the 
relation  between  the  minister  and  his  parish 
to  be  loosed, — a  declaration  which  is  equiva- 
lent in  effect  to  a  deposition,  and  which  is 
usually  resorted  to,  where  the  clergyman  is 
contumaciously  disobedient  to  the  Church 
courts,  or  where  he  promulgates  doctrines 
inconsistent  with  the  tenets  of  our  national 
Church.  Where  sentence  of  deposition  is 
pronounced  by  an  inferior  Church  court,  and 
afterwards  reversed  on  appeal  to  a  higher 
court,  it  is  held  as  if  it  had  never  been  pro- 
nounced ;  but,  if  the  sentence  be  affirmed,  the 
minister's  right  to  the  profits  of  his  benefice 
ceases  from  the  date  of  the  sentence  of  the 
inferior  court.  A  minister  who  has  been 
deposed  may,  on  reasonable  considerations,  be 
restored  to  his  sacred  functions  by  the  General 
Assembly,  without  any  new  ordination ;  hence 
it  appears  that  the  ecclesiastical  character  is 
to  that  extent  indelible,  although,  after  de- 
position, the  party  is  not  to  be  regarded  as  a 
minister  of  the  Church,  nor  entitled  to  any 
privileges  as  such,  even  if  he  should  be  re- 
poned,  unless  he  is  again  settled  in  a  minis- 
terial charge.  Sentence  of  deposition  cannot 
be  pronounced  by  a  presbytery  in  absence  of 
the  minister  who  is  to  be  deposed,  unless  by 
authority  of  the  General  Assembly.  Where 
the  deposition  has  been  on  account  of  immo- 
rality, the  minister  cannot  be  restored  to 
his  former  charge,  under  any  circumstances, 
without  the  special  authority  of  the  General 
Assembly.  Bank.  B.  ii.  tit.  8,  §  220,  et  seq. ; 
and  B.  iv.  tit.  22,  §  21 ;  HiWs  Prac.  57 ; 
Cjok's  Styles,  p.  123.  See  Minister.  Church 
Judicatories. 

Depredation  or  Hership ;  is  the  offence  of 
driving  away  numbers  of  cattle  or  other  bes- 
tial, by  the  masterful  force  of  armed  persons. 
This  crime,  although  now  almost  unknown  in 


this  country,  was  at  one  time  very  prevalent. 
The  punishment  is  capital.  Hnme,  i.  110. 
See  Hership. 

Deprivatioa  of  a  Clergyman.  See  Depo- 
sition. 

Deputy ;  one  who  exercises  an  office  under 
another.  A  deputy  differs  from  the  assignee 
to  an  office :  the  principal  is  liable  for  the 
acts  of  his  deputy,  but  the  granter  is  not 
liable  for  the  acts  of  his  assignee.  No  judge 
has  the  power  to  name  a  deputy,  unless  he  is 
expressly  authorized  to  do  so  by  the  grant  to 
himself.  A  deputy  appointed  by  a  deputy, 
who  has  a  power  of  deputation,  is  usually 
called  a  substitute.  Ersk.  B.  i.  tit.  2,  §  13. 
See  Delegated  Jurisdiction. 

Derelict ;  is  an  English  law  term,  signify- 
ing anything  forsaken  or  left,  or  wilflilly  cast 
away.  Derelict  lands  suddenly  left  by  the 
sea  belong  to  the  Crown  ;  but  if  the  sea  re- 
cede gradually,  and  by  imperceptible  degrees, 
the  gain  will  go  to  the  owner  of  the  adjacent 
lands.  By  statute  54  Geo.  III.,  c.  81,  §  21, 
et  seq.,  certain  goods  derelict  (spirits  and 
tobacco),  are  liable  to  the  duties  of  customs, 
as  if  legally  imported ;  TomUns'  Diet.  h.L  Am 
to  derelict  ships,  t.e.,  vessels  forsaken  at  sea, 
see  Wreck. 

DereliotioiL  The  term  dereliction,  in 
Scotch  law,  is  nearly  similar  in  import  to  the 
English  term  derelict.  Stray  cattle  not 
claimed  within  year  and  day  are  held  to  be 
derelinquished,  and  are  escheated  to  the  King. 
But  if  the  thing  found  be  inanimate,  it  would 
appear  that  the  presumption  of  derelietioD 
does  not  hold,  and  that  the  owner  may  re- 
claim it  at  any  time  within  the  period  of  the 
long  prescription  of  forty  years ;  Stair,  B.  ii. 
tit.  1,  §  20 ;  Ersk.  B.  ii.  tit.  1,  §  12 ;  Ba»i. 
B.  i.  tit.  8,  §  4.  With  regard  to  land  gained 
from  the  sea,  we  have  not  recognised  the  dis- 
tinction of  the  English  law.  In  Scotland,the 
shores  of  the  sea  are  held  to  belong  to  the 
public  for  the  purposes  of  navigation,  and  to 
the  Sovereign  as  trustee  for  the  public.  Bnt 
this  right  is  confined  to  the  shore  of  the  sea 
only,  and  is  not  understood  to  confer  on  the 
Sovereign  anything  like  a  right  of  privste 
property.  If,  therefore,  the  sea  were  to  recede 
either  suddenly  or  imperceptibly,  the  land  so 
gained  would  belong  to  the  adjacent  proprie- 
tors whose  property  is  bounded  by  tbe  sea- 
shore. Bank.  B.  i.  tit.  3,  §  4 ;  Erd^  B.  ii. 
tit.  1,  §  6,  and  tit.  6,  §  17.  See  Strays. 
Wai/s.     Wreck.    Regalia.    Sea-greens. 

I)ereliction,  m  teind  law.  The  teind-court 
will  pronounce  a  decree  approving  of  a  valua- 
tion of  tithes  by  the  sub-commissioners,  al- 
though the  sub-valuation  has  not  been  acted 
upon  for  upwards  of  forty  years.  Bnt  if  there 
has  not  been  a  use  of  payment  of  a  higher 
rate  of  teiud  than  that  fixed  by  the  sub-com- 

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nissiooen,  the  sub-Taluaiion  will  be  held  to 
be  derelinquished,  and  the  Court  will  not  ap- 
proreof  it.even  although  thelong  prescription 
has  not  run  on  the  higher  rate.  It  appears, 
hoverer,  to  be  now  settled,  that  the  same  rule 
does  not  apply  to  the  case  of  a  valuation  by 
the  High  Commission,  or  to  a  sub*valuation 
approved  of  by  that  Court ;  for  it  has  been 
decided  that  a  decree  of  valuation  by  the 
High  CommissioQ  will  not  be  held  to  be  de- 
relinquished  by  prescription,  or  by  a  contrary 
ind  a  higher  rate  of  payment  for  any  period, 
however  long.  See  Gennel  on  Tithes,  i.  376, 
386;  see  also  Teinds. 

Oeacendants ;  are  all  the  persons  descended 
from  one  common  ancestor.  Thus,  the  son,  the 
grandson,  and  the  great-grandson,  are  descend- 
antein  the  directline.  The  children  of  younger 
brothers  are  descendants  in  the  collateral  line. 
In  legal  succession,  descendants  are  always 
preferred  to  ascendants,  according  to  certain 
rales,  fully  explained  under  the  article  Suc- 
(mtM.    See  also  Heir.    Executor.    Conquest. 
Oeaertion ;  in  martial  law,  is  the  offence 
of  a  soldier  or  sailor  who  quits  the  army  or 
navy  without  being  discharged,  or  without 
leave  of  absence.    By  the  annual  mutiny  act, 
military  Qesertion  is  punishable  with  death, 
or  with  such  other  punishment  as  a  court- 
martial  may  think  proper  to  award ;  Tondins' 
Diet  voce  Soldiers.    Desertion  from  the  naval 
service  of  Great  Britain  is  in  like  manner 
punishable  at  the  discretion  of  a  conrt-mar- 
tiaL    By  the  articles  of  war  regulating  this 
branch  of  the  service  (arts.  15  and  16),  it  is 
provided,  that  "  every  person  who  shall  de- 
sert to  the  enemy,  or  run  away  with  any  ship, 
ordnance,  Sie.,  to  the  weakening  of  the  ser- 
vice, or  yield  up  the  same  cowardly  or  treach- 
erously to  the  enemy,  shall  suffer  death ;" 
and  "  every  person  who  shall  desert,  or  entice 
others  to  do  so,  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  shall 
think  lit ;"  Tomiins'  Diet,  voce  Navy.    Where 
a  person  is  suspected  to  be  a  deserter,  either 
fronrthe  military  or  naval  service,  he  may 
be  apprehended  by  any  constable,  or  by  any 
otBcer  or  soldier  in  the  service,  and  brought 
before  the  nearest  justice  of  the  peace ;  and 
if,  by  the  party's  own  confession,  or  by  tiie 
oath  of  one  witness,  or  by  the  knowledge  of 
the  justice,  it  appear  that  he  is  a  deserter, 
the  justice  may  commit  him  to  prison,  and 
transmit  an  account  of  the  commitment,  in  a 
prescribed  form,  to  the  Secretary  at  War  in 
London,  or  to  the  Secretary  of  the  Admiralty. 
And,  on  receiving  authority  from  either  of 
those  functionaries,  the  justice  may  grant  an 
order  on  the  collector  of  the  land-tax  of  the 
place  of  commitment,  for  a  reward  not  ex- 
ceeding forty  shillings  to  the  person  who  ap- 
prehended the  deserter.    A  person  guilty  of 


concealing  or  assisting  a  deserter  forfeits  L.20 
on  conviction,  by  the  oath  of  one  witness,  be- 
fore any  justice ;  the  fine  to  be  levied  by  dis- 
tress— half  being  paid  to  the  informer,  and 
half  to  the  officer  commanding  the  regiment 
or  corps.  Failing  distress,  or  if  the  guilty 
person  do  not  pay  the  fine  within  four  days 
after  conviction,  lie  is  to  be  committed,  by 
warrant  under  the  hand  of  the  justice,  to  jail 
for  six  months.  The  forcible  entering  or 
breaking  open  any  dwelling-house  or  out- 
house on  pretonce  of  searching  for  a  deserter, 
without  a  written  warrant,  is  illegal,  and 
subjects  the  party  in  fault  to  a  penalty  of 
L.20 ;  but  a  justice  of  the  peace  may  lawfully 
grant  warrant  for  such  a  search.  Desertion 
is  not  a  crime  cognizable  by  the  ordinary 
courts  of  law  in  Scotland.  But  to  seduce  a 
soldier  or  a  sailor  to  desert  is  an  offence  pun- 
ishable, arbitrarily,  at  common  law ;  Hume, 
i.  528  and  560  ;  ii.  34,  41 .  And  by  37  Geo. 
III.,  c.  70  (made  perpetual  by  67  Geo.  III., 
c.  7),  the  attempt  to  seduce  a  soldier  or  a 
sailor  from  his  duty,  is  declared  a  capital 
offence ;  TaiPs  Justice  of  Peace,  387 ;  Blaii's 
Justice,voceSoldiers,f.320;  Hutcheson's,i,296. 
See  Soldiers.  Navy.  Court-Jtartial.  Mutiny 
Act.  In  the  merchant  service,  a  seaman  who 
deserts  the  ship  before  the  expiration  of  the 
term  of  his  agreement,  forfeits  all  his  wages, 
and  renders  himself  liable  to  imprisonment  ; 
17  and  18  Vict.,  c  104.  But  it  is  not  held 
to  be  desertion  if  the  seaman  forthwith  enter 
into  Her  Majesty's  service ;  7  aiid  8  Vict,  c 
112,  §  50,  and  17  and  18  Vict.,  c.  194.  In 
either  case,  he  is  entitled  to  his  wages  up  to 
the  period  of  his  entry  into  the  Queen's  ser- 
vice, provided  the  ship  which  he  has  left  has 
arrived  at  her  port  in  safety.  Neither  is  it 
desertion  if  the  master  compel  the  seaman  to 
quit  the  ship  by  harsh  treatment.  See  Sey- 
frumr's  Merchant  Shipping  Acts,  p.  196;  Bro- 
die's  Supp.  to  Stair,  978 ;  Bell's  Com.,  vol.  i.  p. 
514,  5th  edit. 

Desertion  of  Harried  Persons.  Wilful 
and  malicious  desertion  or  abandonment  of 
the  conjugal  society,  on  the  part  either  of  a 
husband  or  of  a  wife,  may  he  the  ground  of  a 
divorce  under  the  statute  1573,  c.  55.  W  here 
either  party  has  deserted  from  the  other  with- 
out reasonable  cause,  and  has  remained  ma- 
liciously separate  for  four  years  together,  the 
party  deserted  may  pursue  a  process  of  ad- 
herence either  before  the  Sheriff  or  the  Court 
of  Session  ;  and  where  the  action  is  pursued 
by  the  wife,  it  is  competent  for  her  in  the 
same  summons  to  conclude  for  aliment.  The 
pursuer  must  prove  both  the  marriage  and 
the  desertion  ;  and  the  decree  of  adherence 
may  be  enforced  by  letters  of  homing.  After 
this  the  Church  is  directed  by  the  statute  to 
proceed  against  the  defender,  first  by  adnio- 

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nition,  and  then  by  excommnnication.  And 
if  all  these  be  disregarded,  an  action  of  di- 
vorce may  be  pursued  before  the  Court  of 
Session,  as  coming  in  place  of  the 'Commissary 
Court.  The  action  of  adhereuce  maybe  raised, 
and  sentence  of  adherence  pronounced,  after 
one  year's  desertion ;  but  four  years  mnat  in- 
tervene between  the  first  desertion  and  the 
decree  of  diyorce.  If  the  decree  of  adherence 
and  the  subsequent  admonition  of  the  presby- 
tei7  (as  coming  in  place  of  the  bishop),  have 
been  disobeyed,  and  if  the  desertion  have  con- 
tinned  for  the  statutory  period  of  four  years, 
the  pursuer  may  then  raise  an  action  of  di- 
vorce before  the  Court  of  Session,  reciting 
the  procedure  in  the  action  of  adherence  and 
before  the  presbytery,  and  concluding  for  di- 
vorce on  the  ground  of  wilful  desertion.  If 
no  appearance  be  made  for  the  defender  in 
this  action,  the  pursuer  must  appear  and  de- 
pone de  ealumnia;  after  which  no  farther 
proof  is  required  in  support  of  the  action  than 
production  of  the  documents  libelled  on.  In 
like  manner,  also,  where  the  defender  appears 
and  opposes  the  action,  the  pursuer  must 
swear  the  oath  of  calumny  ;  but  at  this  stage 
of  the  proceedings  the  defender  is  not  entitled 
to  bar  the  decree  of  divorce  by  offering  to 
adhere.  Where  the  party  accused  of  deser- 
tion is  forth  of  the  kingdom  (especially  where 
nopersonalnotiee  of  the  action  has  been  torved), 
it  has  been  doubted  whether  the  action  of 
divorce  can  proceed;  although  it  has  been 
said  that  such  absence  will  be  np  defence 
where  the  offending  party  has  gone  abroad 
with  the  deliberate  purpose  of  avoiding  con- 
jugal adherence  ;  Ersk.  B.  j.  tit.  6,  §  44  ;  and 
reference  may  be  made  to  Walker  v.  Walker, 
7th  Dec,  1844,  7  Jur.  87,  kdAA.B.  and  C.  D. 
Dvke  V.  Duke,  1st  Mar.  1845,  7  D.  566.  But 
where  the  husband  or  wife  is  so 'absent  about 
his  or  her  lawful  affairs,  or  in  pursuance  of 
a  sentence  of  banishment,  no  action  can  be 
instituted ;  and  if  during  such  absence  the 
party  remaining  at  home  should  enter  into 
another  marriage,  in  the  bonajide  belief  that 
the  absent  party  is  dead,  the  husband  or  wife, 
on  his  or  her  return,  may  either  resume  the 
former  connection,  or  sue  for  a  divorce  on  the 
ground  of  adultery.  The  botuijldes,  however, 
will  be  a  protection  against  any  criminal  pro- 
secution, either  on  the  ground  of  bigamy  or  of 
adultery.  The  effect  of  divorce  on  the  ground 
of  desertion  is  declared  by  the  statute  1573, 
c.  55,  to  be,  that  the  party  offender  shall 
"  tyne  and  lose  their  tocher,  et  donationee 
propter  nHptiaf,"—tha,t  is,  the  offending  hus- 
band is  bound  to  restore  to  the  wife  her  tocher, 
and  to  pay  or  implement  to  her  all  her  pro- 
visions, legal  or  eonventional ;  and,  on  the 
other  hand,  the  offending  wife  forfeits  to  the 
husband  her  toclwr,  and  all  the  rights  which 


would  have  belonged  to  her  bad  the  marriage 
been  dissolved  by  the  predecease  of  the  hus- 
band; Ersk.  B.  i.  tit.  6,  §  46.  See  on  the 
subject  of  this  article,  Stair,  B.  i.  tit.  4,  §§  8 
and  20  ;  More'g  Notes,  p.  zxvii. ;  Bcmk.  c.  i. 
tit  5,  §  127,  d  seq. ;  Ersk,  B.  L  tit.  6,  §  44, 
et  uq. ;  BdPt  Print.  §§  1537,  1621 ;  SHowfi 
Prae. ;  Lothian's  Gonsistorial  Law,  pp.  96-117; 
Frasa't  Personal  Relations,  p.  677.  See  also 
Marriage.  Divorce.  Oath  of  Calumny.  Con- 
mitsary  Court.    Adherence. 

Dflwrtion  of  a  Tenant  The  Act  of  Se- 
derunt 1756,  §  5,  provides,  that  "  where  s 
tenant  shall  run  in  arrear  of  one  full  year's 
rent,  or  shall  desert  his  possession,  and-^leare 
it  unlaboured  at  the  usual  time  of  labouring, 
in  these,  or  either  of  these  cases,  it  shall  be 
lawful  to  the  heritor,  or  other  setter  of  the 
lands,  to  bring  his  action  against  the  tenant 
before  the  judge  ordinary,  who  is  hereby  em- 
powered and  required  to  decern  and  ordain 
the  tenant  to  find  caution  for  the  arrears,  and 
for  payment  of  the  rent  for  the  five  crops  fol- 
lowing, or  during  the  currency  of  the  tack, 
if  the  tack  is  of  a  shorter  endurance  than  fire 
years,  within  a  certain  time  to  be  limited  bj 
the  judge ;  and,  failing  thereof,  to  decern  the 
tenant  summarily  to  remove,  and  to  eject  him 
in  the  same  manner  as  if  the  tack  wA%  deter- 
mined, and  the  tenant  had  been  legally  warned, 
in  terms  of  the  foresaid  act  1555."  Bnt,  in- 
dependently of  the  Act  of  Sederunt,  it  i^peais 
to  be  settled  at  common  lav,  that  where  a 
tenant  deserts  his  possession  for  any  consider- 
able length  of  time,  or  in  such  a  manner  ai 
to  indicate  a  decided  intention  on  his  part  to 
abandon  his  lease,  the  landlord  is  entitled  to 
enter  into  possession  of  the  farm,  and  to  pre- 
vent the  tenant  from  resuming  possession.  Ai 
the  fact  of  desertion,  however,  may  be  am- 
biguous, it  seems  proper,  in  order  effectuallj 
to  exclude  the  tenant,  to  have  the  forfeiture 
of  his  lease  judicially  declared;  wai  where 
circumstances  admit  of  it,  the  action  ought  to 
be  laid  upon  the  Act  of  Sederunt  1766.  See 
Taylor,  28th  Nov.  1728,  Ifor.  p.  15310 ;  M 
on  Leases,  vol.  i.  p.  324,  et  seq.  4th  edit.; 
Hunter's  Landlord  and  Tenant,  ii.  p.  U9,et 
seq.    See  also  Lease.    Declarator.     Irritancy. 

Deiertion  of  the  Diet  To  desert  the  diet 
in  a  criminal  process  is  judicially  to  abandon 
proceedings  on  the  particular  libel,  in  virtue  of 
which  the  panel  has  been  brought  into  conrt 
The  Court  may  declare  the  diet  to  be  deserted: 
1st,  In  consequence  of  the  absence  of  the  proee- 
cutor  at  the  calling  of  the  diet,  which  will  hare 
the  effect  of  freeing  the  panel  &om  a  prosecu- 
tion on  that  particular  libel,  bnt  will  not  pre- 
vent a  new  process  being  raised  on  the  same 
grounds.  2d,  W  here  some  defect  or  informality 
has  been  discovered  in  the  libel,  or  where  there 
is  a  good  objection  to  the  relevancy,  the  Court, 

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on  the  application  of  the  prosecutor,  may  de- 
sert the  diet  pro  loco  ei  tempore,  as  it  is  ex- 
preoed.  In  this  case  the  prosecntor  acquaints 
the  Court  and  the  panel,  that  he  wishes  to 
pass  ^m  the  prosecution  for  the  time  and 
occasion  only,  hut  to  reserve  his  right  to  in- 
sist of  new,  if  he  shall  see  cause;  and  if  the 
Court,  in  the  exercise  of  their  discretion,  ac- 
cede to  the  prosecutor's  motion,  the  desertion 
pro  loco  et  ten^tore,  does  not  bar  the  prosecutor 
from  raising  a  new  libel,  in  which  the  error 
may  be  corrected.  The  diet,  however,  must 
he  deserted  as  to  the  one  libel  before  the  other 
can  be  insisted  in.  LasUy,  If  the  prosecntor 
thinks  proper  entirely  to  abandon  the  prose- 
cation,  he  may  move  the  Court  to  desert  the 
diet  $implieiter, — a  motion  which  will  be  ac- 
ceded to  as  a  matter  of  course,  and  the  effect 
of  which  will  be  to  pat  a  final  ^top  to  all 
Airther  proceedings  against  the  panel  for  the 
tame  offence.  The  prosecutor  may  move  for 
a  desertion  of  the  diet  pro  loco  et  tempore, 
eren  after  a  plea  of  guilty  has  been  recorded. 
Bat  after  the  jury  is  once  sworn,  no  desertion 
pro  loeo  et  tempore  is  competent,  and  the  libel, 
sach  as  it  is,  must  take  its  fate.  The  public 
prosecutor,  however,  even  after  a  verdict  of 
guilty  has  been  returned  by  the  jury,  may  de- 
sert the  diet  timpliciter,  if  he  think  proper ; 
the  consequei^ce  of  which  will  be,  that  the 
panel  will  be  free  of  punishment  for  his  of- 
fence, and  of  all  future  question  on  that  ac- 
eoant.  A  prisoner  who  has  run  his  letters,  as 
it  is  termed,  under  the  act  1701,  c.  6,  and 
who,  after  the  expirati  on  of  the  sixty  days,  has 
been  served  with  new  criminal  letters  for  the 
same  offence,  is  entitled,  under  the  statute,  to 
have  the  diet  deserted  simpliciter,  if  the  libel 
be  not  prosecuted  to  a  final  sentence,  within 
forty  days  after  the  prisoner  is  of  new  incar- 
een^d,  unless  the  delay  has  taken  place  at 
his  dedre.  The  effect  of  such  a  desertion  of 
the  diet  is  declared  to  be,  that  the  panel  shall 
be  for  ever  free  of  all  challenge  or  question 
tonehing  that  offence.  The  construction  of 
Out  provision  of  the  statute,  however,  has 
given  rise  to  considerable  doubts.  See  Hume, 
102,  263,  et  seq.;  Alison's  Prac.  98, 343,  et  seq. 
SmUso  Liberation,  Diet.  Criminal  Prosecution. 
Dwignation ;  is  the  addition  or  description 
of  a  person.  It  is  necessary  in  all  deeds  to 
design  or  identify  the  parties  in  such  a  manner 
as  to  distinguish  them  from  all  others ;  and, 
in  practice,  this  is  done  by  setting  down  the 
titto  of  nobility,  or  the  name  and  surname  of 
the  party,  with  his  addition  or  description,  by 
his  estate,  profession,  trade,  or  place  of  resi- 
dence. The  witnesses  to  the  execution  of  a 
deed,  and  the  writer  of  it  (except  in  the  case 
of  hologr&ph  deeds),  must  also  be  named  and 
designed  in  the  testing  clause,  otherwise  the 
deed  will  not  be  probative.    The  statutes  re- 


gulating this  subject  are — 1579,  c.  80 ;  1593, 
c  175 ;  and  1681,  c.  5.  See  Stair,  B.  iv.  tit. 
42,  §  19,  and  tit.  20,  §  25;  More's  Notes,  p. 
cccc ;  Bank.  B.  i.  tit.  11,  §  24;  Erdc.  B.  iii. 
tit.  2,  §  6,  et  seq.;  Bell  on  Testing  of  Deeds;  Ross's 
Led.  vol.  i.  p.  130,  el  seq. ;  vol.  ii.  p.  156,  et 
seq.;  Menzies'  Gorweyancing ;  Duff  on  Deeds; 
Duff's  Feudal  Comeyaneing.  See  also  Testing 
Clause.     Writ.    Fcisa  Demonstratio. 

DMignation  of  a  Manse  and  Glebe.  Manses 
and  glebes  for  the  clergy  are  designed,  or  set 
apart,  from  the  Church  lands  in  the  parish, 
by  the  presbytery  of  the  bounds.  For  a  de- 
tailed account  of  the  nature  and  extent  of 
these  accommodations,  see  Jfonstf.  6Ui>e.  After 
a  designation  by  the  presbytery,  if  the  pos- 
sessors of  the  lands,  designed  for  manse  or 
glebe,  do  not  yield  possession  to  the  minister, 
he,  on  producing  the  designation  at  the  Bill- 
Chamber,  may  obtain  warrant  for  letters  of 
horning  to  charge  the  possessors  to  remove ; 
and  disobedience  to  this  charge  may  be  fol- 
lowed by  caption ;  1572,  c.  48 ;  Bank.  B.  ii. 
tit.  8,  §  120.  See,  as  to  this  article.  Stair,  B. 
ii.  tit.  3,  §  40 ;  Morels  Notes,  p.  clxxii. ;  Bank. 
B.  ii.  tit.  8,  §  119,  et  seq.;  Ersk.  B.  il.  tit.  10, 
§  55,  et  seq.;  Jurid.  Stifles,  2d  edit.  vol.  iii.  pp. 
698, 929,  et  seq. ;  Bell's  Princ.  §  1173 ;  Dunlop's 
Parish  Law,  p.  95  and  156. 

Designs.  As  to  the  copyright  of  designs 
for  ornamenting  articles  of  manufacture,  and 
for  the  shape  and  configuration  of  such  articles, 
see  the  statutes  5  and  6  Vict.,  c.  100 ;  6  and 
7  Vict.,  c.  65;  13  and  14  Vict.,  c.  104;  14 
Vict.,  c.  8 ;  and  15  and  16  Vict.,  c.  12. 

Destinatioii.  The  series  of  heirs  called  to 
the  succession  of  heritable  or  moveable  pro- 
perty, either  by  the  provision  of  the  law  or 
by  the  will  of  the  proprietor,  is,  generally 
speaking,  termed  a  destination ;  but  the  term 
is  usually  applied,  in  a  more  limited  sense,  to 
a  nomination  of  successors  in  a  certain  order, 
regulated  by  the  will  of  the  proprietor.  The 
.rules  of  legal  succession,  whether  in  heritage 
or  moveables,  are  stated  under  the  article 
Succession;  and  the  destination  of  moveables, 
by  the  will  of  the  proprietor,  under  the  articles 
Substitutions,  Legacy,  Institute,  Executor.  The 
present  article  relates  chiefly  to  destinations 
of  heritage.  An  absolute  proprietor  of  herit- 
age is  under  no  legal  restraint  as  to  the  order 
in  which  his  heirs,  or  successors,  ard  to  be 
called  to  succeed  him,  or  as  to  the  manner  in 
which  his  property,  is  to  be  distributed.  He 
may  substitute  a  son  to  a  daughter,  or  an 
elder  child  to  a  younger  one ;  or  he  may  ex- 
clude all  bis  children  and  prefer  a  stranger ; 
and  provided  the  destination  be  explicable, 
and  properly  fortified  by  prohibitory,  irritant, 
and  resolutive  clauses,  the  estate  will  descend 
in  the  course  pointed  out  by  the  proprietor. 
But,  without  entering  into  the  peculiarities 

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of  speeis],  or  of  capricious  destinations,  the 
following  enumeration  comprehends  some  of 
^e  rules  with  regard  to  the  construction  of 
the  terms  used  in  destinations,  and  as  to  the 
formation  of  ordinary  destinations.  (1.)  A 
destination  "  to  A.  and  his  heirs,"  or  "  to  A. 
and  his  heirs-at-Iaw,"  is  merely  a  confirmation 
of  the  legal  disposition  of  the  property.  (2.) 
A  destination  "  to  A.  and  his  heirs  of  line," 
carries  the  property  to  the  heir  in  heritage, 
exclusive  of  the  heir  of  conquest.  (3.)  The 
term  "  heirs  whatsoever,"  is  synonymous  with 
"  heirs-at-Iaw."  (4.)  A  destination  to  heirs- 
male  excludes  females.  An  heir-male  is  a 
person  who  is  himself  a  male,  and  connected 
by  males.  A  grandson  by  a  daughter  is  not 
an  heir-male.  (5.^  The  heir-male  of  line  in 
a  destination  is  the  heir-male,  excluding  the 
heir  of  conquest ;  Sinclair,  24th  June  1766, 
Mor.  p.  14944.  (6.)  "  Heir-female,"  is  the 
male  or  female  heir,  connected  by  females. 
In  legal  succession,  the  heir-female  is  the 
nearest  heir,  failing  the  heir-male.  The  son 
of  a  daughter  may  be  the  heir-female  under 
a  destination  to  heirs-female ;  Er»k.  B.  iii.  tit. 
8,  §  48.  (7.)  A  destination  "  to  heirs-male  of 
the  body"  carries  the  property  first  to  the 
eldest  son  and  his  male  descendants,  then  to 
the  second  son  and  his  male  descendants,  and 
so  on  through  the  sons  in  succession,  to  the 
exclusion  of  females,  and  of  males  connected 
throngh  females.  (8.)  A  destination  "to  heirs- 
female  of  the  grantor"  will  carry  the  estate 
to  the  daughter  of  a  son,  preferably  to  the 
grantor's  own  daughter ;  and  the  same  rule 
applies  where  the  destination  is  to  the  heir- 
female  of  the  body  of  the  grantor.  In  order 
to  carry  the  estate  to  the  daughter  of  the 
granter,she  must  either  be  named  or  described 
as  daughter ;  see  the  case  of  Bargeny,  EUhies, 
voce  Provision*  to  Heirs  and  Children,  No.  2. 
The  terms  daughter  and  heir-ftmaU,  therefore, 
are  not  S3rnonymous;  nor  is  daughter  a  vox 
signata  at  all  in  destinations ;  it  merely  ex- 
presses relationship ;  Lady  Essex  Ker,  13th 
Nov.  1810,  Fm.  GoU.  Some  conveyancers 
think  a  destination  ill  arranged  when  the 
estate  is  given,  failing  the  sons  of  the  maker, 
and  their  heirs-male,  to  the  daughters  of  the 
maker  in  their  order,  and  their  heirs-male ; 
or  where  it  is  given,  failing  heirs-male,  to 
the  heirs  whomsoever  of  the  body  of  the 
eldest  son ;  whom  failing,  to  the  heirs  whom- 
soever of  the  body  of  the  second  son,  &c. 
In  place  of  this,  they  think  it  preferable 
to  call  the  heirs  whomsoever  of  the  body 
of  the  last  heir-male  in  possession;  by  which 
means  the  daughters  of  the  family  in  pos- 
session, and  the  heirs  of  their  bodies,  are  pre- 
ferred to  the  daughters  of  former  branches 
of  the  destination,  who,  although  nearer  in 
degree  to  the  original  maker  of  the  destina- 


tion, may,  when  the  succession  opens  to  them, 
be  very  remotely  connected  with  the  family 
last  in  possession  of  the  estate.  (9.)  When  the 
substitute  in  a  destination  is  described  as 
second  son,  or  as  third  son  to  the  maker  of 
the  destination,  that  means  the  second  or 
third  son  at  the  date  of  the  deed,  not  at  the 
time  the  succession  opens.  (10.)  A  destina- 
to  A.  simply  is  understood  to  carry  the  pro- 
perty to  heirs-at-law;  but  if  it  be  to  A.,  whom 
failing,  to  B.  on  A.'s  failure,  bis  heirs  will  be 
excluded,  except  in  the  case  where  A.  is  the 
maker  of  the  destination,  and,  subsequentlj 
to  its  date,  has  children  of  his  own,  so  as  to 
admit  of  the  implied  condition  »i  sine  liberis. 
see  Condition  si  sine  liberie  deeesserit.  (11.)  A 
destination  to  A.  and  his  heirs ;  whom  failing, 
to  B.,  brings  in  the  whole  line  of  descent  of  A. 
before  B. ;  Bailie,  17th  June  1766,  Mtr.  p. 
14941 ;  and  such  a  destination  is  held  to  call, 
not  merely  the  heirs-male  of  A.'s  body,  bat 
his  heirs-male  generally;  H.%y,  24th  Jane 
1788,  Mor,  p.  2315 ;  and  this  notwithstanding 
the  decision  in  the  Roxburghe  case,  which 
proceeded  on  speoialties.  See  Sir  J.  N.  Inna, 
23d  June  1807,  Mor.  App.vece  Tailzie,'SoAZ. 
(12.)  A  destination  of  lands  in  a  contract  of 
marriage,  in  favour  of  the  "  heirs  and  bains" 
or  of  the  "  heirs  and  children"  of  the  marriage, 
is  held  to  import  a  destination  to  the  heir-st- 
law ;  that  is,  to  the  eldest  son  of  the  marriage, 
when  there  are  more  children  than  one.  The 
word  "  heirs"  in  such  a  destination  is  held  to 
be  the  ruling  term,  and  the  introduction  of 
the  word  "  bairns"  or  "  children"  does  not 
derogate  from  its  meaning.  Where,  on  the 
other  hand,  the  destinatiion  is  to  the  "iaimt" 
or  "  children"  of  the  marriage,  the  word 
"heirs"  being  omittod,  all  the  children  of  the 
marriage  succeed  equally,  with  no  preference 
in  favour  of  the  eldest  son ;  BeWs  Prine.  §  1962, 
and  authorities  there  cited;  also  Sandfori  m 
Heritable  Succession,  i.  p.  172-179,  and  casa 
there  cited.  See  also  Bairns,  Heirs  and  Bairns. 
(13.)  In  order  to  avoid  ambiguity,  and  soeh 
a  difficulty  as  occurred  in  the  Bargeoy  case, 
it  is  proper  for  the  maker  of  the  destination 
to  consider,  whether  it  is  his  intention  to  call 
the  heirs-male  or  the  heirs-female  of  such  a 
person  generally,  or  to  limit  the  destination 
to  the  heirs-male  or  female  descended  of  the 
person  called.  Lastly,  The  destination  is 
usually  closed,  by  calling  the  heirs  whomso- 
ever of  the  grantor,  the  object  of  which  ori- 
ginally was  to  defeat  the  Crown's  right  as 
uliimus  heres,  which  was  formerly  held  to 
open  where  the  destination  was  not  closed  in 
that  form.  See  Succession.  Heirs.  Conjunct 
Rights.  Clause  of  EeturTi.  A  destination,  the 
members  of  which  are  laid  under  no  restric- 
tion as  to  the  use  or  enjoyment  of  the  subject, 
nor  under  any  prohibition  to  alter  the  pre- 

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teribed  order  of  succession,  is  called  a  simple 
destination,  the  only  effect  of  which  will  be, 
that  the  order  of  succession  pointed  out  by 
the  deed  will  be  observed  so  long  as  no  alter- 
ation is  made'  But  each  substitute  in  the 
destination  being  an  unlimited  fiar,  is  entitled 
gratnitously  to  alienate  the  estate,  or  to  alter 
the  order  of  succession  precisely  as  the  ori- 
ginal proprietor  might  have  done.  A  simple 
destination,  therefore,  merely  confers  a  spes 
tuectssumit  on  the  substitutes,  defeasible  by 
each  member  of  the  destination  in  succession ; 
EnL  B.  iii.  tit.  8;  §  22.  As  to  the  effect  of 
prohibitory,  irritant,  or  resolutive  clauses  in 
protecting  destinations,  see  Tailzie;  and  with 
ngard  to  the  restraints  on  the  right  of  mak- 
ieg  destinations  imposed  by  entails,  by  con- 
tracts of  marriage,  or  by  other  destinations 
more  or  less  strict,  or  by  insolvency,  see,  in 
particular,  •  Contract  of  Marriage.  Conjunct 
Rights.  Bankrupt.  Conjunct  and  Confident. 
BdPs  Com.  5th  edit.  i.  44,  e<  seq. ;  Bdfs  Princ,  § 
1704,  etseq.,  1775,  et  seq.;  lUust.  §  1704;  BeU 
OR  Leaws,  4th  edit.  vol.  i.  p.  142 ;  Sandford 
OK  Heritable  Succession,  vol.  i.  p.  158 ;  Hunter's 
Lmdlord  and  Tenant;  Ross's  Lect.  ii.  482; 
Memies's  Conveyancing;  Duff's  Conveyancing. 

A  subject,  moveable  in  its  nature,  may  be 
made  heritable  by  destination,  either  express 
or  implied.  Thus,  a  personal  bond  taken  to 
hein,  secluding  executors,  is  necessarily  he- 
ritable by  its  own  terms,  and  not  as  having  an 
heritable  subject  impledged  for  it;  or  the 
materials  of  a  building  accidently  thrown 
down,  or  materials  laid  down  for  the  purpose 
of  building,  or  prepared  to  be  permanently 
attached  to  a  building,  are  held  to  be  heritable 
by  destination.  Bell's  Com.  ii.  6 ;  Bell's  Princ. 
f  1475 ;  lUusU  ib.   See  Heritable  and  Moveable. 

Oeitination  of  a  Ship.  In  insurance  law, 
it  has  been  decided  in  Scotland  that  conceal- 
ment of  the  destination  of  a  ship  voids  the 
insnrance,  although  the  loss  of  the  vessel 
shoold  have  occurred  prior  to  the  actual  de- 
viation from  the  voyage  specified  to  the  in- 
surer; Bain,  20th  Nov,  1783,  Mor.  p.  7087. 
BdCs  Com.  5th  edit.  i.  621 ;  6th  edit.  p.  483. 
See  Inturance.    Deviation. 

Deraetade.  By  the  law  of  Scotland,  acts 
of  Parliament  before  the  Union  were  held  to 
lose  their  force  by  disuse,  without  any  express 
repeal,  or  to  go  into  desuetude,  as  it  was 
termed,  and  the  same  is  still  understood  to  be 
the  case  with  regard  to  the  acts  of  Sede- 
runt of  the  Court  of  Session.  In  deciding 
Muses  which  turn  upon  the  construction  of 
the  old  statute  law  of  Scotland,  it  is  some- 
times a  matter  of  considerable  difficulty  to 
determine  whether  a  particular  statute  has, 
or  has  not,  gone  into  desuetude;  Report  of 
Lords  of  Session  to  House  of  Lords,  27th  Feb. 
1810;  Printed  Acts  of  Sederunt,  p.  63.    Ac- 


cording to  Mackenzie,  if  a  statute  had  fallen 
into  desuetude  before  the  Union,  it  might  have 
been  revived  by  a  proclamation  of  the  Privy 
Council ;  for,  although  the  Council  could  not 
make  laws,  they  could  revive  them ;  Mackenzie, 
B.  i.  tit.  1,  §  10.  No  statute,  however,  can 
be  abrogated  by  mere  non-usage  for  the  great- 
est length  of  time.  There  must  be  some  posi- 
tive act  showing  the  intention  of  the  commu- 
nity to  repeal  it  by  a  contrary  practice;  and 
Erskine  limits  the  right  of  the  King  and 
Council  to  revive  statutes  which  are  in  disuse 
to  the  case  where  the  usage,  contrary  to  the 
statute,  has  not  yet  acquired  sufficient  strength 
to  abrogate  it  entirely.  Some  authorities  limit 
the  statutes  which  may  fall  into  desuetude  to 
those  relating  to  private  rights,  and  hold, 
that  statutes  relating  to  the  public  policy  of 
the  kingdom,  cannot  be  abrogated  by  any 
continuance  of  a  contrary  usage,  however  long. 
But  there  seems  to  be  no  sufficient  reason  for 
this  distinction  ;  and,  according  to  the  deci- 
sions, statutes  relating  to  public  policy  have 
been  held  to  be  in  desuetude  by  contrary 
usage  ;  see  Stair,  B.  i.  tit.  1 ;  ErsL  B.  i.  tit. 
1,  §  45,  and  Paterson,  6th  Dec.  1810,  Fac.  Coll. 
correcting  Bank.  B.  i.  tit.  1,  §  60.  See  Usage. 
Customary  Law. 

Detinue ;  in  English  law,  was  a  form  of 
action  for  the  specific  recovery  of  goods  and 
chattels,  or  damages  for  the  detainer.  In  this 
action  the  defendant  was  allowed  the  privilege 
of  waging  his  law,  or  swearing  with  compur- 
gators in  his  own  favour.  To  remedy  this 
inconvenience  the  action  of  Trover  was  intro- 
duced, in  which  the  defendant  has  no  such 
privilege.  Brodie's  Supp.  to  Stair,  849 ;  Bell's 
Com.  i.  249  ;  TomUn^  Did.  h.  t.    See  Trover. 

Deviation.  Under  the  contract  of  affreight- 
ment, if  a  vessel  be  compelled  by  stress  of 
weather,  or  by  a  foreign  enemy,  or  by  any 
inevitable  accident,  to  deviate  from  the  ap- 
pointed voyage,-  or  to  take  refuge  in  a  port 
not  included  in  the  destination,  no  claim 
thence  arises  at  the  instance  of  the  freighter 
against  the  owners ;  and  where  the  ship,  in 
consequence  of  such  accident,  requires  to  be 
refitted,  the  master  may  now  detain  the  cargo 
until  the  necessary  repairs  be  executed,  al- 
though formerly  the  rule  was,  that  he  was 
bound  to  find  another  ship  in  which  to  embark 
the  cargo.  Where  the  deviation  is  imputable 
to  the  fault  of  the  master,  the  freighter  has  a 
claim  for  damages,  in  satisfaction  of  which  he 
may  retain  the  freight.  Deviation,  under  the 
contract  of  insurance,  is,  strictly  speaking,  a 
departure  from  the  course  of  the  voyage  in- 
sured, made  after  the  voyage  has  begun,  in 
contradistinction  to  an  alteration,  which  is  a 
complete  abandonment  of  the  voyage  insured 
before  its  commencement,  and  a  resolution  to 
sail  on  another  voyage.  Any  unnecessary  de- 
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Tiation  fW>m  the  specified  roynge,  as  being  an 
alteration  of  the  risk  insured  against,  is  held 
to  discharge  the  underwriters  or  insurers  of 
their  responsibility,  without  subjecting  them 
in  any  obligation  to  return  the  premium. 
With  regard  to  deviations  in  questions  of  this 
kind  the  following  rules  seem  to  be  settled : 
Ist,  It  is  a  deviation  whether  the  party  in- 
sured be  privy  to  it  or  not.  2d,  The  mere 
intention  to  deviate,  or  an  engagement  or  in- 
structions to  do  so,  will  not  annul  the  insur- 
ance if  the  vessel  never  have  deviated,  or  have 
been  lost  before  arriving  at  the  proposed  point 
of  deviation ;  Bell't  Com.  i.  622.  See  to  the 
contrary,  however.  Bain,  20th  Nov.  1783, 
Mor.  p.  7087.  Zd,  If  the  deviation  be  actually 
committed,  the  underwriters  are  discharged, 
although  the  vessel  has  returned  to  her  course, 
without  any  apparent  injury  or  change  of  risk. 
Atk,  Where  the  ship  has  liberty  to  caU  at  a 
port  not  named,  but  described  as  upon  a  par- 
ticular coast,  or  in  a  particular  country  lying 
in  the  course  of  the  voyage,  it  will  be  a  devia- 
tion if  the  vessel  go  to  a  port  out  of  the  usual 
coarse  of  the  voyage,  although  the  port  may 
be  on  the  coast  or  in  the  country  mentioned. 
btk.  Where  the  deviation  is  unavoidable,  or 
necessary  for  the  safety  of  the  ship  or  cargo,  it 
will  not  discharge  the  underwriters,  provided 
it  be  made  in  the  shortest  and  most  expeditious 
manner.  LasUy,  The  oniu  probandi  lies  on 
the  underwriters,  who  allege  that  a  deviation 
has  taken  place.  Brodie's  Svpp.  to  Stair,  976; 
B«W$  Com.  5th  edit. ;  6th  edit.  p.  483 ;  i.  622, 
et  *eq. ;  BeU's  Princ.  §  241,  435,  492,  d  seq.; 
Bell's  lUutt.  §  435,  492  ;  Smith,  Dow's  App. 
Cases,  ii.  538.    See  Insurance. 

Deriie ;  is  an  English  law  term,  signifying 
properly,  a  gift  of  lands,  &o.,  by  a  last  will  and 
testament, — a  form  of  conveyance  mortis  cawa 
which  the  English  law  admits.  The  giver  is 
called  the  devisor;  and  he  to  whom  the  lands 
are  given  is  called  the  deviste.  The  term  was 
formerly  particularly  applied  to  bequests  of 
lands,  but  is  now  generally  used  for  the  gift 
of  any  legacies  whatever ;  Tomlins'  Diet.  h.  t. 
By  the  law  of  Scotland,  lands  cannot  be  con- 
veyed in  the  form  of  a  last  will  and  testament. 
See  Testament.    Settlement. 

Devolution ;  is  a  term  sometimes  applied 
to  the  reference  made  by  two  or  more  arbiters 
who  differ  in  opinion,  to  an  oversman  or  um- 
pire, to  determine  the  difference.  To  confer 
this  power  on  arbiters,  an  express  clause  in 
the  submission  is  necessary.  The  term  is  also 
applied  to  the  devolution  of  a  purchase  made 
under  articles  of  roup  upon  the  next  highest 
offerer,  on  the  failure  of  the  highest  offerer 
to  find  caution  for  payment  of  the  price  within- 
the  time  limited  by  the  articles.  BeU's  Com. 
ii.  274 ;  Jurid.  Styles,  ii.  193.  See  Arbitra- 
tion.    Clause  of  Devolution.    Roup. 


Derolntam  Ju.    See  Jut  DewAvinm. 

Diofl.    See  Gaming. 

Di«m  Clanait  Extremiun ;  was  the  nsme 
given  to  a  writ  which  might  be  issued  fi'om 
Exchequer,  where  a  Crown  debtor  had  died 
before  any  proceedings,  by  extent  or  other- 
wise, had  been  instituted  against  him.  By 
this  writ,  the  Sheriff  was  directed  to  inqaire 
when  and  where  the  Crown  debtor  died,  sod 
wliat  goods,  debts,  effects,  or  sums  of  mosej 
he  had  at  the  time  of  his  death;  and  care- 
fully to  appraise  and  extend  the  same,  uid  to 
seize  them  for  the  Queen's  use,  to  be  retained 
until  the  Crown  be  satisfied  of  the  debt ;  snd 
that  the  Sheriff  should  carefully  keep  what  he 
had  so  seized,  until  he  received  further  com- 
mand ;  BeU's  Com.  5th  edit.  ii.  51 ;  6th  edit. 
p.  623 ;  Bdl's  Princ.  §  2381.  The  forms  of 
writs  of  extent  are  now  abolished  by  19  sad 
20  Vict.,  c.  56.     See  Grown  Debt.    Extent. 

Dies  Inoeptiu  Fro  Completo  Habetnr. 
See  Computation  of  Time. 

Diet  laterpellat  Fro  Homine.  Where 
the  debtor  in  an  obligation  is  bound  to  imple- 
ment it  on  a  day  certain,  he  will  be  tn  mora, 
if  he  allow  the  stipulated  day  to  elapse  with- 
out performance,  nam  dies  interpeUat  pro  ho- 
mine ;  i.e.,  the  arrival  of  the  day  is  eqnira- 
lent  to  a  requisition  by  the  creditor ;  Stair, 
B.  i.  tit.  3,  §  7 ;  tit.  17,  §  15  and  18.  See 
Mora. 

Dies  Incertiu  Fro  Conditione  Habetor. 
An  obligation  exigible  on  the  arrival  of  an 
uncertain  day,  i.e.,  of  a  day  which  nay  nerer 
come,  is  held  to  be  conditional.  See  Cmii- 
tional  Obligation. 

Diet  Cedit,  and  Dies  Venit ;  are  expres- 
sions borrowed  from  the  Roman  law,  and  nwd 
in  reference  to  the  fulfilment  of  a  conditional 
obligation.  Dies  cedit,  is  used  whenoTer  the 
obligation  is  due ;  dies  venit  whenever  imple- 
ment may  be  demanded.  If  implement  of 
the  obligation  be  deferred  to  a  determinait 
day,  then  it  is  said,  dies  statim  cedit,  ted  dm 
venit;  but  if  it  depend  on  the  fulfilment  of  s 
condition,  it  is  said,  dies  nee  cedit,  nee  vmit  tAa 
conditio  extiterit.  The  same  rule  holds,  when 
it  depends  upon  the  arrival  of  an  uncertain 
day ;  for  dies  ineertus  pro  conditions  habetur; 
that  is,  a  day,  the  arrival  of  which  is  abso- 
lutely uncertain,  since  it  may  never  arrire ; 
e.g.,  the  day  on  which  a  person  shall  attain 
majority,  or  any  other  specified  age,  whereas, 
the  day  of  a  roan's  death,  is  a  day  which, 
sooner  or  later,  must  arrive,  and  therefore,  in 
this  sense,  it  is  not  uncertain.  Erslc  B.  iii. 
tit.  1,  §  6  ;  Kames'  Equity,  387.  See  Condi- 
tional Obligation. 

Kets  of  Compearanoe ;  are  the  days  to 
which  a  party  in  a  civil  or  criminal  process 
is  cited  to  appear  in  Court.  In  all  oraioary 
summonses  in  civil  actions  in  the  Court  of 


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SeaioD,  there  were  formerly  two  diets  of 
compearance ;  the  origin  of  which  was,  that 
formerly  there  were  two  summonses  instead 
of  one.  The  second  summons  was  long  ago 
diipenied  with  ;  but  the  former  practice  was 
w  far  preserved,  that  all  ordinary  summonses 
specified  tuie  diets  of  compearance,  one  at  the 
distance  of  twenty-one  days  after  execution, 
ssd  the  other  six  days  after  the  first,  the 
prsetica}  effect  of  which  was,  that  the  inductee 
of  the  gammons  were  twenty-seven  days ;  and, 
accordingly,  the  statute  50  Qeo.  III.,  c.  112, 
§  27,  enacted  "  that,  in  actions  at  present 
requiring  two  diets  of  appearance  against 
persons  within  Scotland,  there  shall  be  only 
one  diet  of  twenty-seven  days."  But,  if  the 
defender  was  furth  of  Scotland,  the  summons 
itill  required  two  diets,  one  of  sixty  and  the 
other  of  fifteen  days,  in  all  seventy-five  days, 
until  the  passing  of  the  Judicature  Act  (1825), 
whereby  it  is  enacted,  that  from  and  after 
nth  November  1825,  the  practice  of  citing 
defenders  on  two  diets  shall  in  all  cases  cease, 
and  that  all  summonses  are  thenceforward  to 
proceed  on  one  diet, — viz.,  privileged  sum- 
monses against  defenders  within  Scotland  on 
one  diet  of  six  days,  other  summonses  against 
defenders  residing  in  Orkney  or  Shetland,  a 
diet  of  forty  days,  and  for  all  other  persons 
Tithin  Scotland  a  diet  of  twenty-seven  days, 
and  for  defenders  out  of  Scotland  a  diet  of 
iixty  days ;  it  being  thereby  declared,  that 
where  a  person  not  having  a  dwelling-house 
in  Seotluid,  occupied  by  his  family  or  ser- 
Tsnts,  shall  have  left  his  usual  place  of  resi- 
dence, and  shall  have  been  absient  therefrom 
for  forty  days,  without  having  left  notice 
where  he  is  to  be  found  within  Scotland,  he 
ihsll  be  held  as  absent  from  Scotland,  and 
charged  or  cited  accordingly ;  6  Geo.  IV.,  c. 
120,  §  53 ;  Ross's  Leet.  ii.  536.  See  Swnr- 
■Mt.  FrioiUged  Summons.  Bills  of  Signet 
Utters.  Edictal  Citation.  Callingofa  Summons. 

By  the  act  13  and  14  Viet.,  c.  36,  §  21 
(1850),  the  indncice  of  summonses  are  short- 
ened in  the  case  of  persons  within  Scotland 
from  twenty  to  fourteen  days,  and  in  the  case 
of  persons  in  Orkney  or  Shetland  or  furth  of 
Scotland,  from  forty  and  sixty  days  respec- 
tively to  twenty-one  days.  In  the  Sheriff- 
tourts  six  days  is  now  the  period  of  inducice ; 
16  a»d  17  Vict.,  c  80.  Edicts  require  ten 
daji. 

Diet  m  a  eriminal  prosecution. — The  diet  of 
■ppearance  in  eriminal  cases  is  peremptory. 
The  indictment,  or  the  criminal  letters,  must 
be  called  on  the  precise  day  to  which  the  ac- 
tnied  is  cited;  1578,  c.  79;  otherwise  the 
n^nee  perishes,  and  a  new  libel  must  be 
niied.  J3nt  although  the  diet  is  peremptory, 
yet,  after  the  day  of  appearance  has  once 
arrived  (bat  not  sooner),  the  diet  may  be  con- 


tinued by  an  act  of  the  Court,  even  in  absence 
of  the  parties,  and  without  calling  them.  In 
like  manner,  where  both  parties  are  present, 
the  Court  may,  for  its  own  convenience,  or  on 
sufScient  reason  stated,  either  for  the  prosecu- 
tor or  for  the  accused,  continue  the  diet.  In 
all  such  cases,  however,  the  continuation  must 
be  to  another  day  certain,  for  the  diet  cannot 
be  continued  indefinitely,  or  tine  die.  See 
Continuation  of  the  Diet.  The  prosecutor  as 
well  as  the  accused  must  be  personally  pre- 
sent at  the  calling  of  the  diet ;  and,  although 
objections  to  the  legality  of  the  citation  may 
be  discussed  in  absence  of  the  accused,  no 
other  step  in  the  trial  of  the  offence  libelled 
can  be  ti^en  in  absence  of  either  of  the  par- 
ties. Where  the  prosecutor  is  absent,  the 
Court  may  desert  the  diet,  and  thus  the  in- 
stance will  be  lost,  and  no  farther  proceedings 
can  take  place  on  that  libel.  And,  if  the  pro- 
secutor be  a  private  party,  the  Court  may  also 
declare  his  bond  of  caution  to  insist  to  be 
forfeited.  See  Desertion  of  the  Di^t.  Crimi- 
nal Prosecution.  If  the  accused  be  absent  at 
the  calling  of  the  diet,  no  step  whatever 
towards  trial  of  the  crime  libelled  can  be 
taken ;  but  sentence  of  fugitation  or  outlawry 
may  be  pronounced,  in  virtue  of  which  the 
person,  in  law,  of  the  accused  is  said  to  be 
forfeited,  and  he  may  be  denounced  a  rebel. 
See  Fugitation.  Denunciation.  If  both  par- 
ties be  absent  at  the  calling  the  diet,  in 
strictness  the  surety  for  the  prosecutor  ought 
to  forfeit  his  bond  of  caution,  although  the 
Court  is  not  in  use,  ex  proprio  motu,  to  declare 
the  bond'forfeited.  And,  on  the  other  hand, 
the  accused,  if  he  has  found  caution  for  his 
appearance  (but  not  otherwise),  is  liable  to 
sentence  of  outlawry,  and  to  have  the  bail- 
bond  declared  forfeited  if  he  do  not  appear ; 
and  this  may  be  done  by  the  act  of  the  Court 
itself,  on  account  of  the  breach  of  the  engage- 
ment to  appear,  undertaken  by  the  accused 
in  the  bail-bond.  There  are  many  instances 
in  our  former  practice  of  outlawry  under  such 
circumstances.  Hume,  ii.  66,  263,  et  teq.; 
Alison's  Prac.  343,  et  seq.  See  Bail.  Crimi- 
nai  Prosecution. 

Digest ;  the  name  given  to  the  Pandects 
of  the  Civil  or  Roman  law,  called  the  Digest, 
as  containing  "  Legalia  prcecepta  ezeeUenter 
digesta."  Du  Cange.  See  Pandects.   Civil  Laic. 

Dignities.  Dignities  have  been  divided 
into  superior  and  inferior.  The  titles  of  duke, 
earl,  baron,  &c.,  are  the  highest  names  of 
dignity ;  and  those  of  baronet,  knight,  &c., 
the  lowest.  Nobility  only  can  give  so  high 
a  title  of  dignity  as  to  supply  the  want  of  a 
surname  in  legal  proceedings.  No  temporal 
dignity  of  any  foreign  nation,  can  give  a  man 
a  higher  title  in  Great  Britain,  than  that  of 
esquire ;  Tomlins^  Diet.  h.  t.    In  former  times, 


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in  jthis  country,  honours  and  dignities  were 
annexed  to  territorial  property  rather  than 
to  the  person  ;  and,  when  the  land  was  alien- 
ated, the  dignity  passed  with  it.  But  now 
dignities  and  honours  are  strictly  pe^onal, 
descendible  to  the  heir  in  the  patent,  and  not 
transferable  by  voluntary  alienation,  nor  at- 
tachable for  debt.  The  landed  estate  of  a 
peer,  if  unentailed,  eren  although  it  be  the 
estate  from  which  his  title  is  taken,  may  be 
sold,  and  is  open  to  the  diligence  of  his  credi- 
tors, in  precisely  the  same  manner  as  the 
estate  of  a  commoner.    Bell's  Com.  i.  124. 

JNlapidation  of  Benefices.  Prior  to  the 
Reformation,  the  clergy  in  Scotland  seem  to 
hare  exercised  the  right  of  granting  feus  of 
Church  lands,  which  had  the  effect  of  greatly 
depreciating  the  value  of  the  benefice,  to  their 
successors.  Several  acts  of  the  Scotch  Par- 
liament were  passed  to  check  this  species  of 
dilapidation  ;  and  by  statutes  subsequent  to 
the  Reformation,  churchmen  are  prohibited 
from  granting  feus  of  their  benefices,  or  from 
charging  them  with  burdens  to  the  prejudice 
of  their  successors.  Their  power  of  granting 
leases  was  also  restrained,  and  subjected  to 
certain  regulations ;  and  the  clergy  were  re- 
quired to  find  security  to  leave  their  benefices 
in  as  good  a  condition  as  that  in  which  they 
found  them  at  their  entry.  See,  in  particu- 
lar, the  statutes  1564,  c.  88  ;  1581,  c  101 ; 
1585,  c.  11  ;  1606,  c.  3 ;  1617,  c.  5  ;  1621, 
e.  15.  See  also  Stair,  B.  it.  tit.  8,  §  17,  et 
»eq.;  Ersk.  B.  ii.  tit.  10,  §7,  etseq.;  Bank. 
B.  ii.  tit.  8,  §  110,  et  teq.  With  regard  to 
the  minister's  right  to  the  use  of  his  glebe, 
and  the  obligation  under  which  he  lies  to 
execute  certain  repairs  on  his  manse,  see 
Glebe.  Manse.  By  the  law  of  England,  the 
incumbent  is  bound  to  preserve  the  benefice, 
and  to  transmit  it  unimpaired  to  his  succes- 
sor. Thus,  he  must  keep  the  houses  belong- 
ing to  the  benefice  in  sufficient  repair ;  and  if 
he  refuse  to  do  so,  the  bishop  may  sequester 
the  profits  of  the  benefice  for  that  purpose. 
He  must  not  destroy  the  woods,  trees,  &c., 
nor  cut  timber,  except  for  necessary  repairs. 
Such  dilapidations  may  even  be  the  ground 
of  deprivation.    See  Tomlint'  Diet.  h.  t. 

Dilatory  Defence ;  is  a  plea  offered  by  a 
defender  for  eliding  the  conclusions  of  the 
action,  without  entering  on  the  merits  of  the 
cause ;  and  the  effect  of  which,  if  sustained, 
is  to  absolve  from  the  lis  pendens,  without 
necessarily  cutting  off  the  pursuer's  ground 
of  action.  Such  are  defences  founded  on  in- 
formalities in  the  manner  in  which  the  cause 
has  been  introduced  into  the  Court,  or  on  the 

Snrsuer's  want  of  title,  and  the  like.  Stair, 
I.  iv.  tit.  39,  §  13 ;  App.  §  6  ;  Shand's  Prac. 
pp.  288,  317 ;  Mac/arlaHe's  Jury  Prac.  p.  28, 
etseq. ;  Maclavrin's  Forms  of  Sheriff-Court Pro- 


cess, p.  114;  Barclay's  M'Gladt.  Skerif-Cotrt 
Prac.  204.     See  Defences. 

Diligence.  This  term  is  used  in  three 
different  and  unconnected  meanings; — l(t,It 
is  with  propriety  used  to  express  the  natare 
and  extent  of  the  care-  and  diligence  incum- 
bent on  the  parties  to  a  contract  with  regard 
to  the  preservation  of  the  subject-matter  of 
the  contract;  2d,  It  means  the  warrants 
issued  by  courts  for  enforcing  the  attendance 
of  witnesses,  or  the  production  of  writings; 
and,  3d,  The  term  is  applied  generally  to 
the  process  of  law,  by  which  person,  lands,  or 
effects  are  attached  on  execution,  or  in  secu- 
rity for  debt.  The  reason  of  the  use  of  the 
term  in  the  two  latter  senses  is  not  obrions; 
and  the  explanation  given  by  Stair  does  not 
seem  satisfactory.  See  Stair,  B.  iv.  tit  41, 
§  1 ;  Jurid.  Styles,  2d  edit.  vol.  iii,  p.  763. 

I.  Diligence  prestable  under  contracts.  In 
the  Roman  law,  diligence  in  preserving  a 
thing  committed  to  one's  care,  or  in  executing 
a  commiffiion,  was  threefold  : — ls<,  Ordinary 
diligence,  such  as  a  man  of  common  under- 
standing exercises  in  his  own  affaire;  2i, 
Exact  diligence,  beingthat  which  men  of  or- 
dinary industry  and  management  practise; 
and,  3d,  Most  exact  diligence,  such  as  the 
most  industrious  and  expert  men  exercise  in 
their  own  affairs.  For  the  rules  of  our  law 
upon  this  Bubieot,  see  Culpa.  See  also  £r«L 
B.  iii.  tit.  1,  §  21 ;  Bank.  B.  i.  tit  23,  §  59, 
et  seq.;  Brodie's  Supp.  to  Stair,  923,  932; 
Bell's  Prine.  §  232,  et  seq.;  lUust,  §  243; 
Ross's  Leet.  ii.  383. 

II.  Diligence  against  witnesses,  and  for  re- 
covering writings.  When  a  judge  allows  a 
proof  of  the  whole,  or  of  any  particular  branch 
of  a  cause,  and  for  that  purpose  grants  com- 
mission to  take  the  proof,  he  at  the  sane 
time  grants  to  both  parties  letters  of  diligence 
for  citing  witnesses,  and  possessors  of  writings 
(or  havers,  as  they  are  technically  called),  to 
appear  befora  the  commissioner  in  order  to 
be  examined,  or  for  the  purpose  of  producing 
the  writings.  In  case  the  citation,  given  in 
virtue  of  these  letters  of  diligence,  was  dis- 
obeyed, the  Court  might  then  issue  what  were 
called  letters  of  second  diligence,  containing  a 
warrant  to  apprehend  the  witnesses  or  havers, 
who  had  been  disobedient,  and  to  bring  them 
before  the  commissioner ;  the  witness  requir- 
ing such  compulsion  not  being  entitled  to  the 
expense  he  may  have  incurred  by  attendance; 
Ersk.  B.  iv.  tit.  2,  §  30.  See  also  A.  S.  2]st 
December  1765.  On  cause  shown,  the  letters 
of  second  diligence  were  often  combined  with 
the  first ;  but  in  practice  they  were  not  acted 
upon,  until  a  certificate  of  disobedience  to  tiie 
first  citation  was  obtained  from  the  commis- 
sioner. Now,by  ISthand  14th  Vict.,  c.  36,  §25, 
a  copy  of  any  interlocutor  in  the  Court  of  Ses- 


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sioo,  granting  a  commission  and  diligence, 
certified  by  the  clerk  to  the  havers,  has  the 
same  effect  as  the  extract  under  the  former 
practice ;  and  the  same  is  now  the  practice 
in  the  Sherifi^ourts ;  16  and  17  Vict.,  c.  80, 
1 11.  Witnesses  and  havers  residing  beyond 
the  Sheriff's  jurisdiction,  may  be  cited  on  the 
warrant  being  indorsed  by  the  sheriff-clerk  of 
the  county  in  which  they  reside.  In  jury 
causes,  warrants  of  all  kinds  for  citing  wit- 
nesses and  havers,  are  called  letters  of  dili- 
gence ;  and  the  Jury  Court  (now  merged  in 
the  Gonrt  of  Session)  was  empowered  to  en- 
force the  attendance  of  witnesses  and  havers 
in  the  same  manner  with  the  Court  of  Session ; 
59  Geo.  III.,  c  35,  §  28.  In  the  Jury  Courts, 
it  is  still  the  practice  to  take  out  letters  of 
first  and  second  diligence  as  formerly ;  Dick- 
Km  on  Evidence,  pp.  942, 943.  In  like  manner, 
the  Court  of  Justiciary,  after  a  libel  has  been 
raised,  will  grant  diligence,  if  required,  for 
the  recovery  of  writings,  or  other  articles 
meant  to  be  used  in  evidence,  either  by  the 
prosecutor  or  the  accused;  Hume,  ii.  154,398. 
The  letters  are  issued  by  the  clerk  of  Court ; 
Hani  12  VicL,  c  79,§  2.  See,  on  this  subject, 
Ertk.  B.  iv.  tit.  1,  §  71,  and  tit.  2,  §  30; 
Batik.  B.  iv.  tit.  24,  §  59 ;  Stair,  B.  4,  tit,  41, 
§ 6,  «t  teq.;  Jurid.  Stylet,  vol.iii.p.  781,  et  teq.; 
Diektm  on  Evidence,  pp.  628,  941,  et  seq.  See 
Wititess.  Evidence.  Commission  to  take  Proof. 
Deposition.    Haver. 

ill.  Diligence  of  creditors.  The  diligence 
at  the  instance  of  creditors  is  divisible  ilito 
that  against  the  heritage,  the  moveables,  and 
the  person  of  the  debtor.  It  is  sufBcient  here 
to  specify  the  different  forms  of  proceeding, 
referring  to  the  particular  articles  for  a  more 
detailed  account  of  each  of  the  diligences 
mentioned  in  the  following  enumeration. 
Some  of  these  forms  are  not  usually  called 
dUigenees  (the  application  of  which  term,  in 
practice,  seems  rather  abitrary) ;  but  all  of 
them,  in  point  of  effect,  operate  as  attach- 
ments, and  may  therefore,  not  improperly,  be 
classed  under  this  general  head.  Indeed,  it  is 
not  always  easytodrawthe  distinction  between 
a  diligence  and  an  action.  The  diligence,  for 
example,  of  poinding  the  ground,  has  been  said 
to  partake  more  of  the  nature  of  a  real  action 
Ihaa  a  diligence  (per  Lord  Balgray,  in  Camp- 
bell e.  Paul,  13th  Jan.  1835, 13  S.  241) ;  and 
other  processes  of  execution  are  no  less  am- 
biguous. One  important  characteristic,  how- 
ever, of  a  diligence  is,  that  its  warrant  must 
in  every  case  be  a  debt  or  obligation,  duly 
eoostituted  by  a  liquid  document  or  by  a  de- 
cree, or  by  an  action  in  which  decree  is  sought ; 
iu  which  last  case,  although  the  intermediate 
nexw  is  effectual,  yet  the  ultimate  efficacy  of 
the  diligence  is  contingent,  on  decree  being 
obtaiued  in  the  depending  suit.    The  dili- 


gence gainst  heritage  comprises, — 1st,  Inhihi- 
tion,  by  means  of  which  the  debtor  is  pre- 
vented from  selling  or  burdening  his  heritage, 
to  the  prejudice  of  the  creditor  who  has  used 
the  inhibition.    2d,  Adjudication,  by  which 
the  property  is  judicially  transferred,  redeem- 
ably  in  the  first  instance,  to  the  creditor  in 
lieu  of  his  debt.    3d,  Adjudication  in  imple- 
ment, by  which  the  property  is  irredeemably 
transferred  to  the  creditor,  in  implement  of 
a  previous  obligation  to  convey  that  property 
to  the  creditor.   4th,  Ranking  and  sale,  a  pro- 
cess which  operates  as  a  general  attachment 
for  behoof  of  creditors,  and  under  which  the 
property  is  sold,  and  the  price  judicially  dis- 
tributed   amongst   the  creditors,     bth.  The 
action  ofmaills  and  duties,  which,  although  an 
attachment  of  moveables,  is  classed  here  as 
being  the  consequence  of  an  heritable  right, 
and  of  the  nature  of  a  diligence.    By  this 
process,  an  heritable  creditor,  or  the  holder 
of  a  personal  right  to  tho  land,  may  attach 
the  rents.   Qih,  The  action  and  letters  of  poind- 
ing of  the  ground  (which  isof  asimilarcharac-  ^ 
ter),  by  which  creditors  in  what  are  called  ' 
debita fundi  may  poind  the  goods  on  the  pro- 
perty, and  also  the  effects  of  the  tenant*,  to 
the  extent  of  the  rents  due  by  them ;  and, 
lastly.  Mercantile  Sequestration,  which  is  acon- 
geries  of  all  diligences,  whether  against  heri- 
table or  moveable  property,  being  a  general 
attachment  and  transfer  of  the  heritable,  as 
well  as  the  moveable  or  personal  estate,  for 
behoof  of  all  the  creditors.    The  diligence 
against  moveables  consists  of, — \st,  Arre^ment, 
by  which  the  debtor's  effects,  or  the  debts  due 
to  him,  are  attached  in  the  hands  of  third 
parties ;  and  the  subsequent  action  of  For^- 
coming,  by  which  the  property  of  the  goods 
arrested  is  transferred  to  the  creditor.    2d, 
Poinding,  which  is  in  principle  an  abjudica- 
tion of  the  effects  to  the  creditor,  although  in 
practice  it  is  nothing  more  than  an  appraise- 
ment, and  judicial  sale,  of  them  for  behoof  of 
the  creditor.     Zd,  Mercantile  Sequestration,  as 
above  explained,  is  also  a  general  diligence 
against  moveables,     ith,  Sequestration  of  a  ten- 
ant's effects,  by  a  landlord,  under  his  right  of 
hypothec,  may  also  he  classed  under  this 
head,  as  being  of  the  nature  of  a  diligence 
under  which  the  effects  may  be  judicially  sold 
for  payment  of  the  rent,  which  is  due,  or 
attached  or  hypothecated,  in  security  of  the 
current  rent ;  and,  5th,  Ejection,  by  which  a 
tenant  at  the  issue  of  his  tack  may  be  com- 
pelled to  quit  possession.    Personal  diligence 
comprehends, — 1st,  Letters  of  Homing  and  of 
Caption,  by  which  a  debtor  may  be  charged  to 
pay  or  perform,  in  terms  of  his  obligation, 
and,  on  failure,  imprisoned  until  he  do  so. 
The  use  of  these  letters,  however,  is  almost 
entirely  superseded  by  the  Personal  Diligence 


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Act,  1  and  2  Vict.,  c.  114,  which  aothorizes 
warrant  to  charge,  arrest,  and  poind  to  be  in- 
serted in  extract  decrees.  To  this  diligence 
are  analogous  the  act  of  warding  issued  by  the 
magistrates  of  royal  burghs,  and  the  warrant 
of  imprisonment  (where  now  competent), 
granted  by  justices  of  the  peace,  or  by  Sheriffs 
nnderthe  Small  Debt  acts.  2d,  Under  the  same 
head  may  be  classed  the  meditatio  fupas  war- 
rant, in  virtue  of  which  a  debtor,  who  intends 
learing  Scotland  to  avoid  performance  of  his 
obligation,  may  be  apprehended  and  detained 
until  (according  to  the  nature  of  the  debt)  he 
either  find  caution  dejudicio  sitti,  or  judtcatum 
solvi;  and,  34^,  The  Border  Warrant,  being  a 
warrant  issued  by  the  Sherifls  of  the  counties 
a^jiMsent  to  the  English  borders,  for  the  ap- 
prehension and  incarceration  of  any  foreigner 
(i.e.,  any  person  not  subject  to  the  ordinary 
jurisdiction  of  the  Court)  against  whom  a  debt 
has  been  sworn,  and  who  may  be  found  within 
the  jurisdiction  of  the  judge  who  grants  the 
warrant,  until  he  find  caution  judicio  sisti, — 
a  proceeding  which  seems  contrary  to  that 
comitas  by  which  the  law  of  Scotland  is  in 
general  distinguished ;  and  which  may  subject 
a  stranger  to  the  jurisdiction  of  an  inferior 
jndge,  and  expose  him  to  the  hardship  and 
difficulty  of  finding  caution,  at  the  suit  of  any 
one  who  may  choose  to  commit  perjury.  See 
those  sevei'^  diligences  more  fully  explained 
in  separate  articles  under  their  respective 
heads.  See  also  Bell's  Com.  i.  3,  <<  seq. ;  Ersk. 
B.  ii.  tit.  5,  §  55,  et  seq.,  and  tits.  11  and  12 ; 
and  B.  iv.  tit.  3,  j  9,  el  seq. ;  Ross's  Leet.  vol. 
i.p.234,e<««}.;  5e«'«  Pr»««.  §  331 ,  342, 1231, 
1468,  2355,  2381,  el  seq.;  BeWs  lUust.  §  342  ; 
Sunter's  Landlwd  and  Tenant.  The  second 
branch  (as  it  is  usually  called)  of  the  act 
1621,  c.  18,  provides  for  the  case  of  voluntary 
payments,  or  conveyances,  made  by  the  debtor 
in  defraud  of  inchoate,  or  begun  diligence, 
whether  against  heritage  or  moveables,  or 
the  person  of  the  debtor.  According  to  the 
construction  put  on  the  statute  by  adjudged 
cases,  it  authorizes  the  reduction  of  all  volun- 
tary deeds  granted  after  such  diligence  shall 
have  been  begun,  as  law  has  appointed  for 
the  attachment  of  the  subject  conveyed  by  the 
debtor ;  provided  the  diligence  was  specially 
directed  against  that  subject,  and  that  the 
debtor  was  notoriously  insolvent  at  the  date 
of  the  deed  done,  or  of  the  payment  made  in 
defraud  of  the  diligence.  But,  if  the  insol- 
vency be  secret,  and  unknown  to  the  person 
favoured  by  the  deed,  the  challenge  will  not 
be  successful ;  BelPs  Corn.  ii.  199  ;  Ersk.  B. 
iv.  tit.  1,  §  37.  See  Liligiosity.  Mora.  Al- 
though a  bill  of  exchange  may  be  transferred 
by  indorsation,  even  ailer  the  term  of  pay- 
ment, the  mere  indorsation  will  not  carry  the 
right  to  the  diligence  which  the  indorser  may 


have  done  on  the  bill.  To  accomplish  that, 
there  must  be  a  special  assignation  of  the 
diligence  ;  BeWs  Com.  vol.  i.  p.  403 ;  ThomsoH 
on  BiUs,  '2,  47,  81,  206,  242,  264,  349, 549, 
686,  2d  edit. 

Diminutioii  of  Sental  It  is  a  qne^n 
of  great  importance  in  entail  law,  whether  an 
heir  of  entail  in  possession,  can  grant  leases 
of  the  entailed  estate,  at  rents  lower  than 
the  estate  was  let  for  at  his  entry.  The  heir's 
powers,  in  this  respect,  must  necessarily  de- 
pend in  a  great  degree  on  the  terms  of  the 
particular  deed  of  entail.  But,  independently 
of  the  special  terms  of  the  deed,  it  seems  noir 
to  be  settled,  that  where  the  entail  crnitaiog 
a  prohibition  to  alienate,  the  heir  in  poeses- 
sion,  in  letting  leases,  must  act  bona  fide,  and 
will  not  be  permitted  fraudulently  to  diminish 
the  rental  to  the  prejudice  of  his  successors. 
Sand/ord  on  Entails,  p.  200 ;  Huntei's  Land, 
lord  and  Tenant,  vol.  i..  p.  85.  See  Entml 
Grassum. 

Diooew ;  is  the  circuit  of  a  bishop's  eccle- 
siastical jurisdiction.  England  is  divided  eccle- 
siastically into  two  provinces,  viz.,  Canterbury 
and  York,  each  of  which  is  subdivided  into 
dioceses,  every  diocese  is  subdivided  into  arch- 
deaconries, and  every  archdeaconry  into  pa- 
rishes ;  Tomiins\  h.  t.  When  the  choreh 
government  of  Scotland  was  episcopal,  there 
were  two  archbishops ;  the  archbishop  of  St 
Andrews,  who  was  called  the  primate  of  aU 
Scotland;  and  the  archbishwp  of  Gla^v, 
who  was  called  the  primate  of  Scotland;  and 
under  them  there  were  twelve  bishops,  who 
had  particular  dioceses ;  ConneU  on  Titiies,  i. 
38.  The  ecclesiastical  subdivisions  of  Scot- 
land are  now  Presbyterian.  See  ChwrA  <f 
Scotland.    Church  Judicatories. 

Direota  Actio.    See  Actio  directa. 

Disability ;  in  English  law,  an  incapaeitj 
in  a  man  to  take  any  benefit  which  he  might 
have  otherwise  enjoyed,  such  as  inheriting 
lands.  The  disability  may  happen  through 
the  act  of  his  ancestor,  of  himself,  or  of  God, 
or  of  the  law ;  Tomlins'  Diet.  h.  t. 

Discharge.  To  discharge  an  obligation  is 
to  extinguish  it.  Obligations  may  be  extin- 
guished by  payment  or  performance  on  the 
part  of  the  debtor,  or  by  the  mere  eonseti  of 
the  creditor  without  performance,  or  by  com- 
pensation, novation,  delegation,  or  confusion 
The  discharge  may  be  either  verb^  or  in 
writing,  according  to  the  nature  of  the  obli- 
gation. Thus,  an  obligation  contracted  ver- 
bally may  be  dissolved  by  a  verbal  discharge ; 
but  a  written  ^obligation  requires  a  writtea 
discharge,  agreeably  to  the  rule,  that  the 
same  solemnities  which  are  requisite  in  the 
constitution  of  an  obligati  »n  are  necessary  in 
its  extinction, — unumquodque]  eodem  modo  dit' 
solvitur  quo  coUiffotur.  S^wPfyment,  Gtmpenso' 


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tin.    Kdvation.    Delegation.    Oimfusion.    In 
the  technical  language  of  the  Scotch  law,  the 
term  diicharge  is  usually  applied  to  the  written 
instmment  by  which  the  creditor  discharges 
the  debtor  of  his  obligation.    The  object  of 
nch  a  discharge  is  to  liberate  the  obligant; 
ud  whether  the  particular  obligation  legally 
requires  a  written  discharge  or  not,  it  is  de- 
rireble,  if  possible,  to  have  the  evidence  of 
its  extinction  in  writing.   The  clauses  usually 
inserted  in  a  formal  deed  of  this  description 
are, — Itt,  The  narrative,  in  which  the  obliga- 
tion, as  originally  undertaken,  is  narrated. 
2d,  A  clause  specifying  the  manner  in  which 
it  has  been  dissolved,  whether  by  payment, 
performance,  compensation,  simple  consent  of 
the  creditor,  or  otherwise.    Sd,  The  clause  of 
iitcharge,  which  is  the  essential  clause  of  the 
deed,  to  which  the  others  are  merely  subser- 
Tient    In  this  clause  the  proper  terms  of 
discharge  applicable  to  the  particular  obli- 
gation  must  be  used.   The  debtor  obligation, 
the  document  of  debt  itself,  and  all  action  or 
exeention  which  has  followed  or  may  follow 
upon  it,  ought  to  be  distinctly  and  separately 
dueharged.    4ih,  The  dause  of  warrandice,  the 
ordinary  warrandice  being  abtolute,  unless 
where  the  dischat'ge  is  gratuitous,  when  it  is 
Dsoally  from  fact  and  deed  only.  5th,  A  clause 
tjidievry  of  the  grounds  of  debt.    The  debtor 
ii entitled  to  have  these  delivered  up  to  him; 
ud  where  particular  circumstances  render 
that  impracticable,  the  fact  ought  to  be  men- 
tioned, and  the  creditor  taken  bound  to  de- 
liver them.     &tK.  The  clause  of  registration, 
which  is  not  essential  to  the  discharge,  and 
it  sometimes  omitted.  And,  lastly,  The  testing 
dause,  which  does  not  differ  from  the  testing 
daoseof  any  other  regular  deed.    A  written 
discharge  is  usually  a  separate  deed,  and  it 
nut  be  written  upon  stamped  paper.    Bat 
to  this  rule  there  is  an  exception  in  the  case 
of  receipts  written  on  bills  of  exchange,  pro- 
qiioory-notes,  &c,  where  the  bills,  notes,  &c., 
have  been  themselves  written  on  the  legal 
itamps,  and  also  in  the  case  of  "  receipts  or 
diacharges,  indorsed  or  otherwise,  written  upon 
or  contained  in  any  bond,  &c.,  or  other  secu- 
rity ;  or  any  conveyance,  deed,  or  instrument 
vhatever,  duly  stamped  according  to  the  laws 
in  force  at  the  date  thereof,  acknowledging 
Ifce  receipt  of  the  consideration-money  there- 
in expressed,  or  the  jeceipt  of  any  principal 
Boney,  interest,  or  annuity  thereby  secured  ;" 
66  Geo.  III.,  c.  184,  schedule  annexed.     In 
virtue  of  this  exception,  the  discharge  of  a 
hood  is  sometimes  written  upon  the  back  of 
the  principal  bond ;  and  lest  such  a  discharge 
ihonld,  in  any  case,  be  thought  not  to  fall 
withm  the  exception  in  the  statute,  it  i;  some- 
tinea  the  mraetice  at  the  same  time  to  grant 
^  ntngi  toT^  (be  mxa  qq  a  separate  stamped 


i^eeeipt,  referring  to  the  discharge  indorsed 
on  the  bond.  Receipt  and  discharge  stamps 
are  now  regulated  by  the  act  16  and  17  Vict., 
c.  69, 1853.  With  regard  to  the  discharges 
of  heritable  securities,  real  burdens,  &c.,  see 
Heritable  Securities.  Burdens.  Renunciation. 
It  is  a  rule  in  the  construction  of  discharges 
which  contain  both  general  and  particular 
clauses,  for  ascertaining  their  extent,  that  the 
general  clause  is  not  to  be  extended  to  sub- 
jects or  claims  of  a  different  kind,  or  of  greater 
importance  than  any  of  the  particulars  men- 
tioned in  the  special  clause.  But  a  discharge 
which  is  entirely  general,  without  mention- 
ing any  special  debt  or  claim,  will  receive  a 
more  liberal  interpretation,  although  even 
such  a  discharge  will  not  be  extended  to  debts 
which  are  not  presumed  to  have  been  in  con- 
templation either  of  the  granter  or  grantee, 
such  as  obligations  of  relief  from  cautionary 
engagements  not  yet  paid  to  the  creditor, 
obligations  of  warrandice  not  yet  incurred, 
or  obligations  ad  facta  prastanda.  Neither 
will  such  a  general  discharge  comprehend,  by 
implication,  debts  due  to  the  granter  by  the 
grantee,  and  assigned  by  the  granter  prior 
to  the  date  of  the  discharge,  even  although 
the  assignation  has  not  at  that  time  been  com- 
pleted by  intimation.  Ersk.  B.  iii.  tit.  4,  § 
9 ;  Bank.  B.  i.  tit.  24,  §  19  ;  Stair,  B,  i.  tit. 
18,  §  2,  and  B.  iv.  tit.  49,  $  34.  In  all 
yearly  or  termly  payments,  such  as  of  rent, 
feu-duties,  interest  of  money,  salaries,  pen* 
sions,  and  the  like,  three  consecutive  dis- 
charges of  the  yearly  or  termly  duties,  raise 
a  legal  presumption  that  all  preceding  termly 
duties  have  been  regularly  paid.  But  the 
discharges  must  be  discharges  in  full  of  the 
respective  termly  duties,  and  the  three  terms 
must  be  consecutive.  Thus  the  presumption 
will  not  be  created  by  (too  discharges,  although 
they  should  contain  the  duties  of  three  or 
more  terms.  Nor  is  the  presumption  inferred 
from  two  discharges  by  the  ancestor,  and  a 
third  by  the  heir,  even  although  they  be  for 
consecutive  terms,  unless  it  appear  that  the 
heir  knew  of  the  two  former  discharges. 
Neither  do  three  consecutive  discharges  by  a 
tutor  or  administrator  for  the  creditor,  raise 
the  presumption,  except  as  to  the  terms  fall- 
ing within  the  period  of  his  administration. 
A  bond  granted  for  arrears  of  rent  or  interest 
will  not  be  presumed  to  be  discharged  by 
three  consecutive  discharges  of  subsequent 
termly  duties ;  and,  on  the  same  principle, 
where  the  creditor  has  taken  a  decree  against 
the  debtor  for  the  arrears,  tl^e  debt  covered 
by  the  decree  will  not  be  affect^  by  three, 
consecutive  discharges  of  posterior  years  or 
terms.  The  implied  discharge  founded  on 
three  coosecntive  termly  discharges,  being  a 
praaumptio  juris  only,  may  be  elided  by  tha 


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debtor's  oath.  Stair,  B.  1.  tit.  18,  §  2,  and 
B.  iv.  tit.  40,  §  35 ;  Mor^t  Notes,  p.  cxxii. ; 
Brodit^t  Sup.  945 ;  Ersk.  B.  iii.  tit.  4,  §  10 ; 
Bank.  B.  i.  tit.  24,  ^  IS ;  Bell  on  Lease*,  vol. 
ii.  p.  21,  4th  edit. ;  BeWs  Princ.  §  582,  rf 
teq.,  256,  etseq. ;  BdPs  lUmt.  256  and  682 ; 
Thornton  on  Bilis,  2d  edit. ;  Hwiter't  Landlord 
and  Tenant;  Kamet'  Equity,  157.  See  also 
Rom's  Led.  rol.  i.  p.  212,  et  seq. ;  and  Jurid. 
Styks,yo\.  i.p.  595,  et  seq.;  toL  ii.  p.  862,  et 
seq.;  Menxies'  Conv^ancing;  Duff  on  Deeds. 
SeeApochatriumannorum.  Implied  Discharges. 
Diflohi^ro  0^  A  Baokrapt  under  a  Seques- 
tration. Under  the  Bankrupt  Statute  19  and 
20  Vict.,  c.  79, 1856,  a  banu-npt  may,  at  any 
time  after  the  meeting  held  after  his  examina- 
tion, petition  for  discharge,  provided  erery  cre- 
ditor shall  concur  in  the  petition.  He  may  also 
present  apetitiontothateffect  on  theexpiration 
of  six  months  from  the  date  of  awarding  the 
sequestration,  provided  a  msjority  in  number, 
and  four-fifths  in  value,  of  the  creditors  con- 
cur in  the  petition;  and  after  twelve  months, 
with  the  concurrence  of  a  m^rity  in  number, 
and  two-thirds  in  value,  of  the  creditors;  and 
after  eighteen  months,  provided  a  m^rity 
in  nnmlMr  and  value  concur.  He  may  also 
present  such  petition  after  two  years  from 
the  date  of  se^estration  without  any  content 
of  creditors.  In  eaeh  case  the  petition  is  in- 
timated in  the  Oasette,  and  to  each  creditor ; 
and  after  twenty-one  days,  if  no  opposition  is 
oiade,  the  baakrupt  is  found  entitled  to  a  dis- 
eharge ;  but  if  opposition  is  made,  the  objec- 
tions shall  be  judged  of,  and  the  discharge 
granted,  or  reftased,  or  deferred,  or  granted 
with  such  conditions  annexed  as  the  justice  of 
the  case  may  require.  See  Statute  §  146,  et 
seq. 

Disdaimer ;  in  Bnglish  law,  is  a  plea  con- 
•taining  an  express  denial  or  renunciation  of 
a  thing.    See  Tomlins'  Did.  h.  t. 

Bisolamation;  signifies  a  vassal's  disavowal 
or  disclamation  of  a  person  as  a  superior, 
whether  the  person  so  disclaimed  be  the  su- 
perior or  not.  A  vassal  who  deliberately  dis- 
claims his  superior  on  frivolous  grounih  in- 
curs a  forfeiture  of  the  fee.  This  is  a  rule 
applicable  to  all  feudal  tenures ;  and,  accord- 
ing to  our  more  ancient  law,  disclamation, 
even  as  to  a  part  of  the  fee,  subjected  the 
vassal  to  the  loss  of  the  whole.  Bat  now  a 
probable  ground  of  ignorance  on  the  part  of 
the  vassal,  or  a  mistake  either  in  point  of 
law  or  in  point  of  fact,  or  any  colourable  ex- 
cuse, will  be  sufficient  to  protect  him  against 
this  forfeiture.  Ersk.  B.  ii.  tit.  5,  |  51; 
Stair,  B.  ii.  tit.  11,  §  29 ;  More's  Notes,  p. 
ecclxxviii.;  Bank.  B.  ii.  tit.  11,  §  24 ;  Mae- 
kenzie,  B.  ii.  tit.  6,  §  9.  See  also  Skene  de 
Verb.  Sig.  h.  t ;  BeWs  Princ.  8d  edit.  §  780  ; 
Brown's  Synop.  h.  t. 


SiMtsitlgiunu  Luidi.  As  to  the  form  of 
taking  sasine  where  the  lands  in  which  infeft- 
ment  was  given  were  discontiguous,  see  i^ 
sine.  Dispensation.  Union.  Barony.  BMt 
Princ.  §  874. 

Diaoonnt  of  Bill*.  See  Banker.  BtU  ^ 
Exchange. 

Diac^etion.  It  is  a  rule  of  the  law  of  Eng- 
land, that  where  anything  is  left  to  another 
to  be  done  according  to  his  discretion,  the  con- 
struction of  the  law  is,  that  it  must  be  done 
with  sound  discretion,  and  according  to  lav; 
and  that  rule  being  founded  on  a  principle 
universally  applicable,  has  been  fiiUy  reeog- 
nised  in  the  law  of  Scotland.  See  Tomins,  h.  t, 

Diieiuaion.  This  is  a  technical  term  in 
the  law  of  Scotland,  and  may  be  applied 
either  to  the  discussion  of  a  principal  debtor, 
or  to  the  discussion  of  heirs. 

I.  Discussion  of  a  principal  debtor.  For- 
merly, when  a  cautioner  was  bound  simply  ss 
cautioner,  and  not  conjunctly  and  sererelly 
with  the  principal  debtor,  he  might  insist 
that,  before  the  creditor  used  diligence  agaimit 
him,  the  principal  debtor  should  be  discussed ; 
that  is,  not  merely  that  the  debt  should  be 
demanded,  but  that  the  creditor  should  carry 
personal  diligence  against  the  principal  debtor 
the  length  of  a  registered  denunciation  on 
letters  of  homing,— that  he  ahoold  pr^oeed 
against  his  moveables  by  poinding  or  by  ar- 
restment and  furthcoming,  and  againrt  hii 
heritage  by  abjudication  and  sale.  The  cau- 
tioner, however,  might  be  sued  in  the  sant 
summons  with  the  principal  debtor ;  and  when 
decree  was  obtained,  the  Goort  superaedid 
execution  against  the  cautioner  until  the  prin- 
cipal debtor  was  discussed.  When  the  prin- 
cipal debtor  and  the  cautioner  were  teken 
bound,  jointly  and  severally,  the  creditor 
might  proceed  against  either  of  them ;  for,  in 
that  case,  the  cautioner  had  not  the  benefit 
of  discussion,  except  in  the  case  of  a  cautioner 
for  another  that  he  should  perform  a  fut, 
who  was  in  no  case  liable  until  the  principal 
obligant  was  discussed.  Where  the  principsl 
debtor  was  out  of  the  country,  and  had  no 
effects  within  the  jurisdiction  of  the  courts  of 
Scotland,  the  cautioner,  even  although  he 
was  bound  simply  as  cautioner,  could  not  in- 
sist that  the  principal  debtor  should  he  dis- 
cussed in  a  foreign  country.  Bank.  B.  i.  tit. 
23,  §  30  ;  Elams,  7th  Dec.  1767,  Mor.  p.  2110. 
See,  on  this  subject,  Stair,  B.  L  tit  17,  §  4, 4 
seq. ;  Mart's  Notes,  p.  cxiii. ;  Brodie's  Supp. 
945  ;  Ersk.  B.  iii.  tit.  3,  §  61,  d  seq.;Bdfs 
Princ.  §  252,  d  seq. ;  BeWs  lllud.  §  252 :  Rot^t 
Led.  i.  77  ;  BeU's  Com.  i.  347  ;  Menzies'  Con- 
veyancing. See  also  Beneficium  Ordinis.  Cbtr- 
tionary. 

The  privilege  of  discussion  is  now  taken 
away  by  the  act  19  and  20  Vict,  e.  60,  §  8, 


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1856,  nnleaB  expready  ctipnlated  for  in  tbe 
inttruinent  of  caution. 

II.  Diietution  of  heirs.  All  heirs  who  hare 
incurred  a  representation  of  their  ancestor,  are 
liable  universally  for  his  debts ;  but  they 
may  insist  on  being  sued  in  a  certain  order. 
Id  tbe  case  of  obligations  relative  to  a  parti- 
cular subject,  the  heir  who  succeeds  to  that 
sobjeet,  as  being  liable  in  any  burden  charge- 
able against  it,  may  be  sued  without  discuss- 
ing any  other  heir.  So  also,  where  a  special 
heir  is  burdened  with  a  debt,  the  creditor 
must  discuss  that  heir  before  he  can  insist 
against  the  heir-at-law.  But  in  general 
obligations,  in  which  the  debtor  expresses  no 
intention  of  charging  any  special  heir  or 
estate,  the  following  is  the  legal  order  in  which 
the  heirs  must  he  discussed : — Itt,  The  heir  of 
line,  as  being  the  heir-general  by  the  most 
nniversal  representation.  2d,  the  heir  of 
conquest;  and,  Sd,  the  heir-male,  both  of 
whom  sncceed  to  a  lesser  universitas.  4(A, 
Heirs  of  tailzie  and  provision,  by  simple  des- 
tination, where  they  represent  the  debtor ; 
and,  lattly.  Heirs  under  marriage -contracts, 
where  they  are  not  themselves  creditors,  in 
virtue  of  the  contract  under  which  they 
have  succeeded.  See  Bank.  B.  iii.  tit.  5,  § 
60,  d  seq. ;  Enk.  B.  iii  tit.  8,  §  52.  Heirfr- 
portioners,  while  they  remain  solvent,  are 
only  liable  for  their  respective  shares  of  the 
ancestor's  debts.  But,  on  the  bankruptcy  of 
■ay  one  of  them,  the  creditor  may,  aftier  dis- 
eusing  her,  insist  for  her  share  of  the  debt 
against  the  rest.  They  are  not,  however, 
liable  tn  tolidwit,  for  the  share  of  the  bank- 
mpt  heir,  but  only  in  so  far  as  they  are 
gainers  by  their  predecessor's  succession ;  Ersk. 
ibid.  §  53.  By  disausing  an  heir  is  meant, 
charging  him  to  enter ;  and  if  he  do  not  re- 
noonce  the  succe3sion,obtainingdecree  against 
him,  and  raising  diligence  both  against  his 
person  and  his  estate,  whether  belonging  to 
himself  or  derived  from  his  ancestor,  as  in 
the  ease  of  the  discussion  of  a  cautioner.  If 
the  heir-at-law,  or  any  of  the  other  heirs, 
renounce  the  succession,  his  renunciation 
protects  him  from  all  diligence  against  his 
person  or  his  own  estate  ;  and  if  there  be  no 
estate  belonging  to  the  ancestor,  which  the 
renunciation  leaves  open  to  the  creditor's  dili- 
gence, then  he  may  proceed  against  the  other 
heirs  in  their  order.  But,  before  getting  de- 
cree against  any  of  the  subsidiary  heirs,  the 
creditor  most  assign  to  him  all  the  diligence 
ind  decrees  affecting  the  subjects  belonging 
to  the  original  debtor.  The  subsidiary  heir 
has  the  benefit  of  discussion,  although  he  has 
incurred  the  passive  title  of  behaviwr  a$  heir, 
because  that  passive  title  cannot  be  extended 
farther  than  the  lieir'sactual service, in  the  par- 
ticular character  in  which  he  has  acted  as  heir, 


would  t>« ;  and  such  service  would  he  no  bar 
to  the  benefit  of  discussion ;  Ersk.  B.  iii.  tit. 
8,  §  53.  Where  an  heir  who  is  liable  only 
subsidiarie  has  paid  a  debt  due  by  the  ances- 
tor, he  has  an  action  of  relief  against  the  heir 
primarily  liable.  And  this  rule  will  apply, 
even  although  the  document  of  debt  subject 
all  the  heirs  of  the  debtor  in  payment,  "  with- 
out the  benefit  of  discussion,"  such  a  clause  being 
introduced  for  the  benefit  of  the  creditor,  and 
not  being  intended  to  injure  the  right  of  re- 
lief competent  to  the  one  order  of  heirs 
against  the  other ;  Bank.  B.  iii.  tit.  6,  §  70 ; 
Ersk.  B.  iii.  tit.  8,  §  53.  See  also,  as  to  this 
article.  Stair,  B.  iii.  tit.  5,  §  17,  et  seq. ;  Moris 
Notes,  p.  cccxlvii. ;  Jttrid.  IStt/les,  vol.  ii.,  p.  22, 
2d  edit. ;  Sandford  on  Entails,  p.  256  ;  Ross's 
Led.  i.  74,  et  seq. ;  Bell's  Frinc.  §  1935 ;  Men- 
ties'  Conveyancing.  Although  the  executors 
or  next  of  kin  of  a  deceased  person,  as  being 
his  heirs  tn  mohilibus,  are  primarily  liable  for 
all  his  moveable  debts,  yet  the  heir  in  heri- 
tage, when  required  to  pay  a  moveable  debt, 
is  not  entitled  to  insist  that  the  executors 
shall  be  previously  discussed.  The  heir  who 
pays  has  a  claim  of  relief  against  the  executor; 
but  the  creditor  is  at  liberty  to  proceed  at 
once  aniinst  the  heir  without  discussion.  See 
Ersk.  B.  iii.  tit.  9,  §  48.  See  also  Htir. 
Executor. 

Diafraaehiaiiiig ;  signifira  the  depriving  a 
person  of  the  rights  and  privileges  of  a  free 
citizen  or  subpect.    Tomlinif  Diet.  h.  t. 

Di^fradation,  Deposition,  or  Degradation; 
the  stripping  a  pei-son  for  ever  of  a  dignity 
or  degree  of  honour,  and  taking  away  the 
title,  badge,  and  privileges  thereof.   Ene.  Brit. 

Diflhabilitatioii ;  is  a  term  sometimes  used 
by  our  older  law  authorities,  and  signifies  the 
corruption  of  blood  consequent  upon  a  con- 
viction for  treason.  See  Dirleton  and  Steuarf, 
h.  t. ;  1  Hnme,  649.  See  Corruption  of  Blood. 
Treason. 

Disbononr  of  a  BiU.  To  dishonour  a  bill 
is  to  refuse  to  accept  it  when  it  is  presented 
for  acceptance,  or  to  fail  to  pay  it  on  the  day 
on  which  it  falls  due.  Bell's  Com.  i.  415,  et 
seq. ;  BeWs  Princ.  §  340 ;  Bdl's  Illust.  §  340  ; 
Thomson  on  Bills ;  Jurid.  Styles,  2d  edit.,  vol. 
iii.  p.  491.     See  Bill  of  Exchange. 

Inqnnotion  of  Farislies.  The  Court  of 
Session,  as  commissioners  for  the  plantation 
of  kirks  and  the  valuation  of  teinds,  have  the 
power  of  disjoining  or  dividing  large  parishes, 
or  annexing  portions  of  one  parish  to  another, 
not  only  quoad  sacra,  but  quoad  omnia;  and  of 
erecting  new  churches,  provided  the  disjunc- 
tion or  annexation  is  made  with  consent  of 
three-fourths  of  the  heritors  in  the  parish, 
reckoning  the  votes,  not  by  the  number  of 
heritors,  but  by  their  valued  rent  within  the 
parish.    Ersk.  B.  i.  tit.  5,  §  21,  and  B.  ii.  tit. 

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10,  §  64 ;  Bank.  B.  ii.  tit.  8.  §  47.  S«e  PaHik. 
Annexation. 

SiBorderly  Hotim;  a  home  of  ill  fiune, 
kept  for  the  resort,  and  commerce  of  lewd 
pergons  of  hoth  sexes.  "  It  has  not,  in  any 
tate  instance,  been  thonght  necessary  to  curb 
the  vice  of  incontinence  by  the  public  example 
of  a  criminal  proeecntion.  It  is  not,  however, 
to  be  doubted,  that  the  keeping  of  an  open 
and  notorious  house  of  lewdness,  for  the  re- 
ception of  loose  and  dissolute  visitors,  is  of 
itself  such  an  offence  against  public  decency 
and  the  quiet  of  the  neighbourhood,  as  is 
punishable  at  common  law  (and  of  this  there 
are  daily  examples  in  the  burgh  courts),  with 
imprisonment  or  whipping,  or  banishment 
from  the  vicinity  to  which  the  scandal  or  dis- 
turbance has  been  given ;"  Hume,  vol.  i.  p. 
478 ;  2  Swtnton's  R<^.  128,  236,  279.  See 
FomicaUon.   Nuisance. 

Ditparagemeat;  inequality  in  blood,  hon- 
our, dignity,  or  otherwise.  Under  the  ca- 
sualty of  marriage  in  ward-holding,  if  the 
superior  required  the  heir  to  make  an  un- 
suitable or  disparaging  marriage,  he  or  she 
might  legally  refuse.  The  disparity  might 
be  either  in  rank  or  in  years,  or  in  mental  or 
in  personal  accomplishments.  The  heir  was 
pot  bound  to  tMscept  a  person  of  inferior  de- 
gree, or  who  was  much  senior  in  years,  or 
whose  mental  capacity  was  defective,  or  who 
was  "  lame  or  blind,  or  dumb  or  deaf,  or  de- 
fective or  redundant  in  any  member."  But 
mere  disparity  of  fortune  was  not  of  itself  a 
sufficient  justification  of  the  heir's  refusal. 
Stair,  B.  ii.  tit.  4,  §  59  ;  Bank.  B.  ii.  tit.  4, 
§  69 ;  Skene  de  Verb.  Siff.h.t.  See  Avail  of 
Marriage.    Ward-holding. 

Dispensatioii,  Ckue  of.  Where  heritable 
subjects  lay  locally  discontiguous,  or  where 
the  progresses  of  title-deeds  to  several  parcels 
of  land  comprehended  in  one  Crown  charter, 
vere  different,  a  clause  of  dispensation  was 
sometimes  inserted,  specifying  a  particular 
place  at  which  it  should  be  sufficient  to  take 
infeftment  for  the  whole  lands,  and  other 
subjects,  however  discontiguous  or  dissimilar, 
and  dispensing  with  any  other  symbols  than 
earth  and  stone.  The  Crown  alone  could 
competently  grant  such  a  dispensation.  Mere's 
Notes  on  Stair,  p.  czcii.  ;  Mmzies'  LeeL  See 
Union. 

As  by  the  act  8  and  9  Yiet,  c.  35,  §  1, 
1846,  the  ceremony  of  infeftment  on  the 
lands  is  superseded,  a  clause  of  dispensation 
is  no  longer  necessary. 

DispooM ;  the  person  to  whom  a  disposi- 
tion is  grimted.  !ror  his  title  to  sue  and  de- 
fend, see  Shaw's  Digest,  p.  615,  §  104 ; 
Sunter's  Landlord  and  Teitant,  p.  429.  See 
Dimotition. 

Si^ontioa,    In  its  general  acceptation,  a 


disposition  is  an  nnilateral  deed  of  alienationt 
by  which  a  right  to  property,  either  heritable 
or  moveable,  is  conveyed.  The  disposition 
most  ^quently  used  in  practice  is  that  by 
which  heritable  property  is  conveyed  to  a 
purchaser  ;  but  a  disposition  of  moveables  is 
also  a  well-known  deed ;  and  where  a  person 
wishes  to  regulate  his  whole  succession,  heri- 
table as  well  as  moveable,  he  may  do  so  by  a 
general  disposition  and  settlement. 

I,  Cf  the  disposition  of  heritage.  The  modem 
disposition  is  a  deed  of  alienation,  by  which 
heritable  property  is  conveyed  to  a  purchaser, 
or  to  an  heir,  for  onerous  causes,  or  gratui- 
tously. The  disponer  or  maker  of  the  deed 
**  sells  and  dispones,"  or,  where  the  deed  is 
gratuitous,  "  gives,  grants,  and  dispones,"  the 
subject  oC  the  deed  to  the  receiver,  who  is 
technically  called  the  disponee.  As  eontra- 
distinguished  from  a  charter,  a  disposition 
may  be  said  to  be  the  deed  by  wlueh  the 
feudal  right  or  fee  constituted  by  the  charter, 
is  transmitted  to  a  purchaser  or  new  pro- 
prietor, a  distinction  to  which  Erskine  does 
not  appear  to  have  sufficiently  attended ;  see 
Ersk.  B.  ii.  tit.  3,  §  19  ;  BeUontkt  PwtJuuer's 
Titie,  p.  13.  See  also  Charier.  In  the  ordi- 
nary case,  the  disposition  contains  the  follow- 
ing clauses : — 1«(,  The  narrative,  called  also 
the  indttcttw  clause,  containing  the  names  of 
the  disponer  and  disponee,  and  stsiting  the 
cause  of  granting  the  deed ;  and,  where  it  is 
an  onerous  deed,  this  clause  usually  contains 
an  acknowledgment  of  the  receipt  of  the  price 
or  consideration,  and  a  discharge  of  it.  2d, 
The  dispositive  clause,  containing  words  of  de 
prmsmti  conveyance,  the  destination  of  the 
subject  and  its  description.  If  any  real  burden 
is  to  be  imposed,  or  if  the  right  is  tabe  othei^ 
wise  qualified  by  any  conditions  or  limita- 
tions, they  must  be  inserted  in  this  danse. 
Zd,  A  clause  obliging  the  disponer  to  infefl 
the  disponee  by  two  manners  of  holding,  the 
one  de  se,  the  other  asedt  superiore  suo.  4(t, 
A  Procuratory  of  resignation,  for  the  purpose 
of  enabling  Uie  disponee  to  complete  a  publie 
right — 1.«.,  to  become  the  vassal  of  the  dis- 
poner's  superior.  5<&,  A  dause  t^  vKurroakdiee  ; 
the  warrandice,  where  the  de«^  is  onerous, 
being  absditie.  6A,  An  assignation  to  tiie 
title-deeds  and  rents  of  the  subject,  witit  a 
clause  of  absolute  warrandice  of  the  assignsr 
tion,  in  so  far  as  concerns  the  rents  and  profits. 
7lh,  An  obligation  to  free,  the  di^onee  fVom 
all  public  burdens  exigible  from  the  subject 
prior  to  the  term  of  his  entry.  8th,  A  clause, 
bearing  that  the  disponer  has  delivered  the 
title-deeds  of  the  subject  to  the  disponee. 
9<&,  The  ordinary  clause  of  registration,  both 
for  preservation  and  execution.  lOtt,  A  pre- 
ctftefsatme,  for  enabling  the  dinenee  to  ob» 
tain  infefbaent  onder  the  deed.    The  precept 


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b  vliat  is  iermed  mitfiniU — j.«.,  it  is  a  pre- 
cept wbich  may  be  the  warrant  for  an  infeft- 
■ent,  to  he  holden  base  of  the  disponer,  or  of 
u  infeftment  which  may  be  afterwards  ren- 
dered pnblic  by  a  charter  of  confirmation  from 
the  di^nee's  snperior.  Lastiy,  The  deed  is 
■athentieated  by  a  testing  clause  in  the  usual 
fonn. 

The  claoseB  formerly  in  use  are  shortened 
by  the  act  10  and  11  Viet.,  o.  48,  1847,  and 
Mme  are  dispensed  with  by  the  Titles  to  Land 
Act,  21  and  22  Vict.  o.  76, 1858.  See  the 
irticles  In/eftment,  Invesiitwre,  and  Scume. 

The  history  of  the  changes  which  have 
bsen  made  ia  the  form  of  the  disposition  is 
veil  deserving  of  the  attention  of  convey- 
sneen,  not  only  as  exhibiting  the  practical 
■H'liestion  of  some  of  the  most  important 
principles  of  feud&l  law,  but  because  an  ac- 
qnaintance  with  those  changes  will  afford  the 
best  security  against  the  dangers  arising  from 
■n  unskilful  use  of  the  warrants  contained  in 
tiie  modem  deed.  The  limits  of  the  present 
work,  however,  admit  of  no  more  than  a  short 
explanation  of  the  manner  in  which  the  dis- 
pooee  may,  in  virtue  of  the  disposition,  pro- 
ceed to  complete  a  feudal  title  to  the  subject, 
to  which  the  mere  disposition,  not  followed 
by  that  proeedure,  never  confers  more  than  a 
ftrvmci  right.  Itt,  The  usual  course  is,  for 
the  di^nee  to  take  infeftment,  in  virtue  of 
the  indefinite  precept  of  sasine,  which  infeft- 
nent  completes  a  feudal  title  in  his  person, 
by  vesting  him  with  a  bate  right,  under  which 
he  becomes  vassal  to  the  disponer.  When  he 
wishes  to  render  his  right  public,  he  may  do 
w  at  once,  by  obtaining  from  the  disponer's 
nperior  a  charter  of  confirmation  of  the  base 
inftftment.  This  confirmation  operates  re- 
trt^eetively ;  and  the  right  is  held  to  have 
been  a  pnblio  one  from  the  date  of  the  dis- 
poaee's  infeftment.  2d,  But  although  this 
is  the  most  ordinary  method  of  completing  a 
pablie  right  under  the  disposition,  the  dis- 
poaee  may  follow  a  diflbrent  course,  and  com- 
plete his  title  by  resignation.  The  prooura- 
toty  of  resignation  contained  in  the  disposi- 
tion, is  of  the  nature  of  a  mandate  by  the 
dimmer,  authorizing  his  mandatories  (whose 
names  are  always  left  blank)  to  make  a  resig- 
nation of  the  subject  of  the  disposition  into 
the  bands  of  the  superior  in  /awrem  (as  it  is 
called)  of  the  disponee — m.,  in  order  that 
the  superior  may  sanction  the  substitution  of 
the  disponee  for  the  disponer,  as  his  vassal. 
The  superior  having,  in  point  of  form,  got 
back  the  subject,  grants  to  the  disponee  a 
charter  of  resignation,  as  it  is  termed,  eon- 
taining  a  precept  of  sasine  for  infefting  him 
in  the  aabject  formerly  held  by  the  disponer, 
sad  an  infeftment  on  this  charter  completes 
the  di^pooee's  title.    The  superior,  in  case  of 


reflisal,  may  be  eompelled  to  complete  the 
disponee's  title  in  either  form.  See  Charge 
ojfaimt  Superiors.  Sd,  If,  however,  the  dis- 
ponee means  to  complete  his  title  by  resigna- 
tion, he  must  take  care  not  to  take  infeft- 
ment on  the  precept  of  sasine  in  the  disposi- 
tion ;  for  where  a  disponee  first  takes  infeft- 
ment on  the  precept,  and  then,  having  ob- 
tained no  charter  of  confirmation,  resigns 
upon  the  procuratory,  the  superior's  charter 
of  resignation,  and  the  disponee's  infeftment 
following  on  it,  will  carry  nothing  but  the 
superiority  of  the  sub-vassalage  which  the 
disponee  has  created  by  his  base  infeftment 
unconfirmed.  The  consequence  of  this  is,  that 
the  disponee  being  vested  with  the  dominium 
directum  and  the  dominium  utile  of  the  subject, 
by  different  titles,  must,  in  the  twofold  ca- 
pacity of  snperior  and  vassal  to  himself,  resign 
ad  remanentiam  in  his  own  hands,  in  order  to 
consolidate  the  property  and  the  mid-supe- 
riority. See  Bell  on  Title,  p.  1,  et  seq„  and 
p.  230,  et  seq. ;  Ross's  Led.  vol.  ii.  p.  215,  et 
seq.  See  also.  Confirmation.  Resignation.  Base 
Right.    Public  Rtght.    Consolidation. 

With  regard  to  dispositions  of  property 
held  by  burgage  tenure,  a  precept  of  sasine  is 
seldom  inserted  in  the  disposition  to  a  burgage 
subject.  The  title  of  the  disponee  is  always 
completed  by  resignation ;  the  evidence  of  the 
resignation  by  the  disponer.  and  of  the  infeft- 
ment of  the  disponee  under  the  warrant  of 
the  magistrates,  being  contained  in  one  deed, 
called  an  Instrument  of  resignation  and  sasine. 
The  magistrates,  in  sanctioning  these  trans- 
missions, act  merely  as  commissioners  for  the 
Sovereign,  who  is  the  immediate  snperior  of  ■ 
every  vassal  who  holds  by  burgage  tenure. 
See  BeWs  Prine.  §  818,  et  seq. ;  lUust.  ib. ; 
Jurid.  Styles,  vol.  i. ;  Mentiu'  Leet.  See  also 
Burgage  Holding.  »■ 

The  magistrates  of  a  royal  burgh  are 
entited  to  feu  out  burgage  property  held  by 
them  for  behoof  of  the  burgh.  See  Erskine,  B. 
ii.  t.  iv.  §§  8  and  9,  and  Hi^s  Minor  Practicks. 
There  seems,  therefore,  no  reason  for  holding 
that  a  burgage  vassal  may  not  grant  a  feu  to 
be  held  of  himself,  he  remaining  a  crown  vas- 
sal, and  liable  in  the  prestations  incident  to  a 
burgage  tenure.    See  case  of  Bennet,  M.  6895. 

II.  Disposition  of  moveables.  A  disposition 
of  moveables  is  a  deed  by  which  the  disponer 
conveys  his  moveable  estate,  either  partially 
or  per  aversionem,  to  the  disponee.  Sometimes 
the  disposition  bears  reference  to  an  inventory, 
as  containing  a  more  particular  ennmeration 
of  the  effects  conveyed.  Power  is  given  to 
the  disponee  to  assume  possession  of  the  sub- 
jects,— the  warrandice  is  usually  from  fact 
and  deed  only, — and  the  deed  is  dosed  by  a 
clause  of  registration,  for  preservation  and 
tor  execution,  and  by  the  ordinary  testing 

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clause.  The  proper  vay  of  completing  the 
dUponee's  title  is,  by  actual  delivery  of  the 
muTeable  subjects  conveyed;  but  an  attempt 
is  sometimes  made  to  accomplish  the  same 
purpose  by  irhat  is  called  an  Inttrumewt  of 
possession;  that  is,  a  notarial  instrument, 
bearing  that  the  disponer,  in  the  presence  of 
a  notary-public  and  witnesses,  delivered  cor- 
poral possession  of  the  moveables  to  the  dis- 
ponee.  Where,  however,  the  disponer  retains 
possession,  this  method  of  transferring  the 
property  is  not  to  be  relied  on ;  for  it  will  not 
be  eflfectual  against  creditors  who  may  have 
trusted  to  the  disponee's  apparent  ownership. 
See  BeWs  Com.  i.  262 ;  Jurid.  Styles,  ii.  239  ; 
Memies'  Led.  See  also  Possession.  Delivery. 
Assignation.  As  to  the  transference  of  ships, 
see  Ships.    Vendition. 

III.  Disposition  and  setilement.  This  is  the 
name  usually  given  to  a  deed,  by  which  a 
person  provides  for  the  general  disposal  of  his 
property,  heritable  and  moveable,  after  his 
death.  When  the  testator's  directions  are 
not  numerous,  and  admit  of  speedy  execution, 
the  most  convenient  form  of  the  deed  is  that 
of  a  direct  conveyance  to  the  parties  meant 
to  be  benefited,  under  such  burdens  or  con- 
ditions as  he  may  choose  to  impose.  It  gene- 
rally happens,  however,  that  the  object  can 
be  more  beneficially  attained  by  a  trmt  dispo- 
titum  and  settlement; — 1.«.,  a  conveyance  to 
trustees  with  certain  powers,  and  subject  to 
certain  directions,  as  to  the  interim  and  final 
disposal  of  the  property, — ^aform  which,  being 
more  comprehensive  in  effect,  and  better 
adapted  for  contingencies,  is  advisable  where- 
over  the  details  of  management  are  nume- 
rous or  complicated,  and  the  operations  under 
the  deed  likely  to  be  protracted.  The  techni- 
cal clauses  of  the  disposition  and  settlement 
taif, — a  special  conveyance  of  the  heritable 
property,  belonging  at  the  time  to  the  grantor, 
and  a  general  conveyance  of  all  other  heri- 
tage of  which  he  may  die  possessed ; — ^in  virtue 
of  which  general  conveyance,  an  abjudication 
may,  if  necessary,  be  led  against  his  heir-at- 
law  ;  a  conveyance  in  similar  terms  of  the 
grantor's  moveables,  which  it  is  more  expedi- 
ent to  make  special;  the  necessary  obliga- 
tions and  warrants  for  completing  the  titles 
of  the  disponees ;  the  appointment  of  execu- 
tors ;  a  reservation  of  the  granter's  liferent ; 
and  a  clause  dispensing  with  delivery.  The 
directions  in  the  deed,  and  the  powers  given 
to  the  trustees  (when  a  trust  is  the  form 
adopted),  must  depend  on  circumstances.  Re- 
ference, however,  may  be  made  to  the  form 
of  a  trust  disposition  and  settlement,  in  the 
Juridical  Styles  (vol.  ii.  p.  442,  2d  edit.),  as 
being  by  far  the  most  comprehensive,  effective, 
and  accurate  form  of  that  deed  which  is  to  be 
found  exemplified  in  any  book  of  styles.  BtU^s 


Prine.  §  1691,  el  $eq.;  DkiLib.    SMalso 

Settl&nent.    Tnut. 

DupMitioa  ui  Seeuity.    See  SeritaiU 
Securities. 

SupoiitiTe  Claue;  is  the  clause  of  convey- 
ance in  any  deed,  by  which  property,  whether 
heritable  or  moveable,  is  transferred,  either 
absolutely  or  in  security,  inter  vivos,  or  mortis 
causa.  In  this  clause,  the  subject  of  the  con- 
veyance is  precisely  described,  with  all  the 
.burdens, conditions, or  limitations,  underwhieh 
it  is  given.  The  purpose  of  the  grant  is  also 
mentioned;  the  grantee  must  be  distinctly 
named  and  described ;  and,  where  the  deed 
contains  a  destination,  it  is  in  this  clause  that 
it  is  inserted.  All  the  other  clauses  of  the 
deed  are  merely  auxiliary,  or  subservient  to 
the  dispositive  clause,  to  which  they  are  in-  - 
tended  to  give  effect.  Mote's  Jfotes  to  Stak, 
p.  clviii. ;  Belts  Princ.  §  760  ;  lUutt.  ib. ; 
Ross's  Leet.  ii.  157,  233,  287,  344, 380.  See 
Charter.    Disposition.    Entail. 

Sifrationare ;  from  the  French  word  Dii- 
rener,  to  fight  in  single  combat.    Skene,  k.  t. 

Diuasina ;  a  French  word  signifying  dis- 
possession, ejection,  or  spuilzie.   Skene,  h.  t. 

Dissenten ;  persons  who  dissent  from  the 
doctrines  of  the  Established  Church.  In 
Scotland  the  established  religion  is  Presby- 
terian ;  and  the  term  dissenter,  in  its  most 
extensive  signification,  may  be  applied  to  all 
who  do  not  conform  themselves  to  that  syv 
tem  of  religious  doctrine  and  woi'ship.  ^e 
numerous  statutes  of  the  Scotch  Parliament 
directed  against  nonconformity,  were  repealed 
aft«r  the  Revolution  of  16s8,  by  1690,  c.  5, 
and  1690,c.27,and  havenotsince been  revived. 
See  also  9  and  10  Vid.,  c.  59  ;  H%tM,  i.  575, 
et  seq. ;  Morels  Notes  to  Stair,  pp.  Ixxv.  and 
ciii.  See  Nonconformity.  Papist.  JEpitah 
palian.    Test. 

DiiaoIntUMi ;  a  loosing  of  that  which  was 
formerly  bound,  used  iu  contradistinction  to 
annexation.    Skene,  k.  t. 

Distress ;  is  a  term  in  English  law,  signi- 
fying the  seizing  of  the  moveable  effbcts  be- 
longing to  a  debtor,  and  either  retaining 
them  in  security,  or  selling  them  in  payment 
of  the  debt,  as  the  case  may  be.  It  appears 
that  a  distress  was  formerly  regarded  as  a 
a  mere  brevi  manu  taking  of  the  effects  by  the 
creditor,  in  security  or  pledge  for  the  debt  or 
damage — a  practice  which  still  prevails  ia 
the  case  of  the  distraining  cattle  found  trra- 
passing.  But  from  the  utility  of  distresses  as 
a  method  of  recovering  payment  of  debt,  they 
have  in  England  been  subjected  to  several 
legislative  regulations,  which  have  consider- 
ably altered  their  original  character;  and 
they  are  now  treated  by  Englidi  authorities 
under  eight  distinct  classes.  See  Blaekstamt't 
Con.;  TomUns'  Diet.  K  t;  WharUm's  Letu 


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k  t.;  tnd  Bum,  voee  Dittreu.  Tbia  term 
alio  i^pean  to  have  been  known  in  onr 
ancient  law,  and  is  mentioned  by  some  of  our 
aotiiorities  as  similar  in  effect  to  poinding; 
Stair,  B.  ir.  tit.  47,  §  24.  It  seems,  however, 
to  have  differed  from  that  diligence,  in  so  far 
u  poinding,  properly  so  called,  is  a  diligence 
wbich  can  be  used  only  in  txeeution,  and  by 
jodicial  authority,  whereas  dittress  might 
hare  been  used  in  security,  and  even  with- 
ent  the  intervention  of  a  court.  The  right 
which  a  proprietor  in  Scotland  has  to  seize 
hm  tmmu,  and  retain  cattle  found  tres- 
paaring  on  his  property,  until  satisfaction  be 
made  to  him  for  the  injury  done,  and  the 
landlord's  right  of  hypothec,  seem  to  be  ves- 
tiges of  the  ancient  distress.  See  Rost's  Led. 
ru,  L  p.  385.  See  also  Poinding.  Hypothec. 
Several  British  statutes,  which  are  in  force 
it  Scotland,  authorise  execution  by  dittreu 
sod  lale  under  warrant  of  justices  of  the  peace. 
This  is  particularly  the  case  as  to  some  of  the 
nrenne  statutes.  Power  is  conferred  on  the 
justices  to  grant  warrant  for  distraining  the 
eftets,  and  for  selling  them,  if  the  penalty, 
and  the  expenses  attending  the  distress,  be  not 
paid  within  a  certain  limited  time;  and, 
where  money  is  ordered  to  be  levied  in  this 
vay,  and  sufficient  effects  are  not  found  within 
the  jurisdiction  of  the  judge  who  grants  the 
warrant,  the  person  to  whom  the  execution 
of  it  is  entrusted,  may  get  it  indorsed  by  any 
other  justice  within  whose  jurisdiction  the 
etfoets  belonging  to  the  debtor  can  be  found, 
on  the  oath  of  one  witness,  that  a  sufficiency  of 
effeds  were  not  to  be  found  within  the  juris- 
dietion  of  the  original  grantor  of  the  warrant. 
Theoath  must  be  indoreed  on  the  warrant;  and 
the  justice  indorser  is  not  answerable  for 
any  irregularity  which  may  have  been  com- 
nitted  in  obtaining  the  original  warrant ;  27 
Qto.  II.,  c  20.  Effects  seized  under  distress 
cannot  be  used  by  the  seizor :  cows,  however, 
vtsj  be  milked,  as  that  is  necessary  for  their 
pnservation.  The  officer  levying  a  penalty 
bj  distrea  is  not  entitled  to  break  open  doors 
'  or  lockfast  places,  unless  the  penalty,  or  part 
of  it,  be  given  to  the  Sovereign.  Things  in 
which  a  person  has  not  a  valuable  property, 
and  animals /(TO  naJturce,  cannot  be  distrained. 
Nor  can  things  sent  to  a  public  place  of  trade, 
as  a  horae  in  a  smithy,  or  the  effects  of  a 
traveller  in  an  inn,  be  distrained  for  debts 
das  by  the  person  on  whose  premises  they  are. 
Neither  can  any  fixture  be  taken.  The  tools 
aad  instruments  of  a  man's  trade,  the  beasts 
for  his  plough,  ftc.,  cannot  be  distrained,  un- 
ka  the  distreas  be  by  way  of  execution  under 
a  particular  statute.  Many  of  the  statntes 
also  contain  directions  as  to  the  manner  in 
*hidi  the  distress  is  to  be  levied  under  them. 
k-fmdinf  hat  baen  held  illegal  which  pro- 


ceeded on  the  decree  of  justices  of  the  peace, 
under  the  excise  statutes  ordering  distrett ; 
King's  Advocate  against  Forgan,  20th  Feb. 
1811,  Fac.  Coll.  App.  No.  1.  See  also  on 
this  subject,  HiUch.  Justice  of  Peace,  B.  i.  e.  8 ; 
Taifs  Justice  of  Peace,  p.  87  ;  Stair,B.  ii.  tit. 
3,  §  46,  and  B.  iv.  tit.  23,  §  1 ;  Hunter's  Land- 
lord and  Tenant,  vol.  ii.  p.  339 ;  Ross's  Leet. 
i.  389. 

Distrieti.  For  the  more  convenient  ad- 
ministration of  justice,  the  sheriffs-depute  of 
the  larger  counties  of  Scotland  are  in  the 
practice  of  appointing  substitutes,  whose  de- 
legated jurisdiction  cannot  be  exercised  be- 
yond the  limits  of  their  particular  district. 
In  the  same  manner  the  justices  of  the  peace 
are  in  the  practice  of  subdividing  extensive 
counties  into  districts,  in  each  of  which  they 
hold  sessions  chiefly  for  the  dispatch  of  the 
business  within  the  district.  But  the  juris- 
diction of  each  justice  remains  entire  over  the 
whole  county,  and  the  justices  of  one  district 
may  hold  their  court  and  may  act  in  another. 
The  subdivision  clerks  and  fiscals  are  ap- 
pointed by  the  clerk  of  the  peace,  and  by  the 
fiscal  for  the  county ;  and,  in  case  of  the  ab* 
sence  of  either  of  those  officers,  the  justices 
may  appoint  a  clerk  and  fiscal  for  the  particu- 
lar occasion.  The  Small  Debt  Acts,  Licensing 
Acts,  and  Road  Statutes,  authorise  a  subdivi- 
sion of  counties,  for  the  purposes  of  these  acts. 
Taies  Justice  of  Peace,  p.  89  and  357 ;  Barclay's 
Law  of  the  Road,  passim;  1  Hutchison's  Just.  55. 
See  tuso  Sheriff-Courts,  Justices  of  Peace.  SmaU 
Debt  Courts.    Road  Acts. 

Sittay ;  is  a  technical  term  in  criminal  law, 
signifying  the  matter  of  charge,  or  ground  of 
indictment,  against  a  person  accused  of  a 
crime.  The  manner  of  taking  up  dittay,  as  it 
was  termed,  or  obtaining  information  and  pre- 
sentments of  crime  in  order  to  trial,  has  un- 
dergone various  changes.  See  as  to  the  me- 
thods formerly  adopted,  Skene  de  Verb,  Sig. 
voce  Iter,  and  Hume,  vol  ii.  p.  23,  et  seq. ;  and, 
as  to  the  present  practice,  see  in  this  Dic- 
tionary the  articles  Criminal  Prosecution.  Cir- 
cuit Court.    Porteous  RolL 

Dividend.  In  bankruptcy  the  share  of  any 
inadequate  fund,  apportioned  according  to  the 
amount  of  the  debt  for  which  a  creditor  it 
ranked  upon  the  estate,  is  called  a  dividend. 

DiTisible  Eund;  is  a  fund  set  apart  or 
prepared  for  distribution  amongst  several 
claimants.  The  term  is  usually  applied  to 
the  fund  for  division  amongst  the  creditors  of 
a  bankrupt.  The  divisible  fund,  in  a  mer- 
cantile sequestration,  consists  of  the  whole 
estate  and  effects  beli)nging  to  the  bankrupt 
at  the  date  of  the  sequestration,  or  the  pro- 
duce thereof,  afte  paying  all  charges.  It 
includes  all  paymf'nts  made  by  the  bankrupt 
to  any  of  his  creditors  after  the  date  of  the 


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first  deliTeranee.  together  with  all  alienatioiu 
in  seourity  of  prior  debts  made  after  the  se- 
questration, or  reducible  under  the  statutes 
1696,  c.  5,  or  1621,  c.  18,  or  as  frauds  at 
common  lav.  The  fund  also  includes  bank 
interest  for  money  belonging  to  the  estate 
deposited,  in  terms  of  the  statute,  or  the  penal 
interest  of  20  percent,  due  where  such  deposit 
has  not  been  made.  The  deductions  from  the 
fund  consist  of  the  expense  of  management, 
wages  or  payments  to  servants,  workmen, 
carriers,  and  others  engaged  in  preserving  or 
realising  the  estate ;  the  expense  of  litigation, 
whether  belonging  properly  to  the  estate,  or 
found  due  to  those  against  whom  litigation 
has  been  carried  on  ;  the  allowance  or  com- 
mission to  the  trustee ;  and  the  allowance  to 
the  bankrupt,  where  such  an  allowance  has 
been  made  in  terms  of  the  statute.  See  BelCs 
Com.  ii.  421,  et  $eq. 

DiviBion,  Sohnne  of ;  is  a  state  or  cast 
showing  the  amount  of  a  divisible  fund,  and 
apportioning  it  amongst  the  dififerent  claim- 
ants according  to  the  legal  order  of  ranking. 
The  scheme  of  division  in  a  process  of  rank- 
ing and  sale  is  made  up  agreeably  to  the 
ri^ts  fixed  by  the  decree  of  ranking.  It  is 
then  lodged  in  process,  to  be  examined  by  the 
parties  interested,  and  objected  to  if  they  see 
cause.  Thereafter  it  is  approved  of  by  the 
Lord  Ordinary,  with  such  alterations  as  the 
discussion  may  have  led  to.  A  decree  of  divi- 
sion, in  terms  of  the  scheme,  is  then  pro- 
nounced, on  which,  as  on  any  other  decree, 
diligence  may  follow ;  see  Bdl't  Com.  ii.  288, 
et  teq.  See  also  Judiciid  Sale.  By  the  bankrupt 
statute,  19  and  20  Vict.,  c.  79,  1856,  §  125, 
et  teg.,  the  trustee  is  directed  to  make  up  and 
exhibit  to  the  commissioners  a  state  of  the 
bankrupt's  estate  immediately  on  the  expira- 
tion of  four  months  from  the  date  of  seques- 
tration, and  complete  a  list  of  the  creditors 
entitled  to  draw  a  dividend,  &c.  This  list  is 
held  to  be  the  trustee's  decition  on  the  claims 
made  by  the  creditors.  The  decision,  how- 
ever, is  subject  to  the  review  of  the  Court,  on 
the  complaint  of  any  creditor  who  is  dissatis- 
fied with  it. 

BiTision,  Benefit  o£  See  Beneficiwn  Divi- 
tionit. 

Division,  Briere  o£  See  Briete  of  Divi- 
tion. 

BiTision  of  Conunonty.    See  Commonly. 

Divorce.  Marriage  may  be  dissolved  either 
by  the  death  of  either  of  the  parties,  or  by 
divorce.  Divorce  is  a  judicial  dissolution  of 
the  coi\jugal  society,  while  both  the  parties 
are  alive,  the  effect  of  which  is,  to  leave  them 
at  liberty  to  intermarry  with  others.  By  the 
law  of  Scotland  a  divorcesmay  lie  obtained  on 
the  ground  either  of  adultery  or  of  wilful  de- 
^rtion ;  but  neither  of  these  ground«  dissolves 


the  marriage  iptojure;  and  if  neither  pirtf 
institutes  a  process  of  divorce,  the  marrisge 
subsists,  notwithstanding  the  adultery  or  de- 
sertion.   In  the  case  of  adultery,  if  the  ia* 
jured  party  continue  the  matrimonial  eon> 
nexion,  after  knowledge  of  the  adultery,  that 
is  held  to  be  an  irrevocable  forgiveness  of  tlis 
offence ;  and  an  act  of  adultery  so  overlooked, 
cannot  afterwards  be  the  foundation  of  a  pro- 
cess for  divorce.      (See  AduUeiy.    Bemtm 
Injitrioe.)  When  the  divorce  proceeds  on  wil- 
ful desertion,  the  act  1573,  c.  55,  reqnim 
that  the  offending  party  shall,  malieioBdy 
and  without  just  cause,  have  abandoned  the 
conjugal  society  for  four  years  together;  and 
if,  after  such  desertion,  he  or  she  disr^srdi 
the  admonition  of  the  church  to  adhere,  a 
decree  of  divorce  may  be  pronounced.    (See 
Detertion.)    The  action  of  divoroe  formerly 
proceeded  before  the  commissaries  of  Edin- 
burgh ;  but  by  1  Will.  IV.  c.  69,  which  abo- 
lished  the  commissary-court,  it  is  enacted,  that 
actions  of  divorce  shall  be  competent  before 
the  Court  of  Session  only.  (See  Commtteriei,) 
In  every  such  action,  whether  founded  on 
adultery  or  on  desertion,the  pursuer  must  mska 
oath  that  the  action  is  not  collusive.    Bot, 
after  decree  of  divorce  has  been  pronooneed, 
an  action  of  reduction  of  the  decree,  on  th( 
ground  of  collusion,  seems  not  to  be  eompe* 
bent,  to  the  effect  of  reviving  the  marris|ek 
although  the  action  may  be  insisted  in,  to  or 
as  to  protect  creditors  ^;ainst  any  frandolent 
device  for  defeating  their  rights,  by  means  of 
a  divorce ;  Ertk.  £.  i.  tit.  6,  §  46.     The  1^ 
effect  of  divorce  on  the  ground  of  desertion  i^ 
that  the  offending  party  loses  the  tocher  and 
the  doncUiones  propter  nuptias;  1573,  e.  55; 
that  is,  the  offending  husband  is  hound  to  re- 
store the  tocher,  and  to  pay  or  implements 
the  wife  all  her  provisions,  legal  or  e<mTeo' 
tional ;  and  the  offending  wife  forfeits  bar 
tocher,  and  all  that  would  hare  come  to  her, 
had  the  marriage  been  dissolved  by  tiit  pre- 
decease of  the  husband ;  and  our  anthoritiM 
concur  in  holding,  that  the  penalties  fixed  by 
the  statute  1573  extend,  by  aaalogj,  to  tbe 
offending  party  in  a  divorce  for  adnlteiy.   It 
has  been  decided,  however,  that  the  offendlsg 
husband,  where  the  divorce  is  for  adultery,  i> 
not  bound  to  restore  the  tocher;  Justiee,l9A 
Jan.  1761,  Mor.  p.  334.  This  decision  uiaid 
by  Erskine  to  have  been  pronounced  in  defer- 
ence to  an  uniform  train  of  old  decisions;  bst, 
on  investigation,  it  rather  appears  that  the 
course  of  decisions  had  fixed  an  opposite  rule; 
see  Enk.  B.  i.  tit.  6,  §  48  ;  Ivory's  note,  177. 
Bankton  (B.  i.  tit.  5,  §  128)  holds  reerimhia- 
tion  to  be  a  good  defence  against  divorce  ftf 
adultery.  The  contrary  doctrine,  however,  is 
now  settled  in  the  law  of  Scotland.    But  al- 
though recrimination  cannot  be  pleaded  ss  a 


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itteaea  in  bar  of  the  divorce,  yet,  as  tbe 
matul  gnilt  may  affect  the  patrimonial  in- 
tereati  of  the  parties,  it  may  be  stated  in  a 
coanter-action ;  Jardine,  9th  March  1787. 
M«r.  p.  338 ;  Lodchart,  7th  Dec.  1799,  Mor. 
App.  voce  AduUery,  No.  1.  Lenocinium,  how- 
ner, — tiiat  is,  the  husband's  participation  in 
(he  profits  of  his  wife's  prostitution,  or  even 
the  hosbaod's  connivance  in  her  guilt,  without 
participating  in  the  gain, — is  a  good  defence 
to  the  wife  against  an  action  of  divorce  on  the 
ground  of  adultery ;  M'Kenzui,  28th  Feb.  1745, 
Jr«r.  p.  333;  Bmk.  B.  i.  tit.  5,  §  130.  See 
Etermitiaiim.  Rtmiuio  Injuria.  Lenocmivm. 
The  act  1600,  e.  20,  decUres  marriages  con- 
tracted between  the  adulterer  and  the  person 
with  whom  he  or  she  is  declared,  by  the  sen- 
tence of  divorce,  to  have  committed  the  crime, 
to  be  null  and  unlawful,  and  the  issue  of  the 
marriages  to  be  incapable  of  succeeding  to 
their  parents.  This  statute,  however,  has  not 
(he  effect  of  bastardizing  such  issue ;  Erik.  B. 
i.  tit  5,  §51.  Sm  Bastard.  Adultery.  The 
right  to  institate  an  action  of  divorce  is  per- 
sonal to  the  hosband  or  the  wife ;  and  if,  after 
the  action  baa  been  raised,  either  party  die 
hefore  the  decree  of  divorce  is  final,  it  has 
been  argued,  that  the  natural  dissolution  of 
(he  marriage  by  death  supersedes  and  defini- 
tively closes  all  inchoate  proceedings  for  dis- 
Mlriog  it  on  any  other  ground ;  the  natural 
diMidntion  being  the  first  efiidctual  one,  and 
that  which  ia  to  regulate  all  questions  as  to 
the  patrimonial  rights  or  sUOtu  of  the  sur- 
vivor. The  question,  how  far  litiscontestation 
in  such  an  action  renders  it  transmissible  to 
representativee,  was  argued,  but  not  decided, 
in  Campbell  and  others  against  Macallister, 
1821,  First  Division,  not  reported.  See,  on 
^  subject  of  this  article,  Stair,  B.  i.  tit.  4,  § 
7,  A  $eq. ;  More's  Notes,  p.  xvi.  xxrii. ;  Bank. 
B.  L  tit  5,  §  126 ;  Brsk.  B.  i.  tit  6,  §  43,  et 
uq. ;  BdFs  Prine.  §  1531,  el  seq. ;  1622,  et  seq. ; 
JIhut.  ib.  Fraser  on  Domestic  Relations ;  Iai- 
AtM't  Consist.  Prae.  96,  et  seq.,  and  Fergusson's 
Bqtorts  on  Divorce  Cases,  passim. ;  See  also,  in 
thte  Dictionary,  the  articles  Marriage.  De- 
serHmt,  Litiscontestation.  Domicile.  Adherence. 
AMtery.  Commissaries.  As  to  impotence, 
considered  aa  a  ground  of  nullity  of  marriage, 
mtlmm^ency. 

Dou  Wacraata.  The  bonding  warehouses 
ia  London,  mentioned  in  the  stat.  43  Ooo. 
IIL,  e.  132,  are  those  of  the  London  and 
West  India  Dock  Companies;  and  when  goods 
are  warehoused  in  those  docks,  they  are  en- 
tered in  tb«  name  of  the  importer,  and  a  cer- 
tificate given  to  the  owner  as  a  voucher. 
These  certificates  are  called  dock  vmrrants. 
When  a  transfer  is  made,  the  certificate  is 
iadorsad,  with  an  order  to  deliver  the  goods 
to  the  pnrchaier ;  and  a  corresponding  entry 


in  the  warehouse  books,  made  by  the  clerk, 
completes  the  transference.  The  certificates 
or  warranto  an  transferable  from  hand  to 
hand  by  a  delivery  order,  in  a  prescribed 
form,  which  is  printed  on  the  certificate  with 
blanks ;  and  the  courto  in  England  have  re- 
cognised this  as  a  legitimate  mode  of  trans- 
ferring the  property  of  the  goods.  In  Scot- 
land the  system  is  not  yet  so  perfect,  but  tbe 
same  object  is  attained  by  delivery  orders, 
with  indorsed  transfers,  and  corresponding 
entries  in  the  warehouse  books.  Unless 
intimation  is  made  to  the  keeper  of  the 
warehouse  the  property  is  not  transferred ; 
Melrose  v.  HasUe,  Feb.  4,  1850,  12  D.  665. 
SwBelPs  Com.  i.  192,  et  seq.;  Beli's  Princ. 
§  1305 ;  Brown  on  Sak,  p.  460.  See  also 
Delivery. 

Soga.  Dogs  are  so  far  the  objecto  of  law,  / 
that,  by  the  acta  1475,  c.  60,  and  1621,  c  32,  *^ 
the  stealing  of  hounds  (as  they  are  called  in 
the  statutes)  is  punishable  by  fine.  Sir  George 
Mackenzie  observes,  upon  the  former  of  those 
statutes,  that  it  is  clear  "  that  stealing  of 
dogs,  hawks,  and  the  like,  is  not  to  be  punished 
as  theft,  but  only  by  a  fine  or  penalty  of  ten 
pounds ;  and,  in  efiect,  this  is  not  eonirectatio 
rei  alienee,  lucri  faeieadi  causa — these  beasts 
being  rather  useful  for  sport  than  gain."  But 
he  seems  to  think  that  the  stealing  of  a  dog 
from  a  dog-merchant  may  be  punished  as 
theft ;  Observations  on  the  Statute,  p.  79.  Bank- 
ton  holds  that  it  is  not  felony,  but  that  the 
offender  may  be  subjected  to  an  action  for 
damages ;  B.  i.  tit.  3,  §  9.  See  also  Hume,  i. 
82  and  124.  In  England,  by  the  statute  10 
Geo.  III.,  c.  18i  the  stealing  of  dogs  is  punish- 
able by  fine  or  imprisonment.  It  appears  to 
be  settled,  that  the  owner  of  a  vicious  dog  ia 
liable  for  the  injuries  done  by  the  animal  to 
persons  whom  it  may  attack.  The  owner  of 
a  dog  in  the  practice -of  destroying  or  worry- 
ing sheep,  will  also  be  answerable  for  the 
loss;  and  in  the  inferior  courto  the  owner, 
besides  being  held  liable  to  repair  the  injury 
to  the  private  party,  is  sometimes  fined,  and 
the  dog  ordered  to  be  killed.  In  order  to 
subject  the  owner  in  damages,  his  previous 
knowledge  of  the  vicious  or  bad  habito  of  the 
dog  must  be  proved.  Stair  holds  such  pre- 
vious knowledge  to  be  necessary  to  found 
the  claim ;  and  it  was  so  decided  by  the 
House  of  Lords  reversing  the  judgment  of 
the  Court  of  Session,  in  the  case  of  Fleming 
v.  Orr,  April  3,  1853,  1  Macqueen.  See 
Damages.  The  power  of  magistrates  to  order 
dogs  into  confinement,  under  pain  of  their 
being  destroyed,  where  hydrophobia  is  pre- 
valent or  apprehended,  is  sometimes  conferred 
by  police  statutes ;  but  it  seems  also  to  fall 
within  the  general  commission  of  justices  of 
th«  peace,  aa  well  as  the  common  law  juris* 

Digftized  byLjOOQlC 


DOL 


DOM 


diction  of  the  jndge  ordinary.  In  like  manner, 
it  ratiier  leenu  to  be  lawful  to  kill  a  dog 
found  in  the  act  of  worrying  sheep,  althongh, 
in  one  case  where  two  dogs  had  been  shot, 
and  where  the  defender  alleged  that  he  was 
justiSed,  because,  at  the  time  the  dogs  were 
shot,  they  were  on  hia  property,  and  in  the 
neighbourhood  of  a  valuable  flock  of  fheep, 
he  was  subjected  in  damages  to  the  owner  of 
the  dogs,  on  the  ground  that  he  had  failed  to 
justify  the  shooting  of  the  dogs;  Orant  v. 
Barclay  AUardyce,  8th  Jan.  1830,  5  Mur. 
130,  and  English  catet  there  cited.  Dogs  are 
specially  mentioned  in  the  statute  against 
cruelty  to  animals ;  13  Viet,,  c.  92 ;  and 
penalties  for  certain  offences — e.g.,  suffering 
a  rabid  dog  to  go  at  large,  &o. — are  imposed 
by  the  geueral  Police  Acta  for  the  towns  in 
Scotland ;  IS <in<ll 4 Viet., o. 33.  See Damaget. 
Justice  of  Peact. 

Dole ;  is  the  corrupt,  malicious,  or  evil  in- 
tention which  is  essential  to  the  guilt  of  a 
erime.    See  Grime. 

Dolu  Xalu ;  is  craft,  guile,  or  machina- 
tion, employed  for  the  purpose  of  deception  or 
circumvention.  This  term  is  used,  in  the 
Roman  law,  in  contradistinction  to  dolus 
honut,  which  signifies  that  degree  of  allowable 
dexterity,  by  which  a  person  may  advance  his 
own  interests ;  such,  for  example,  as  to  make 
the  best  bargain  be  can  in  sale,  or  to  use 
stratagems  in  war,  or  devices  for  his  defence 
agaiust  fraud  or  violence.  By  the  law  of 
Scotland,  dolus  malxu  is  a  gronnd  for  reducing 
any  deed,  obligation,  or  transaction  in  which 
it  occurs.  Stair,  B.  i.  tit.  9,  §  9 ;  More's  Notes, 
p.  lix.;  Bank.  B.  i.tit.  10,  §62;  Erdc.  B.  iv. 
tit.  I,  §  27.  See  also  Fraud.  Circumvention. 
Deceit. 

Dometday  Book;  is  an  ancient  record 
made  in  the  reign  of  William  the  Conqueror, 
and  now  remaining  in  the  Exchequer  in  Eng- 
land, fair  and  legible.  It  consists  of  two 
volumes,  and  contains  a  survey  of  all  the  lands 
in  England,  except  the  counties  of  Northum- 
berland, Cumberland,  Westmoreland,  Dur- 
ham, and  part  of  Lancashire.  A  transcript 
of  the  Domesday  Book  has  been  made,  and 
printed  and  published.  There  are  other 
books  posterior  in  date  to  the  Domesday 
Book  of  William  the  Conqueror,  which  are 
also  called  Domesday  Books,  and  preserved  in 
Excheq^uer.    See  Tomlins'  Diet.  h.  t. 

Domicile;  the  place  where  a  person  has 
his  home  or  fixed  abode.  Moveable  property 
is  held  in  law  to  follow  the  person  of  the 
owner,  and  on  his  decease  must  be  distributed 
according  to  the  law  of  the  country  in  which 
he  was  domiciled  at  the  time  of  his  death,  and 
not  according  to  the  law  of  the  country  in 
vhich  the  property  is  situated.  But  although 
the  rule  of  moveable  snooeasion  is  the  tor  «b>- 1 


meOii,  tbe  mode  in  which  the  snbjecta  are  to 
be  taken  up  and  vested  in  the  succoKor,  is 
regulated  by  the  Ux  rei  sites.  Thus,  in  JfiK- 
gan  (4  S.  432),  a  lady  domiciled  in  Scotland, 
having  died  possessed  of  fnnds  in  England, 
and  being  succeeded  by  her  children  resident 
in  this  country,  who  died  without  having  ex- 
pede  couflrmation,  it  was  held  that  the  ftiads 
were  vested  in  them,  ipso  jure,  according  to 
the  law  of  England.  VVhere  a  company  haa 
a  domicile  in  more  than  one  country,  the  pro> 
ceedings  in  bankruptcy  in  any  one  of  the  do- 
miciles of  the  company  comprehend  the  whole 
personal  estate  of  the  entire  concern.  By  Uie 
law  of  Scotland,  the  residence  of  a  party 
within  the  territory  of  a  judge  for  forty  days 
preceding  the  citation,  eetablishee  a  domicile^ 
to  the  effect  of  rendering  the  citation,  under 
the  precept  of  that  judge,  effectual,  and  that 
even  although  the  forty  days'  residence  has 
been  in  an  inn  or  hired  apartment.  Bat  a 
temporary  residence  of  this  kind  will  not  con- 
stitute a  domicile  to  warrant  denunciation  on 
letters  of  homing,  or  the  publication  of  letters 
of  inhibition  at  the  head  burgh  of  such  resi- 
dence, or  the  confirmation  of  a  testament  be- 
fore the  commissary  of  that  district ;  in  ^ 
of  which  cases  regard  must  be  had  to  the  prin- 
cipal domicile  or  place  where  the  party  re- 
sides with  his  family,  or  has  his  permanent 
home;  Paterson,  20th  Nov.  1672,  Mor.  p. 
3724 ;  Bank.  B.  iv.  tit.  6,  §  6 ;  Ersk.  B.  iii. 
tit  9,  §  29.  See  also  Z)mtHict(il»iHi.  Conjtr- 
motion.  Inhibition.  Where  the  party  poe- 
sesses  two  houses  within  different  jurisdiction^ 
either  of  which  is  entitled  to  the  appellatioa 
of  his  domicile,  he  may  be  cited  within  either 
the  one  or  the  other  jurisdiction.  If  a  person 
have  no  fixed  domicile,  as  may  happen  in  the 
ease  of  a  soldier  or  a  travelling  merchant,  a 
personal  citation  will  subject  him  to  the  juri». 
diction  of  the  judge  within  whose  jurisdietjon 
he  is  so  cited.  Where  a  person,  not  having 
a  dwelling-house  in  Scotland  occupied  by  hia 
family  and  servants,  has  left  his  usual  place 
of  residence,  and  has  been  absent  therefrom 
for  forty  days,  without  leaving  notice  where 
he  is  to  be  found,  in  Scotland,  he  is  to  be 
held  as  absent  from  Scotland,  and  charged,  or 
cited,  accordingly;  6  Oeo.  IV.,  c.  120,  §  53. 
The  Act  of  Sederunt,  14th  Dec.  1805,  con- 
tained a  similar  provision ;  and  ded^Lred  that, 
within  the  forty  days,  a  citation  or  charge, 
left  at  the  late  dwelling-place  of  the  party, 
should  be  effectual,  unless  the  party  was  per- 
sonally found  prior  to  the  execution,  or  should 
have  taken  up  some  other  known  and  fixed 
residence  in  Scotland.  It  has  been  doubted, 
however,  whether  the  Act  of  Sederunt  would 
be  applicable  to  a  citation,  even  within  the 
forty  days,  where  the  par^  cited,  and  his 
family,  had    unequivoeallj  left  tbdr    late 


Digitized  by 


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DOM 


DOM 


299 


dvelling-place  before  the  citation  VM  given — 
«.f^  where  another  family  had  taken  posses- 
tioD  of  the  house.  As  this  Act  of  Sederunt 
ralated  to  the  bankrupt  statute,  33  Geo.  III., 
e.74,  and  was  not  renewed  after  the  expira- 
tion of  that  statute,  doubts  have  l>een  enter- 
tained how  far  the  rule  laid  down  in  it  is 
to  be  held  as  now  in  force ;  unless,  as  has 
been  thought,  the  Act  of  Sederunt  can  be 
taken  as  a  declaration  of  the  common  law 
upon  the  point.  See  More's  edition  of  Eftkin^i 
Principles,  p.  16,  note  7  ;  Bell's  Com.  vol.  ii.  p. 
170,  et  seq.  in  notes,  5th  edit.  See  farther  on 
the  sabject  of  this  article,  Erdc.  £.  i.  tit.  2, 

il6;  Ivor/s  edit,  notes,  19, 20,  and  21 ;  Stair, 
.  ii.  tit.  2,  §  17 ;  iii.  tit.  8,  §  81 ;  BelPs  Com. 
ii.  681,  et  seq. ;  BelFs  Princ  §  1861 ;  Skand's 
Pnc;  Jxirid.  Stt/les,  2d  edit.  vol.  iii.  p.  5 ; 
Ross's  Led.  i.  492.  See  also  Giiation.  Juris- 
Hetion.    Forum  compeiens. 

In  connection  with  the  subject  of  domicile, 
Hveral  important  decisions  in  questions  of 
tiaiits  have  been  recently  pronounced.  Thus, 
in  one  ease,  a  Scotchman  by  birth,  possessed 
of  landed  property  in  Scotland,  had,  while 
doaieiled  in  Bngland,  a  son  bom  to  him  of 
an  illicit  intercourse  with  an  Englishwoman, 
whom  he  subsequently  married  in  Scotland. 
The  Conrt  of  Session  held  the  sou  legitimated 
1^  the  subsequent  intermarriage  of  his  pa- 
rente,  to  the  effect  of  entitling  him  to  succeed 
t«  his  father's  property  in  Scotland.  But 
tbat  judgment  was  reversed  in  the  House  of 
Lords,  it  being  held  that  the  father  was  do- 
miciled in  England  at  the  date  of  the  mar- 
riage, which  took  place  in  Scotland ;  Rose  v. 
Ross,  15th  May  1827,  5  S.  and  D.  605 ; 
House  rf  Lords,  16th  July  1830,  4  W.  and  S. 
289.  In  a  more  recent  case,  a  Scotchman 
had  a  daughter  bom  to  him  in  England  by 
ao  illicit  connection  with  an  Englishwoman, 
whom  he  subsequently  married  in  England. 
The  question  there  was,  whether,  at  the  date 
of  the  birth  of  the  child,  and  of  the  subse- 
qnent  marriage,  the  father  had  acquired  an 
Bnglish  domicile  ;  and  the  Court  of  Session, 
by  the  narrowest  possible  majority  of  the 
whole  thirteen  judges,  holding  that  he  had 
hxt  his  Scotch  domicile,  and  adopting  the 
prineiple  of  the  judgment  of  the  House  of 
Lords  in  Rose  v.  Ross,  decided  that  there  was 
no  legitimation  per  sidisequens  matrimonium ; 
Mmro  V.  Munro,  16th  Nov.  1837,  16  5. 18. 
This  judgment,  however,  was  reversed  by  the 
House  of  Lords,  on  the  ground  that  the  father 
had  not  lost  his  Scotch  domicile ;  1  Rob.  492. 
In  another  case,  a  Scotchman  and  a  Scotch- 
woman contracted,  in  Scotland,  an  intimacy, 
u)  eonaeqnenoe  of  which  issue  was  afterwards 
bom  in  England,  whither  the  father,  followed 
by  the  wtHnan,  went  on  military  service,  and 
where,  after  his  regiment  was  disbanded,  he 


eontinaed  to  reside  for  a  period  of  yean. 
There  it  was  held, — one  judge  alone  of  the 
thirteen  dissenting, — that  a  subsequent  mar- 
riage contracted  with  this  woman,  in  Eng- 
land, legitimated  the  issue  to  the  effect  of  en- 
titling them  to  take  Scotch  heritage,  under 
an  entail,  as  lawful  heirs-male  of  the  body ; 
Macdowall  v.  Ladt/  Dalhousie,  .16th  Nov. 
1837,  16  S.  6.  This  judgment  was  affirmed 
in  the  House  of  Lords ;  1  Rob.  495.  The 
general  rule,  deducible  from  another  recent 
case,  is,  that  the  domicile  of  the  husband  is 
the  domicile  of  the  wife.  In  the  case  in 
which  that  rule  was  settled,  a  domiciled 
Scotchman  had  brought  an  action  of  divorce 
against  his  wife,  who  was  actually  resident 
abroad,  on  the  ground  of  adultery  committed 
abroad ;  and  there  the  House  of  Lords  held, 
affirming  the  judgment  of  the  Court  of  Ses- 
sion,— 1 .  That  the  domicile  of  the  husband  was 
the  domicile  of  the  wife ;  and  that  the  action 
was  competently  executed  in  the  Scotch  courts, 
a  previous  contract  of  separation  between  the 
parties  being  held  revocable,  and  virtually 
revoked,  by  the  execution  of  the  summons  of 
divorce ;  2.  That  the  wife  was  sufficiently 
cited  by  an  edictal  citation  and  personal  no- 
tice, without  leaving  a  copy  of  the  summons 
for  her  at  her  husband's  dwelling-place  in 
Scotland;  and,  3.  That  the  marriage,  al- 
though contracted  in  England,  according  to 
the  rites  of  the  English  Church,  and  there- 
fore indissoluble  by  the  courts  of  that  country, 
might  be  dissolved  by  the  Scotch  courts  on 
the  ground  of  adultery  committed  abroad; 
Warrender  v.  Warrender,  28th  Jane  and  6th 
July  1834,  12  S.  847  and  885;  House  of 
Lords,  27th  Aug.  1835 ;  2  S.  and  ML.  164. 
But  the  rnle  that  the  domicile  of  the  husband 
is  that  of  the  wife,  does  not  hold  where  the 
husband,  a  foreigner,  has  come  to  Scotland, 
and  resided  there  for  forty  days,  merely  with  a 
view  of  constituting  a  domicile,  and  of  making 
his  wife,  whose  actual  domicile  is  abroad, 
subject  to  the  jurisdiction  of  the  Scottish 
courts  for  adultery  committed  abroad ;  Rin- 
ger, 16th  Jan.  1840,2  P.p.  307.  Residence  for 
forty  days  still,  however,  was  held  to  confer 
jurisdiction  in  an  action  of  divorce  by  a  hus- 
band against  a  wife,  where  Scotland  was  the 
forum  originis  of  both  parties,  the  locus  con- 
tractus and  the  locus  delicti;  Forrester,  18th 
July  1844,  6  D.  1358.  In  an  undefended 
case,  where  a  Scotchman,  after  contracting 
a  marriage  in  Scotland  with  a  Scotchwoman, 
had  committed  adultery  in  Scotland,  and 
had  afterwards  gone  abroad,  leaving  his  wife 
and  a  child  in  Scotland,  without  letting 
her  know  whither  he  had  gone,  it  was  held 
by  the  Coart,  on  considering  an  ex  parte  ar- 
gument, which  the  Lord  Ordinary  had  or- 
dered on  the  point,  that  the  absent  husband 

Digitized  byLjOOQlC 


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DOH 


DOS 


WM  eoinpet«nfl]r  cited  b  sn  action  of  diroroe 
at  the  inatance  of  the  wife  by  an  edictal  ci- 
tation ;  and  that  althongh  the  husband  had 
been  absent  from  Scotland  for  upwards  of  ten 
years  prior  to  the  raising  of  the  action,  yet 
the  jurisdiction  of  the  Court  in  such  a  suit  at 
the  instance  of  the  wife  was  not  excluded ; 
Buchanan  r.  Downie,  18th  Not.  1837,  Fae. 
CoU,,  and  autkoritiu  there  cited.  See  Legiti- 
vuUion. 

Domiiuuit  Tenmnent ;  is  the  name  given 
to  the  tenement  or  subject  in  farour  of  which 
a  servitude  exists  or  is  constituted.  The  te- 
nement orer  which  the  servitude  extends  is 
denominated  the  servient  tenement.  Mare's 
Note*  to  Stotr.p.  cexzxi. ;  BMt  Prine.  §  980, 
it  $eq.    See  Servitude. 

,  Sominiiim  Direetnm  and  Domixdiim 
Vtile.  In  the  language  of  the  feudal  law, 
the  interest  vested  in  the  superior  is  called 
the  dominium  directum,  or  superiority,  as  being 
the  higher  or  paramount  right  The  vassal's 
interest,  as  contradistinguished  from  the  su- 
periority, is  termed  the  dominium  utile,  or  the 
property,  as  comprehending  the  more  profit- 
able and  useful  enjoyment  of  the  subject  and 
its  fruits.  Much  controversy  has  prevailed 
amongst  feudalists  as  to  the  philosophical 
eorrectnett  of  those  terms ;  but  practically 
there  exists  no  doubt  as  to  their  import. 
See  Stair,  B.  ii.  tit  8,  §  7  ;  Bank.  B.  ii.  tit 
S,  i  2  ;  Srsk.  B.  ii.  tit  3,  §  10 ;  Be^s  Com. 
vol.  i.  p.  670,  6th  edit ;  Bdl's  Prine.  §  676, 
It  teq.;  Roti't  Led.  vol.  ii.  p.  147,  et  $eq. 
With  regard  to  the  nature  and  extent  of  the 
respective  rights  of  the  superior  and  the  vas- 
sal, see  Superiority.  Vattal.  Feudal  Syetem. 
Property. 

Sominiu  litii;  is  the  person  to  whom  a 
•nit  belongs,  who  derives  the  benefit  of  a  fa- 
Tourable,  and  is  liable  to  the  effects  of  an  ad- 
verse, judgment.  One  may  be  dominui  litit 
although  his  name  be  not  in  the  suit  as  either 
pursuer  or  defender.  Thus,  a  father  was 
subjected  in  the  expenses  of  a  process  which 
had  been  awarded  against  his  son,  in  respect 
that,  although  not  himself  the  party,  he  had 
undertaken  to  defend  his  son,  and  had  not 
allowed  him  a  sufBcient  aliment;  Stevent, 
21  St  Nov.  1823,  2  S.  607.  And  in  Gorsan, 
Feb.  8, 1828,  6  S.  505,  one  who  got  another 
to  present  a  bill  of  suspension  in  his  own 
name,  was  found  liable  in  expenses,  as  being 
the  verus  dominui  litis.    See  Mandatory. 

Donatary,  A  donatary  is  the  donee  ot 
receiver  of  a  gift  or  donation.  In  practice, 
the  term  is  applied  exclusively  to  the  person 
to  whom  the  Crown  makes  a  gift,  as  of  es- 
cheat, ultimus  hatrei,  or  the  like.  Hunter's 
Landlord  and  Tenant;  Bos^i  Leet.  i.  208. 
Bm  Escheat.    0^ 

Donation;  is  the  free  gift  of  anything 


I  which'  the  ^rer  lies  under  no  tnteeedeni 
legal  obligation  to  bestow — a  definition  which 
comprehends  remuneratory  gifts,  because  they 
cannot  be  enforced  by  law,  although  in  some 
respects  they  differ  from  pure  donations.  The 
law  recognises  several  kinds  of  donation ;  ss, 
— (1.)  Pure  donations.  (2.)  Donationt  swrtti 
causa.  (3.)  Donations  inter  virum  et  vwraa. 
(4.)  Donations  propter  nuptias. 

1.  Pure  donations  proceed  from  the  mere 
liberality  of  the  giver.  Where  the  subject 
of  the  gift  either,  cannot  be,  or  is  not  meaot 
to  be,  immediately  delivered,  the  proper  eri- 
dence  of  the  donation  is  a  written  deed,— a 
solemnity  which  is  of  course  indispensable  is 
the  case  of  a  donation  of  heritage, — and  the 
warrandice  implied  is  said  by  our  institu- 
tion^ writers  to  be  warrandice  from  fiiirt 
facts  and  deeds  only  of  the  donor ;  altoongh 
a  contrary  opinion  is  maintained  in  the  Alt' 
notations  on  Stair,  published  some  years  ago, 
and  ascribed  to  Lord  Elchies.  See  AntutO' 
tions,  p.  136.  Acceptance  by  the  donee  it 
not  required  to  complete  the  donation.  The 
Roman  law  allowed  frm«/!etttiii  eompetentia  to 
every  one  who  had  laid  himself  under  a  grs> 
tuitouB  obligation ;  that  is,  be  was  allowed 
to  retain  as  much  as  was  necessary  for  his 
own  subsistence,  if,  before  fulfilling  the  obli- 
gation, he  was  reduced  to  indigence.  Bat 
the  law  of  Scotland  does  not  recognise  thii 
doctrine,  except  in  the  case  of  donations  or 
provisions  by  fathers  and  grandfathers  to 
their  children  or  grandchildren.  (See  Bene- 
Jieium  Gompetentia.)  Another  implied  condi- 
tion of  a  donation  by  the  Roman  law  was, 
that  where  one  who  had  no  children  made  s 
gift  of  the  whole,  or  the  greater  part,  of  hii 
estate,  the  donation  became  void  if  the  donor 
afterwards  came  to  have  children  ;  the  pre- 
sumption of  the  law  being,  that  had  be  ex- 
pected children  of  his  own  he  would  ban 
preferred  them  to  any  other  person.  As  to 
the  extent  to  which  this  doctrine  has  been 
adopted  in  the  law  of  Scotland,  see  Conditin, 
si  sine  liberis  decesserit.  Donations,  even  whoi 
completed  by  delivery,  were,  by  the  Roman 
law,  revocable  on  account  of  ingratitude  oa 
the  part  of  the  donee  ;  and  if  the  same  dee* 
trine  prevail  in  the  law  of  Scotland,  it  is  a 
ground  of  revocation,  which,  following  the 
principle  of  the  Roman  law,  must  be  personal 
to  the  donor,  and  not  descendible  to  his  hens; 
for  the  presumption  is,  that  if  the  donor  has 
died  without  revoking  the  donation,  hehss 
forgiven  the  injury ;  Stair,  B.  i.  tit  8,  (  2 ; 
Ersk.  B.  iii.  tit.  3,  §^88,  et  leq. ;  Bank.  fi.  L 
tit.  9,  §  1,  «(  seq.  Remuneratory  donations 
differ  from  pure  donations  so  far,  that  they 
cannot  be  revoked;  because,  althou^  the 
donor  was  under  no  legal  obligation  to  make 
the  gift,  yet  he  was  bound Jn  gratitude  to  de 


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sot 


10— ft  consideration  which  gives  to  snoh  a 
doaatioD  the  character  of  the  discharge  of  a 
debt ;  and  hence,  without  an  express  power 
of  rerocatiou,  a  donation  of  this  kind  is  irre- 
Toesble;  Enk.  ib.  §  91.  No  deed  is  pre- 
somed  in  law  to  be  a  donation,  if  it  admit  of 
mother  construction  ;  for  one  is  never  pre- 
lomed  to  do  that  which  is  to  be  attended  with 
loa  instead  of  gain  to  himself,  unless  there 
be  facts  and  circumstances  in  his  conduct 
which  leave  no  doubt  as  to  his  intention  to 
make  a  gift.  In  dubio,  the  law  holds  the 
transaetion  to  be  onerous.  Thus,  a  debtor  is 
not  presumed  to  make  a  gift  to  his  creditor 
while  his  debt  remains  unpaid.  But  aliment 
applied,  without  an  agreement  for  board,  to 
a  person  of  full  age,  and  capable  of  con- 
trMting,  is  presumed  to  have  been  given 
OMMO  dmandt,  unless  the  entertainer  be  one 
who  makes  a  livelihood  by  the  board  of 
(traogera.  Aliment,  however,  given  to  mi- 
nors, and  others  incapable  of  contracting,  is 
not  accounted  a  donation,  unless  the  minor 
has  a  father  or  curators,  with  whom  a  con- 
tract for  his  maintenance  might  have  been 
nsde,  or  where,  from  the  near  relationship 
«f  the  alimenter,  there  is  room  for  the  pre- 
nnption  ihat  the  aliment  was  given  ex  pie- 
iate;  Oalt,  19th  Jan.  1830,  8  S.  and  D.  332, 
mi  mtthoritiet  thare  cited.  Where  the  minor 
hss  a  separate  estate,  it  is  held  that  even  his 
&ther  has  a  claim  for  the  expense  of  ali- 
■Moting  him;  and  the  same  rule  seems  to 
sppljr,  with  greater  force,  to  the  case  where 
neh  a  minor  has  been  alimented  by  a  more 
distant  relation,  or  by  a  stranger.  An  eldest 
Kn  who  is  debtor  to  his  brothers  and  sisters 
for  their  proviBions,.and  who  has  maintained 
then  in  his  family,  is  not  held  to  have  done 
u  gratuitously,  but  will  be  entitled  to  a  rea- 
•enable  allowance  for  their  board  ;  see  Stair, 
B.  L  tit.  8,  §  2 :  Bank.  B.  i.  tit.  9,  §  20 ; 
BrA.  B.  iii.  tit  3,  §  92.  See  also  Debitor 
MS  prcceumitur  donare. 

2.  DowUiotu  owrtis  causa,  A  donation  moT' 
tit  ecuua  is  a  deed  whereby  one,  in  contem- 
plation of  death,  gives  anything  to  another, 
or  grants^  right  in  favour,  revocable  at  the 
graater's  pleasure.  The  characteristic  of  such 
donations  is,  that  the  donor  prefers  the  donee 
to  his  heir,  but  prefers  himself  to  both ;  and 
neh  rights  not  being  effectual  during  the 
grsnter's  life,  his  creditors  are  preferable  to 
thesrantee.  But  where  they  become  good 
by  £e  granter's  death,  they  will  receive  effect 
sgaiast  his  heir  or  executor,  in  the  same  man- 
ner as  other  deeds  delivered  at  the  date.  But 
ukss  conceived  in  favour  of  the  grantee  and 
his  hors,  they  become  void  if  he  predecease 
«ie  grantor ;  Bo$Um,  13th  Feb.  1781,  Mor. 

t8M9.    Donatiooa  are  rather  presumed  to 
•ta^Bte  than  Mortis  eattta ;  hence,  although 


made  in  contemplation  of  death,  yet,  if  they 
be  irrevocable  and  delivered,  they  are  held 
to  be  simple  gifts.  Thus,  a  gratuitous  bond 
payable  at  the  granter's  death,  delivered  and 
irrevocable,  is  not  a  donation  mortis  causa,  but 
an  absolute  right ;  Bank.  B.  i.  tit.  9,  §  18,  e( 
seq.  By  the  Roman  law,  when  a  gift  was 
made  in  contemplation  of  death,  the  subject 
was  understood  to  be  given  to  the  donee,  under 
the  implied  condition  that  it  was  to  be  re- 
turned to  the  donor,  either  on  his  revocation, 
or  on  the  predecease  of  the  donee.  This  sort  of 
donation  mortis  causa  is  unknown  in  the  law 
of  Scotland.  That  which  most  resembles  it 
is  a  gratuitous  bond  or  assignation,  revocable 
by  the  grantor,  and  to  take  effect  at  his 
death.  Such  bonds  being  of  the  nature  of 
legacies,  the  grantee  will  be  postponed  to  the 
onerous  creditors  of  the  grantor ;  at  the  same 
time,  in  a  question  with  legatees,  such  a  bond 
will  constitute  a  debt,  and  will  therefore  be 
preferable  to  proper  legacies.  A  disposition 
of  heritage,  mortis  causa — that  is,  a  disposi- 
tion made  intuitu  mortis,  and  on  the  recital  of 
the  granter's  desire  to  settle  all  disputes  in 
regard  to  his  succession,  after  his  decease — is 
not  necessarily  a  deathbed  deed ;  for,  if  it 
dispone  the  heritage  by  words  of  de  prasenti 
conveyance,  although  it  contain  a  reservation 
of  the  granter's  liferent,  and  a  clause  dispens- 
ing with  delivery,  and  remain  undelivered, 
yet,  if  it  be  otherwise  a  formal  and  regular 
deed,  it  will  receive  full  effect,  unless  it  can 
be  set  aside  on  the  ground  that  the  grantor 
was  actually  on  deathbed  at  the  time  of  Its 
execution.  No  deed,  even  although  gratui- 
tous, is  revocable  after  delivery,  if  a  power  of 
revocation  be  not  reserved.  Srdc.  B.  iii.  tit. 
3,  S  91 ;  BdPs  lUust.  §  1691 ;  Thomson  on 
Bills,  18 ;  JTamM*  Equiit/,  177  ;  Jurid.  Styles, 
2d  edit.,  vol.  ii.  p.  429.  See  also  Legacy. 
Disposition  aind  Settlement.  Deathbed.  Do- 
livery. 

3.  Donations  inter  virvm  et  usorem.  All 
deeds  importing  donations,  whether  granted 
by  the  husband  to  the  wife,  or  by  the  wife 
to  the  husband,  during  the  subsistence  of  the 
marriage,  are  revocable  by  the  donor  at  any 
time  during  his  or  her  life — ne  comuges  muttta 
amore  se  spolient.  Although  the  deed  should 
be  granted  nominally,  or  in  trust  to  another, 
yet  if  in  effect  it  convey  a  right  gratuitously 
from  one  spouse  to  the  other,  it  is  subject  to 
revocation  ;  phis  enim  valet  guod  agitur,  quam 
quod  simulate  concipiiur.  See  Jardine  v.  Cur- 
rie,  June  17, 1830, 8  S.  939.  But  mutual  re- 
muneratory  grants  between  the  spouses  are 
not  revocable,  where  there  is  any  reasonable 
proportion  between  the  two;  Hepburn,  6th 
Jnne  1814 ;  Souse  of  Lords,  Dow,  ii.  342. 
Neither  are  postnuptial  grants,  made  in  con- 
sequence of  a  natural  obligation,  revocable. 

Digitized  byLjOOQlC 


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DOQ 


Thai,  where  there  hu  been  no  antennptuJ 
eontract  of  marriage,  the  hnsband  may  pro- 
vide for  his  wife,  in  the  event  of  her  surviv- 
ance ;  and,  in  so  far  as  the  provision  is  rational, 
and  suitable  to  his  circumstances  at  the  time, 
it  will  be  effectual.  It  will  be  revocable, 
however,  quoad  excetsum.  The  same  rule 
would  probably  be  applied  to  the  case  of  a 
similar  provision  by  the  wife,  in  favoar  of  the 
husband.  Bat  where  there  has  been  an  ante- 
nuptial contract,  all  postnuptial  deeds  in- 
ereasing  or  diminishing  the  provision  in  the 
former  contract,  are  revocahle,  in  so  far  as 
they  do  not  proceed  on  onerons  considerations. 
All  voluntary  contracts  of  separation,  by 
which  the  wife  is  provided  with  an  alimentary 
allowance,  were  reprobated  by  onr  older  law, 
•s  being  contrary  to  the  adherence  implied  in 
marriage ;  but,  according  to  more  recent 
authorities,  the  provisions  made  in  such  con- 
tracts are  effectual  as  to  the  time  past,  all- 
though  revocable  at  any  time  by  either  the 
husband  or  the  wife  ;  Enh.  B.  i.  tit.  6,  §  29, 
tt  $tq. ;  Ivory't  edition,  notes  161  to  166.  See 
Marriage,  Donations  fn<«r  vtrum  et  uxorem 
may  he  revoked  by  the  donor,  not  only  in  ex- 
press terms,  but  also  tacitly  by  a  subsequent 
eonveyance  of  the  tnbjeet  of  the  donation 
to  another,  or  even  by  the  Bubsequent  eon- 
traction  of  debt.  Where  the  donation  is  con- 
stituted by  writing,  it  ought  to  be  revoked 
alao  by  writing ;  and  such  revocations  may 
be  signed  etiam  in  artie¥lo  wurtit,  and  without 
the  knowledge  of  the  other  spouse.  Revoca- 
tion is  not  presumed- from  a  posterior  general 
disposition  by  the  donor,  in  favour  of  a 
stranger;  for  the  general  clause  in  such  a 
disposition  does  not  include  any  right  of  which 
the  grantor  has  previously  divested  himself; 
Handygide,  7th  Feb.  1699,  Mor.  p.  11349. 
In  like  manner,  the  mere  contraction  of  debt 
raises  no  presumption  of  revocation.  Poste- 
rior creditors,  indeed,  when  the  donor  has  no 
separate  fund  for  their  payment,  may  found 
upon  the  faculty  of  revocation  competent  to 
their  debtor,  which  the  law  will  transfer  to 
them,  if  he  do  not  revoke  voluntarily ;  but 
his  representatives,  where  there  is  no  insol- 
vency, cannot  found  upon  posterior  contrac- 
tions as  a  tacit  revocation.  Although  a  dona- 
tion between  husband  and  wife  is  valid,  if  not 
revoked,  yet  the  donee,  who  holds  it  under 
the  tacit  condition  that  it  may  be  revoked, 
cannot  alienate  or  burden  the  subject  of  the 
donation,  to  the  prejudice  of  the  donor's  right 
of  revocation,  which  it  has  been  stated  will 
operate  even  against  the  donee's  creditors  or 
singular  successors, — retoluto  enim  jure  dantia, 
reeolvitor  jut  accipientis.  But  if  the  donor  die 
without  revoking,  his  or  her  representative 
cannot  revoke,  and  the  right  of  the  donee  be- 
comes absolute,— »«r(«  dantit  donatio  confir- 


maiur.  Stair,  B.  L  tit  4,  §  18 ;  Bank.  B.  L 
tit.  6,  §  96  ;  Ertk.  B.  i.  tit  6,  §  29,  <(  teq. ; 
BeWs  Prine.  §  1616,  et  seq. ;  lUutU  ib. ;  Jwrii. 
SiyUt,  2d  edit  vol.  ii.  p.  233 ;  Kamei'  Eqm^, 
108. 

4.  Donationt  propter  nuptias.  In  the  Roman 
law,  donationet  propter  nuptiae  are  described  as 
that  sum  or  subject,  given  by  the  husband  in 
security  as  the  dot  or  tocher,  which  he  was 
bound  to  restore  to  the  wife  on  the  dissolution 
of  the  marriage ;  and  as  the  dot  returned  to 
the  wife,  so  the  donatio  propter  ttuptiat  re- 
turned to  the  husband ;  sicutdot  ad  mMlierem, 
tic  et  donatio  propter  nuptiat  redit  ad  virum. 
The  law  of  Scotland  differs  essentially  from 
the  Roman  law  on  this  subject ;  but  when  do- 
nations propter  nuptitu  are  mentioned  by  our 
authorities,  they  must  be  understood  to  mean 
the  provisions  granted  by  the  hnsband  to  th* 
wife,  in  consideration  of  the  tocher,  given  by 
her  or  her  friends;  BWour's  Frac.  p.  101; 
Bank.  B.  i.  tit  5,  §  6  ;  Ertk.  B.  i.  Ut  6,  §  46. 
See  Contract  of  Marriage. 

Doom ;  a  judicial  sentence ;  in  which  senss 
the  term  was  used  in  the  more  ancient  law  of 
Scotland,  both  as  to  civil  and  criminal  e»nses. 
The  falsing  of  dooms  was  an  expression  for- 
merly used  to  signify  protesting  agaimt  the 
sentence,  and  t^ing  an  appeal  to  a  higher 
tribunal.  In  the  case  of  a  capital  eonTietien 
in  the  Court  of  Justiciary,  the  doom  or  sen- 
tence was  in  use  to  he  pronounced  by  ike  pnb* 
lie  executioner,  or  doomtterai  he  was  ealled— 
a  barbarous  practice,  which  was  abolished  by 
Act  of  Adjournal,  16th  March  1773,  and  the 
sentence  ordained  to  be  pronounced  in  future 
by  the  presiding  judge.  Huvte,  ii.  472 ;  also 
p.  3,  et  teq. ;  Ertk.  B.  iv.  tit  2,  §  39.  See 
Fahing  of  Doomt. 

Doomsday  Book.    See  Dometdaji  Book. 

Doomster.  The  public  executioner  was 
formerly  called  the  doomster  or  dempster,  in 
consequence  of  the  practice  mentioned  in  the 
preceding  article. 

Door,  Chalking^  o£  See  Ckatking  of  Door; 
and  in  addition  to  the  authorities  there  cited, 
see  Stair,  B.  ii.  tit  9,  §  40 ;  Ertk.  B.  IL  tit. 
6,  §  47  ;  Bank.  B.  ii.  tit  9,  §  52.      . 

Doors,  Letters  of  Open.     See  ()p«n  Doort. 

Doqoet  The  word  doquet  is  an  old  Eng- 
lish term,  signifying  a  brief  or  summary  of  a 
large  writing;  and  all  attestations  or  de- 
clarations annexed  to  written  instruments  are 
called  doquets,  particularly  when  done  by 
notaries.  The  notarial  doquet  is  the  most 
ancient  example  of  fixed  style  in  Europe  ;  and 
it  was  formerly  common  to  all  solemn  instru- 
ments. In  Scotland,  however,  it  was  almost 
exclusively  appropriated  to  the  instrument  of 
sasine.  It  consisted  of  a  Latin  attestation, 
holograph  of  the  notary,  annexed  to  the  no- 
tariid  instrument  prepared  by  him,on-tho«e- 


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DOS 


DOU 


SOS 


ctn'oii  of  the  infeftment  being  taken.  The  I 
doqnet  set  forth  the  name  of  the  notarj,  and 
the  authority  under  which  he  had  been  ap- 
pointed a  notary-public  It  then  stated  that 
lie  was  personally  present  along  with  the 
witnesses;  that  he  saw,  knew,  heard,  and 
noted  the  circumstances  mentioned  in  the  in- 
BtmmeDt  of  sasine  ;  and  that  he  prepared  the 
imtroment,  and  had  authenticated  it  by  his 
sigD,  name,  and  surname;  and,  by  express 
lUtute,  the  doqnet  must  mention  the  number 
of  "  leave*"  of  which  the  instrument  consists ; 
1686,  c  17,  and -4.  iS.  I7th  Jan.  1756.  In 
addition  to  his  subscription,  the  notary  was 
formerly  in  use  to  add  his  signum,  which  was 
a  floarish  of  penmanship,  called  a  paraph  or  a 
ndc;  bat  this  went  into  disuse ;  and,  by  the 
labseqnent  practice,  the  notary  merely  sub- 
Kribed  each  page  of  the  instrument,  adding 
the  letters  N.  P.  to  his  name  ;  and,  on  the 
last  page,  opposite  to  the  doquet,  he  added 
to  his  subscription  the  motto  which  he  had  as- 
nmied  on  his  admission  as  a  notary.  Any 
omission  in  the  essentials  of  the  doquet  is  fatal 
to  the  instrument  to  which  it  is  annexed.  In 
registering  instruments  of  sasine,  the  prac- 
tice was  to  transcribe  the  entire  doquet  into 
the  record ;  but  in  registering  instruments  of 
laiine  in  tenements  within  burgh,  under  the 
statute  1681,  c.  11,  a  diversity  of  practice 
prerailed  as  to  the  registration  of  the  doquet, 
u  to  which  DO  precise  rule  is  prescribed  by 
that  statnte.  To  remedy  this  omission,  it  was 
enacted  by  10  Geo.  IV.,  c.  19,  that  an  abbre- 
Tisted  or  incomplete  registration  of  the  do- 
qnet, or  even  a  total  omission  of  it  in  the  re- 
cord, should  not  affect  the  validity  of  instru- 
ments recorded  prior  to  14th  May  1829  ;  but 
that  thereafter  the  doquets  of  all  instruments 
of  laane  within  burgh,  shall  be  recorded  at 
length  in  the  burgh  register  of  sasines ;  other- 
viae  such  sasines  shall  not  bear  faith  in  judg- 
ment in  prejudice  of  a  third  party  with  a  per- 
fect right  to  such  tenements ;  without  preju- 
dice, however,  to  the  using  of  the  instruments 
a^inst  the  makers  thereof,  their  heirs  and 
mccessors.  The  act  contains  a  declaration, 
that  it  shall  not  affect  any  action  in  relation 
to  die  former  practice,  depending  at  its  date. 
The  notarial  doqnet  to  instruments  of  sasine 
vai  superseded  by  8  and  9  Vict.,  c  36,  §  5. 
See  on  the  subject  of  this  article,  Ros^s  Lect. 
n-W ;  Bdl  on  the  Purchater's  Titk,  p.  217  ; 
Mi  Princ  §  771 ;  Bea$  lUutt.  §  872 ;  Thorn- 
w*  OB  BMs,  461 ;  Menziet'  Leet.  p.  55^  See 
tlw  Satme.    Notary-Public. 

Bm  ;  in  the  Roman  law,  was  the  dowry  or 
tocher  brought  by  the  wife  to  the  husband  on 
the  occasion  of  the  marriage.  By  that  law, 
the  dog  returned  to  the  wife  on  the  dissolution 
of  the  marriage ;  but,  during  its  subsistence, 
the  rents  or  profits  of  the  ioi  went  to  the  hus- 


band, ad  tustinenda  onera  matrmonii.  The 
donatio  propter  nuptias  was  a  counter  remnne- 
ratory  donation  made  by  the  husband  to  the 
wife,  as  a  security  for  the  return  of  the  doa  ; 
Stair,  B.  iii.  tit.  4,§  22  ;  Bank.  B.  i.  tit.  6,  § 
6  ;  Skene,  h.  t.    See  Marriage.    Donation. 

Double  Bondi.  One  of  the  English  law 
expedients,  devised  for  evading  the  prohibi- 
tions, anciently  in  force  against  taking  in- 
terest for  money,  was  for  the  borrower  to 
grant  a  bond  for  double  the  sum  advanced. 
Those  bonds  were  sometimes  qualified  by  a 
separate  stipulation,  that,  if  the  debtor  paid 
a  certain  sum  to  the  lender,  at  a  particular 
time,  the  debt  should  be  discharged  ;  but,  if 
not,  that  the  whole  sum  in  the  bond  should 
become  due  as  damages.  The  bonds  thus 
taken  are  called  double  bonds.  It  does  not 
appear  that  this  was  ever  a  prevailing  form  of 
security  in  Scotland ;  but  similar  devices  were 
well  known ;  for  the  prohibitions  against 
taking  interest  were  as  rigid  in  the  one  coun- 
try as  in  the  other.  See  Ross's  Leet.  vol.  i., 
p.  19,  et  seq.     See  also  Interest. 

Sonble  Oiitress.  W  here  arrestments  have 
been  need  br  two  or  more  creditors,  in  order 
to  attach  the  funds  of  their  debtor  in  the 
hands  of  a  third  party,  such  arrestments  con- 
stitute what  is  called  double  distress;  and  en- 
title the  arrestee  to  call  the  arresters  and  the 
common  debtor  in  an  action  of  multiplepoind- 
ing,  to  dispute  their  respective  rights  to  the 
fund  in  medio,  so  that  the  arrestee  may  pOT  in 
safety,  and  under  judicial  authority.  This 
action  is  called  an  action  of  double  or  of  m«Kt- 
j>2e  poinding ;  because  poinding  was  a  term 
which  anciently  denoted  any  distress  or  dili- 
gence. Stair,  B.  iv.  tit.  16,  §  3,  etseq. ;  Bank. 
B.  iv.  tit.  24,  §  32 ;  Ersk.  B.  iv.  tit.  8,  §  23. 
See  Muliiplepoinding. 

Sonble  Securities.  A  creditor  who  holds 
two  securities  for  the  same  debt,  is  said  to 
hold  double  securities.  Thus,  the  debtor  may 
give  security  for  the  full  debt  over  two  sepa- 
rate estetes,  each  of  which  may  be  made  liable 
for  the  whole  debt ;  and,  in  the  event  of  in- 
solvency, the  creditor  will  rank  upon  each 
estate  for  the  whole  debt,  to  the  effect,  how- 
ever, of  drawing  ultimately  no  more  than 
twenty  shillings  in  the  pound  on  the  debt  due ; 
Bell's  Com.  ii.  520,  et  seq.  Questions  of  con- 
siderable difBculty  arise  on  bankruptey  in  the 
ranking  of  double  securities ;  as  to  which  see 
Ranking.    See  also  Catholic  Creditor. 

Doubles  of  Summonses.  A  full  copy, 
technically  called  a  double,  of  every  summons, 
as  far  as  the  will,  must,  in  the  ordinary  case, 
be  delivered  to,  or  left  for,  each  defender  when 
the  summons  is  executed.  Where,  however, 
more  defenders  than  one  are  called,  it  is  suf- 
ficient if  each  be  served  with  a  copy  of  that 
part  of  the  summons  which  concerns  himself. 

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If  the  defender  be  forth  of  Scotland;  a  copy 
must  be  left  for  him  by  the  messenger,  at  the 
office  of  the  keeper  of  Bdictal  Citations.  See 
Citation.  The  following  summonses  are  ex- 
cepted from  the  general  rule  : — Adjudication, 
Mails  and  Duties,  Ranking  and  S^e,  Exhibi- 
tion ad  deliberandum,  Choosing  of  Curators, 
Transumpt,  Wakening,  Multiplepoinding, 
Poinding  of  the  Qround,  and  Furthcoming ; 
all  of  which  may  be  executed,  by  leaving  short 
copies  without  doubles,  whether  the  defenders 
be  forth  of  Scotland  or  not ;  except  that  a 
full  double  must  be  served  on  the  heritor,  in 
a  summons  of  poinding  the  ground,  and  on 
the  common  debtor  in  a  furthcoming.    See 

A.  S.  15th  Feb.  1723. 1st  Jan.  1726,  and  19th 
Feb.  1742 ;  Jurid.  Styles,  2d  edit  vol.  iii.  p. 
7973  ;  13  and  14  Vict.,  c.  36,  §  22. 

Doreoot  By  the  statute  1617,  &  19,  it  is 
enacted,  that  no  person  shall  be  entitled  to 
build  a  dovecot  or  pigeon-house,  either  in 
town  or  country,  unless  he  have  lands  or 
teinds  belonging  to  him  worth  the  yearly 
rent  of  ten  chalders  of  victual,  adjacent  to  the 
dovecot,  or  at  least  lying  within  two  miles  of 
it.  It  is  also  declared,  that  it  shall  not  be 
lawful  for  the  person  having  such  qualifica- 
tion to  build  more  than  one  dovecot  within 
the  "  bounds  foresaid."  This  statute  has  been 
held  to  impose  no  restraint  on  proprietors 
possessed  of  a  greater  rent  {e.g.,  sixty  chal- 
ders), provided  they  build  only  one  dovecot 
within  the  limits  of  that  ground  which  yields 
ten  chalders  of  yearly  rent ;  Brodie,  3d  July 
1752.  See  Kilk.  Rep.  Mor.  p.  3602.  The 
statute  does  not  extend  to  dovecots  already 
built ;  and  the  legal  presumption  is,  that  the 
dovecot  challenged  was  built  before  the  pass- 
ing of  the  act,  unless  the  contrary  be  proved. 
If  an  estate  with  a  dovecot  on  it  is  acquired 
from  a  person  who  was  legally  qualified  to 
build  one,  the  purchaser  is  entitled  to  the 
benefit  of  the  dovecot,  although  he  may  not 
have  the  legal  qualification ;  but,  if  it  become 
ruinous  he  is  not  entitled  te  rebuild  it ;  Ertk. 

B.  ii.  tit.  6,  §  7 ;  Bank.  B.  ii.  tit.  3,  ( 167  ; 
Stair,  B.  ii.  tit.  3,  §  78 ;  BeWs  Prine.  §  978 ; 
Ross's  Leet.  iL  173.  Dovecot  breakers,  and 
stealers  of  pigeons  therefrom,  are  declared 
guilty  of  theft ;  and,  in  addition  to  repairing 
the  damages,  they  are  punishable  by  fine  or 
imprisonment  If  they  have  not  effects  suf- 
ficient to  pay  the  fine  and  damages,  they  are 
to  be  imprisoned  or  set  in  the  stocks  for  the 
first  and  second  offence ;  and  for  the  third, 
according  to  the  rigour  of  the  old  statutes, 
they  may  be  capitally  punished,  even  by  an 
inferior  oonrt;  1474,  e.  61;  1579,  c.  84; 
ffume,  ToL  i.  p.  80 ;  Eh-sk.  B.  i.  tit  4,  §  4. 
By  1661,  c  38,  justices  of  the  peace  are  di- 
rected to  execute  the  acts  against  breakers 
9f  dovecots,  &o.;  bnt  they  cannot  jndge  in^ 


complaints  for  shooting  or  killing  pigeou;- 
Murray,  19th  Jan.  17i>7,  Mor.  p.  7628;  in 
which  case  also  it  was  held  that  the  statate 
2  Geo.  III.,  c.  29,  for  the  protection  of 
pigeons,  does  not  extend  to  Scotiand.  Set 
Pigeans,  • 

Sovager ;  a  widow  endowed ;  i^lied  t« 
the  widows  of  princes  and  persons  of  rank. 

Dowager  ttnsen ;  the  widow  of  the  King, 
who,  as  such,  enjoys  most  of  the  privileget 
belonging  to  the  Queen  Consort  But  it  ii 
not  high  treason  to  conspire  her  death,  or  to 
violate  her  chastity,  because  the  snecesnoo 
to  the  Crown  is  not  thereby  endangered.  Bat 
no  man  can  marry  her  without  a  apeeisl 
license  from  the  Sovereign,  under  pain  of 
forfeiting  his  lands  and  goods.  Toniin^  Diet, 
h.  t.     See  Queen, 

Bower ;  is  an  English  term,  Mgnifying  the 
portion  which  a  widow  has  of  the  lands  of 
her  deceased  husband,  for  the  maintenanoe 
of  herself  and  the  education  of  her  children. 
TonUins,  h.  U 

Dowry ;  is  a  term  sometimes  used  to  ng- 
nify  the  dot  or  marriage-portion  brought  by 
a  wife  to  the  husband.    ^  Dot. 

Draft.  In  mercantile  language,  the  term 
draft  is  usually  applied  to  an  order  w  bill 
drawn  by  a  creditor  on  his  debtor,  ordering 
him  to  pay  the  contents  either  to  the  drawer 
himself,  or  to  a  third  party,  and  aeat  to  tht 
drawee  for  acceptance.  Acceptance  com- 
pletes the  transfer  of  the  debt  from  the  drawer 
to  the  payee  or  porteur.  If  acceptance  be 
refused,  the  presentment  of  the  intl  for  se> 
ceptance  is  held  to  be  equivalent  to  the  inti- 
mation of  an  assignation,  and  the  proper  evi- 
dence of  the  completed  transfer  is  the  protest 
for  non-acceptance.  Drafts  of  this  kind  made 
within  sixty  days  of  bankruptcy,  in  satisfse- 
tion  or  security  of  prior  debts,  are  redaeible 
under  the  act  1696,  c.  5 ;  felTs  Com.  ii.  20 
and  211 ;  Thornton  on  Bilit.  As  to  thednt 
negotiation  of  drafts,  see  BUI  (^Exdwigt. 

All  drafts  or  orders  for  the  payment  of 
money  to  the  bearer  on  demand  must  be  im- 
pressed with  a  penny  stamp,  or  have  an  ad- 
hesive draft  or  receipt  penny  stamp  npon 
them ;  and  when  an  adhesive  stamp  is  used, 
the  drawer  must  cancel  the  stamp  by  writing 
on  it  his  name  or  initials ;  16  and  17  Vict:,  e. 
59,  and  17  and  18  Vict.,  e.  83.  The  exemp- 
tion from  such  stamps  of  drafts  on  bankers 
transacting  business  within  fifteen  miles  from 
the  place  where  the  draft  is  issaed,  is  takea 
away  by  21  Vict.,  c.  20, 1858. 

By  21  and  22  Vict,  c  79, 1858,  it  is  en- 
acted, that  where  a  cheque  or  draft  on  a 
banker,  payable  to  bearer  or  to  order  on  de- 
mand, shall  be  issued,  erotted  witii  the  name 
of  a  banker,  or  witli  two  traotverse  lines, 
with  the  worda  "  and  eon^wf,"  and  any  ab) 


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breviation  thereof;  snch  crossing  shall  be 
deemed  a  material  part  of  the  cheque  or  draft; 
and  the  banker  upon  whom  the  draft  or 
cheque  is  drawn  shall  not  pay  it  to  any  other 
than  the  banker  with  whose  name  it  is  crossed ; 
and  if  it  is  crossed  without  a  banker's  name, 
to  any  other  than  a  banker,  the  lawful  holder 
of  a  cheque  uncrossed  or  crossed  with  the 
words  "  and  company,"  or  any  abbreviation 
thereof,  may  cross  it  with  the  name  of  a 
banker  ;  and  a  banker  is  not  responsible  for 
paying  a  cheque  which  does  not  plainly  ap- 
pear to  have  been  crossed,  unless  he  shall 
have  acted  mala  fide,  or  been  guilty  of  negli- 
gence in  so  paying  it. 

Ihrawee  of  a  Bill ;  the  person  on  whom  a 
bill  of  exchange  is  drawn.  See  Bill  of  Ex- 
dumge. 

Ikrawer  of  a  BilL    The  drawer  is  the  pro- 
per creditor  in  an  inland  bill  between  two 
parties ;  and,  on  the  failure  of  the  acceptor, 
the  drawer  (unless  the  contrary  has  been  ex- 
pressly stipulated),  is  bound  to  indemnify  the 
holder  of  the  bill.     The  claim  of  the  drawer 
who  has  been  obliged  to  pay  against  the  ac- 
ceptor or  the  drawee  who  has  failed  to  pay 
or  to  accept,  is  of  the  nature  of  damages,  and 
will  extend  to  the  principal  sum  in  the  draft, 
with  interest,  expenses,  exchange,  and  re-ex- 
change, provided  the  drawee  has  improperly 
refiiMd  to  accept :  and  to  the  principal  sum, 
with  interest  and  expenses,  where  the  drawee, 
after  having  accepted,  has  failed  to  pay; 
IM't  Com.  i.  405.    The  sums  contained  in 
bills  of  exchange,  in  case  of  non-acceptance, 
bear  interest  from  the  date  of  the  refusal  to 
•eeapt ;  and,  in  case  of  acceptance  and  non- 
payment, from  the  day  of  payment ;    1681, 
c  20;  BeWs  Prine.  §  311;  BelPs  lllust.  § 
311 ;  Thomson  on  Bills.    See  Bill  of  Exchange. 
Drawn  Teiiid ;  was  the  ipsa  corpora  of  the 
tithe  drawn  by  the  titular  after  the  crop  was 
reaped,  and  before  it  was  removed  from  the 
ground.    As  the  proprietor  of  the  crop  was 
liable  to  heavy. penalties  if  he  removed  it  be- 
fore the  drawing  took  place,  this  mode  of 
lerying  the  teind  was  attended  with  great 
hardship,  and  sometimes,  from  the  titular's 
delay,  with  the  total  loss  of  the  crop.    The 
evil  was  attempted  to  be  remedied  by  several 
enactments,  the  object  of  which  was  to  autho- 
riie  the  proprietor  of  the  crop  to  fix  a  day 
hr  drawing  the  tithe:  and  if  the  titular 
failed  to  attend,  the  proprietor  himself  was 
then  entitled  to  make  the  separation  between 
the  stock  and  teind,  and  to  carry  home  his 
share  of  the  crop,  leaving  the  teind  sheaves 
stacked  on  the  ground ;  1606,  c.  8  ;  1612,  c. 
5 ;  1617,  c.  9.    The  rules  for  the  valuation 
of  teinds,  introduced  in  1633,  have,  how- 
ever, more  effectually  obviated  the  inconve- 
niences of  the  former  system.    Stair,  B.  ii. 


tit.  8,  §  22  ;  BeWs  Princ.  §§  1152, 1157.    See 
Teinds ;  Conndl  on  Tithes,  i.  125, 160,  256. 

Drilling.  Unlawful  drilling,  or  training 
to  arms,  as  preparatory  to  a  treasonable  rising 
against  the  Government,  was  carried  to  such 
an  extent  in  the  year  1819,  that  the  Legis- 
lature was  compelled  to  interfere  ;  and  by  the 
statute  60  Geo.  III.,  c.  1,  it  is  enacted  that 
every  person  presenter  assisting  at  any  meet- 
ing tor  training  or  drilling,  or  for  practising 
military  exercise,  assembled  without  autho- 
rity from  the  King,  or  the  lieutenant,  or  two 
justices  of  the  peace  for  the  county,  may  be 
transported  for  seven  years,  or  imprisoned, 
not  exceeding  two  years.  Justices  of  the 
peace,  and  all  other  inferior  judges  and  ma- 
gistrates, and  peace  officers,  may  disperse  such 
meetings,  and  apprehend  those  concerned,  and 
deal  with  them  as  in  cases  of  bailable  offences. 
Prosecutions  under  this  statute  must  be  raised 
within  six  months  after  the  offence ;  and  ac- 
tions against  judges  and  others  for  things 
done  by  them  in  pursuance  of  the  act,  must 
be  brought  within  six  months.  See  the  sta- 
tutes 60  Geo.  III.,  c.  1 ;  1  Geo.  IV.,  c.  1 ;  6 
Geo.  ir.,  c.  47  ;  7  Will.  IV.  and  1  Vict.,  c.  5  ; 
Alison's  Prine.  695.  See  also  Treason.  Sedi- 
Hon. 

Driving,  Careless.  Various  legislative 
provisions  have  been  made  with  the  view  of 
guarding  against  the  accidents  likely  to  arise 
from  carelessness  in  the  driving  and  manage- 
ment of  stage-coaches  and  similar  vehicles. 
Thus,  if  the  driver  of  any  such  coach  stop  at 
any  place  where  assistance  can  be  procured, 
and  quit  his  horses,  or  the  box,  before  a  pro- 
per person  comes  to  hold  the  horses,  or  if  such 
person  quit  actual  hold  of  the  horses  before 
the  driver  return  to  his  box,  such  driver  or 
person,  on  conviction  by  confession,  view  of  a 
justice  or  magistrate,  or  oath  of  one  credible 
witness  before  any  justice  or  other  magistrate 
of  the  place,  forfeits  not  more  than  L.S,  nor 
less  than  10s.,  for  each  offence.  Or,  ii^  the 
driver  or  guard,  by  negligence  or  misconduct, 
endanger  the  safety  of  the  passengers  or  their 
property,  on  conviction  by  similar  evidence, 
he  forfeits  not  more  than  L.IO,  nor  less  than 
L.5,  for  every  offence,  besides  repairing  the 
damage  ;  and  in  case  of  non-payment,  he  may 
be  committed  to  the  jail  or  house  of  correc- 
tion for  not  more  than  six,  or  less  than  three 
months,  at  the  discretion  of  the  judge.  If 
the  coachman  permit  any  other  person  to 
drive  without  consent  of  a  proprietor,  or 
against  the  consent  of  the  passengers,  or  quit 
the  box  without  reasonable  occasion,  or  for 
longer  time  than  is  necessary  (although  the 
reins  be  in  the  hands  of  the  person  on  the 
box),  or  if,  by  furious  driving,  or  any  negli- 
gence or  misconduct,  he  overturn  the  car- 
riage, or  endanger  the  persons  or  property  of 

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the  passengers,  or  the  property  of  the  owners, 
for  every  such  offence  he  forfeits  not  more 
than  L.IO,  nor  less  than  L.5.    Drivers  of 
stage-coaches,  who  occasion  injury  to  passen- 
gers by  furious  driving  or  wilful  misconduct, 
may  bo  punished  criminally  by  fine  or  im- 
prisonment.   See  50  Geo.  III.,  c.  48  ;  1  Geo. 
IV.,  c.  4.    Hackney-coaches  not  plying  for 
hire  as  stage-coaches,  are  excepted  from  these 
statutes ;  but  offences  of  the  kind  here  men- 
tioned seem  to  be  punishable  at  common  law. 
Justices  of  the  peace  may  convict  for  the  or- 
dinary statutory  penalties ;  but  in  aggravated 
cases,  the  Court  of  Justiciary  is  the  proper 
Court.     AVhere  personal  injury  has  been  sus- 
tained by  passengers,  or  where  property  has 
been  lost  or  injured,  through  the  misconduct 
or  negligence  of  drivers,  the  provisions  of  the 
statutes  do  not  affect  the  injured  party's  claim 
for  damages  against  the  coach  proprietors, 
under  their  common  law  responsibility  for  the 
servants  or  others  employed  by  them  ;  BeWt 
Com.  i.  i62,  ei  seq.     Where  a  person  loses  his 
life  by  an  accident  arising  from  negligence 
or  furious  driving,  the  person  in  fault  is  held 
to  be  guilty  of  culpable  homicide.    Under 
the  Road  Act,  1  and  2  Will.  IV.,  c.  43,  the 
driver  of  a  vehicle  is  liable  in  a  penalty  not 
exceeding  L.5,  besides  damages,  fur  riding  in 
the  cart,  &c.,  without  double  reins  ;  for  leav- 
ing the  cart  travelling  on  the  road  without 
some  person  to  guide  the  beast ;  for  allowing 
a  dog  to  go  at  large,  not  chained  to  the  ve- 
hicle ;  for  not  keeping  to  the  left  or  near  side 
of  the  road,  on  meeting  or  being  overtaken 
by  any  other  carriage  or  rider ;  or  for  wil- 
fully preventing  any  other  person  from  pass- 
ing him  or  his  vehicle.    Drivers  or  owners 
are  liable  in  a  penalty  not  exceeding  40s.  if 
one  driver  has  the  management  of  more  than 
two  carts,  &c. ;  if  the  last  of  two  carts  has 
more  than  one  horse,  and  both  carts  are  under 
the  charge  of  one  person ;  or  if  the  horse  of 
the  hindmost  cart  is  not  attached  by  the  rein 
to  the  back  of  the  foremost  cart,  and  follow- 
ing in  the  same  line  not  more  than  six  feet 
behind.    Owners  are  liable  in  40s.  if  the 
driver  is  below  fourteen  years  of  age.    Bar- 
clay's  Law  of  Highway,  73,  et  teq. ;   Hume, 
1.   192;   Bell's  Sup.  70,  76;   BeWs  Princ. 
§§  168,  2031 ;   Alison's  Princ.  116 ;  Prac. 
625.  See  Homicide.  See  aiao  Public  Gatrioffes. 
Damages. 

Droit  D'Anbaine.  By  the  old  custom  of 
France,  the  king  was  entitled,  under  the 
Droit  D'Aubaine,  to  claim  the  moveable 
estate  of  all  foreigners  who  died  within  his 
dominions,  and  that  notwithstanding  a  tes- 
tamentary settlement.  But  where  a  person 
vent  to  France  as  a  traveller,  merchant,  or 
public  minister,  with  no  intention  of  fixing 
his  domicile  there,  the  Droit  D'Aubaine  was 


excluded ;  and  the  Swiss,  Savoyards,  Seotdi, 
and  Portuguese  were  exempted.  This  ancient 
privilege  was  finally  abolished  in  1819.  See 
Ersk.  B.  iii.  tit.  10,  §  10;  and  Eneyc.  Brit,  voa 
Aubaine. 

Drove  Eoad;  is  the  name  given  to  a  ser- 
vitude road  nsed  for  the  passage  of  sheep  or 
cattle  to  annual  fain  or  cattle  markets.  Such 
roads  do  not  poasess  any  of  the  characteris- 
tics of  highways  or  public  roads,  but  in  the 
ordinary  case  consist  merely  of  a  particular 
tract,  or  course,  along  which  the  cattle  are 
in  use  to  be  driven.  The  privilege  of  using 
a  road  of  this  description  is  a  servitude  wki^ 
may  be  acquired  by  prescription  ;  PorUous, 
17th  June  1773  ;  Mor.  p.  14512.  See,  on  this 
subject,  the  case  of  the  Marquis  of  Breadalbatte 
V.  M'Gregor,  House  of  Lords,  14th  July  1850; 
7  Bell's  App.  p.  43.     Servitude.    Road. 

Diunkenness.  The  offence  of  notorious 
and  excessive  drinking,  under  several  statutes 
of  the  Scots  Parliaments,  was  punishable  by 
fine  or  imprisonment,  or  by  corporal  pains. 
See,  in  particular,  the  statutes  1436,  c.  144 ; 
1617,  c.  20  ;  1661,  c.  19  ;  1672,  c.  22 ;  1693, 
c.  40;  1696,  c.  31 ;  and  by  1661,  c.  38,  the 
execution  of  the  statutes  against  drunkenness 
is  committed  to  justices  of  the  peace.  Those 
statutes,  however,  have  fallen  into  desuetude ; 
and  the  mere  indecency  of  getting  drunk  does 
not  now,  in  the  general  case,  subject  the  of- 
fender to  any  punishment,  although  it  fre- 
quently leads  to  the  commission  of  greater 
crimes;  Hume,  i.  465.  But  in  the  Edinburgh 
Police  Act,  and  in  the  General  Police  Act 
for  Towns  (13  and  14  Vict.,  c.  33,  §  97), 
penalties  are  enacted  against  drunkenness 
accompanied  by  riotous  or  indecent  behaviour 
in  the  streets ;  and,  in  particular  circumstances, 
mere  drunkenness  is  still  punishable ;  Bdf$ 
Notes  to  Hume,  p.  165.  Persons  in  a  state  of 
complete  drunkenness,  as  being  incapable  of 
legal  consent,  cannot  enter  into  a  contract  or 
obligation ;  but  a  lesser  degree  of  intoxica- 
tion will  be  no  sufScient  ground  for  reducing 
the  contract,  unless  fraud  is  proved  upon  the 
part  of  the  obligee.  Drunkenness,  as  a  ground 
of  nullity,  is  not  pleadable  by  way  of  excep- 
tion ;  Stair,  B.  i.  tit.  10,  §  13,  and  B.  iv.  tit 
20,  §  49  ;  Bank.  B.  i.  tit  9,  §  66  ;  Ersk.  B.  iii. 
tit.  1,  §  16.  Where  a  person  is  charged  with 
the  commission  of  a  crime,  he  will  not,  in  the 
ordinary  case,  be  allowed  to  plead  intoxica- 
tion as  a  defence;  Hume,  i.  45.  See  also 
More's  Notes,  p.  xiv.  lix. ;  Bett's  Com.  (5th  edit.) 
i.  297  ;  Bell's  Princ.  §  14 ;  lUust.  ib. ;  Blair's 
Justice  of  Peace,  h.  t. ;  Taifs  Justice  of  Peaet, 
h.t. 

Dry  Multure ;  is  a  yearly  snm  of  money, 
or  quantity  of  com  paid  to  a  mill,  whether 
those  liable  in  the  payment  grind  their  grain 
at  the  mill  or  not;  Bdl's  Princ.  §  1018; 


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Brown's  Synop.  pp.  1526, 2545 ;  Hunter's  Land- 
lord and  Tenant,  p.  62.    See  Thirlage. 

Duces  Teonm ;  in  English  lavr  is  a  writ 
commanding  a  person  to  appear  in  a  court  of 
law,  and  to  bring  with  him  writings,  evidences, 
or  other  things  in  his  custody,  which  may  be 
required  in  modnm  prohationis.  The  Scotch 
law  diligence  against  havers  of  writings  is 
somewhat  analogous  to  the  English  writ,  duces 
tecum.    Tomlins,  h.  t.    See  Diligence.    Haver. 

Saelling ;  is  the  act  of  fighting  in  single 
combat  upon  a  prerious  challenge  given  by 
one  party,  and  accepted  by  the  other.  Where, 
in  consequence  of  such  appointment,  a  meet- 
ing takes  place,  and  death  ensues,  it  is  ac- 
eoonted  murder  by  the  law  of  Scotland,  how- 
ever fair  the  duel  may  have  been ;  and  prin- 
cipals and  seconds  are  equally  exposed  to  the 
criminal  charge  ;  but  there  is  no  modem  in- 
stance of  a  capital  conviction  on  such  a  charge, 
where  there  has  been  nothing  dishonourable 
in  the  conduct  of  the  accused.  By  1600,  c. 
12,  the  offence  of  fighting  a  duel  without  the 
Wng'i  permission,  even  although  death  did 
not  follow,  was  declared  a  capital  crime ;  and 
by  1696,  c.  35,  any  person  concerned  in  giv- 
ing or  accepting  a  challenge  to  fight,  or  en- 
gaged therein,  although  no  fighting  ensued, 
vu  punishable  by  banishment  and  escheat  of 
moveables.  But  both  of  those  statutes  were 
repealed  by  the  statute  59  Geo.  III.,  c.  70. 
Bum,  i.  230,  247,  442,  et  seq. ;  Ersk,  B.  iv. 
tit.  4,  §  49 ;  Taifs  Justice  of  Peace,  h.  t. ; 
Alison's  Prine.  53 ;  Steele,  75.  See  Homicide, 
ge. 


Inm ;  "  dnornm  bellnm  vel  plurium," 
single  battle  or  combat.  Skene,  h.  t.  See 
Clxmpumes. 

Jtika,  In  Great  Britain  the  title  of  Duke 
is  the  next  dignity  to  that  of  Prince  of  Wales. 
The  first  English  Duke  was  Edward  the 
Black  Prince,  who  was  created  Duke  of  Corn- 
wall in  the  year  1337.     Tomlins'  Diet.  h.  t. 

Dumb.    See  Deaf  and  Dumb. 

Dnng.  In  the  Koman  law,  dunghills  were 
held  to  be  accessories  of  the  soil,  except  in  the 
case  where  the  usual  practice  of  the  farm,  or 
the  established  intention  of  the  proprietor, 
was  to  sell  the  dung  separately.  By  the  law 
of  Scotland,  in  questions  between  landlord 
snd  tenant,  dunghills' are  held  to  be  move- 
able; but  in  questions  of  succession,  arising 
during  the  currency  of  the  lease,  or  on  the 
death  of  a  proprietor  ip  the  natural  possession 
of  his  land,  they  might  perhaps  be  regarded 
>s  heritable  destinations,  where  the  evident 
intention  of  the  proprietor  was  that  the  dung 
ihould  be  laid  upon  the  land.  See  BelPs 
<5».  vol.  ii.  p.  3 ;  BelPs  Princ.  §§  1261-1475 ; 
BtWs  lUust.  §  1261 ;  BeU  on  leases,  i.  327, 
4th  edit.;  Roxburgh,  Bligh's  Appeal  Cases, 
■i>  156;  Hunter's  Landlord  and  Tenant,  i. 


pp.  263, 771.    See  also  Heritable  and  Move- 
able. 

Duplicate ;  in  its  most  usual  acceptation, 
signifies  a  copy  or  transcript  of  a  deed,  or 
other  writing,  made  to  provide  against  acci- 
dents, or  for  other  reasons.  In  the  case  of 
mutual  contracts,  such  as  leases,  contracts  of 
marriage,  copartnership,  and  the  like,  dupli- 
cates of  the  deed  are  frequently  prepared, 
each  of  which  is  signed  by  all  the  contracting 
parties ;  and,  where  this  is  done,  the  parties 
are  bound  if  one  of  the  duplicates  be  regu- 
larly executed,  although  the  others  should  be 
defective  in  the  necessary  solemnities ;  Cub- 
bison,  3d  July  1716,  Jlfor.  p.  16988 ;  Hunter's 
Landlord  and  Tenant,  pp.  312,  315  ;  Tail  on 
Evidence,  3d  edit.  p.  Ill;  Dickson  on  Evi- 
dence, §§  135,  886,  904. 

Dnplies.  This  is  a  pleading  formerly  in  use 
in  inferior  courts.  The  procedure  in  Sheriff 
Courts  is  now  regulated  by  the  act  16  and  17 
Vict.,  c.  80,1853.  See  Record.  Condescendence, 

DnresB ;  in  English  law,  the  plea  of  a  man 
who  has  obliged  himself  to  pay  or  perform, 
or  who  has  committed  a  misdemeanour,  that 
he  was  constrained  to  do  so,  and  therefore 
ought  to  be  free  from  the  consequences. 
There  is  both  duress  of  imprisonment  and  du- 
ress per  minas.     Tomlins'  Diet.  h.  t. 

Dusty-Foot.  In  England  there  is  a  court 
called  a  Pie-Powder-Court,  held  in  fairs,  to  do 
justice  between  buyers  and  sellers,  and  to  re- 
dress disorders  committed  in  the  fair ;  and 
there  are  traces  of  a  similar  court  in  Scot- 
land, although  it  has  long  been  out  of  use. 
Writers  differ  about  the  etymology  of  the 
word ;  but,  according  to  Lord  Kames,  courts 
of  Pie-Powder  are  so  called,  because  fairs  are 
generally  composed  of  pedlars  or  wayfaring 
persons,  who  in  France  bear  the  name  of 
Pied  Poudreux,  and  in  Scotland  of  Dusty-Foot. 
See  Regiam  Majesiatem,  Burrow  Laws,  c.  134, 
140 ;  Kames'  Stat.  Law,  noto  5,  p.  412.  See 
also  Tomlins'  Diet,  voce  Court. 

DwelUng-Hoose.  In  England,  a  man's 
dwelling-house  is  a  sanctuary  against  the 
personal  execution  of  the  law,  with  these  ex- 
ceptions:— 1st,  It  affords  no  protection  to 
a  person  charged  with  a  crime ;  2d,  Crown 
debtors  are  not  protected  in  their  own 
houses;  5d,  Even  in  the  case  of  ordinary 
debts,  if  the  sheriff  or  bailiffs  succeed  in 
getting  admission  to  the  house  without  vio- 
lence, they  may  take  the  debtor  out  of  it; 
4th,  After  repeated  capias  and  outlawry, 
the  sheriff,  in  virtue  of  a  writ,  called  a 
capias  ntlagatum,  may  break  into  the  house 
and  seize  the  person  against  whom  the 
writ  is  directed ;  and,  5th,  A  capias  may  be 
issued  from  the  Court  of  Queen's  Bench,  or  of 
Chancery,  for  compelling  a  man  to  find  sure- 
ties to  keep  the  peac« ;  and,  Jictione  juris,  this 


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process  is  sometimes  used  to  effect  execution 
on  common  debts.  In  Scotland,  also,  a  man's 
house  is  a  sanctuary  to  him  agaiust  imprison- 
ment on  an  act  of  warding,  which  contains 
no  warrant  for  breaking  open  doors.  But  it 
is  no  protection  against  the  execution  of  a 
criminal  warrant,  nor  against  letters  of  cap- 
tion, which  contain  a  warrant  to  apprehend 
the  debtor  as  a  rebel,  against  whom  the  whole 
executive  power  may  be  directed ;  and  the 
caption  accordingly  contains  an  express  war- 
rant to  break  open  doors  in  search  of  the 
debtor.  See  Ros^s  Lett.  vol.  i.  p.  335,  ei  seq.  ; 
BeWs  Com.  (5th  edit.)  ii.  670  ;  Hunter's  Land- 
lord and  Tenant.  See  also  Caption.  As  to 
the  question,  what  is  to  be  considered  a  man's 
dwelling-house,  with  reference  to  the  crime  of 
hamesucken,  see  Bamesucken;  andwithreg^d 
to  the  mode  of  citing  a  party  at  his  dwelling- 
house  in  a  civil  or  criminal  proces8,see  Citation. 
Exei^iion.    Criminal  Prosecution.   Domicile, 

Dying  Declaration.    See  Declaration. 

Dyvour,  or  Dyour;  according  to  Skene,  is 
a  bankrupt  of"  bairman  ;  who  being  involved 
and  drowned  in  debts,  and  not  able  to  pay  or 
satisfy  the  same,  for  eschewing  of  prison,  and 
other  pains,  makes  cession  and  assignation  of 
all  his  goods  and  gear  in  favours  of  his  credi- 
tors, and  does  his  devour  and  duty  to  them, 
proclaiming  himself  bairman,  and  indigent, 
and  becoming  debt-bound  to  them  of  all  he 
has."  By  Act  of  Sederunt,  17th  May  1606, 
it  is  ordained  that  a  pillory  be  erected  near 
the  market-cross  of  Edinburgh,  with  a  seat 
upon  it,  upon  which  all  dyvours  are  to  be  ex- 
posed once  on  a  market-day ;  and,  before  their 
liberation  from  jail,  they  are  required  to  pro- 
vide themselves  with  a  hat  or  bonnet  of  yellow 
colour,  to  be  worn  by  them  while  sitting  on 


the  pillory,  and  constantly  thereafter,  while 
they  continue  dyvours,  under  the  pain  of  three 
months'  imprisonment,  if  they  be  found  at  any 
time  without  it.  By  Acts  of  Sederunt,  26th 
Feb.  1669,  and  23d  Jan.  1673,  the  habit  of 
a  dyvour  is  appointed  to  be  a  coat  or  upper 
garment,  half  yellow  and  half  brown,  with  a 
party-coloured  cap  or  hood,  to  be  worn  on  tbe 
head ;  and  formerly  all  decreets  of  cetm  hon- 
orvm  required  to  bear  a  clause  expressly  or- 
daining the  bankrupt  to  wear  this  habit ;  any 
of  his  creditors  being  entitled  to  imprison 
him  if  he  were  found  without  it.  The  Act  of 
Sederunt  18th  July  1688  contains  a  more 
minute  description  of  the  habit,  and  declares, 
that  the  Lords  will  not  hereafter  dispenie 
with  it,  unless  in  the  case  of  innocent  misfor- 
tunes liquidly  libelled  and  proved.  And, 
finally,  by  the  statute  1696,  c.  5,  the  Lords 
of  Session  are  prohibited  to  dispense  with  the 
dyvour's  habit,  unless,  in  the  process  of  «eMi« 
bonorum,  the  bankrupt's  failure  through  mis- 
fortune be  libelled,  sustained,  and  proved. 
In  awarding  the  benefit  of  the  cesiio  hononM, 
it  was  the  practice,  until  the  passing  of  the 
cessio  act,  6  and  7  Will.  IV.,  c.  66,  to  dispense 
with  the  habit;  aud  by  that  statute  (§  18)  it 
ii  abolished,  and  the  statute  1696,  c  5,  re- 
pealed. There  were  two  cases,  however,  of 
comparatively  recent  date,  in  which,  where 
the  bankrupt's  losses  had  arisen  from  dealing 
in  smuggled  goods,  the  court  granted  the 
benefit  of  the  cettio,  but  refused  to  dispense 
with  the  habits  Drysdde,  20th  Feb.  1752, 
Mor.  p.  11781 ;  Diet,  17th  Nov.  1775,  Mor. 
p.  11791.  See  Stair,  B.  iv.  tit.  52,  §  34; 
More^t  Notes,  p.  ccccxxxvii. ;  Ersk.  B.  iv.  tit.  3, 
§  27  ;  BeWs  Com.  ii.  582 ;  Shand's  Practice,  pp. 
812,822 ;  Skene,h.  t.  See  also  Cettio  Botumm. 


E 


Earl,  or  Comes.  This  title  of  nobility, 
according  to  English  authorities,  was  known 
amongst  the  Saxons,  and  is  the  most  ancient 
in  the  English  peerage.  Formerly,  both  in 
England  and  Scotland,  an  Earl  or  Count  ap- 
pears to  have  been  the  governor  of  a  county 
or  province,  over  which  he  had  the  chief 
jurisdiction.  The  office  was  at  firet  held  only 
for  life ;  but  William  the  Conqueror  ren- 
dered it  feudal  and  hereditary  in  England, 
and  endowed  it  with  certain  fees  exigible  from 
the  suitors  in  the  Earl's  court.  Deputies  for 
the  earls  were  afterwards  appointed,  who 
were  called  Vicecomites  or  Sheriffs;  and  the 
earldom  itself  came  to  be  looked  upon  not  as 
an  office,  but  as  a  territorial  dignity,  which 
passed  along  with  the  land  to  which  it  was 
attached.  The  dignity  of  earl,  however,  like 
all  other  titles  of  honour,  is  now  merely  per- 


sonal, and  independent  of  any  territorial 
property.  It  is  the  next  dignity  to  that  of 
marquis,  and  immediately  superior  to  that  of 
viscount;  and  as  those  who  were  anciently 
created  earls  were  of  the  blood  royal,  the 
Sovereign,  in  all  formal  writings,  addresses  an 
earl  as  "cousin."  Ertk.  B.  i.  tit.  4,  §  1; 
Wight  on  Elections,  p.  53 ;  Tomlins'  Diet.  A.  t- 
See  Dignities. 

Earnest,  Arrhse,  or  Aries ;  is  a  small  sum 
of  money,  or  part  of  a  larger  quantity  of  any 
other  commodity,  given  as  a  corroboration, 
symbol,  or  token  of  the  completion  of  a  bar- 
gain. Doubts,  founded  upon  some  texts  of 
the  Roman  law,  were  at  one  time  entertained, 
whether  the  giving  of  earnest  did  not  imply 
a  power  to  either  party  to  resile  on  forfeiting 
tbe  earnest ;  but  in  the  law  of  Scotland  it  has 
been  long  settled,  that  earnest  is  to  be  held 


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merely  as  evidence  of  the  completion  of  the 
contract ;  and  that  the  party  who  resiles,  be- 
sides losing  the  earnest  he  has  paid,  may  Lo 
compelled  to  perform  his  obligation.  Where 
the  earnest  given  bears  a  considerable  pro- 
portion to  the  whole  price  or  consideration,  it 
will  be  imputed  as  part  of  it ;  but  as,  in  the 
ordinary  case,  the  earnest  is  trifling  in  value, 
it  is  presumed  to  be  what  is  called  dead 
tanett,  and  not  taken  into  account  in  the 
reckoning.  Earnest  is  in  no  case  essential 
to  the  completion  of  the  bargain ;  and  al- 
though, in  the  case  of  a  sale,  earnest  perfects 
the  contract,  and  vests  the  property  in  the 
pnrehaser,  yet  it  does  not  affect  the  seller's 
right  to  demand  the  full  price  before  deliveiy, 
if  credit  has  not  been  given,  or  to  stop  the 
goods  in  transitu,  in  the  case  of  insolvency. 
Nor  does  it  affect  any  of  the  other  rights 
vested  in  the  seller  prior  to  delivery.  Stair, 
B.  i.  tit.  14,  §  3 ;  Mare's  Notes,  p.  xcv. ; 
Brodufs  Supp.  p.  853;  Er$k.  B.  iii.  tit.  3, 
§  5 ;  Bank,  B.  i.  tit.  19,  §  20  ;  BeWs  Princ.  § 
173;  Maekemie,  B.  iii.  tit.  3,  §  1 ;  TaiVs  Justice 
of  Peace,  pp.  327, 346 ;  Hutch.  Justice  of  Peace, 
vol.  ii.  p.  159,  2d  edit.;  Hunter's  Landlord 
a»d  Tenant,  p.  277 ;  Brown  on  Sale,  p.  11,  e< 
stq.  See  ScUe.  Delivery.  In  hiring  domestic 
servants,  it  is  usual  to  give  earnest  or  arles ; 
but  this  is  not  necessary  to  the  validity  of  the 
agreement ;  for  if  it  have  been  actually  com- 
pleted by  legal  consent,  it  is  binding  without 
arles;  and  where  arles  have  been  given, 
neither  party  can  resile  on  forfeiting  the 
arles,  unless  with  the  consent  of  the  other 
party.    2  Eraser's  Pers.  <t  Dom.  Rel.  376. 

Easement ;  the  English  law  term  equiva- 
lent to  the  Scotch  term  Servitude.  It  is  de- 
fined to  be  a  service  or  convenience  which  one 
neighbour  has  of  another,  by  charter  or  pre- 
scription, without  profit ;  as  a  way  through 
his  land,  a  sink,  or  the  like.  Tomlins'  Diet.  h.  t. 

East  India  Company ;  is  the  name  given 
to  a  company  of  merchants  incorporated  and 
recognised  by  sundry  acts  of  Parliament,  and 
who  at  one  time  enjoyed  almost  the  exclusive 
trade,  and  a  large  share  in  the  administration 
of  the  government  of  the  British  possessions 
in  India.  The  countries  originally  compre- 
hended within  the  exclusive  charter  of  the 
Company,  are  described  in  the  stat.  9  and  10 
Will.  III.,  c.  44,  as  the  "  countries,  islands, 
ports,  cities,  &c.,  of  Asia,  Africa,  and  America, 
or  any  of  them,  beyond  the  Cape  of  Good 
Hope  to  the  Straits  of  Magellan,  where  any 
trade  or  traffic  of  merchandize  is,  or  may 
be  used  or  had."  It  is  foreign  to  the  object 
of  this  work  to  attempt  any  anal}'sis  of  the 
numerous  legislative  enactments  connected 
with  the  rights  and  privileges  of  this  estab- 
lishment ;  but,  whether  it  be  regarded  in  a 
political  or  in  a  commercial  aspect,  as  it  is  a 


subject  of  much  general  interest,  it  may  not 
be  improper  to  refer  to  the  article  "East  India 
Company''  in  Tomlins'  Law  Dictionary,  where 
an  historical  account  of  the  origin  of  the 
Company,  and  a  systematic  arrangement  and 
enumeration  of  the  statutes  relating  to  it,  will 
be  found.  By  21  and  22  Vict.,  c.  106,  the 
government  of  India,  and  of  all  territories  in 
possession  of  the  East  India  Company,  and 
the  whole  powers  and  rights  of  the  East  India 
Company  in  relation  thereto,  are  transferred 
to  and  vested  in  the  Crown. 

Easter';  is  the  day  on  which  our  Saviour's 
Resurrection  is  commemorated.  Easter-day 
is  always  the  first  Sunday  after  the  full  moon, 
which  happens  upon  or  next  after  the  21st 
day  of  March  ;  and,  if  the  full  moon  happen 
upon  a  Sunday,  Easter-day  is  the  Sunday 
after.  It  is  not  observed  as  a  festival  in  the 
Church  of  Scotland. 

Eaves-Drop.  A  proprietor  may  build,  if 
he  pleases,  to  the  confines  of  his  property, 
provided  the  eaves-drop  from  his  building 
does  not  fall  on  the  adjoining  property.  It  is 
enough,  however,  that  the  eaves-drop  actually 
falls  within  the  builder's  property ;  and  the 
conterminous  proprietor  has  no  right  to  com- 
plain, although  the  water,  following  the 
natural  inclination  of  the  ground,  should 
afterwards  run  into  his  property.  The  Roman 
law  required  a  proprietor  who  had  no  servi- 
tude stilltcidii,  to  place  his  building  two  feet 
and  a-half  within  his  march.  In  Scotland 
there  is  no  express  statute  on  the  subject; 
but  by  custom,  nine  inches  at  the  least  seem 
to  be  necessary  for  the  eaves-drop ;  Garriochs, 
7th  March  1769,  Mor.  p.  13178 ;  Stair,  B.  ii. 
tit.  7,  §  7  ;  Bank.  B.  ii.  tit.  7,  §  13 ;  Ersk.  B. 
ii.  tit.  9,  £9.    See  Stillicide. 

Eaves-Broppers  ;  persons  who  listen  under 
the  windows  or  eaves  of  a  house,  to  disturb 
the  public  peace  by  framing  slanderous  or 
mischievous  tales.  In  England,  such  persons 
are  punishable  by  fine,  and  may  be  compelled 
to  find  surety  for  their  good  behaviour ;  and, 
as  this  is  an  offence  against  the  public  peace, 
the  English  statutes  relating  to  i^  seem  to  be 
extended  to  Scotland  under  the  general  clause 
in  the  stat.  6  Anne,  c.  6 ;  but  whether  that 
be  the  case  or  not,  a  nuisance  of  this  descrip- 
tion would  be  reached  by  the  common  law  of 
Scotland,  both  directly  and  indirectly.  See 
Bhckstme,  vol.  iv.  p.  169  ;  TaiCs  Just.  0/ Peace, 
p.  882. 

Ecclesiastical  Constitntion.  See  Church 
of  Scotland.     Church  Judicatories. 

Edict  Nantse,  Canpones,  Staholarii.  See 
Nautre,  &c. 

Edict  in  a  Confirmation.  A  writ  in  the 
form  of  a  precept  by  the  commiss.ary  of  tlin 
bounds  (now  the  sheriff  as  commissary,  or  the 
sheriff  of  Edinburgh,  whore  the  parties  are 

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forth  of  the  kingdom),  ordaining  the  next  of 
kin  of  a  deceased  party,  and  all  others  having 
interest,  to  be  cited  edictally,  to  hear  execu- 
tors decerned  and  coufirmed  to  the  defunct. 
This  writ,  until  recently,  was  in  use  to  he 
applied  for  by  persons  desiring  to  be  decerned 
executor.  It  was  executed  by  a  messenger- 
at-arms,  or  by  an  officer  of  court,  on  a  market- 
day,  at  the  head  burgh  of  the  county  where 
the  deceased  had  his  domicile,  and  at  the 
parish-church  door  on  a  Sunday,  at  the  dis- 
missal of  the  congregation.  If  the  deceased 
was  absent  from  Scotland,  animo  remanendi, 
the  edict  was  executed  in  the  same  manner  at 
the  market-cross  of  Edinburgh,  as  the  com- 
mune forum,  and  at  the  door  of  the  parish- 
church  of  St  Giles;  i.e.,  the  High  Church  of 
Edinburgh.  The  inducice  were  in  all  cases 
nine  days;  and  it  was  unnecessary  to  serve 
the  edict  on  any  one  personally,  except  in  the 
case  of  a  confirmation  ad  omissa  vel  male  ap- 
pretiata,  where  the  executor  already  confirmed 
was  personally  cited  on  the  edict.  On  the 
expiration  of  the  inducim,  the  edict  might  be 
called  in  court;  and,  if  no  competitor  ap- 
peared, the  mover  of  the  edict  was  decerned 
executor.  If  there  was  a  competition,  the 
claimants  fell  to  be  preferred  according  to 
the  legal  order,  without  the  necessity  of  any 
new  edict,  whether  the  mover  of  the  edict 
should  be  the  person  ultimately  preferred  or 
not.  Since  the  article  Confirmation  was 
printed,  the  procedure  has  been  changed. 
By  21  and  22  Vict.,  c.  56,  the  practice  of 
raising  edicts  is  abolished,  and  parties  must 
now  proceed  by  petition.  Stair,  a.  iii.  tit.  8, 
§  54;  Ersk.  B.  iii.  tit.  9,  §  31 ;  BeWi  Com.  ii. 
67 ;  Jurid.  Styles,  vol.  ii.  p.  500,  et  seq.,  3d 
edit.    See  also  Confirmation.    Executor. 

Ediotal  Citation  or  Intimation.  An 
edictal  citation  is  a  citation  which  was  for- 
merly published  at  the  market-cross  of  Edin- 
burgh, and  the  pier  and  shore  of  Leith,  or  at 
the  head  burgh  of  the  county  where  the  party 
so  cited  has  his  residence.  In  civil  causes 
this  form  of  citation  was  necessary,  where  the 
party  cited,  although  amenable  to  the  courts 
of  this  country,  was  out  of  Scotland  ;  and,  in 
that  case,  the  citation  required  to  be  given  by 
a  messenger-at-arms,  who  made  proclamation 
at  the  market-cross  of  Edinburgh  and  the 
pier  and  shore  of  Leith,  and  left  copies  of 
citation  for  the  defender,  at  those  places  re- 
spectively ;  Ertk.  B.  i.  tit.  2,  §  18.  But  the 
practice  on  this  point  was  altered  by  the  judi- 
cature act  6  Geo.  IV.  c.  120,  whereby  it  was 
enacted,  that  after  11th  November  1825, 
the  then  subsisting  forms  of  edictal  citation, 
charge, publication, citation,  and  service  at  the 
market-cross  of  Edinburgh,  pier  and  shore  of 
Leith,  as  against  persons  forth  of  Scotland, 
should  cease  and  be  discontinued,  and  in  lieu 


thereof,  such  edictal  citations,  charges,  publi- 
catioDB,  citations,  and  services,  as  against  per- 
sons forth  of  Scotland,  should  be  done  and 
performed  by  delivery  of  copies  at  the  record- 
office  of  the  keeper  of  the  records  of  the  Conrt 
of  Session.  An  abstract  of  the  copy  so  deli- 
vered, specifying  the  time  of  service,  the  na- 
ture of  the  writ,  the  names  and  designations 
of  the  parties,  and  the  day  against  which  he 
is  called  to  give  obedience,  or  to  make  ap- 
pearance, is  then  to  be  registered  in  a  boolc 
kept  for  the  purpose ;  and  the  keeper  is  far- 
ther enjoined  to  keep  three  separate  registers, 
one  for  citations  on  summonses  and  orders  of 
service  against  parties  forth  of  Scotland; 
another  for  citations  by  virtue  of  letters  of 
supplement  to  persons  forth  of  Scotland,  to 
appear  before  any  of  the  inferior  courts;  and 
a  third  for  all  charges,  intimations,  and  publi- 
cations to  persons  forth  of  Scotland,  given  by 
virtue  of  letters  other  than  sumDionBes  passing 
the  Signet.  These  abstracts,  in  so  far  as  they 
comprehend  citations  by  virtue  of  summonses, 
precepts,  warrants  of  court,  and  letters  of  snp- 
plement,are  directed  to  be  periodically  printed 
by  the  keeper  of  the  record  at  the  end  of  each 
successive  period  of  fourteen  days,  from  and 
after  11th  November  1825;  and  the  record 
is  to  he  at  all  times  open  for  inspection,  the 
copies  left  being  preserved  for  three  yean, 
and  the  keeper  being  remunerated  for  his 
trouble  from  the  fee  fund ;  6  Geo.  IV.,  c.  120, 
§§  51,  52;  A.  G.  2ith  Dee.  1838,  and  13  md 
14  Vid.,  c.  36,  §  22.  See  Citation.  Curatory. 
Minor.  In  criminal  prosecutions,  if  the  ac- 
cused is  not  found  personally,  in  addition  to 
leaving  a  copy  of  the  indictment  or  criminal 
letters  at  his  dwelling-place,  he  must  be  edic- 
tally cited  at  the  market-cross  of  the  head 
burgh  of  the  county  where  he  resides,  and  a 
copy  left  there  for  him  ;  1555,  c.  33 ;  and  in 
order  that  such  edictal  citation  maybe  the  more 
public,  the  Act  1587,  c.  85,  requires  that  it 
shall  be  given  between  the  hours  of  eight  a.>i. 
and  twelve  o'clock  noon,  "  in  presence  of  fa- 
mous witnesses  specially  designed."  If  the 
accused  have  no  fixed  domicile,  and  cannot  be 
found  personally,  the  Court  of  Justiciary  will 
grant  a  warrant  for  citing  him  edictally  at 
the  head  burgh  of  the  shire,  or  shires,  where 
he  has  chiefly  resorted ;  and  if  be  be  out  of 
Scotland,  special  authority  will,  in  like  man- 
ner, be  given  for  citing  him  edictally,  at  the 
market-cross  of  Edinburgh,  and  the  pier  and 
shore  of  Leith,  on  induci<e  of  sixty  days,  the 
ordinary  inducire  in  all  criminal  cases  being 
fifteen  days ;  Hume,  ii.  255,  et  seq. ;  Alison's 
Prac.  333.  See  Criminal  Frosecution.  Execu- 
tion. Induciw.  On  the  same  principle  on 
which  edictal  citations  are  founded,  our  prac- 
tice permits  edictal  executions  of  diligences 
and  intimations  of  various  kinds.  Thus,  where 

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the  parties  are  abroad,  a  warrant  may  be 
obtained  for  the  edictal  execution  of  bornings, 
iDhibitions,  arrestments,  and  other  diligences. 
So  also,  edictal  intimations  of  assignations, 
premonitions,  and  requisitions,  in  the  case  of 
redeemable  rights  and  the  like,  are  author- 
ized; letters  of  supplement  issuing  under 
authority  of  the  Court  of  Session,  being  the 
warrant  to  the  messenger  and  notary,  the 
former  of  whom  makes  the  intimation,  and 
takes  instruments  in  the  hands  of  the  latter, 
the  execution  being  signed  by  both.  By  54 
Geo.  III.,  c  1 37, 1  3,  edictal  executions  of 
arrestments,  in  order  to  Interpol  an  arrestee 
who  is  out  of  Scotland,  must  be  intimated  to 
his  known  agent  in  Scotland,  the  object  of 
the  enactment  being,  to  protect  debtors  resid- 
ini;  abroad,  who  have  paid  honafde ;  Syme, 
7th  Dec.  1824,  3  S.  d;  D.  372.  But,  unless 
by  express  consent  of  parties,  all  these  edictal 
citations  and  intimations  must  be  giren,  or 
made,  in  virtue  of  the  royal  warrant  contained 
either  in  the  summons,  or  obtained  by  pre- 
MDting  a  bill  at  the  Bill-Chamber.  Stair, 
B.  i.  tit.  18,  §  4 ;  Ross's  Led.  vol.  i.  pp.  202, 
293, 479,  et  seq. ;  Shanes  Prac.  p.  243.  See 
tkoBiUt  of  Stgnet  Letters.  Citation.  Execution. 
Edinburgh,  the  capital  of  Scotland,  and 
the  seat  of  all  the  Scottish  supreme  courts  of 
jnstice.  The  market-cross  of  Edinburgh ,  and 
the  pier  and  shore  of  Leith,  are  held,  Jktione 
jwit,  to  be  the  communis  patria,  and  the  Court 
of  Session  is  the  commune  forum  of  all  Scotch- 
men resident  abroad,  and  amenable  to  the 
eonrts  of  this  country ;  Stair,  B.  i.  tit.  18,  § 
4 ;  Erst.  B.  i.  tit.  2,  §  18 ;  Brown's  Synop.  h.  t. 
and  pp.  390,  575, 1933,  2306 ;  Ross's  Lect.  i. 
202, 293 ;  ii.  359,  364.  See  Edictal  Citation. 
Various  acts  of  the  Scotch  Parliament  were 
passed  for  regulating  the  markets,  police,  &c., 
of  Edinburgh,  most  of  which  have  been  super- 
seded by  more  recent  police  statutes.  The  act 
1698,  c.  8,  contains  many  useful  regulations 
coDcemiug  the  manner  of  building  in  this 
city,  and  prohibits  any  new  house  to  be  built 
higher  than  five  storeys  above  the  causeway 
(<'.  <.,  the  causeway  of  the  front  street).  This 
Btatote  was  held  to  be  in  force,  with  respect 
to  property  within  the  old  town  of  Edinburgh, 
in  the  case  of  Buchan,  5th  August  1760,  Mor. 
p.  13173;  and  more  recently  as  to  buildings 
in  the  suburbs,  not  within  the  jurisdiction 
of  the  Dean  of  Guild  ;  Procurator-fiscal  of 
Edinburgh,  20th  June  1789,  Mor.  p.  13187. 
The  present  police  acts  for  Edinburgh  are 
nth  and  12th  Vict.,  c.  113,  and  17th  and  I8th 
Vict,  e.  118.  The  extent  of  the  muuicipality 
and  the  administration  of  its  affairs  are  regu- 
lated by  the  19th  and  20  Vict.,  c.  32,  called 
the  "  Edinburgh  Municipality  Extension  Act, 
1856."  With  regard  to  what  has  been  some- 
times called  the  new  town  law  of  Edinburgh, 


or  the  restraints  on  the  use  of  property  im- 
posed by  a  building  plan  exhibited  to  feuara, 
see  Property.  Servitude.  See  aiso  Sprott,  Dow's 
App.  Cases,  iv.  290  ;  and  Gordon,  vi.  87. 

Edinburgh  returns  two  members  to  the 
British  Parliament.    See  Reform  Act. 

Effectual  A^udication.  An  adjudication 
is  completed  as  a  feudal  right,  in  competition 
with  other  feudal  rights,  by  a  charter  of  ad- 
judication and  sasiue,  or  by  infeftment  on 
the  warrant  in  the  decree  of  adjudication. 
But,  in  questions  with  other  adjudgers  whose 
rights  are  not  feudalized,  and  in  reference 
to  the  pari  passu  ranking,  the  statute  64 
Geo.  III.,  c.  137,  §  11,  in  order  to  fix  more 
clearly  what  diligence  is  necessary  to  make 
an  adjudication  effectual,  enacts,  "  That  the 
presenting  a  signature  in  Exchequer  when 
the  holding  is  of  the  Crown, — or  the  executing 
a  general  charge  of  homing  against  superiors 
at  the  market-cross  of  Edinburgh,  and  pier 
and  shore  of  Leith,  when  the  holding  is  of 
a  subject,  and  recording  an  abstract  of  the 
said  signature,  or  the  said  charge,  in  the 
Register  of  Abbreviates  of  Adjudications, — 
shall  be  held  in  all  time  coming  as  the 
proper  diligence  for  the  purpose  aforesaid." 
This  act  was  repealed  by  the  act  19  and  20 
Vict,  c.  79,  1856 ;  but  the  act  19  and  20 
Vict.,  c.  91,  §  6,  enacts,  that  the  lodging 
of  a  draft  charter  and  note  in  the  ofiice  of 
Presenter  of  Signatures,  when  the  proceeding 
is  of  the  Crown,  or  the  executing  a  charge  of 
horning  against  superiors  when  the  holding 
is  of  a  subject;  and,  secondly,  a  copy  of  such 
note,  and  an  abstract  of  such  draft  charter 
or  such  charge  in  the  Register  of  Abbreviates 
of  Adjudications, — shall  be  held  as  the  proper 
diligence  for  making  an  adjudication  effectual. 
In  burgage  subjects,  the  general  charge  and 
recording  in  the  Register  of  Abbreviates  are 
sufficient;  and,  by  1661,  c.  62, all  adjudications 
led  prior  to  the  first  effectual  one,  or  within 
year  and  day  after  it,  are  to  be  ranked  pari 
passu.  As  to  the  mode  of  reckoning  the  year 
and  day,  see  Computation  of  tinte.  The  first 
effectual  adjudication,  being  thus  the  criterion 
of  the  pari  passu  preference,  is  held  not 
merely  as  a  private  diligence  belonging  to 
the  user,  but  as  a  general  diligence  in  which 
all  the  adjudicating  creditors  of  the  debtor 
have  an  interest ;  nor,  relatively  to  the  other 
adjudications,  will  it  lose  its  legal  character  of 
the  frst  effectual  adjudication,  although  the 
debt  on  which  it  proceeds  may  have  beuu  paid 
off,  and  the  adjudication  thus  extinguished  as 
an  individual  diligence.  Bell's  Com.  i.  718. 
See  also  Adjudication.     Charge  by  Adjudgers. 

Effeirs,  or  Effeiring.  This  word  occurs 
frequently  in  Scotch  law  language,  and 
signifies,  corresponding  to,  or  relating  to.  The 
interest  effeiring  to  a  particular  sum,  is  the 


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interest  corresponding  to  the  sum.  "  Inform 
as  effeirs,"  means,  in  such  form  as  in  law  be- 
longs to  the  tliiug.  Some  etymological  specu- 
lations about  the  term  will  be  found  in  Rosi's 
Leet.  vol.  i.,  p.  52. 

Egyptians.  The  Egyptians  or  Gypsies,  a 
distinct  race,  who  sprung  from  the  East, 
spread  over  all  Europe,  and  became,  from 
their  vagrant  and  dissolute  habits  an  in- 
tolerable nuisance,  have  been  the  object  of 
severe  regulations  in  most  of  the  kingdoms 
of  Europe.  In  Scotland,  they  are  taken 
notice  of  in  all  the  statutes  for  the  punish- 
ment of  rogues  and  vagabonds ;  and,  by  1661, 
c.  38,  justices  of  the  peace  are  empowered  to 
execute  the  laws  against  them.  By  an  order 
of  the  Privy  Council  in  June  1603,  confirmed 
by  the  statute  160!),  c.  13,  the  whole  race 
was  ordained  to  quit  Scotland,  under  the  pain 
of  death  if  they  returned ;  and  even  the 
ofience  of  being  habit  and  ripitte  an  Egyptian 
is,  by  that  statute,  declared  capital.  Under 
the  statute  several  convictions  took  place; 
but  the  progress  of  civilization  has  mitigated 
the  severity  of  the  law ;  and  the  mere  fact  of 
being  an  Egyptian,  unless  coupled  with  some 
other  charge,  such  as  of  theft,  or  of  idle  and 
disorderly  conduct,  will  not  be  considered  as 
a  legitimate  ground  of  prosecution  or  of 
punishment.  See  Hnme,  i.  47 1 ,  e<  s<;q- ;  Ersk. 
B.  iv.  tit.  4,  §  64;  Boyd's  Justice,  123. 

Eik  to  a  Beversion.  The  reverser  in  a 
wadset  right  is  the  borrower,  who,  under  his 
right  of  reversion,  is  entitled  to  redeem  the 
wadset ;  that  is,  to  have  the  land  restored 
to  him  on  repaying  the  sum  advanced  by 
the  wadsetter.  An  eik,  or  addition,  to  a 
reversion,  is  a  deed  granted  by  the  reversor, 
acknowledging  the  receipt  of  a  farther  sum 
borrowed  from  the  wadsetter,  and  declaring 
that  the  wacket  shall  not  be  redeemable  until 
repayment  of  the  additional  loan,  as  well  as 
the  original  one.  These  eiks,  although  not 
specially  mentioned  in  the  statutes  1469,  c. 
28,  and  1617,  c  16,  yet,  being  additions  ad- 
jected to  the  reversion,  must  be  governed  by 
the  rules  applicable  to  the  reversion  itself,  of 
which  they  make  a  part,  and  are  therefore 
real  rights  eflfectual  against  singular  succes- 
sors, if  registered  according  to  the  directions 
of  the  statute  1617,  c.  16.  Stair,  B.  ii.  tit. 
10,  §  4  ;  Ersk.  B.  ii.  tit.  8,  §  10 ;  Bank.  B.  ii. 
tit.  10,  §  21 ;  Jurid.  Sti/ks,  3d  edit.  vol.  i.,  p. 
591 ;  Ross's  Led.  ii.  339.     See  Wadset. 

Eik  to  a  Confirmation  or  Testament ;  is 
an  addition  to  the  inventory  made  up  by  an 
executor  in  his  confirmation.  When,  subse- 
quently to  the  expeding  of  a  confirmation,  any 
additional  effects  belonging  to  the  deceased 
have  been  discovered,  the  party  who  has  con- 
firmed may,  under  authority  of  the  commis- 
sary, eik  those  effects  to  the  confirmation. 


This  is  done  by  lodging  with  the  commissary- 
clerk  a  note  of  the  additions  to  be  made, 
whereupon  the  executor  receives  an  extract, 
which,  according  to  the  former  practice,  enu- 
merated the  articles  comprehended  in  the  eik ; 
although  a  reference,  in  the  extract,  to  the  in- 
ventory as  recorded  in  the  Commissary-conrt 
books,  seems  now  to  be  sufficient — the  extract 
stating  merely  the  sumnM  in  that  inventory. 
See  A.  S.  21«<  Feb.  1824.  By  the  stai  4 
Geo.  IV.,  c.  98,  §  3,  it  is  enacted,  that  after 
the  1st  Jan.  1824,  every  person  requiring  con- 
firmation shall  confirm  the  whole  moveable 
estate  of  the  deceased,  known  at  the  time,  to 
which  such  person  shall  make  oath ;  "  provided 
always,  that  it  shall  and  may  be  lawful  to  eik 
to  such  confirmation  any  part  of  such  estate 
that  may  afterwards  be  discovered,  provided 
the  whole  of  such  estate  so  discovered  be 
added  upon  oath,  as  aforesaid,"  excepting 
special  assignations,  which  remain  as  under 
the  act  1690,  c.  26.  Where  the  executor  con- 
firmed appears  to  have  fraudulently  omitted, 
or  undervalued,  any  effects  belonging  to  the 
deceased,  any  creditor,  or  other  person  in- 
terested, may  apply  to  the  commissary  to  be 
confirmed  executor  ad  omissa  vd  male  ap- 
pretiata.  Ersk.  B.  iii.  tit.  9,  §  36,  et  teq; 
Bank.  B.  iii.  tit  8,  §  61 ;  Jurid.  Styles,  ii. 
497,  «<««{.  2d  edit.  See  Confirmation.  ExeffOer. 
Injection  and  Intnuion.  Ejection  is  the 
violent  taking  possession  of  lands  or  houses, 
by  illegally  expelling  the  present  possessor; 
and  intrusion  is  the  entry  to  possession,  and 
the  violent  detention  of  the  subject,  without 
the  consent  of  the  parties  interested,  or  other 
legal  warrant.  These  delinquencies  as  to 
heritage  are  analogous  to  spuilzie  of  move- 
ables ;  and^they  give  rise  to  a  penal  action 
of  Section  and  intrusion,  for  recovering  the 
possession,  with  the  violent  profits  and  dam- 
ages, according  to  the  pursuer's  oath  in  liten. 
This  action  can  be  insisted  in  by  such  persons 
only  as  were,  either  by  themselves  or  by  their 
servants  or  cottars,  in  possession  of  the  sul>- 
jects  from  which  they  were  ejected.  Hence, 
where  tenants  have  been  illegally  expelled, 
and  the  natural  occupation  seized  by  an  in- 
truder, the  tenants  are  the  proper  pursuers ; 
and  without  their  consent  or  concourse,  the 
landlord  cannot  insist  in  the  penal  action. 
But,  in  such  a  case,  even  without  the  tenant's 
consent,  the  landlord  may  pursue  the  intruder 
to  remove  without  warning,  and  to  pay  the 
ordinary  rent,  and  any  damage  which  the 
landlord  may  have  suffered  through  the  illegal 
act.  A  tenant  who,  after  the  expiration  of 
his  lease,  and  after  having  been  legally 
warned  to  remove,  continues  to  possess  with- 
out the  landlord's  consent,  will  be  held  as  a 
violent  possessor,  and  will  be  subject  to  an 
action  of  ojoction  and  intrusion,  in  the  same 


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maanor  as  if  he  had  been  a  stranger.  The 
defender  ia  an  action  of  ejection  and  intrusion, 
if  he  plead  any  defence  not  instantly  verified, 
miist  find  cantion  for  the'violent  profits;  159-4, 
c.  217 ;  A.  S.  lift  My  1839,  §  34.  As  to 
the  penal  consequences  or  violent  profits,  this 
action  prescribes  in  three  years  after  the 
forcible  entry  or  intrusion,  1579,  c.  81;  but 
the  injured  party  may,  even  after  the  expira- 
tion of  the  three  years,  pursue  the  offender  to 
remove,  without  warning,  and  to  pay  the 
ordinary  rent  and  damages.  Stair,  B.  1.  tit. 
9,  §  25,  et  seq.,  and  B.  iv.  tit.  28 ;  More's 
Notes,  p.  ccclxxxii ;  Bank.  B.  i.  tit.  10,  §  145 ; 
ErJc.  B.  iv.  tit.  1,  §  15 ;  Jurid.  Styles,  2d  edit, 
rol.  iii.,  pp.  129,  654  ;  Hunter's  Landlord  and 
Taumt,  ii.  192,  et  seq.    See  Violent  Profits. 

Section,  Letters  of.  Letters  of  ejection 
are  letters  under  the  royal  signet,  authorizing 
and  commanding  the  sheriff  to  eject  a  tenant, 
or  other  possessor  of  land,  who  has  been  de- 
creed to  remove,  and  who  has  disobeyed  a 
charge  to  remove,  proceeding  on  letters  of 
horning  on  the  decree.  Where  the  decree  of 
removing  is  pronounced  by  a  sheriff,  he  may 
grant  a  precept  of  ejection,  directed  to  his 
own  oflScers,  without  the  necessity  of  a  previous 
charge  of  horning.  These  letters  or  precepts 
of  ejection  are  executed  by  throwing  out  of 
the  house  some  part  of  the  defender's  house- 
hold furniture,  and  extinguishing  his  fire. 
Anciently,  where  the  execution  of  letters  of 
ejection  was  forcibly  opposed,  the  Scotch  Privy 
Council  was  in  use  to  grant  letters  of  fire  and 
ttcordj  authorizing  the  sheriff  to  call  for  the 
assistance  of  the  county  to  dispossess  the  party. 
But  by  the  present  practice,  where  the  execu- 
tion of  any  decree  or  other  lawful  diligence  is 
opposed  by  a  force  which  the  civil  magistrate 
and  his  officers  are  unable  to  overcome,  they 
may  apply  for  military  aid  to  enforce  the 
execution  manu  militari;  Ersk.  B.  iv.  tit.  3,  § 
17 ;  Bank.  B.  ii.  tit.  9,  §  74,  and  B.  iv.  tit.  41, 
§  17.  In  ejecting  tenants  on  the  expiration 
of  a  lease,  the  landlord  may  proceed  either 
under  the  statute  1555,  c.  39,  or  under  the 
Act  of  Sederunt,  14th  Dec.  1756.  Under 
the  statute,  after  the  legal  warning,  decree  of 
removing  may  be  obtained  either  in  the  Court 
of  Session  or  before  the  sheriff.  If  the  decree 
be  taken  in  the  Court  of  Session,  letters  of 
homing  must  be  raised  on  it ;  and  if  the 
tenant  disobey  the  charge,  letters  of  ejection 
may  follow.  If  the  decree  of  removing  be 
pronounced  by  the  sheriff,  no  letters  of  horn- 
ing are  necessary ;  and  the  ejection  may  pro- 
c^  at  once  on  the  sheriff's  precept  of  ejection ; 
BtH  on  Leases,  ii.  66,  4th  edit.  The  rule 
prescribed  by  the  Act  of  Sederunt  1756  is, 
that  where  the  lease  contains  an  obligation  to 
remove  without  warning,  the  landlord  may 
charge  the  tenant  forty  days  before  Whit- 


sunday, on  letters  of  horning  raised  on  the 
lease,  to  remove  at  the  stipulated  term  ;  and, 
on  producing  such  horning  duly  executed  to 
the  sheriff,  he  is  authorized,  within  six  days 
after  the  term  of  removal,  to  eject  the  tenant. 
Where  there  is  no  obligation  to  remove  in 
the  lease,  the  landlord,  under  the  Act  of 
Sederunt,  may  raise  an  action  of  removing 
before  the  sheriff;  and  if  that  action  be  called 
in  court  forty  days  before  Whitsunday,  it  is 
held  equivalent  to  a  warning  under  the  statute 
1555 ;  and  on  a  decree  of  removing  in  that 
action,  a  precept  of  ejection  may  be  obtained, 
under  which  the  tenant  may  be  ejected  within 
forty-eight  hours  after  the  term  of  removal. 
The  same  summary  ejection  may  take  place, 
where  the  decree  of  removing  proceeds  on  any 
of  the  grounds  of  irritancy  of  the  lease,  men- 
tioned in  the  Act  of  Sederunt  1756.  See  the 
forms  of  ejection  fully  explained  in  Bdl  on 
Leases,  App.  No.  3 ;  Darling's  Prac.  p.  334,  et 
seq. ;  Ross's  Lect.  ii.  510, 635,  et  seq. ;  Hunter's 
Landlord  and  Tenant,  36,  ii.  et  seq. ;  Jurid. 
Styka,  iii.  686, 771,  992 ;  Watson's  Stat.  Law, 
h.  t.  See  also  Removing,  and  the  Act  16  and 
17  Vict.,  c.  80,  1855,  §  29,  et  seq.,  enacting 
new  procedure  in  actions  of  removing. 

Iljectment ;  an  English  law  term,  signify- 
ing an  action  at  law,  by  which  a  person  ousted 
and  amoved  from  the  possession  of  an  estate 
for  years,  may  recover  that  possession ;  and 
which  action  is  now  used  as  the  general  mode 
of  trying  disputed  titles  to  lands  and  tene- 
ments in  England.  See  Tomlins'  Diet.  h.  t. ; 
Ross's  Lect.  ii.  55,  3. 

Elder.  Elders  are  the  lay  members  of 
church  courts  under  the  Presbyterian  system 
of  church  government.  In  every  kirk-session 
there  must  be  at  least  two  elders.  The 
qualifications  for  the  eldership  are,  that  the 
elder  shall  be  a  man  of  good  and  exemplary 
moral  character,  and  that  he  shall  have  at- 
tained the  age  of  twenty-one  years  at  least. 
He  must  be  a  communicant,  and  inhabitant 
of  the  parish,  residing  there  for  at  least  six 
weeks  annually ;  or  an  heritor  in  the  parish, 
liable  in  stipend  and  other  parochial  burdens ; 
or  the  apparent  heir  of  such  an  heritor. 
Where  one  is  proposed  as  an  elder  who  resides 
only  occasionally  in  the  parish,  a  certificate 
must  be  produced,  under  the  hand  of  the 
minister  and  kirk-session  of  the  parish  where 
he  generally  resides,  that  he  is  of  unblemished 
character,  and  regular  in  his  attendance  on 
religious  ordinances.  Elders  are  chosen  by 
the  kirk-session,  and  approved  of  by  the  con- 
gregation. When  the  choice  or  election  has 
been  agreed  on  in  the  kirk-session,  the  name 
of  the  proposed  elder  is  read  from  the  pulpit, 
in  a  paper  called  an  edict,  appointing  a  day, 
at  the  distance  of  not  less  than  ten  days,  for 
the  ordination.     If  no  good  objection  be  stated 

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to  the  appointment,  the  elder  is  then  ordained 
before  the  congregation.  On  his  ordination, 
he  is  required  to  declare  his  belief  in  the 
Scriptures  of  the  Old  and  New  Testament ; 
his  assent  to  the  Confession  of  Faith ;  his 
conviction  that  the  Presbyterian  government 
and  discipline  are  in  accordance  with  the 
Word  of  God ;  to  promise  to  conform  to  these 
standards,  and  to  foUow  no  divisive  courses, 
directly  or  indirectly,  to  their  prejudice  ;  and, 
finally,  he  is  required  to  accept  the  oflSce  of 
the  eldership,  and  to  engage  to  perform  its 
duties.  He  is  then  set  apart  (as  it  is  ex- 
pressed) for  the  office,  by  prayer,  accompanied 
with  an  exhortation  to  himself,  and  an  address 
from  the  pulpit  to  the  congregation.  After 
this  ceremony,  he  becomes  a  member  of  the 
kirk-session,  in  which  be  has  an  equal  vote 
with  the  minister  of  the  parish,  and  may  be 
chosen  representative  elder  of  the  kirk-session 
in  the  presbytery,  or  in  any  other  church 
judicatory.  When  a  parish  is  entirely  with- 
out elders,  the  minister  applies  to  the  presby- 
tery of  the  bounds,  to  appoint  a  kirk-session 
for  his  parish ;  or  the  presbytery  proceeds  of 
itself  to  do  so.  A  meeting  is  held  of  the 
heads  of  families;  fit  individuals  are  selected ; 
their  edict  is  appointed  to  be  served;  the 
presbytery  meets  again  for  their  ordination ; 
and  the  forms,  as  above  described,  are  ob- 
served. See  Kirk-Session.  Church  Judica- 
tories. The  original  design  of  the  institution 
of  the  eldership  appears  to  have  been,  to 
supply  the  minister  of  the  parish  with  a 
parochial  council,  to  assist  him  in  exercising 
ecclesiastical  discipline,  and  to  advise  and  co- 
operate with  him  in  matters  affecting  the  in- 
terests of  religion.  Hence,  an  elder  who 
discharges  the  religious  duties  of  his  office 
with  fidelity,  ought  to  take  a  close  inspection 
of  the  moral  and  religious  conduct  of  the 
parishioners,  and  to  assist  the  clergyman  in 
visiting  and  catechising  the  parish  ;  he  is  also 
required  to  serve  at  the  communion  table. 
An  elder  removing  from  one  parish  to  an- 
other may  be  admitted  ad  eundem,  in  the 
kirk-session  of  the  parish  to  which  he  removes, 
without  being  re-ordained.  And  where  an 
elder  does  not  reside  within  the  parish,  and 
does  not  return  to  it  within  twelve  months  to 
discharge  his  duties,  it  is  competent  to  the 
kirk-session  to  declare  him  no  longer  a  mem- 
ber of  the  session ;  which  finding  is  intimated 
by  letter.  Every  kirk-session  is  represented 
in  the  presbytery  of  the  bounds,  and  in  the 
provincial  synod,  by  one  of  its  elders.  The 
representative  is  elected  every  half-year, 
within  two  months  after  the  sitting  of  the 
synod;  and  a  new  election  takes  place  within 
a  month  after  death  or  demission.  Each 
presbytery  is  represented  in  the  General  As- 
sembly by  a  certain  number  of  elders,  varying 


from  one  to  four,  according  to  the  nnmber  of 
ministerial  charges  in  the  presbjrtery.  These 
representatives  are  elected  at  least  forty  dsjs 
before  the  meeting  of  Assembly.  Elders, 
when  members  of  church  courts,  have  a  title 
to  reason  and  vote  on  all  matters  under  dis- 
cussion, in  the  same  manner  with  the  clergy 
themselves.  The  office  of  elder  is  gratuitoiu. 
See,  on  the  subject  of  this  article,  Cook't  Stvkt, 
<bc.,  in  Church  Courts,  p.  4 ;  Acts  of  Assemiiif, 
1842,  Sess.  5,  Act  10  ;  Hill's  Thedogied  Intti- 
tutes,  p.  174,  et  seq.,  and  212,  «t  seq. ;  Bumsontk 
Poor,  pp.  1-47.  See  also  Poor  Laws;  GiUan'i 
Acts  of  Assembly,  \17,ct  seq.;  Hill's  Prae.i, 
et  Seq.    See  Kirk-Session.    Church  Jttdicatoria. 

Election  Laws.  It  has  been  thought  right 
to  comprehend,  under  this  general  title,  s 
short  account  of  the  provisions  and  regula- 
tions relating  to  the  representation  of  the 
nobility  and  commons  of  Scotland  in  the 
British  Parliament,  although  a  considerable 
portion  of  the  article  has  been  rendered  merely 
historical  by  the  passing  of  the  Reform  Act, 
as  it  contains  a  summary  of  the  former  elec- 
tion law  of  Scotland. 

The  ancient  Parliament  of  Scotland  coo- 
sisted  of  the  higher  clergy  and  the  barons; 
the  latter  title  iocluding  not. only  the  nobility, 
but  every  man  who  held  territorial  property 
as  the  immediate  vassal  of  the  Sovereign.  It 
was  not  until  towards  the  end  of  the  four- 
teenth century  (1372)  that  members  from  the 
royal  burghs  obtained  places  in  that  assembly. 
At  that  time  the  duty  of  attendance  in  Par- 
liament was  felt  to  be  burdensome ;  and  the 
acts  1427,  c.  102,  and  1587,  c.  113,  and  seve- 
ral other  old  statutes,  introduced  a  system  of 
representation,  chiefly  as  a  relief  to  the  lesser 
barons.  Afterwards,  when  religious  dissen- 
sions, and  the  increasing  iinportance  of  the 
Commons  as  a  political  body,  rendered  a  seat 
in  Parliament  more  an  object  of  ambition,  it 
became  necessary  to  improve  the  representa- 
tive system  by  various  legislative  enactments. 
See  the  statutes  1661,  c.  35,  and  1681,  c.  21. 
But  while  the  representation  of  the  Commons 
was  in  this  state  of  improvement,  the  Scottish 
Parliament  lost  one  of  its  branches,  on  the 
final  abolition  of  prelacy  by  the  act  1689,  c. 
3.  The  whole  estates  of  Parliament  sat  in 
one  house,  and  voted  together  as  one  deliber- 
ative body ;  consequently,  the  vote  of  every 
individual  member  was  of  equal  weight ;  for 
the  question  seems  to  have  been  determined 
by  a  majority  of  the  individual  vot*s  of  the 
aggregate  assembly,  and  not  by  the  votes  of  the 
different  estates,  as  distinct  and  independent 
bodies.  See  Mackenzie's  Obs.on  theStats.  p. 424. 
Hence  it  has  been  remarked  as  a  result  of  tiiis 
peculiarity  in  the  constitution  of  the  Scottish 
Pari  laments,  that  the  aids  aqd  subsidies  granted 
to  Government  did  not,  as  in  England,  origi- 


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nate  with  the  Commons,  but  were  conferred 
by  the  simultaneouB  act  of  the  whole  three 
estates.  Another  peculiarity  of  the  Scottish 
Parliament  was,  the  institution  called  the 
Lords  of  the  Articles.  This  was  a  select  com- 
mittee, composed  of  a  certain  number  taken 
from  each  of  the  estates  of  Parliament,  and 
nominated  in  a  separate  meeting  of  the  seve- 
ral estates,  at  the  commencement  of-  every 
Parliament ;  1663,  c.  1.  The  Lords  of  the 
Articles  so  chosen,  were  empowered  to  arrange 
and  digest  the  subjects  for  deliberation,  and 
even  to  reject  altogether  such  matters  as  did 
not  appear  to  them  proper  to  be  brought  un- 
der the  consideration  of  Parliament.  This 
institution  was  not  only  made  subservient  to 
the  undue  increase  of  the  iniluence  of  the  So- 
rereign,  to  whom,  in  effect,  it  gave  the  ad- 
rantage  of  a  negative  before  debate ;  but,  in 
other  respects,  the  Lords  of  the  Articles 
nsorped  the  duties,  and  encroached  largely  on 
the  privileges  of  Parliament;  and,  accord- 
ingly, this  is  stated  as  the  fii-st  in  the  list  of 
grievances  represented  by  the  estates  of  the 
kingdom  to  King  William  in  1689.  By  the 
act  1690,  c.  3,  this  obnoxious  committee  was 
abolished.  See  Article*,  Lords  of.  At  the 
anion  of  the  kingdoms  of  England  and  Scot- 
land (1st  May  1707),  the  Scottish  Parliament 
was  incorporated  with  the  Parliament  of  Eng- 
land, the  united  Parliament  being  styled  the 
Parliament  of  Great  Britain.  The  Scottish 
nobility,  instead  of  having  hereditary  seats, 
as  in  the  Scottish  Parliament,  are  now  repre- 
sented in  the  British  House  of  Lords  by  six- 
teen of  their  number ;  and  in  the  House  of 
Commons,  while  England  continued,  as  before 
the  Union,  to  be  represented  by  513  members 
(now,  by  the  Reform  Act,  500),  the  number 
fixed  by  the  act  of  Union  for  Scotland  is  forty- 
five  (by  the  Reform  Act,  fifty-three),  of  whom 
thirty  represent  the  counties,  and  ilfteen  (by 
the  Reform  Act,  twenty-three)  the  royal 
borghs;  Act  1707,  c.  7,  art.  22.  See  Reform 
Act  The  rules  according  to  which  these 
representatives  of  the  nobility  are  still  elected, 
and  by  which,  until  1832,  the  representation 
of  the  Commons  were  elected,  form  the  proper 
subject  of  the  present  article.  The  subject 
will  be  explained  in  the  following  order : — 

1.  Of  the  Election  of  the  Peers  of  Scotland. 

2.  Of  the  Election  of  CommissionersfQr  Shires. 
Z.  Of  the  Election  of  Representatives  for  the 

Royal  Burghs. 

L  Of  the  Blectiow  of  the  Peers  of 
Scotland. 

The  sixteen  representative  peers  must  be 
elected  from  the  Scottish  peerage.  Tho  heirs 
and  BQccessors  to  the  dignities  and  honours  of 
the  ancient  .Scottish  nobility,  are  declared  to 


be  the  electors ;  1707,  c  8.  It  follows,  that 
no  British  peer,  created  since  the  Union,  has 
a  title  to  vote,  or  to  be  elected ;  and,  in  the 
case  of  the  Duke  of  Queensberry,  which 
occurred  immediately  after  the  Union,  it  was 
resolved  in  the  House  of  Lords  (21st  Jan. 
1709),  that  a  Scottish  nobleman  who  was, 
subsequently  to  the  Union,  created  a  British 
peer,  had  no  right  to  vote  in  the  election  of 
the  representative  peers.  Very  soon  after- 
wards (18th  Dec.  1711),  in  the  case  of  the 
Duke  of  Hamilton,  the  House  of  Lords  de- 
termined that  a  Scottish  nobleman,  who  had 
been  created  a  British  peer  after  the  Union, 
was  not  entitled  to  sit  in  the  British  House 
of  Lords.  Hence,  it  followed  that  a  Scottish 
peer,  in  thoso  circumstances,  was  deprived, 
not  only  of  all  right  to  sit  in  the  House  of 
Lords,  but  even  of  a  voice  in  the  election  of 
the  representative  peers.  This  result  led  the 
Scottish  peers,  at  the  election  in  1733,  to  alter 
the  rule  which  had  been  formerly  established ; 
and  on  that  occasion  the  Dukes  of  Hamilton 
and  Queensberry,  although  both  British  peers, 
were  allowed  to  vote  in  the  election  of  the 
sixteen  representative  peers:  they  did  so, 
however,  under  protest  that  they  did  not 
thereby  compromise  their  rights  as  British 
peers.  At  last,  in  1782,  the  right  which  a 
Scottish  peer,  who  had  been  created  a  British 
peer  subsequently  to  the  Union,  had  to  sit  in 
the  House  of  Lords,  was  brought  to  trial  in 
the  House  of  Lords  by  the  Duke  of  Hamilton, 
when  the  former  precedent  was  disregarded, 
and  it  was  held,  that  a  Scottish  peer,  on  whom 
a  British  peerage  had  been  conferred,  was 
entitled,  in  virtue  of  such  peerage,  to  a  seat 
in  the  House  of  Lords.  But,  subsequently 
to  this,  the  House  of  Lords  ordered  the  reso- 
lution of  21st  January  1709  to  be  communi- 
cated to  the  Lord  Clerk- Register,  with  an 
injunction  to  him  to  conform  thereto  ;  that  is, 
to  reject  the  votes  of  Scottish  peers  who,  since 
the  Union,  had  been  created  British  peers ; 
Resolution  of  the  House  of  Lords,18th  May  1787. 
At  a  more  recent  election,  however  (1790), 
the  Duke  of  Queensberry  and  the  Earl  of 
Abercom,  both  of  them  Scottish  peers,  created 
British  peers  since  the  Union,  tendered  their 
votes,  which  were  rejected  by  the  clerks,  in 
obedience  to  the  resolution  of  the  House  of 
Lords;  but  that  procedure  having  been 
brought  before  the  House  of  Lords,  it  was 
resolved  (6th  June,  1793),  that  the  votes  of 
the  Duke  of  Queensberry  and  of  the  Earl  of 
Abercom  ought  to  have  been  received ;  and, 
although  this  resolution  was  never  oflScially 
communicated  to  the  Lord  Clerk-Register, 
the  practice  ever  since  has  been  to  receive, 
without  objection,  the  votes  of  Scottish  peers 
holding  British  peerages,  created  since  the 
Union ;  so  that  now  they  can  vote  at  elections 


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and  also  sit  in  the  House  of  Lords.     A  Scot- 
tish peer  who,  at  the  time  of  the  Union,  was 
also  an  English  peer,  was  never  denied  the 
privilege  of  voting  for  the  representative  peei-s 
of  Scotland.    When  a  new  Parliament  is  sum- 
moned, the  peers  of  Scotland  are  called  by 
proclamation  to  meet  and  elect  their  repre- 
sentatives.    This  proclamation  must  be  made 
at  Edinburgh,  and  at  the  head  burghs  of  the 
other  counties  in  Scotland,  ten  days  at  least 
before  the  time  appointed  for  the  election. 
An  execution,  bearing  that  the  proclamation 
has  been  made  at  the  market-cross  of  Edin- 
burgh, is  produced  at  the  meeting  for  election ; 
but  no  evidence  of  the  publication  at  the 
county  towns  is   required.    The  palace   of 
Holyroodhonse  is  the  place  of  election  ;  and 
the  meeting  for  election  is  attended  by  the 
Lord  Clerk-Register,  or  by  two  of  the  prin- 
cipal clerks  of  Session,  acting  under  his  com- 
mission.   After  prayers  by  one  of  the  royal 
chaplains,  the  proclamation  and  execution  are 
read,  and  the  roll  of  peers  is  called.     The 
names  of  the  peers  present,  and  of  the  proxies, 
and  the  signed  lists  of  absent  peers,  are  in- 
serted in  the  minutes.     The  oaths  are  then 
administered  to  the  peers  present,  by  the  offi- 
ciating clerks,  and  the  evidence  that  absent 
peers  who  have  sent  lists  or  proxies,  have 
taken  the  oaths,  is  examined,  after  which  the 
votes  are  collected  from  the  peers  present  and 
from  the  signed  lists,  and  the  names  of  the 
sixteen  peers  who  have  the  majority  are  de- 
clared.    In  case  of  an  equality  of  votes  there 
is  no  casting  vote,  and  the  returning  officer 
merely  states  the  fact,  leaving  the  House  of 
Lords  to  give  directions  in  the  matter.    A 
list  of  the  names  of  the  peers  elected,  written 
upon  parchment,  and  authenticated  by  the 
subscription  of  the  officiating  clerks,  is  read 
to  the  meeting,  and  afterwards  transmitted  to 
Chancery,  under  a  cover  addressed  to  the  clerk 
of  the  Crown.  Previous  to  taking  the  votes,  the 
titles  in  the  roll,  as  existing  at  the  time  of 
the  Union,  are  called  over,  when  those  who 
are  present  answer  "here."    By  14  and  15 
Vict.,  c.  §7,  §  4,  titles  of  peerages,  in  right 
of  which  no  vote  has  been  given  for  fifty  years, 
are  not  to  be  called,  if  the  House  of  Lords 
shall  so  direct;  and  by  10  and  11  Yict.,  c. 
52,  titles  of  peerages,  in  right  of  which  no 
vote  has  been  received  since  the  year  1800, 
are  not  called.    The  roll  is  again  called,  for 
taking  the  separate  votes,  proxies,  and  signed 
lists.     It  is  at  this  stage  of  the  proceedings 
that  any  peer  who  deems  himself  aggrieved,  as 
to  the  precedence  alloted  to  his  title,  may 
have  his  protest  recorded.    The  complaint 
may  be,  either  that  his  own  place  in  the  roll 
is,  generally,  too  low,  or  that  some  individual 
peer  is  ranked  too  high.     Many  of  the  older 
peerages  are  very  irregularly  arranged  in  the 


list ;  some,  such  as  Crawford,  Errol,  Rothes, 
Morton,  and  Bnchan  enjoying  the  place  due  to 
the  original  creation, notwithstanding  repeated 
and  sweeping  alterations  having  been  made 
in  the  line  of  succession ;  while  others,  for 
example.  Mar,  Sutherland,  and  Caithness,  are 
placed  on  the  roll,  according  to  what  those 
skilled  in  peerage  law  represent  as  an  arbi- 
trary and  unwarranted  arrangement. 

No  peer  under  age  can  vote  ;  and  at  one 
time  a  Roman  Catholic  could  neither  vote  nor 
be  elected ;  1708,  c.  8  ;  but  now,  by  10  Geo. 
IV.  c.  7,  §§  5, 7,  and  8,  Roman  Catholic  peen 
may  vote  and  be  elected.     See  Roman  Ca- 
tholic.   It  will  afibrd  a  good  objection  to  the 
vote  of  a  peer,  if,  within  a  year  preceding  the 
election  he  has  been  twice  present  at  divine 
service  in  any  Episcopal  meeting,  the  clerg}'- 
man  of  which  has  not  taken  the  oaths  to  Uo- 
vernment,  and  does  not  pray  for  the  Sove- 
reign by  name,  and  for  the  Royal  Family,  io 
the  form  prescribed  in  the  liturgy  of  the 
Church  of  England ;  19  Geo.  II.,  c.  38,  §  26. 
The  peers  present  must  qualify  themselves  for 
the  election  by  taking  the  oaths  of  allegiance 
and  abjuration.     Those  peers  who  have  sent 
proxies  or  signed  lists  must  have  taken  and 
subscribed  those  oaths  before  a  sheriff- depute 
or  substitute  sitting  in  court ;  or  in  the  Court 
of  Chancery,  Queen's  Bench,  Common  Pleas, 
or  Exchequer,  in  England  or  Ireland ;  or  be- 
before  the  lieutenant  of  any  county,  or  any 
member  of  Privy  Council  in  Great  Britain 
or  Ireland  ;  or  before  any  judge  of  a  county 
court  in  England,  or  any  British  ambassador 
or  minister  at  a  foreign  court,  or  the  secre- 
tary of  any  embassy  or  legation,  or  before  the 
governor,  lieutenant-governor,  or  officer  ad- 
ministering the  government  of  any  of  Her 
Majesty's  colonies  or  possessions  abroad,  or 
any  of  Her  Majesty's  judges  therein ;  and 
this  must  he  certified  by  a  certificate  attached 
to  the  oaths,  and  produced  along  with  the 
proxy  or  signed  list  at  the  meeting ;  15  and 
16  Vict.,  c.  35,  §  2.     No  one  is  entitled  to  act 
as  proxy  for  an  absent  peer,  except  a  peer, 
who  is  himself  entitled  to  vote  at  the  election ; 
and  the  same  peer  cannot  act  as  proxy  for 
more  than  two  peers.    The  authority  to  act 
by  proxy  for  another  must  be  signed  by  the 
Scotch  title  only  of  the  peer  who  grants  it; 
and  it  must  have  been  so  subscribed  in  pre- 
sence of  witnesses,  who  also  sign  their  names 
as  witnesses.  See  6  Anne,  c.  23,  §§  4, 5, 6.  At 
the  meeting  for  election,  no  business  whatso- 
ever unconnected  with  the  election  of  the  re- 
presentatives can  be  legally  introduced.    The 
peers  at  that  meeting  have  no  right  to  decide 
upon  a  disputed  title  ;  and  therefore  where 
any  vote  is  tendered  by  a  person  not  duly 
qualified,  or  where  a  vote  has  been  impro- 
perly rejected,  any  peer  present  who  is  dis- 

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satisfied  most,  if  he  mean  to  try  the  ques- 
tion, enter  a  protest  against  the  reception  or 
rejection  of  the  vote  ;  which  protest  may  be 
the  fonndation  of  a  petition  to  the  House  of 
Lords,  complaining  of  the  return.  Those 
protests  must  be  received  by  the  returning 
officer,  who  is  also  bound  to  give  extracts,  or 
copies  of  them,  to  such  peers  as  demand  them  ; 
but  in  the  certificate  no  notice  is  taken  of 
such  protests.  The  same  forms  are  observed, 
where,  from  death,  or  any  othercause,  it  be- 
comes necessary,  during  the  existence  of  a 
Parliament,  to  supply  vacancies  in  the  repre- 
sentative peerage.  The  court  of  review,  in 
all  questions  connected  with  the  representa- 
tion of  the  peerage  of  Scotland,  is  the  House 
of  Lords.  See  the  Statutes  1707,  c.  8;  6  Anne, 
«.  23 ;  10  and  11  Vict.,  c.  52 ;  14  and  15  Vict., 
e.  87  ;  15  ond  16  Viet.,  c.  35  ;  Wight  on  Elec- 
tions, pp.  113-129 ;  JSeWs  Election  Law,  pp. 
3-25;  and  Robertson's  Peerage  of  Scotland, 
pauim. 

II.  The  Election  ov  Cohuissioneks  for 
Sbibes  (accobdino  to  the  old  law). 

1.  Qualification,— Ihe  act  1681,  c.  21,  in 
order  so  far  to  fix  the  qualification  of  the 
persons  entitled  to  elect,  or  to  be  elected, 
commissioners  of  the  shire,  provided  that  the 
elector  should  be  "  publicly  infeft  in  property 
or  superiority,  and  in  possession  of  a  forty- 
shilling  land  of  old  extent  holden  of  the  king 
or  prince,  distinct  from  the  feu-duties  in  feu- 
lands;  or,  where  the  said  old  extent  appears 
not,  shall  be  infeft  in  lands  liable  in  public 
burdens  for  His  Majesty's  supplies  for  L.400 
(Scotch)  of  valued  rent,  whether  kirk  lands 
now  holden  of  the  king,  or  other  lands  hold- 
ing fen,  ward,  or  blench,  of  His  Majesty,  as 
king  or  prince  of  Scotland."  And  the  star 
tote  16  deo.  II.,  c.  11,  §  8,  provided  that  no 
person  should  be  entitled  to  vote,  or  to  be 
put  on  the  roll  of  electors  for  Scotland,  "  in 
respect  of  the  old  extent  of  his  lands  holden 
of  the  king  or  prince,  unless  such  old  extent 
is  proved  by  a  retour  of  the  lands,  of  a  date 
prior  to  the  16th  September  1681 ;  and  that 
no  division  of  the  old  extent  made  since  the 
aforesaid  16th  September  1681,  or  to  be  made 
in  time  coming,  by  retour  or  any  other  way, 
is,  or  shall  be  sustained  as  sufficient  evidence 
of  the  old  extent."  According  to  the  con- 
struction which  was  put  upon  those  statutes, 
two  or  more  retours  of  different  parts  of  the 
eame  lands,  prior  to  1681,  amounting  together 
lo  forty  shillings  of  old  extent,  were  sufficient 
for  the  statutorv  qualification ;  Malcolm,  23d 
Jan.  1776,  Mor'.f.  8692.  That  clause  in  the 
act  1681,  c.  21,  which  requires  the  old  extent 
to  be  "  distinct  from  the  fen-duties,"  was  held 
to  mean,  that  the  estate,  independently  of  the 


feu-duty,  must  amount  to  a  forty-shilling 
land  of  old  extent ;  M'Ara,  24th  June  1747, 
Mor.  p.  8576 ;  Wight  on  Elections,  p.  179 ; 
Bell's  Election  Law,  p.  55. 

Where  there  was  not  a  retour  showing  that 
the  freehold  was  a  forty-shilling  land  of  old 
extent,  the  statutes  required  as  the  only  other 
alternative,  that  the  land  should  be  holden 
of  the  king  or  prince,  and  rated  in  the  va- 
luation books  of  the  county  at  L.400  Scots  of 
valued  rent,  which  was  in  all  cases  a  sufficient 
qualification,  whatever  might  have  been  the 
old  extent  of  the  lands.  The  most  important 
questions  connected  with  a  qualification  of 
the  latter  description  related  to  the  splitting 
of  valuations,  and  to  the  difierent  kinds  of 
property  on  which  valuation  might  be  put. 
As  to  the  first  poiut,  the  commissioners  of 
supply  were  empowered,  on  the  application 
of  those  concerned,  to  split  every  cumub  va- 
luation, and  proportion  the  valuation  accord- 
ing to  the  real  rent  of  the  respective  parcels 
included  in  it ;  and  it  afforded  no  objection 
to  this  proceeding,  that  thereby  the  land-tax 
would  be  subdivided  into  too  many  fractions ; 
Wight  on  Elections,  p.  183,  et  seq.  ;  Bell's  Elec- 
tion Law,  p.  196,  et  seq.  Although,  generally 
speaking,  territorial  property  was  the  basis  of 
qualification,  yet  that  expression  was  inter- 
preted with  some  latitude,  and  was  held  to 
comprehend  a  variety  of  subjects,  which,  al- 
though less  or  more  attached  to  land,  yet 
might  be  considered  as  falling  more  properly 
under  the  denomination  of  heritable  estate  than 
of  land  strictly  so  called.  Thus  mills,  where 
they  had  been  valued,  might  have  made  part 
of  a  eumtilo  valuation,  wherever  they  had  as- 
tricted  multures;  where  that  was  not  the 
case,  and  where,  in  effect,  they  were  mere 
machines  for  performing  a  part  of  agricultural 
labour,  it  was  doubtful  how  far  they  could  be 
considered  as  forming  any  part  of  a  cumulo  va- 
luation. In  like  manner,  fishings  might  have 
formed  the  basis  of  a  qualification,  whether 
they  were  salmon  fishings  or  other  fishings, 
such  as  oyster  fishings,  or  even  white  fishings 
in  the  sea ;  Buf,  7th  August  1773,  Mor.  p. 
8656.  Feu-duties  also  might  have  been  the 
foundation  of  a  qualification ;  and  in  splitting 
a  cumulo  of  feu-duties,  payable  at  the  general 
valuation,  a  portion  of  the  cumulo  was  appro- 
priated to  the  feu-duties  due  to  the  superior. 
Teinds  likewise  might  have  afforded  a  quali- 
fication, when  in  the  hands  of  the  proprietor 
of  the  lands  out  of  which  they  were  due. 
Whether  or  not  a  third  party,  who  had  ac- 
quired right  to  the  teinds  payable  out  of 
another  person's  lands,  could  claim  on  such 
property,  was  an  undecided  question.  But 
heritable  offices,  although  feudalized  and  re- 
toured,  were  not  admitted  as  the  foundation 
of  a  qualification  ;  Wight,  pp.  199-203  ;  BeWs 

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Election  Law,  pp.  47-67.  The  valuation  in 
the  cess-books  was  proved  by  a  certificate 
under  the  hands  of  two  of  the  commissioners 
of  supply  for  the  county,  and  of  the  clerk  of 
supply.  The  property  which  afforded  the 
qualification  must  have  been  held  immediately 
of  the  king  or  prince.  But  it  was  not  enough 
that  the  vassal  held  of  the  king,  supploido 
vices  of  the  immediate  superior  who  bad  re- 
fused to  give  an  entry;  for  the  immediate 
superior  retained  right  to  all  the  casualties, 
and,  consequently,  remained  superior,  al- 
though, pro  hoc  vice,  the  king  supplied  the 
defect  occasioned  by  the  superior's  delay  or 
refusal  to  enter  his  vassal ;  Mackenzie's  Obser- 
vations on  tt«  Statutes,  p.  467. 

The  person  claiming  to  be  admitted  on  the' 
roll  of  freeWders  required  not  only  to  hare 
been  infeft  in  his  freehold,  but  his  sasine  must 
have  been  recorded ;  or,  if  he  had  completed 
his  title  by  confirmation,  the  charter  of  con- 
firmation must  have  been  expede  a  year  before 
his  enrolment  could  take  place ;  12  Anne,  c. 
6,  §  1 ;  16  Geo.  II.,  c.  11,  §  10.  In  reckon- 
ing the  year,  the  maxim,  Dies  inceptus  pro 
completo  habetur,  applied,  and  the  claimant 
might  have  been  enrolled,  although  some 
hours  were  awanting  to  complete  the  year ; 
Tel/ers,  Jan.  1781,  Mor.  p.  8793.  In  cases  of 
that  kind,  the  date  of  the  entry  of  the  sasine 
in  the  minute-book  was  held  to  be  the  date 
of  the  registration ;  and  the  certificate  of  the 
keeper  of  the  record,  as  of  that  date,  could 
not  be  redargued  by  parole  evidence  that 
there  was  actually  an  int-erral  between  the 
entry  in  the  minute-book  and  the  transcrip- 
tion into  the  record.  See  Bell's  Election  Law, 
pp.  262,  274,  and  statutes  and  cases  there  cited. 
The  rule,  that  the  voter  required  to  be  infeft 
before  his  name  could  be  put  on  the  roll  of 
freeholders  was  subject  to  exceptions — 1st,  In 
the  case  of  a  husband  claiming  right  to  vote 
during  his  wife's  life,  in  virtue  of  her  infeft- 
ment,  where  it  was  not  a  mere  liferent  ac- 
quired by  singular  titles ;  idly.  In  the  case 
of  a  widower  claiming  to  vote  on  property 
having  a  freehold  qualification,  of  which  he 
enjoyed  the  liferent  under  the  courtesy  (see 
Courtesy) ;  and,  Sdly,  In  the  case  of  an  appa- 
rent heir  in  possession  under  the  infeftment 
of  his  predecessor.  See  stats.  1681,  c.  21 ;  12 
Anne,  c.  6,  §  5 ;  16  Geo.  II.,  c.  11,  §  10 ; 
Wight,  pp.  238-246  ;  Bell's  Election  Law,  pp. 
128-147.  To  complete  the  qualification  it 
was  farther  requisite  that  the  freeholder  claim- 
ing enrolment  should  be  in  possession  of  the 
subject  of  his  freehold,  either  naturally,  by 
labouring  the  ground,  or  civilly,  by  drawing 
the  rent  or  feu-duty,  or  other  reddendum,  or 
by  taking  the  necessary  steps  for  enforcing 
them.  Hence,  in  creating  a  vote  on  a  mere 
right  of  superiority,  a  separation  between  the 


property  and  the  superiority  was  made,  Im- 
fore  the  superiority  was  conveyed  to  the  in- 
tended voter.  To  accomplish  this  the  Crown 
vassal  might  have  granted  a  feu-right  to  s 
third  person,  and  then  conveyed  what  re- 
mained in  himself  (t.  e.,  the  superiority  of  the 
feu)  to  the  intended  voter.  After  this,  the 
third  person  re-disponed  the  feu  to  the  ori- 
ginal Crown  vassal,  who  thus  became  the  in- 
tended voter's  vassal  in  the  feu  ;  consequently 
leaving  nothing  in  the  voter  but  a  mere  supe- 
riority. Or  the  same  object  might  have  been 
attained  by  the  Crown  vassal  disponing  botli 
property  and  superiority  to  the  intended  voter, 
who,  having  completed  his  title  as  vsssal  to 
the  Crown,  in  the  whole  subject,  granted  a 
fen-right  to  the  former  Crown  vas»il.  But, 
in  the  latter  case,  the  disposition  to  the  voter 
must  have  borne  that  he  was  under  an  obli- 
gation to  grant  the  feu-right,  otherwise  he 
could  not  have  been  in  circumstances  to  take 
the  trust  oath ;  Forrester,  9th  Jan.  1755, 
Mor.  p.  8755.  Though  the  superiority  and 
property  of  lands  thus  often  came  to  be  vested 
in  different  persons,  and  although, coUoquiallj, 
they  are  distinguished  by  those  names,  or  the 
former  called  the  dominium  directum,  and  the 
latter  the  dominium  utile,  yet  as,  according  to 
strict  feudal  notions,  the  latter  is  only  re- 
garded as  a  burden  on  the  former,  and  not  u 
a  separate  independent  right,  it  has  been 
generally  held  that  the  proper  mode  of  con- 
veying the  mere  superiority  is,  to  dispone  the 
lands  themselves,  and  to  except  the  previonslj 
granted  fen-right  from  the  obligation  of  war- 
randice. It  has  been  held,  however,  by  the 
First  Division  of  the  Court  (although  contrarf 
to  the  opinion  of  Lord  President  Hope),  that 
a  mere  conveyance  of  the  "dominium  direct**" 
is  an  effectual  conveyance  of  the  superioritT, 
and  hence,  that  it  was  sutfieient  to  confer  a 
title  to  vote ;  Lord  Archibald  HatnUton,  23d 
Feb.  1819,  Fac.  CoU.  But  the  soundness  of 
that  judgment( which  was  to  have  been  bronght 
under  review  had  the  case  not  been  compro- 
mised) has  been  doubted ;  and  the  qnestion 
having  afterwards  occurred  in  the  Second 
Division,  the  Court  waived  the  determination 
of  it,  the  case  having  been  decided  apiw^ 
the  disponee  on  a  separate  ground  ;  M'Q^een 
V.  Mime,  23d  Jan.  1823,  2  S.  <b  i).  637. 
By  the  case  of  Gardner  against  Trinity- 
House  of  Leith,  however  (Feb.  9,  1841, 3  D. 
534),  it  is  settled  that  infeftment  in  the  supe- 
riority of  the  lands  is  a  good  title  to  the 
dominium  directum.  See  Metuies'  Lett.  p.  639. 
As  a  test  of  the  freeholder's  possession,  and 
as  a  protection  against  nominal  and  fictitious 
voters,  the  statute  7  Geo.  II.,  c  16,  §  2,  pre- 
scribed the  form  of  an  oath,  commonly  called 
the  oath  of  trust  and  possession,  which  every 
freeholder  claiming  to  vote  at  an  elecUon,  or 


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in  adjasting  the  rolls  of  electors,  might  have 
been  required  to  take  and  subscribe,  on  the 
motion  of  any  freeholder  formerly  enrolled. 
The  oath  was  in  these  terms :  "  1,  A.  B.  do, 
in  the  presence  of  God,  declare  and  swear 

that  the  lands  and  estate  of , 

for  which  I  claim  a  right  to  vote  in  the  elec- 
tion of  a  member  to  serve  in  Parliament  for 
thii  county  or  stewartry,  are  actually  in  my 
possession,  and  do  really  and  truly  belong  to 
me,  and  is  my  own  proper  estate,  and  is  not 
eonveyed  to  me  in  trust,  or  for  or  in  behalf  of 
any  other  person  whatsoever ;  and  that  nei- 
ther I,  nor  any  person,  to  my  knowledge,  in 
my  name,  or  on  my  account,  or  by  my  allow- 
iDce,  bath  given,  or  intends  to  give,  any  pro- 
aiae,  obligation,  bond,  back-bond,  or  other 
security  whatsoever,  other  than  appears  from 
the  tenor  and  contents  of  the  title  upon  which 
I  now  claim  a  right  to  vote,  directly  or  indi- 
rectly, for  redisponing  or  reconveying  the  said 
lands  and  estate  in  any  manner  of  way  what- 
soever, or  for  making  the  rents  and  profits 
thereof  forthcoming  to  the  use  or  benefit  of 
the  person  from  whom  I  have  acquired  the 
said  estate,  or  any  other  person  whatsoever  ; 
and  that  my  title  to  the  said  lands  and  estate 
is  not  nominal  or  fictitious,  created  or  re- 
wrred  in  me,  in  order  to  enable  me  to  vote 
for  a  member  to  serve  in  Parliament,  but  that 
the  same  is  a  true  and  real  estate  in  me  for 
mj  own  use  and  benefit,  and  for  the  use  of 
BO  other  person  whatsoever ;  and  that  is  the 
tratb,  as  I  shall  answer  to  God."  Any  free- 
holder who  refused  to  take  and  subscribe  this 
oath  was  not  allowed  to  vote ;  and  his  name 
was  directed  to  be  forthwith  erased  out  of  the 
roll  of  freeholders.  Persons  convicted  of  tak- 
ing the  oath  falsely  incurred  the  pains  of 
peijury ;  7  Geo.  II.,  c.  16,  §  3.  As,  however, 
a  We  superiority  of  the  requisite  extent  or 
ralaation  afforded  a  qualification  to  vote,  it 
was  enough  to  entitle  a  freeholder  with  safety 
to  take  the  oath,  that  he  was  in  receipt,  and 
wai  the  only  person  in  receipt,  of  all  that 
conld  be  drawn  from  the  estate  which  consti- 
tnted  the  qualification,  however  illusory  or 
trifling  in  value  it  might  have  been.  In  like 
loaaner,  in  reference  to  the  terms  of  this  oath, 
the  possession  of  a  liferenter  was  held  to  be 
the  possession  of  the  fiar  ;  and  the  possession 
of  an  adjudger  or  adjndgera,  before  the  expir- 
ation of  the  legal,  was  understood  to  be  pos- 
•e«ion  by  the  proprietor ;  Wight,  p.  257 ; 
M*!  Election  Law,  p.  149,  et  seq. 

No  infeftment  taken  upon  any  redeemable 
ri);ht  whatsoever,  except  proper  wadsets,  ad- 
judications, or  apprisings,  allowed  by  the 
Kt  1681,  c.  21,  entitled  the  person  so  infeft 
to  vote  or  to  be  elected ;  12  Anne,  c.  6,  §  3. 
The  provision  of  the  act  1681,  as  to  wad- 
setters, was,  that  proper  wadsetters  having 


lands  of  the  requisite  holding,  extent,  or 
valuation,  should  have  right  to  vote ;  which 
right  "  shall  not  be  questionable  upon  pre- 
tence of  any  order  of  redemption,  payment, 
and  satisfaction,  unless  a  decree  of  declarator 
or  voluntary  redemption,  renunciation,  or  re- 
signation, be  produced."  Proper  wadsetters 
were  justly  admitted  to  vote,  because,  prior 
to  the  period  of  redemption,  they  had  the  full 
enjoyment  of  the  lands  or  estate  precisely  as 
if  they  had  been  absolute  proprietors;  whereas, 
on  the  other  hand,  improper  wadsetters  were 
excluded,  because,  being  bound  to  account  for 
the  surplus  rents  of  the  subject,  after  payment 
of  the  interest, — or,  in  other  words,  to  impute 
the  surplus  in  extinction  of  the  principal  sum 
due  to  them  by  the  reverser, — they  could  not, 
even  before  the  term  of  redemption,  be  con- 
sidered as  proprietors.  It  was  decided,  how- 
ever, that  even  a  proper  wadset  of  superiority, 
of  the  requisite  valuation,  redeemable  in  five 
years,  did  not  afford  a  freehold  qualification. 
The  reason  which  weighed  with  the  majority 
of  the  Court  in  that  case  was,  that  this  was  a 
mere  temporary  and  fictitious  right,  given  in 
order  to  create  a  vote  for  a  particular  elec- 
tion, and  not  a  true  wadset,  or  pledging  of 
land  for  the  loan  of  money,  which  alone  was 
contemplated  by  the  act  1681 ;  Scott,  15th 
Jan.  1820,  Fac.  Coll.  See  also  Wight,  p.  240, 
et  seq. ;  BeU's  Election  Law,  p.  94,  et  seq.  With 
regard  to  adjudgers,  the  provision  of  the  act 
1681  was,  that  they  should  have  no  vote 
during  the  legal ;  and  that,  '*  after  the  expiry 
thereof,  tho  appriser  or  adjudger  first  infeft 
shall  only  have  vote,  and  no  other  appriser 
or  adjudger  coming  tn  pari  passu,  till  their 
shares  be  divided,  that  the  extent  or  valua- 
tion thereof  may  appear ;  and  that,  during  the 
legal,  the  heritor  having  right  to  the  rever- 
sion shall  have  vote ;"  which  right  to  vote, 
proceeding  upon  an  adjudication  of  which  the 
legal  has  expired,  was  declared,  as  in  the  case 
of  proper  wadsets,  not  to  be  questionable  on 
the  ground  of  payment,  or  satisfaction  of  the 
debt  on  which  the  diligence  proceeded,  unless 
a  decreet  of  declarator  of  redemption,  or  a 
voluntary  renunciation  or  resignation  should 
be  produced.  The  reason  of  this  enactment 
is  obvious;  for,  until  the  legal  expire,  the 
right  is  redeemable  at  any  time  on  payment 
of  the  debt,  and  might  therefore  be  said  to 
be  dependent  on  the  debtor's  will ;  but  after 
the  expiration  of  the  legal  the  right  of  re- 
demption is  foreclosed,  and  the  legal  transfer 
to  the  adjudger  becomes  absolute.  It  seems 
to  be  doubtful,  however,  whether,  even  after 
the  expiration  of  the  legal,  the  adjudger's 
title  to  vote  could  have  been  considered  as 
unobjectionable,  before  he  had  obtained  a  de- 
cree of  declarator  of  expiry  of  the  legal ;  and, 
at  any  rate,  it  was  settled  that  no  adjudger, 

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although  the  legal  had  expired,  could  be  en- 
rolled unless  he  was  in  possession  of  the  sub- 
ject. Wight,  p.  237,  et  seq. ;  BelVs  Election  Laic, 
p.  147,  el  seq. 

By  the  special  constitution  of  the  shire  of 
Sutherland,  not  only  the  immediate  vassals  of 
the  king  or  prince,  but  those  also  who  held 
of  the  Earl  of  Sutherland,  and  of  other  sub- 
jects-superior,  had  been  in  use  to  vote  in  the 
election  of  commissioners  of  the  shire ;  and, 
by  16  Geo.  II.,  c.  11,  §§  19,  20,  and  21,  it 
was  enacted,  that  after  the  1st  September 
1745,  no  person  should  be  eligible  as  commis- 
sioner for  that  shire,  or  have  right  to  vote  at 
the  election,  unless  he  had  been  infeft  and  in 
possession  of  lands  liable  to  his  Majesty's  sup- 
plies, and  other  public  burdens,  at  the  rate  of 
L.200  Scots,  valued  rent;  that  the  same 
lands  should  not  afford  doable  qualifications ; 
that,  where  the  land  was  held  of  the  king  or 
prince,  the  vassal  of  the  king  or  prince  only 
should  be  entitled  to  vote,  and  not  the  vassal 
or  sub-vassal  to  such  Crown  vassal.  But  if 
the  king's  vassal  was  a  peer,  or  other  person 
or  body  politic,  who  by  law  could  elect  or  be 
elected,  the  proprietor  of  the  land  (that  is, 
the  person  having  the  dominium  utile),  and 
not  any  of  his  superiors,  should  be  entitled  to 
vote ;  and  no  after  alienation  of  the  superior- 
ity of  such  lands  in  favour  of  a  person  capable 
to  be  a  member,  or  to  vote,  should  deprive 
the  proprietor  of  his  right  of  electing  or  of 
being  elected,  or  entitle  the  purchaser  of  such 
superiority  to  elect  or  to  be  elected;  and, 
Uutlt/,  It  was  enacted  that  land  of  the  valua- 
tion foresaid,  bolden  in  part  of  the  Crown, 
and  in  part  of  a  peer,  or  other  person  or  body 
politic,  incapable  to  elect  or  to  be  elected, 
should  in  that  county  be  a  sufficient  qualifica- 
tion to  the  proprietor  of  such  lands.  See 
Sutherland,  County  of. 

Generally  speaking,  none  could  be  elected 
but  such  as  could  elect.  But  where  the  per- 
son elected  during  the  existence  of  the  Par- 
liament to  which  he  was  returned  lost  his 
qualification,  or  waa  actually  struck  off  the 
roll  of  freeholders,  he  might  nevertheless  have 
continued  to  sit  as  member,  until  the  dissolu- 
tion of  that  Parliament ;  Wight,  p.  289.  The 
following  persons  could  neither  elect  nor  be 
elected: — \tt,  Fatuous  persons  or  lunatics 
nnder  tutory  or  guardianship.  2d,  Minors ; 
1681,  c.  21,  and  1707,  c.  8.  Sd,  Until  1829, 
Papists  and  persons  refusing  to  subscribe  the 
formula  in  the  act  1700,  c.  3.  4th,  Persons 
who,  within  a  year  preceding  the  election, 
had  been  twice  present  at  divine  service  in  an 
Episcopal  meeting  where  the  king  and  royal 
family  were  not  prayed  for  as  in  the  liturgy 
of  the  Church  of  England ;  19  Geo.  IL,  c.  38, 
§  26.  5th,  The  eldest  sons  of  Scottish  peers ; 
Lord  Doer's  Case,  26th  March  1793,  Pari. 


Cases.  They  were  eligible,  however,  for  any 
county  or  burgh  in  England ;  and  the  dia- 
qualification,  even  in  Scotland,  did  not  extend 
to  the  eldest  sons  of  British  peers ;  Wight,  pp. 
270  and  290 ;  Bell's  Elee.  Law,  p.  343,  rf  ^^. 
6th,  Aliens ;  and  even  when  naturalifced  by 
Act  of  Parliament  (except  when  the  act  of 
naturalization  followed  on  intermarriage  with 
the  royal  family),  the  act  must  contain  a 
clanse,  declaring  that  the  naturalized  alien 
shall  not  be  enabled  to  sit  in  either  Hooie  of 
Parliament;  1  Oeo.  I.,  stat.  2,  e.  4.  See 
Alien.  7th,  All  persons  concerned  in  the 
management  or  collection  of  any  duties  or 
taxes  due  to  Government,  except  commi«ion- 
ers  of  the  land-tax,  or  persons  acting  under 
them.  This  incapacity  continued  for  twelre 
calendar  months  after  the  person  ceased  i« 
hold  the  appointment;  22  Geo.  IIL,  c.  41. 
But  although  such  persons  were  disqualified 
to  vote  in  the  election  of  a  member  of  Parlia- 
ment, they  were  not  prevented  from  acting  u 
freeholders  in  any  other  respect;  Wi^f. 
278.  8th,  Persons  guilty  of  wilful  and  cor- 
rupt petjury ;  as  aim,  any  person  who  asked 
or  received  a  reward  of  any  kind  whatsoever 
for  giving  or  withholding  his  vote,  besidei 
being  subjected  to  other  penalties,  was  for 
ever  disabled  to  vote  in  the  election  of  a 
member  of  Parliament;  7  Will.  IIL,  c.  4; 
2  Geo.  IL,  c.  24. 

2.  Of  the  roll  of  electors.— A.  roll  of  the 
electors  in  each  county  was  first  ordered  to 
be  made  up  by  the  act  1681,  c.  21 ;  and  the 
manner  of  continuing  and  revising  those  rolli 
in  the  different  counties  annuidly,  at  the 
Michaelmas  head-court,  or  at  meetings  for 
election,  was  more  fully  prescribed  by  the 
statute  16  Geo.  II.,  c.  11.  The  qualification 
necessary  to  entitle  a  person  to  have  been  pnt 
upon  this  roll,  has  been  already  adverted  to; 
and  no  freeholder,  whose  name  had  not  been 
regularly  enrolled,  could  legally  vote  in  the 
election  of  a  commissioner  for  the  shire.  In 
some  counties,  it  appears  that  the  directions 
of  the  act  1681,  in  regard  to  the  rolls  of  free- 
holders, had  been  disregarded ;  and  it  was 
therefore  enacted,  by  16  Geo.  II.,  c.  11,  §  % 
that  those  freeholders  who  stood  upon  the  roll 
then  last  made  up,  whether  at  the  Michaelmas 
head-court  or  at  the  last  election  meeting, 
should  be  the  constituent  members  of  the  neit 
Michaelmas  or  election  meeting,  to  revise  the 
rolls.  The  statute  also  contained  provisions 
for  purifying  the  rolls  as  they  stood  at  that 
time,  by  summary  complaint  to  the  Court  of 
Session ;  and,  to  prevent  future  irregularities 
in  the  time  of  holding  the  Michaelmas  head- 
court,  it  was  directed  (§  18)  that  every  sheriff 
should,  at  least  fourteen  days  before  Michael- 
mas then  next,  appoint  a  precise  day  for  hold- 
ing that  court  in  his  county  in  the  year  1743 : 


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and  that,  on  the  anniversary  of  the  day  so 
fixed,  the  Michaelmas  head-court  in  that 
coanty  should  be  held  in  all  time  coming. 
The  daim  of  enrolment  sets  forth  the  name  of 
the  claimant's  lands,  his  titles  thereto,  and  the 
dates  thereof,  with  the  old  extent  or  valuation 
npon  which  his  qualification  rested ;  16  Geo. 
//.,c.  11,§7.  ^W)  Claim  of  Enrolment.)  A 
copy  of  the  claim  required  to  be  left  with  the 
sheriff-clerk  two  calendar  months  at  least  be- 
fore the  Michaelmas  head-court ;  and  he  was 
required  to  indorse  on  it  the  date  of  his  re- 
ceiving it,  and  give  out  copies  of  it  when  re- 
quired, on  payment  of  the  fee  of  an  ordinary 
extract  of  the  same  length ;  16  Geo.  II.,  c.  11, 
§  7.  It  was  not  necessary  that  the  copy  of 
tiie  claim  lodged  with  the  sheriff-clerk,  nor 
even  the  principal  claim,  should  have  been 
signed  by  the  claimant ;  nor,  indeed,  the 
claimant  to  appear  personally  at  the  meeting 
of  freeholders  (any  other  ifeeholder  might 
have  appeared  for  him) ;  and,  when  the  claim- 
aot  was  in  Scotland,  the  possession  of  his  title- 
deeds  was  held  as  a  sufScient  mandate.  Where 
he  was  abroad,  a  special  mandate  seems  to 
have  been  requisite ;  Wight,  p.  154 ;  Bell's 
Eke.  Law,  p.  40,  In  like  manner,  any  objec- 
tion which  was  to  be  stated  to  a  freeholder's 
remaining  on  the  roll,  on  account  of  an  altera- 
tion of  circumstances,  required  to  be  left  in 
writing  with  the  sheriff-clerk  two  calendar 
months,  at  least,  before  the  Michaelmas  meet- 
ing ;  and,  in  the  same  manner  as  in  the  case 
of  the  claim,  the  sheriff-clerk  indorsed  on  the 
objection  the  date  of  receiving  it,  and  gave 
copies  of  it  on  the  same  terms.  Neither  the 
name  nor  the  subscription  of  the  objector  was 
required ;  and  such  objections,  as  well  as  the 
claim  of  enrolment,  required  to  be  supported 
at  the  meeting  by  one  of  the  freeholders, 
otherwise  they  might  be  disregarded  ;  for  it 
was  no  part  of  the  duty  of  the  sheriff-clerk  to 
bring  them  under  the  notice  of  the  free- 
holders; Wight,  p.  154,  d  seq.;  Bell's  Eke. 
Lam,  p.  40.  But,  although  claims  of  enrol- 
ment, or  objections  to  freeholders  standing  on 
tiieroll,  required  to  be  lodged  in  this  way  two 
months  before  the  Michaelmas  head-court, 
yet  such  claims  or  objections  might  hare  been 
brought  forward  without  any  such  previous 
notice,  at  any  meeting  for  the  election  of  a 
member  of  Parliament ;  and,  accordingly,  the 
claim  was  commonly  addressed  to  the  free- 
holders "  at  their  next  Michaelmas  head- 
court,  or  at  any  meeting  for  electing  a  repre- 
Kntative  in  Parliament,  which  may  be  held 
sateeedent  thereto."  Claims  or  objections 
might  be  made  at  the  election  meeting  de 
flaw,  and  disposed  of  without  lodging  them 
with  the  sheriff-clerk ;  and  the  claimant,  if 
duly  qualified,  was  enrolled ;  or,  if  the  objec- 
tion was  well-founded,  the  freeholder  objected 

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to  was  struck  off  the  roll,  at  such  meeting, 
before  the  election  of  the  representative  was 
proceeded  with ;  Wighi,  p.  152. 

A  Michaelmas  or  election  meeting  of  free- 
holders had  no  right  to  review  the  proceed- 
ings of  a  former  meeting;  but  a  claimant 
whose  claim  had  been  rejected  by  a  former 
meeting,  might  have  presented  a  new  claim, 
and  a  subsequent  meeting  might  have  added 
his  name  to  the  roll.  But  where  a  meeting 
had  improperly  rejected  a  claim,  or  delayed 
the  consideration  of  it,  or  had  struck  the 
name  of  a  freeholder  off  the  roll  without  suf- 
ficient reason,  an  appeal  lay  to  the  Court  of 
Session.  This  appeal  was  brought  before  that 
Court  in  the  form  of  a  petition  and  complaint 
at  the  instance  of  the  party  who  bad  been 
refused  admission,  or  whose  name  had  been 
struck  off.  It  was  served  upon  the  person 
whose  objection  had  prevailed ;  and  it  must 
have  been  presented  to  the  Court  actually 
sitting  in  judgment  {Speirs,  21st  Feb.  1823, 
2S.AD.  237),  or  to  the  Lord  Ordinary  on 
the  Bills  in  time  of  vacation,  within  four 
calendar  months  after  the  meeting  whose  pro- 
ceedings were  complained  of.  In  like  man- 
ner, if  a  person  had  been  enrolled  whose  title 
was  thought  liable  to  objection,  a  similar 
petition  and  complaint  mighf  have  been  pre- 
sented, within  the  same  time  after  the  enrol- 
ment, by  any  freeholder  standing  upon  the 
roll.  The  respondent  required  to  answer  the 
complaint  within  fifteen  days ;  and  the  case 
enjoyed  the  privilege  of  a  summary  discus- 
sion; 16  Geo.  II.,  c.  11 ;  30  Geo.  III.,  c.  17,  §  4. 

Where  no  such  complaint  was  brought  with- 
in four  months  after  the  name  of  a  person 
had  been  added  to  the  roll,  or  where  it  had 
been  brought  and  dismissed  by  the  Court, 
such  person  could  not  have  been  struck  off 
the  roll  without  a  change  of  circumstances. 
A  change  of  circumstances  sufficient  for  this 
purpose  must  have  been  such  a  change  as 
would  have  afforded,  of  itself,  a  sufficient 
ground  for  rejecting  the  claim,  if  made  for 
the  first  time  upon  such  a  qualification.  \st. 
On  the  principle  already  explained  in  treat- 
ing of  the  voter's  qualification,  a  conveyauce 
of  the  property  or  dominiwn  utile,  while  the 
superiority  continued  in  the  freeholder,  did 
not,  in  this  sense,  amount  to  a  change  of  cir- 
cumstances. 2d,  Even  a  conveyance  of  part 
of  the  superiority  of  the  estate  on  which  the 
freeholder  stood  enrolled  would  not  have 
warranted  the  meeting  to  strike  him  off,  pro- 
vided he  could  show  that  he  had  retained  a 
sufficient  qualification.  3d,  A'straightening 
of  marches  afforded  no  ground  for  striking 
the  freeholder  concerned  in  it  off  the  roll ; 
but,  in  the  case  of  an  excambion  of  a  part  of 
the  freehold  which  required  new  title-deeds, 
evidence  must  have  been  brought  that  the 

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retained  property  afforded  a  qaaliftcation. 
4<&,  The  execution  of  a  new  family  settlement, 
under  which  a  new  Crown  charter  was  taken 
out,  was  not  necessarily  an  alteration  of  cir- 
cumstances sufficient  to  invalidate  the  quali- 
fication of  the  maker.  5th,  Even  a  disposi- 
tion of  the  freehold  estate,  containing  a  double 
manner  of  holding,  was  not  considered  a  fatal 
alteration,  provided  there  was  an  express 
obligation  on  the  disponee  to  refrain  from 
making  the  right  public  by  confirmation,  or 
from  executing  the  procuratory  of  resigna- 
tion ;  Bdl't  Elec.  Law,  p.  Ill ;  Wilkie,  20th 
Nov.  1821,  Shaw's  Cases.  But  a  conveyance 
of  the  estate  to  trustees,  who  were  infeft  with 
powers  of  sale  for  behoof  of  creditors,  entitled 
the  meeting  to  strike  the  name  of  the  truster 
off  the  roll.  See  Wight,  p.  279,  et  seq. ;  BelPt 
Elec.  Law,  p.  892,  tt  teg. 

Procedure  at  the  Election  of  a  Commisstotier. 
— When  a  new  parliament  is  summoned, 
the  Lord  Chancellor  sends  his  warrant  to 
.  the  clerk  of  the  Crown,  to  issue  writs  for 
the  election  of  members;  which  writs  were 
directed  to  l>e  forthwith  transmitted  to  the 
sheriffs-depute,  or  their  substitutes ;  the  prin- 
cipal or  high  sheriff  being  expressly  prohi- 
bited to  officiate.  When  a  vacancy  is  to  be 
supplied  during  the  existence  of  a  parliament, 
the  warrant  to  the  clerk  of  the  Crown  is 
given  by  the  Speaker  of  the  House  of  Com- 
mons. Within  six  free  days  after  receiving 
the  writ,  the  sheriff  was  required  to  fix  and 
intimate  the  time  and  place  of  election.  Pub- 
lication of  the  notice  was  made  at  the  head 
burgh  of  the  shire  on  a  market-day,  and  in 
each  parish-church  in  the  county  (or,  if  there 
were  no  service  in  the  church,  at  the  church 
door),  on  the  Sunday  immediately  after  the 
publication  at  the  head  burgh ;  the  day  of 
election  appointed  by  the  sheriff  not  being 
sooner  than  six  free  days,  nor  later  than 
fifteen  days,  after  the  day  of  publication  at 
the  parish  churches.  In  Orkney  and  Shet- 
land, it  was  sufficient  if  the  publication  was 
made  at  the  town  of  Kirkwall,  and  the  twelve 
parish  churches  of  the  island  of  Pomona,  or 
the  mainland  of  Orkney  only.  By  express 
statute,  all  public  notices  of  the  time  and 
place  of  elections,  required  to  be  made  within 
the  honrs  of  eight  o'clock  in  the  morning  and 
four  o'clock  afternoon,  from  the  25th  October 
to  the  25th  March  inclusive,  and  between 
eight  o'clock  morning  and  six  o'clock  after- 
noon, from  25th  March  to  25th  October  in- 
clusive, otherwise  the  notices  were  to  be 
deemed  invalfd.  The  sheriff,  on  receiving 
the  writ,  indorsed  on  it  the  date  of  receiving 
it ;  and  the  precept,  or  warrant  for  the  inti- 
mations, was  signed  by  the  sheriff-depute  or 
substitute  himself.  The  statutes  as  to  the 
writs  and  intimations  were,  6  Anne,  e.  6 ;  12 


Anne,  stat.  1,  e.  15 ;  16  Geo.  II.  c.  11 ;  10 
Geo.  III.,  c.  41 ;  33  Geo.  III.,  c.  64 ;  35  Geo. 
III.,  c.  65.  See  also  Wight,  p.  302,  etseq.; 
Bell  on  Election  Late,  p.  453,  et  seq.  The  free* 
holders  being  assembled  in  the  court-room 
on  the  day  appointed,  between  twelve  noon 
and  two  o'clock  afternoon,  the  sheriff  pro- 
duced the  writ,  and  read  it,  or  caused  it  to 
be  read  by  the  sheriff-clerk ;  and  at  the  same 
time  he  produced  the  executions  at  the  mar- 
ket-cross and  parish  churches.  If  there  vas 
any  informality  in  the  publication  of  the  writ, 
the  course,  where  it  was  practicable,  was  for 
the  sheriff  to  appoint  another  day  for  the 
election,  and  to  issue  a  new  precept  for  the 
intimations.  If  the  publication  haid  been  re- 
gular, the  business  commenced  by  the  read- 
ing of  the  statute  2  Geo.  II.,  c.  24,  for  the 
more  effectually  preventing  bribery  and  cor- 
ruption, and  section  38  of  the  statute  16  Geo. 
II.,  c.  11.  The  sheriff-clerk  then  produced 
the  book  in  which  the  roll  of  freeholders  uid 
the  minutes  of  their  proceedings  were  inserted, 
together  with  copies  of  the  oaths  of  allegiance 
and  abjuration,  and  of  the  trust-oath ;  and 
here  the  official  duty  of  the  sheriff  ended; 
Wight,  p.  306  ;  BelPs  Election  Law,  p.  465,  tt 
seq.  The  freeholders  whose  names  stood  ea 
the  roll  formed  the  constituent  members  of 
the  election  meeting,  and  their  first  bnsineu 
was,  to  make  choice  of  a  preses  and  clerk. 
This  was  done  by  the  person  who  last  repre- 
sented the  county  in  Parliament,  or,  in  his 
absence,  by  the  sheriff-clerk  calling  over  the 
roll,  and  taking  the  rotes  for  those  who  were 
to  fill  both  offices ;  and,  in  case  of  an  equality, 
the  casting  vote  was  given  in  the  following 
order : — 1st,  To  the  last  representative  of  the 
county  in  Parliament ;  2d,  In  his  absence,  to 
the  representative  of  the  county  in  a  preced- 
ing Parliament ;  Sd,  To  the  freeholder  who 
last  presided  at  a  meeting  for  election ;  4(1,  • 
To  the  freeholder  present  who  last  presided 
at  a  Michaelmas  head-court;  and,  in  absence 
of  all  those,  to  the  freeholder  present  whose 
name  stood  highest  on  the  roll ;  16  Geo.  IL, 
c.  11,  §  13.  The  preses  and  clerk  being  ap- 
pointed, a  minute  was  prepared,  stating  the 
fact ;  and  this  minute  was  signed  by  the  last 
representative  of  the  county,  or,  in  his  ab- 
sence, by  the  sheriff-clerk,  and  delivered  to 
the  clerk  of  the  meeting;  after  which  the 
freeholders  proceeded  to  take  and  subscribe 
the  oaths  of  allegiance  and  abjuration,  and 
to  sign  the  oath  of  assurance ;  or  those  oaths 
might  have  been  put  previously  to  the  elec- 
tion of  the  preses  and  clerk.  If  any  of  the 
freeholders  present  required  it,  the  trust-oath 
might  also  be  put  to  any  freeholder,  before 
he  gave  his  vote  for  the  preses  and  clerk ;  37 
Geo.  III.,  c  138.  The  clerk  elected  took  the 
oaths  of  allegiance  and  dejiddi,  and  subscribed 

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the  assnrance,  and  the  oath  that  he  had  re- 
ceived no  bribe  for  making  a  return,  and  that 
he  would  return  the  person  duly  chosen. 
Qoakers,  in  place  of  their  oaths,  were  per- 
mitted to  declare  the  substance  of  them  on 
their  solemn  affirmation ;  Bell's  Election  Law, 
p.  456,  et  seq. ;  Wight,  p.  314,  et  seq.  The 
next  procedure  of  the  election  meeting  was,  to 
clear  the  roll  of  the  names  of  those  who  had 
died  since  the  former  meeting.  After  that 
the  objections  to  those  who  stood  on  the  roll 
vere  disposed  of ;  and  then  the  new  claims  of 
enrolment  which  had  been  presented  were 
taken  into  consideration.  The  questions  arising 
on  all  of  those  points  were  determined  by  the 
votes  of  the  majority ;  and,  where  there  was 
an  equality  of  votes,  the  preses,  in  addition 
to  his  vote  as  a  freeholder,  had  a  casting  vote. 
A  signed  copy  or  extract  of  the  roll  thus  made 
up,  whether  at  an  election  or  Michaelmas 
meeting,  was  then  delivered  to  the  sheriff- 
clerk,  to  be  recorded  in  the  sheriff's  books ; 
and  thus  far  the  procedure  was  the  same  at 
a  Michaelmas  head-court  and  at  a  meeting 
for  election  ;  Wight,  p.  316  ;  BelVs  Election 
Lav,  p.  457,  et  seq.  After  the  roll  had  been 
rectified,  the  preses  of  the  meeting  called  it 
orer,  and  took  the  votes  of  the  freeholders 
present  and  enrolled,  for  the  representative 
of  the  county;  and,  in  case  of  an  equality  of 
votes,  the  preses,  on  this,  as  on  every  other 
question  before  the  meeting,  had  a  casting 
vote.  The  candidate  having  the  majority  of 
votes  was  declared  to  be  duly  elected,  upon 
which  instruments  were  taken  in  the  hands 
of  the  clerk,  and  minutes  of  the  whole  pro- 
cedure were  prepared  by  the  clerk  of  the 
meeting,  and  signed  by  the  preses  and  clerk. 
The  clerk,  immediately  after  the  election, 
made  a  return  to  the  sheriff  of  the  person 
chosen  representative,  alongst  with  which  he 
produced  to  the  sheriff  a  copy  of  the  roll  of 
freeholders  made  up  at  the  last  Michaelmas 
or  election  meeting,  extracted  and  signed  by 
thetheriff-clerk,  and  at  the  same  time  showed 
him  the  original  minutes  of  the  election  of 
preses  and  clerk  duly  signed ;  and  the  sheriff, 
after  annexing  the  return  to  the  writ,  trans- 
mitted them  both  to  the  Crown-office  in  Chan- 
«ry ;  6  Anne,  c.  6,  §  6 ;  16  Geo.  II.,  c.  11,  §§ 
16, 17.  The  clerk  of  the  meeting  also  de- 
livered to  the  sheriff-clerk,  gratis,  a  signed 
copy  of  the  roll  and  minutes  of  election,  to  be 
inserted  by  him  in  the  books  kept  for  that 
purpose  ;  16  Geo.  II.,  c.  11,  §  11.  The  clerk 
of  the  Crovni,  on  receiving  the  writ  and  re- 
turn, and  within  six  days  after  they  came 
into  his  hands,  was  bound  to  enter  them,  with- 
oat  alteration,  in  a  book  kept  in  his  office; 
which  book  was  open  to  all  and  sundry,  for 
payment  of  a  reasonable  fee ;  7  and  8  WiU. 
W.,  e.  7 ;  12  Anne,  stat.  1,  c.  15.    The  duties 


which  were  thus  performed  by  the  sheriff- 
clerk,  by  the  preses  and  clerk  of  the  meeting, 
by  the  sheriff,  and  by  the  clerk  to  the  Crown, 
having  been  all  exceedingly  important  in  for- 
warding the  return  of  the  representative  to 
Parliament, — the  performance  of  them  was 
required  under  heavy  penalties.  Thus,  the 
member  who  presided  in  the  election  of  preses 
and  clerk  was  enjoined  to  call  the  roll  regu.- 
larly,  under  a  penalty  of  L.300.  The  minute 
of  the  nomination  of  preses  and  clerk  must 
have  been  fairly  made  up,  and  delivered  to 
the  clerk  of  the  meeting,  under  a  penalty  of 
L.IOO.  The  clerk  of  the  meeting  for  elec- 
tion was  bound  to  make  a  faithful  return  to 
the  sheriff,  under  a  penalty  of  L.500;  and 
the  clerk  of  the  Crown  performed  his  pre- 
scribed duty  also  under  a  penalty  of  L.500. 
See  the  statutes  6  Anne,  c.  6  ;  12  Anne,  stat. 
1,  c.  15 ;  2  Geo.  II.,  c.  24 ;  7  Geo.  II.,  c.  16  ; 
16  Geo.  II.,  c.  11 ;  37  Geo.  III.,  c.  138.  And 
the  same  statutes  contained  sundry  other  pro- 
visions, fortified  by  penalties,  calculated  to  en- 
force the  faithful  performance  of  their  duty, 
on  all  the  persons  concerned  in  making  up 
the  rolls  of  electors,  and  in  returning  the  re- 
presentatives to  Parliament ;  such  as  prohi- 
bitions against  a  separation  of  the  minority 
of  a  meetingfrom  the  majority — against  double 
elections  of  preses  and  clerk,  and  similar  pro- 
ceedings,— the  object  of  all  these  enactments 
having  been  to  guard,  as  far  as  possible, 
against  the  manoeuvres  usually  resorted  to  on 
such  occasions,  and  to  secure  to  all  parties 
the  fair  exercise  of  their  legal  rights.  The 
limits  of  this  work  do  not  admit  of  a  minute 
detail  of  those  various  statutory  regulations ; 
the  leading  statute  was  16  Geo.  II.,  c.  11 ; 
and  the  provisions  of  all  the  statutes,  with 
ample  reterences,  will  be  found  digested  in 
the  treatises  of  Mr  Wight  and  of  Mr  Bell. 
See  Wight,  p.  318,  et  seq. ;  and  Bell's  Election 
Law,  p.  455,  et  seq. 

In  closing  the  subject  of  meetings  of  free- 
holders, it  may  be  observed,  that  no  quorum 
was  required  to  make  a  meeting.  One  free- 
holder might  constitute  a  court,  and  go 
through  the  business,  either  of  a  Michaelmas 
or  election  meeting.  Nor  was  there  any 
method  of  compelling  freeholders  to  meet  at 
all,  either  at  a  Michaelmas  head-court,  or  at 
a  meeting  for  election  ;  Wight,  p.  166,  157. 
The  proceedings  at  the  meeting  for  election 
were  subject  to  the  review  of  the  House  of 
Commons,  upon  a  petition  complaining  of  the 
return,  the  merits  of  which  wece  tried  by  an 
election  committee.    See  Commiftee. 

III.  Of  thb  Eleotioh  of  Rbprbsentatites 

FOB  RoTAL  BdBGUS  (uKDEB  THB  OLD 
STSTEU). 

By  the  act  1707,  c.  8,  ratified  by  the  treaty 

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of  Union,  art.  22,  it  was  provided,  tliat  fifteen 
of  the  forty-five  representatives  for  Scotland 
should  be  chosen  by  the  royal  burghs.  Of 
these  Edinburgh  elected  one,  and  the  remain- 
ing sixty-five  royal  burghs  were  divided  into 
fourteen  districts,  each  of  which  returned  a 
representative  to  Parliament.  This  was  done 
by  each  royal  burgh  in  the  district  choosing 
a  delegate  to  meet  with  the  delegates  from 
the  other  burghs  of  the  district,  and  those  de- 
legates, when  so  met,  elected  the  representa- 
tive to  Parliament.  The  act  1707,  c.  8,  de- 
clared that,  at  this  meeting  of  delegates,  the 
delegate  from  the  eldest  burgh  on  the  roll  of 
the  district  should  preside  at  the  first  meeting 
for  election,  and  that  the  delegates  from  the 
other  burghs  in  the  respective  districts  should 
preside  afterwards  by  turns,  in  the  order  in 
which  the  burghs  were  at  that  time  called  in 
the  rolls  of  the  Parliament  of  Scotland ;  and 
in  this  order,  accordingly,  the  delegates  in 
their  respective  districts  continued  to  preside 
in  rotation  ever  since,  until  the  system  was 
changed  by  the  Reform  Act  of  1832.*  This 
right  to  preside  remained  in  the  same  burgh 
during  the  entire  Parliament,  that  burgh 
being  what  is  called  the  retwminff  burgh,  in 
such  elections  as  might  become  necessary  for 
supplying  vacancies  occurring  prior  to  the 
dissolution  of  that  Parliament ;  6  Anne,  c.  6, 
§  5.  The  right  of  electing  the  representatives 
of  the  royal  burghs  was  vested  in  the  magis- 
trates and  town-council  of  the  dififerent  burghs. 
The  magistrates  and  town-council  of  Edin- 
burgh, therefore,  elected  the  representative 
for  Edinburgh,  and  the  magistrates  and  coun- 
cil of  each  of  the  other  royal  burghs  chose  the 
delegate,  who  was  to  attend  the  meeting  of 
delegates  to  elect  the  member  for  the  dis- 
trict. As  it  was  thus  in  the  magistrates  and 
council  that  the  elective  franchise  for  the 
burgh  representatives  of  Scotland  was  ulti- 
mately vested,  both  Mr  Wight  and  Mr  Bell, 
in  their  works  on  Election  Law,  treat  at  some 
length  of  tlie  former  mode  of  electing  town- 
councillors  and  magistrates.  For  the  pur- 
poses of  the  present  article,  however,  it  is  suf- 
ficient to  observe  generally,  that  the  magis- 
trates and  council  of  royal  burghs  in  Scotland 


*  List  of  the  Ro^sl  Barghs,  divided  into  distriets,  and 
in  the  order  of  their  precedency : — 

1.  Tain,  Dingwall,  Dornoch,  Wick,  Kirkwall.  2.  In- 
vemesa,  Nairn,  Forres,  Fortrose.  3.  Elgin,  Banff,  Cul- 
len,  Rintore,  Inveruiy.  4.  Aberdeen,  Montroee,  Brechin, 
Aberbrothock,  Inverbervie.  5.  Perth,  Dundee,  St  An- 
drews, Copar,  Forfar.  6.  Anstruther  Easter,  Pitten- 
weem,  Crwl,  Anstruther  Wester,  Kilrenny.  7.  Dysart, 
Kirkoald;,  Burntisland,  Kinghom.  8.  Stirling,  Inver- 
keithing,  Dunfermline,  Cnlross,  Qaeensferry.  9.  Glas- 
gow, Dumbarton,  Renfrew,  Rntherglen.  10.  Hadding- 
ton, Jedburgh,  Dunbar,  North-Berwick,  Lander.  11. 
Linlithgow,  Selkirk,  Lanark,  Peebles.  12.  Dumfries, 
Kircudbright,  Annan,  Lochmaben,  Sanquhar.  13.  Wig. 
ton,  Wliithoni,  New  Oalloway,  Stranraer.  14.  Ayr, 
Irvine,  Rothesay,  Inverary,  Campbelton. 


were  annually  chosen  from  the  burgesses,  qd- 
der  a  system  of  considerable  antiquity,  the 
prominent  feature  of  which  was,  that  the  ex- 
isting magistrates  elected  their  successors. 
The  constitutions  or  tetts,  as  they  were  called, 
of  the  different  burghs  diflfered  from  each 
other  in  some  minor  particulars ;  but,  npon 
the  whole,  the  system  was  nearly  the  same  m 
all ;  and,  in  order  to  preserve  uniformity  in 
the  proceedings  of  each,  the  setts  of  all  the 
burghs  were,  by  order  of  the  convention  of 
royal  burghs,  recorded  in  the  books  of  the 
convention  at  the  time  of  the  Union.  Since 
that  time  many  legislative  provisions,  intended 
to  secure  the  purity  of  the  election  of  the  ma- 
gistrates and  council  of  the  burghs,  have  been 
made;  and  when  any  of  those  regulations 
were  infringed,  redress  might  have  been  ob- 
tained, and  the  legal  penalty  imposed,  in  the 
Court  of  Session,  on  a  summary  complaint 
presented  and  moved  in  Court  within  two 
calendar  months  after  the  annual  election  of 
the  magistrates ;  Henderson,  3d  July  1821, 1 
S.  *  D.  99.  See  also  WigU,  330-360 ;  Mh 
Election  Law,  p.  474-494.  For  the  present 
mode  of  electing  the  magistrates  and  conncil 
of  royal  burghs,  see  Burgh-Boyal. 

The  sheriff,  to  whom,  as  in  the  case  of  the 
commissioners  for  the  shires,  a  writ  was  issued, 
indorsed  on  it  the  date  of  receiving  it ;  and, 
within  four  days,  he  was  required  to  make 
out  a  precept  to  each  royal  burgh  within  his 
jurisdiction,  commanding  them  to  elect  a  com- 
missioner or  delegate  to  meet  the  other  dele- 
gates at  the  presiding  burgh  of  the  district, 
on  the  30th  day  after  the  tette  of  the  writ,  or, 
if  that  were  a  Sunday,  on  the  day  following, 
for  the  purpose  of  choosing  a  burgess  to  serve 
in  Parliament ;  and  those  precepts  were,  un- 
der a  penalty  of  L.lOO,  delivered  to  the  chief 
magistrate  of  each  of  the  burghs  within  foor 
days  afterwards.  The  magistrate,  on  receiv- 
ing the  sheriff's  precept,  indorsed  on  it  tiie 
date  of  receiving  it,  and,  under  the  like  pen- 
alty of  L.lOO,  within  two  days  called  a  meetiog 
of  the  town-council,  by  giving  notice  to  each 
magistrate  and  councillor  then  resident  in  the 
burgh,  personally,  or  at  his  dwelling-place; 
and  the  council  being  assembled  in  conseqneneo 
of  this  notice,  appointed  a  day  for  the  election 
of  a  delegate,  it  being  necessary  that  two  free 
days  should  intervene  between  the  meeting  of 
the  council  and  the  day  so  appointed  by  them 
for  electing  the  delegate  ;  6  Anne,  c.  6,  5  5 ; 
7  Geo.  IT.,  c.  16,  5  5 ;  16  Geo.  II.,  c  11,  §40, 
et  seg.  At  the  election  of  the  delegate,  the 
statute  2  Geo.  II.,.c.  24,  was  read.  The  ma- 
gistrates and  councillors  then  took  the  oaths 
to  Government,  and  certain  oaths  for  guard- 
ing against  bribery  and  corruption ;  and  pro- 
ceeded to  choose  the  delegate  by  a  majority 
of  votes.    Any  person  might  have  been  elected 

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delegate ;  and  the  clerk  of  the  bargh  was  di- 
rected to  draw  up  a  commission  in  favour  of 
the  person  chosen,  and  to  authenticate  it  with 
the  common  seal  of  the  burgh.  A  penalty  of 
L.SOO  was  imposed,  and  six  months'  imprison- 
ment, and  perpetual  disability  to  hold  the 
office  of  clerk,  were  inflicted  on  the  clerk  if  he 
failed  in  his  duty ;  2  Geo.  II.,  c.  24 ;  16  Oeo. 
II.,  c  11,  §  25,  et  seq.  On  the  thirtieth  day 
after  the  teste  of  the  writ,  or,  if  that  were  a 
Saoday,  on  the  day  following,  the  delegates 
from  the  different  burghs  met  in  the  town- 
hoDse  of  the  presiding  burgh,  between  the 
hours  of  eleven  and  twelve  forenoon;  and, 
after  production  of  the  precepts,  and  reading 
the  statute  2  Geo.  II.,  c.  24,  the  delegate  for 
the  presiding  burgh  administered  the  oaths 
to  Government,  and  against  bribery,  to  the 
flerk  of  the  presiding  burgh^as  clerk  of  the 
meeting.  The  commissions  to  the  delegates 
from  the  different  burghs  in  the  district  were 
then  read ;  and,  if  any  objection  was  made, 
it  entered  the  minutes  of  the  election  along 
with  the  answers,  &c.  The  delegates  then 
took  the  oaths  to  Government,  and  against 
bribery ;  and  thereafter  elected  the  represen- 
tatives, the  election  being  by  a  majority  of 
vot«s — the  delegate  from  the  presiding  burgh 
having  a  vote  as  delegate,  and  also  a  casting 
vote  in  case  of  an  equality.  In  case  of  the 
absence  or  refusal  to  vote,  of  the  delegate 
from  the  presiding  burgh,  the  casting  vote 
was  given  to  the  delegate  from  the  burgh 
which  last  presided,  and,  failing  him,  by  ab- 
sence or  refusal,  to  the  delegate  from  the  pre- 
ceding one,  and  so  on ;  1707,  c.  8 ;  16  Geo. 
11;  c  11,  §  28.  When  the  election  of  ma- 
gistrates for  the  burgh  which  ought  to  have 
been  the  presiding  burgh  had  been  reduced, 
and  not  revived  at  the  date  of  the  election, 
the  next  burgh  entitled  to  preside  in  turn  was 
the  presiding  burgh,  and  the  election  took 
place  there  precisely  as  if  it  had  been  the 
presiding  burgh  by  regular  rotation ;  nor  was 
that  burgh,  on  its  restoration,  entitled  to  pre- 
side, until  the  other  burghs  in  the  district  had 
in  their  turn  successively  presided,  and  the 
right  had  devolved  upon  ili  again  in  the  ordi- 
nary course  of  rotation ;  12  Geo.  III.,  c.  81. 
Miontes  of  the  procedure  at  the  election  were 
prepared,  and  signed  by  the  preses  and  clerk. 
The  clerk  returned  the  person  elected  to  the 
sheriff,  under  a  penalty  of  L.500,  and  the 
panishment  of  six  months'  imprisonment  and 
perpetual  incapacity  for  the  office  of  clerk  to 
the  burgh ;  and  the  sheriff  subjoined  the  re- 
turn to  the  writ,  and  transmitted  both  to  the 
clerk  of  the  Crown,  in  the  manner  already 
fxplained  in  treating  of  the  election  of  com- 
missioners for  shires;  Wight,  p.  378.  See 
also,  on  the  form  of  burgh  elections,  Wight, 
P-  361,  <t  seq. ;  Bell's  Election  Law,  p.  509,  et  seq. 


The  form  of  electing  the  member  for  the 
city  of  Edinburgh  differed  from  that  in  which 
the  election  was  made  by  delegates,  only  in 
this,  that  instead  of  electing  a  delegate,  the 
magistrates  and  town-council  of  Edinburgh 
elected  a  representative  to  Parliament  by  a 
majority  of  the  whole  council  of  thirty-three ; 
6  Anne,  c.  6,  §  5 ;  Wight,  p.  378,  et  seq. ;  Bell's 
Elec.  Law,  p.  495,  et  seq.  By  immemorial 
custom,  the  Lord  Provost  of  Edinburgh  en- 
joys a  casting  vote  in  cases  of  equality,  in  the 
ordinary  decisions  of  the  council;  but  his 
right  to  such  a  vote  does  not  appear  ever  to 
have  been  tried  in  any  election  case. 

As  to  the  qualifications  of  the  representa- 
tives of  the  burghs,  although  it  was  at  one 
time  understood  that  the  member  must  have 
been  a  burgess  of  at  least  one  of  the  burghs 
in  the  district,  it  was  afterwards  settled  that 
such  a  qualification  was  not  necessary,  and 
that  any  person,  whether  a  burgess  or  not, 
within  the  district,  might  be  elected  repre- 
sentative of  Edinburgh,  or  of  any  district  of 
burghs;  BelVs  Elec.  Law,  p.  516.  But,  al- 
though not  a  burgess  of  any  burgh  within  the 
district  for  which  he  is  returned,  it  appears 
from  the  terms  of  the  statutes,  that  the  re- 
presentative must  have  been  "  a  burgess"  some- 
where. See  6  Anne,  c.  6 ;  16  Geo.  II.,  c  11, 
§  26,  et  seq. 

In  addition  to  the  statutory  regulations  al- 
ready explained,  it  may  be  mentioned,  that 
bribery  on  the  part  of  a  Candidate,  whenever 
it  could  be  proved,  vacated  his  election  ;  and 
that  every  point  where  the  temptation  might 
be  supposed  to  have  been  strongest,  was,  and 
still  is,  guarded  by  oaths  and  penalties ;  7 
Will.  III.,  c.  4;  49  Geo.  III.,  c.  118.  To 
avoid  the  risk  of  any  undue  influence  on  the 
part  of  Government  from  the  presence  of  a 
military  force,  it  is  also  enacted,  that  all  sol- 
diers quartered  in  any  city,  burgh,  &e.,  in 
which  an  election,  whether  of  a  peer  or  of  a 
commoner,  is  to  take  place,  must  be  removed 
to  the  distance  of  two  miles  one  day  at  least 
before  the  day  appointed  for  the  election ;  and 
that  they  shall  not  approach  nearer  until  the 
day  after  the  election  is  over.  This  statute 
does  not  extend  to  the  city  of  Westminster  or 
borough  of  Southwark,  in  respect  to  his  Ma- 
jesty's guards,  nor  to  any  place  where  the 
King  or  Royal  Family  reside  at  the  time,  in 
respect  to  such  troops  as  attend  as  guards, 
nor  to  any  castle  or  fortified  place  where  a 
garrison  b  usually  kept,  in  respect  to  such 
garrison ;  8  Geo.  II.,  c.  30.  With  regard  to 
the  laws  for  the  trial  of  controverted  elec- 
tions, see  7  and  8  Vict.,  c.  103 ;  1 1  and  12 
Vict.,  c.  18  and  c.  98.  As  to  the  laws  relat- 
ing to  bribery  and  corrupt  practices  at  elec- 
tions, see  ^7  and  18  Viet.,  c.  102 ;  19  and  20 
Vict.,  c.  84  ;  21  and  22  Vict.,  c.  88.   As  te  the 

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qualifications  of  memben  of  Parliament,  see 
21  and  22  Vict.,  c  26.  For  the  present  par- 
liamentary election  law,  see  Reform  Act.  See 
also  Parliament.    Registration. 

Election.  In  the  law  of  England  one  is 
said  to  have  an  election  when  it  is  optional  to 
him  to  make  his  choice  of  two  or  more  alter- 
natives ;  but  having  made  his  election,  be  is 
bound  by  it,  and  cannot  act  inconsistently 
with  bis  own  determination.  So  also,  in  the 
law  of  Scotltmd,  where  a  party  has  an  elec- 
tion, and  has  made  it,  he  must  abide  by  it. 
He  cannot  approbate  and  reprobate  according  to 
the  Scotch  law  expression ;  that  is,  be  cannot 
take  the  benefit  conferred,  and  reject  or  evade 
the  corresponding  burden  or  privation.  Tom- 
lins,  h.  t.     See  Approbate  and  Reprobate. 

Eleotion  Committee.  See  Committee.  11 
and  12  Vict.,  c.  98. 

Election  of  Magistrates.  See  Mayistrate. 
Toum-Council.  Royal  Burgh.  15  and  16  Vict,, 
c.  32  and  c.  35. 

Elegit ;  is  an  English  lav  term,  signifying 
a  writ  of  execution  directed  to  the  Sheriff, 
commanding  him  to  make  delivery  to  the 
creditor  of  a  moiety  of  the  debtor's  land,  and 
all  his  goods,  beasts  of  the  plough  excepted. 
This  writ  may  be  sued  out  against  a  party 
who  has  moveable  effects  sufficient  to  satisfy 
the  debt ;  and,  under  it,  the  creditor  who  is 
called  a  tenant  by  elegit,  holds  possession  of 
the  moiety  of  the  land  so  delivered  to  him, 
until  his  debt  and  damages  are  paid.  This 
form  is  analogous  to  the  ancient  apprising  of 
the  Scotch  law.  Rosa's  Lect.  vol.  i.  p.  431 ; 
Tomlini  Diet.  h.  t. ;  Karnes'  Equitg,  286.  See 
also  Adjudication. 

Ellenborough's  (Lord)  hxlt;9  0eo.  IV.,  c. 
31 ;  see  also  10  Geo.  IV.,  c.  38,  and  7  Will. 
ir.,  andl  F«d.,  c.  85. 

Emancipation;  is  a  term  borrowed  from 
the  Roman  law  ;  and,  in  the  law  of  Scotland, 
applied  to  the  liberation  of  a  child  from  the 
patria  polestas,  or  paternal  authority.  See 
Forisfamiliaiion.  Patria  Potestas.  Adoption. 
Embargo  or  Imbargo;  is  a  detention  or 
arrest  of  ships  or  merchandise  by  public 
authority.  An  embargo  is  usually  imposed 
on  the  breaking  out  of  a  war,  or  on  the  occa- 
sion of  some  difference  with  the  state  to  which 
the  shipping  or  merchandise  so  detained  be- 
longs. The  term  is  also  applied  to  the  deten- 
tion of  ships  for  the  service  of  the  state,  on 
some  pressing  emergency,  on  which  occasion 
it  has  been  held  not  to  be  inconsistent  with 
the  law  of  nations  to  make  use  of  all  vessels 
found  in  the  ports  of  the  state  which  resorts 
to  this  expedient.  See  Park  on  Insurance,  c.  4. 
The  Sovereign  may  lay  an  embargo  on  ^ips, 
or  employ  the  ships  of  subjects  in  time  of 
danger  for  the  service  and  defence  of  the 
country ;  but  a  warrant  to  stay  a  single  ship 


on  a  private  account  is  no  legal  embargo.  la 
time  of  war  embargos  on  the  shipping  in  the 
ports  of  Great  Britain  may  be  imposed  by 
royal  proclamation ;  but  it  is  doubtful  whether 
the  same  power  can  be  legally  exercised  in 
time  of  peace.  An  embargo  has  not  the  effect 
of  putting  an  end  to  the  contract  of  affreight- 
ment ;  the  freight  is  due  in  the  same  manner 
as  it  is  where  the  ship  is  detained  by  contrary 
winds ;  and  the  master  and  crew  are  conse- 
quently entitled  to  their  wages  during  ths 
detention.  See  Tomlins'  Diet,  voce  la^argo; 
Brodie's  Supp.  to  Stair,  976 ;  BeWs  Con.  i. 
517,  et  seq.,  and  573. 

Embasn'.    See  Ambassador. 

Embezuement;  is  the  fraudulent  appro- 
priation of  the  property  of  another  by  the 
person  to  whom  it  is  entrusted.  At  common 
law  this  offence  is  not  held  to  amount  to  theft, 
but  is  punishable  arbitrarily  as  malversation 
or  breach  of  trust.  It  has  been  found  neces- 
sary, however,  for  the  protection  of  several 
branches  of  trade  and  manufactures,  to  enact 
special  statutes  for  the  prevention  and  punish- 
ment of  embezzlement  and  similar  t'rands; 
17  Geo.  III.,  c.  56 ;  2  Fraser's  Pen.  Dm. 
Rel.,  p.  511 ;  Hume,  i.  60 ;  Hutcheson's  Jtt. 
of  Peace,  B.  iii.  c.  7,  where  an  enumeration  of 
the  statutes  will  be  found;  Brodie's  Supp. 
to  Stair,  1005;  BelPs  Com.  i.  p.  564;  ii.  p. 
182.  See  also  Fraud.  Swindling.  Thrft. 
Breach  of  Trust. 

Emblements ;  in  English  law,  the  profits 
of  sown  land.  In  a  larger  acceptation,  any 
products  springing  naturally  from  the  ground, 
as  grass,  fruit,  &c.     Tomlins'  Diet.  h.  t. 

Embracery  ;  is  an  English  law  term,  sig- 
nifying an  attempt  unduly  to  bias  a  jury  by 
promises,  persuasions,  or  bribes.  The  punish- 
ment for  the  person  committing  this  offence 
is  fine  and  imprisonment.  If  a  juror  accept 
a  bribe,  he  is  punishable  by  a  year's  imprison- 
ment, forfeiture  of  tenfold  the  value  of  the 
bribe,  and  perpetual  infamy.  Tomlins'  Diet, 
h.t.^ 

Emigration.  Various  statutes  have  within 
the  last  fifty  years  been  passed  upon  this  sub- 
ject, with  the  view  of  securing  the  proper 
treatment  of  emigrants,  and  of  facilitating 
emigration.  The  recent  acts  are  14  and  15 
Vict.,  c.  91,  and  12  and  13  Vid.,  c.  33.  The 
earlier  statutes  will  be  found  enumerated  in 
Taifs  Just,  of  Peace,  p.  91. 

Emphyteusis;  was  a  right  known  in  the 
Roman  law,  of  the  nature  of  a  perpetual  loca- 
tion of  land,  granted  for  payment  of  a  yearly 
hire  or  rent,  called  canon  empht/teuticus.  The 
emphyteuta  or  tenant  was  not  at  liberty  to  sell 
without  making  the  first  offer  to  tbe<^iii««; 
but  he  was  entitled  to  the  full  profits  of  the 
subject,  which  he  might  also  impignorate  for 
his  debt  without  the  consent  of  the  dominui. 


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The  right  of  the  emphyteuta  desoended  to  his 
heirs.  The  dose  resemblance  in  principle 
between  the  emphyteusis  and  the  grant  in  feu- 
farm  has  led  Craig  and  other  authors  to  apply 
the  term  emphyteutis  to  the  feu-right.  Stair, 
B.  iL  tit.  3,  §  34;  Bank.  B.  ii.  tit.  3,  §  63 ; 
Erik.'B.  ii.  tit.  4,  §  6 ;  Mackenzie,  B.  ii.  tit.  4, 
§  6 ;  Rosses  Lect.  vol.  ii.  p.  394,  et  $eq. 

Bmptio,  Venditio.    See  Sale. 

Emnlatio  Yicini.  A  proprietor  is  entitled 
to  make  erery  lawful  use  of  his  property, 
however  detrimental  to  his  neighbour,  pro- 
vided the  offensive  or  injurious  act  be  not 
done  in  cemvlationem  vicini.  But  no  man  is 
entitled,  without  profit  or  benefit  to  himself, 
to  exercise  his  right  of  property  wantonly  to 
his  neighbour's  prejudice.  Ersk.  B.  ii.  tit.  1, 
§  2 ;  BdPs  Prine.  §  964 ;  iWust  §  962 ;  Karnes' 
Frine.  of  Equity  (1825),  36,  89 ;  ffutcheson's 
JutL  of  Peace,  vol.  ii.  p.  96.     See  Property. 

Enach;  an  amends  or  satisfaction  for  a 
crime,  fault,  or  trespass.   Skene,  h.  t. 

Enchesone ;  the  cause,  occasion,  or  reason 
wherefore  anything  is  done;  as  when  it  is 
said  that  the  vassal  is  in  the  keeping  of  bis 
overlord  by  encheson  of  warde.    Skene,  h.  t, 

Endowment.  In  English  law  endowment 
means  the  bestowing  or  settling  of  dower  upon 
a  woman.  The  same  term  is  also  sometimes 
applied  to  the  settling  of  a  provision  upon  a 
clergyman,  or  building  a  church  or  chapel, 
and  setting  apart  tithes  for  his  maintenance. 
TgnUins'  Diet.  A.  /.    See  Churches, 

Eneya ;  a  French  word  for  the  first,  chief, 
and  principal  part  of  the  heritage.  Jus 
ttnicfe  also  means  the  law  of  primogeniture. 
Skene,  h.  t. 

Engligh  Debt.  It  is  not  unfrequently  a 
matter  of  some  difBculty  with  a  creditor  in 
Scotland  to  know  what  steps  he  ought  to 
take  for  the  recovery  of  a  debt  due  to  him 
in  England;  or  how  he  is  to  claim  on  an 
English  bankrupt  estate;  or  to  oppose  the 
liberation  of  a  debtor  under  the  insolvent 
debtors'  act.  The  following  practical  direc- 
tions may  prove  useful : — Payment  of  what 
in  England  is  called  a  simple  contract  debt, 
may  te  enforced  by  a  Scotch  creditor  against 
his  English  debtor,  by  action  to  be  commenced 
ID  England,  by  what  is  there  technically 
called  either  hailcAle  or  serviceable  process. 
The  creditor  ought  to  send  written  authority 
to  the  attorney  employed  by  him  to  sue.  The 
particulars  of  the  debt,  and  a  description  of 
the  character  in  which  the  creditor  sues, 
whether  in  his  own  right,  or  as  executor, 
trustee,  iic,  should  also  be  forwarded  to  the 
attorney.  If  the  debt  arise  upon  a  bill  of 
exchange,  promissory-note,  or  other  written 
document^  it  ought  to  be  transmitted.  If  the 
nm  due  exceed  L.20,  the  debtor  may  be 
arrested;  the  creditor  first  making  affidavit, 


setting  forth  the  nature  and  amount  of  the 
debt.  This  afiBdavit  must  be  sworn  before  a 
commissioner  in  Scotland,  authorized,  under 
3  and  4  Will.  IV.,  c.  42,  to  take  affidavits, 
or  before  a  judge  in  Scotland;  and  in  the 
latter  case,  the  signature  of  the  judge  and 
authority  to  take  the  affidavit  must  be  verified 
by  the  affidavit  of  some  one  resident  in  Eng- 
land. On  this  a  judge  of  one  of  the  courts  at 
Westminster  will  make  an  order  to  hold  the 
defendant  to  bail.  Where,  again,  the  object 
is  to  prove  the  debt,  under  a  commission  of 
bankruptcy,  the  creditor  in  Scotland  must 
forward  to  his  agent  an  affidavit,  setting  forth 
fully  the  nature  of  the  debt,  accompanied  by 
the  securities,  if  any,  held  by  the  creditor, 
and  a  copy  of  the  account,  if  any,  between 
the  parties.  And,  finally,  if  the  creditor  wish 
to  oppose  a  debtor  who  is  seeking  the  benefit 
of  the  acts  passed  for  the  relief  of  insolvent 
debtors,  he  must  give  notice  of  his  intended 
opposition ;  in  which  case  he  is  at  liberty, 
either  personally  or  by  counsel,  to  oppose  the 
debtor's  discharge.  The  preceding  directions, 
for  which  the  compiler  is  indebted  to  an 
eminent  English  solicitor,  will  be  sufficient  to 
enable  a  party  in  Scotland,  or  his  agent,  to 
take  the  requisite  preliminary  steps ;  and  as 
to  the  various  forms  of  action  and  relative 
procedure,  the  following  authorities  may  be 
consulted : — Archbold's  Practice  of  tlie  Common 
Law  Courts,  by  Thomas  Chitty;  Starkie  on 
Evidence ;  Roscoe's  Digest  of  the  Law  of  Evi- 
dence ;  Archbold's  Practice  in  Bankruptcy ; 
Montague  and  Ayrson  on  BarJcmptcy  ;  Chitty^ » 
Practice.    See  Affidavit. 

Engraving.  The  property  of  engravings 
and  prints  is  secured  to  the  inventors  by  laws 
similar  to  those  enacted  for  the  protection  of 
literary  property ;  8  Geo.  IL,  c.  13 ;  7  Geo, 
IlL,  c.  38 ;  17  Geo.  III.,  c.57  ;  6  and  7  Will. 
IV.,  c.  59.  These  acts  extend  to  lithographic 
and  other  prints ;  15  Vict.,  c.  12,  §  14.  The 
makers  of  new  models  and  casts  of  busts,.&c., 
are  in  like  manner  vested  with  the  sole  right 
of  property  in  them ;  38  Geo.  III.,,  c.  71 ; 
7  and  8  Vict.,  c.  12 ;  9  and  10  VicL,  c.  68 ; 
BeWs  Com.  i.  p.  123 ;  Bell's  Princ.  §  1361 ; 
Illust.  ib.  See  Literary  Property.  For  the 
protection  of  bankers  and  banking  companies, 
the  offence  of  engraving,  making,  using,  or 
possessing  plates  for  bank-notes,  intended  to 
be  fraudulently  circulated,  is,  under  special 
statutes,  punishable  by  imprisonment  or  trans- 
portation beyond  seas ;  41  Geo.  III.,  c.  67  ; 
45  Geo.  III.,  c.  89 ;  both  of  which  statutes 
extend  to  Scotland ;  1  Hume,  i,  141.  See 
Forgery. 

Engrosser.  An  engrosser  or  regrater,  is 
a  person  who  buys  corn,  victual,  flesh,  fish,  or 
other  vivres,  in  a  fair  or  market,  and  sella 
them  again  eitherin  the  same  fair  or  in  any 


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other  fair  within  four  miles  thereof ;  or  who, 
by  buying,  contract,  or  promise,  gets  into  his 
hand  the  corn  growing  in  the  field.  Under 
the  Act  1592,  c.  IDO,  this  oifence  is  made 
punishable  by  fine  and  escheat  of  moveables ; 
but  there  are  no  recent  examples  of  prosecu- 
tions under  this  statute.  Hume,  i.  503.  See 
ForettaUing.     Regrating. 

Enlisting;  is  the  act  of  entering  voluntarily 
into  the  military  service  of  the  State.  All 
persons  enlisted  for  the  land  service  of  Great 
Britain  must  go,  within  ninety-six  hours 
(Sundays  not  being  counted),  and  not  sooner 
than  twenty-four  hours  after  enlistment, 
along  with  an  officer  or  soldier  of  the  recruit- 
ing party,  before  a  justice  of  the  peace,  or  the 
chief  magistrate  of  the  place  of  enlistment, 
not  being  an  oflBcer  of  the  army ;  and  on  that 
occasion  the  person  enlisted  is  entitled  to  de- 
clare his  dissent  to  the  enlistment,  and,  on 
his  returning  the  enlistment  money,  and  pay- 
ing twenty  shillings  for  charges,  and  defray- 
ing any  other  expense  he  may  have  occasioned, 
he  will  be  forthwith  discharged.  If  he  fail, 
within  twenty-four  hours  after  declaring  his 
dissent,  to  return  and  pay  the  money,  he  is  to 
be  held  as  enlisted  ;  and,  in  that  case,  or  if 
he  voluntarily  enlist?,  the  magistrate  must 
then  read,  or  cause  to  bo  read,  to  the  recruit, 
the  3d  and  4th  articles  of  the  second  section, 
and  the  1st  article  of  the  6th  section  of  the 
articles  of  war ;  and  thereafter  administer  the 
oath  of  fidelity,  and  certain  other  oaths  con- 
tained in  the  mutiny  act.  The  magistrate 
certifies  the  enlisting  and  swearing,  and  the 
other  particulars  required  by  the  mutiny  act ; 
and  if  the  recruit  refuse  to  take  the  oath  of 
fidelity,  the  officer  may  detain  him  till  he  take 
it.  In  case  the  recruiting  party  has  left  the 
place,  or  if,  from  any  other  cause,  an  officer 
or  soldier  of  the  party  cannot  be  found,  the 
recruit  may  go  by  himself  before  the  magis- 
trate, within  four  days  after  enlistment,  and 
before  taking  the  oaths,  and  declare  his  dis- 
sent, and  deposit  the  money  in  the  hands  of 
the  magistrate.  Persons  receiving  enlisting 
money,  and  absconding,  or  refusing  to  go  be- 
fore the  magistrate,  are  held  duly  enlisted. 
If  apprentices  enlist,  and  state  to  the  magis- 
trate that  they  are  not  such,  they  may  be 
punished  by  the  judge  ordinary  for  fraud, 
and,  on  expiration  of  their  indentures,  are 
liable  to  serve  in  the  army.  If  they  are 
bound  for  four  years,  their  masters,  in  Scot- 
land, may  recover  them  under  certain  con- 
ditions detailed  in  the  mutiny  act.  If  the 
master  consent  to  the  enlistment,  he  is  entitled 
to  part  of  the  bounty.  (See  Apprentice.) 
Servants  enlisting  before  the  expiration  of 
the  term  of  their  engagements  are,  under  the 
mutiny  act,  but  not  at  common  law,  held  to 
be  validly  enlisted,  and  are  entitled  to  wages 


up  to  the  date  of  their  enlistment.  Such  are 
the  usual  provisions  of  the  mutiny  act  on  this 
subject ;  but,  as  that  act  is  renewed  annually, 
variations  may  occur ;  so  that  it  is  proper, 
on  all  occasions,  to  consult  the  existing  act ; 
Hutch.  Justice  of  Peace,  B.  v.  c  3;  Taiff 
Justice  of  Peace,  p.  362.  See  also  SMien. 
By  9  Geo.  II.,  c.  30,  and  29  Geo.  II.,  c  17, 
it  is  declared  a  capital  felony  for  any  British 
subject  to  enlist  as  a  soldier  with  any  foreign 
state  without  Her  Majesty's  leave ;  or  for  any 
person  to  procure  a  British  subject  to  enlist, 
or  to  retain  or  hire  him  with  intent  to  make 
him  list,  or  procure  him  to  embark  or  go  be- 
yond seas  to  be  so  enlisted ;  and  this  whether 
enlistment  money  has  been  paid  or  not ;  Hvme, 
i.  551.  By  1  Vict.,  c.  29,  the  enlistment  of 
foreigners  into  the  British  service  is  per- 
mitted, provided  that,  in  any  regiment,  bat- 
talion, or  corps,  their  number  shall  not  exceed 
the  proportion  of  one  to  fifty,  of  natural-bom 
suWects. 

Enmity  to  Panel;  in  criminal  process, 
is  one  of  the  grounds  for  rejecting  a  witness. 
To  establish  this  ground,  he  must  be  proved 
to  have  been  hostile  in  act  and  deed  to  the 
panel ;  orv  at  least  a  sufficient  cause  of 
capital  enmity  between  them  must  be  proved. 
The  person  injured  is  not  disqualified,  even 
though  there  may  have  been  animosities  be- 
tween him  and  the  panel  previous  to  the  act, 
though,  in  this  case,  he  is  not  entitled  to  im- 
plicit belief.  Mere  expressions  of  enmity, 
however  violent,  do  not  disqualify,  but  may 
affect  the  credibility  of  the  witness.  If  the 
witness  avows  enmity  in  his  examination  in 
iuitialibus,  he  will  be  excluded,  unless  the 
enmity  is  not  such  as  to  induce  him  to  swear 
falsely.  Enmity  to  the  panel  is  likewise  a 
valid  objection  to  a  juror;  and  it  will  be 
sufficient  that  the  animosity  has  been  evinced 
by  words ;  since  there  is  not  the  same  reason 
for  overlooking  such  expressions  in  the  case 
of  a  juror  as  in  that  of  a  witness,  the  loss  of 
whose  evidence  often  cannot  be  supplied. 
Hume,  ii.  357,  et  seq. ;  Alison's  Prae.  80, 285, 
478;  Steek,l8;  DichsononEvid.,f.  879.  In 
civil  cases  enmity  in  a  witness  is  also  a  dis- 
qualification.   See  Evidence. 

Enrolment,  Claim  o£    See  Claim. 

EntaiL  In  its  most  comprehensive  sense, 
an  entail  or  tailzie  is  any  deed  by  which  the 
legal  course  of  succession  is  cut  off,  and  so 
arbitrary  one  substituted.  But  the  term,  in 
its  more  ordinary  acceptation,  is  applied  to  a 
deed  framed  in  terms  of  the  statute  1685,  c. 
22,  and  intended  to  secure  the  descent  of  an 
heritable  estate  to  the  series  of  heirs  or  sub- 
stitutes called  to  the  succession  by  the  maker 
of  the  tailzie.  This  subject  is  fully  treated 
of  under  the  article  Tailzie.  See  also  Desti- 
nation,    tiub.-tittttitn. 


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Entry  of  an  Hdr.  In  feudal  law,  this 
term  is  applied  to  the  entry  of  the  heir  of  the 
vassal  with  the  Buperior.  On  the  death  of  the 
rasal,  the  property,  or  dominium  utile,  accord- 
ing to  feudal  principles,  returns  to  the  supe- 
rior, by  whom  it  must  be  again  given  out  to 
the  heir  of  the  vassal  before  he  can  complete 
a  feudal  title  as  heir  to  bis  predecessor.  It 
is  not,  however,  optional  to  the  superior  to  re- 
fuse an  entry ;  on  the  contrary,  he  is  bound  to 
grant  a  warrant  for  infefting  the  heir  in  the 
dominium  utile  to  which  he  has  succeeded. 
The  person  whom  the  superior  is  obliged  so 
to  enter  is  the  heir  pointed  out  by  the  original 
inrestitare,  that  is,  by  the  charter,  in  virtue 
of  which  the  dominium  utik  is  held  of  the 
snperior.  The  charter  is  usually  conceived 
in  favour  of  the  vassal  and  his  heirs  whomso- 
ever ;  and  in  that  case,  the  legal  destination 
is  followed,  and  the  heir-at-law  is  the  person 
whom  the  superior  is  bound  to  enter.  Where, 
again,  a  special  destination  is  contained  in  the 
charter,  it  is  the  heir  of  that  destination 
whom  the  snperior  is  bound  to  receive  as  his 
vassal.  In  either  case,  the  proper  legal  evi- 
dence of  the  heir's  title  to  receive  an  entry 
is  a  service  as  heir  to  his  predecessor  in  the 
particular  character  pointed  out  by  the  inves- 
titure ;  although  the  superior,  if  he  chooses, 
may  proceed  on  his  private  knowledge  of  the 
heir's  propinquity,  and  give  a  precept  for  in- 
fefting him  without  requiring  a  service.  See 
Clare  Constat.  The  heir's  entry  is  completed 
by  infeftment  proceeding  on  the  superior's 
precept;  and  the  consideration  or  fee  to  which 
the  superior  is  entitled  for  this  transmission 
of  the  property  is  called  the  casualty  of  relief. 
Its  amount  is  regulated  by  the  reddendo  clause 
in  the  original  charter ;  and  it  is  almost  in- 
variably fixed  at  a  double  of  the  feu-duty ; 
that  is,  the  heir,  on  receiving  from  the  supe- 
rior  the  warrant  of  infeftment,  pays  him  a 
enm  equal  to  one  year's  feu-duty  as  relief-dutt/. 
{•ee  Edirf.  As  to  the  form  by  which  heirs  in 
bnrgage  property  are  entered,  see  Coynition 
and  Sasine.  See  the  subject  of  this  article, 
and  the  respective  rights  of  superior  and 
vassal,  more  fully  treated  of  under  the  follow- 
ing articles : — Superior  and  Vassal.  Charter. 
Clare  Constat.  Charge  against  Superiors.  Heir. 
Service.  Infeftment.  As  to  the  entry  of  an 
heir  cum  benejicio  inventarii,  see  Benejieium 
IweiUarii.  For  the  changes  introduced  in  the 
completion  of  titles  under  the  Act  21  and  22 
Vict.,  cap.  76,  see  the  article  Titles  to  Land. 

Entry  of  a  Porcliaser.  The  entry  of  the 
purchaser  of  an  heritable  subject,  like  the 
entry  of  an  heir,  is  completed  by  infeftment, 
either  proceeding  on  the  warrant  of  the 
sellor's  superior,  or  recognised  and  confirmed 
by  him.  But  as  this  subject  has  been  fully 
considered  in  other  articles,  it  is  unnecessary 


here  to  do  more  than  merely  to  refer  to  them. 
See  Disposition.  Composition.  Base  Right. 
Public  Right.  Confirmation.  Resignation.  Con- 
solidation. Infeftment.  For  the  recent  changes 
in  completing  titles,  see  the  article  Titks  to 
Land. 

Episcopacy ;  that  form  of  church  govern- 
ment in  which  diocesan  bishops  are  established, 
as  distinct  from,  and  superior  to,  priests  and 
presbyters.    Enctfc.  Brit. 

Episcopalian.  In  Scotland,  persons  pro- 
fessing the  religion  of  the  Church  of  England 
are  called  Episcopals  or  Episcopalians,  in  con- 
tradistinction to  Presbyterians,  and  the  mem- 
bers of  other  religious  persuasions,  whose 
form  of  church  government  does  not  recognise 
the  authority  of  bishops.  The  Toleration  Act, 
10  Anne,  c.  7,  authorizes  Episcopalians  to 
meet  for  divine  worship  according  to  the 
liturgy  of  the  Church  of  England ;  and,  by  the 
same  statute,  clergymen  of  that  persuasion 
are  permitted  to  perform  the  ceremony  of 
marriage  in  Scotland,  and  to  administer  the 
sacraments.  But  political  considerations 
rendered  it  necessary  to  put  the  toleration 
thus  granted,  under  such  regulations  as  might 
prevent  danger  to  the  State;  and,  accordingly, 
the  statute  10  Anne,  c.  7,  and  the  more  recent 
statutes,  19  Geo.  II.,  c.  38,  and  32  Geo.  III., 
c.  63,  contain  sundry  provisions  for  preserving 
the  purity  of  this  form  of  worship,  and  for 
securing  the  ministry  of  pastors  well  affected 
to  the  Government.  The  leading  statutory 
provisions  on  this  subject  are, — ls<,  That  the 
pastor  must  have  received  holy  orders  from  a 
Protestant  bishop  of  the  Church  of  England 
or  Ireland,  and  have  subscribed,  before 
officiating,  the  oaths  of  allegiance  and  abjura- 
tion, and  the  assurance,  along  with  the  thirty- 
nine  articles  of  the  Church  of  England.  2dly, 
The  congregations  or  assemblies  for  worship 
must  meet  with  doors  unfastened — any  meet- 
ing where  five  or  more  persons  besides  the 
household  (if  the  meeting  be  in  a  private 
house)  assemble  to  hear  divine  service  per- 
formed by  a  pastor  of  this  communion,  being 
deemed  an  Episcopal  meeting-house  within 
the  meaning  of  the  statutes.  3dly,  The 
statutes  require  the  clergyman  to  pray  for  the 
king  by  name,  and  for  the  royal  family,  in  the 
form  prescribed  by  the  liturgy  of  the  Church 
of  England.  The  statutory  penalties  are, 
fine,  imprisonment,  or  transportation;  but 
the  political  necessity  which  dictated  many  of 
those  enactments  having  ceased,  the  details  of 
the  several  statutes  are  now  of  less  import- 
ance. Episcopacy,  as  the  national  religion 
in  Scotland,  was  finally  abolished  by  the  Art 
1689,  c.  3.  See  Hume,  i.  671 ;  Hutch.  Justice 
of  Peace,  B.  iii.  c.  15.   See  also  Nonconformity. 

Equipollent ;  is  a  term  sometimes  used  in 
legal  phraseology  to  signify  equivalent,   or 

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similar  in  effect.  Thns,  for  example,  where 
statute  or  express  paction  has  prescribed  a 
particular  form  or  ceremony  to  be  observed, 
equipollents,  as  they  are  termed,  are,  in  the 
ordinary  case,  inadmissible ;  that  is,  acts  tanta- 
moant  in  effect  will  not  be  accounted  legal 
compliance  with  the  prescribed  form. 

Equity.  Equity,  in  its  more  enlarged  ac- 
ceptation, has  been  correctly  termed  the  soul 
and  spirit  of  all  law — ^positive  law  being  con- 
strued  by  it,  and  rational  law  made  by  it. 
But,  in  a  more  limited  sense,  and  (although 
somewhat  incorrectly)  as  contrasted  with  law, 
equity  is  defined  to  be  the  correction  of  that 
wherein  the  law,  by  reason  of  its  universality, 
is  deficient.  In  the  latter  sense,  it  is  said  to 
be  the  province  of  equity  to  extend  the  words 
of  the  law  to  eases  similar  in  principle, 
although  not  within  the  letter  of  the  law,  or 
to  qualify  the  rigour  of  the  law  where  a  literal 
construction  of  it  might  lead  to  unforeseen 
and  inequitable  conseqaences.  But  although, 
generally  speaking,  a  distinction  such  as  this 
has  been,  to  a  certain  extent,  recognised  be- 
tween pure  law  and  equity,  nothing  can  be 
more  erroneous  than  the  idea,  sometimes  en- 
tertained, that  equity  is  administered  at  the 
discretion  of  the  judge,  according  to  the  parti- 
cular circumstances  of  each  case,  without 
regard  to  rules  or  precedents.  On  the  con- 
trary, wherever  the  dispensation  of  justice  has 
made  any  progress,  equity,  whether  it  be  ad- 
ministered in  a  court  specially  constituted  for 
the  purpose,  or  dispensed,  alongst  with  law,  in 
the  supreme  civil  court,  must,  in  order  to 
attain  the  ends  of  justice,  be  governed  in  its 
application  by  an  inflexible  regard  to  legal 
principle,  as  well  as  to  judicial  precedents ; 
otherwise,  as  has  been  justly  observed,  "  it 
would  be  above  all  law,  either  common  or 
statute,  and  be  a  most  arbitrary  legislator  in 
every  particular  case."  The  distinction  be- 
tween law  and  equity,  as  administered  in 
separate  courts,  seems  to  be  peculiar  to  Eng- 
land ;  and  although  there  can  be  little  doubt 
that  the  equitable  jurisdiction  of  the  Court 
of  Chancery  in  that  country  was  originally 
of  the  nature  of  a  legislative  correction  of  the 
rules  of  law,  emanating  from  the  Sovereign 
as  the  fountain  of  justice,  yet,  it  is  obvious 
that  such  a  tribunal  is  not  suited  to  a  period 
when  the  principles  of  legislation  and  the  art 
of  administering  justice  come  to  be  better 
understood.  Hence,  it  may  almost  be  said, 
that  the  ancient  distinction  between  law  and 
equity  as  administered  in  P^ngland  no  longer 
exists ;  but  that  justice,  whether  under  the 
name  of  law  or  equity,  is  dispensed,  not  accord- 
ing to  arbitrary  or  fluctuating  rules  depending 
upon  the  conscience  or  discretion  of  any  indi- 
vidual, but  under  an  artificial  system  of  great 
perfection,  in  which  the  principles  of  rational 


and  enlightened  jurisprudence  are  brought 
into  full  and  efficient  operation,  in  a  manner 
eminently  calculated  to  give  stability  and 
permanence  to  the  law  of  England.  In  Scot- 
land, the  Court  of  Session,  as  the  supreme 
civil  court  of  the  country,  combines  in  itself 
all  the  functions  of  the  English  courts,  both 
of  law  and  equity.  The  doctrine  of  the  Scotch 
institutional  writers  is,  that  the  Court  of 
Session  is  a  court  of  equity  as  well  as  of  law, 
abating  the  rigour  of  the  law,  and  giving  aid 
where  no  remedy  could  be  had  in  a  court  of 
pure  law.  This  equitable  power  is,  in  Scot- 
land, called  the  nobile  officium  of  the  Court,  a 
term  derived  from  the  Roman  law.  The 
nobile  officium,  or  judieiutn  nobile  of  the  Roman 
law,  was  the  power  vested  in  the  prstor,  in 
virtue  of  which  he  exercised  a  species  of  legis- 
lative control  over  the  law;  and,  in  like 
manner,  the  ndbUe  officium  of  the  Court  of 
Session  seems  originally  to  have  encroached 
considerably  on  what  may  be  considered  as 
more  properly  the  province  of  the  Legislature. 
But  now,  the  equitable  jurisdiction  of  the 
Court  of  Session  is  governed  by  well-defined 
principles,  and  with  all  the  regard  usually 
had  in  Scotland  to  precedents.  The  examples 
of  the  exercise  of  this  jurisdiction  most  fre- 
quently given,  are  those  cases  in  which  the 
Court  interposes  to  modify  exorbitant  conven- 
tional penalties,  or  to  permit  legal  or  con- 
ventional irritancies  to  be  purged  at  the  bar, 
or  the  like ;  or  where,  in  the  exercise  of  its 
paternal  authority,  the  Conrt  interferes  in 
extraordinary  circumstances,  by  interdict  or 
otherwise,  for  the  protection  of  the  property 
or  rights  of  individuals.  Hence,  Scotch 
authorities  have  defined  equity  to  be,  the 
favourable  modification  of  the  law,  whether 
it  be  that  to  which  the  parties  limit  them- 
selves in  their  covenants,  or  tho  general  law 
of  the  nation.  At  the  same  time,  every  one 
interested  in  preserving  the  purity  of  the  law, 
must  deprecate  any  approach  to  an  union  of 
the  legislative  and  judicial  functions ;  and,  as 
a  protection  against  such  a  danger,  it  is  of 
much  importance  to  avoid  the  too  hasty  adop- 
tion of  what  have  been  termed  "principles  of 
equity,"  which,  however  well  fitted  they  may 
be  for  the  consideration  of  the  Legislature, 
generally  do  more  harm  than  good,  when 
permitted  to  influence  the  determinations  of 
a  court  of  justice.  See,  on  the  subject  of  this 
article.  Stair,  B.  iv.  tit.  3,  §  1,  e(  seq.;  Bank. 
B.  iv.  tit  7,  §  22,  et  seq.,  and  B.  iv.  tit.  45,  § 
149,  et  seq.;  Ersk.  B.  i.  tit.  3,  §  28;  Rosis 
Lect.  vol.  i.  p.  360,  et  seq. ;  BlacksUme,  voL  L 
pp.  61  and  91,  anci  vol.  iii.  p.  426,  e<sej.;  where 
an  exposure  wil't  be  found  of  the  errors  into 
which  Lord  KT'.mes  has  fallen  in  his  "  iV*»- 
ciples  of  Equity."  See  also  Z(aw. 
EqniTalent    At  the  union  of  ihe  king- 


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doma  of  England  and  Scotland,  it  was  pro- 
vided by  article  15  of  the  treaty  of  Union, 
that  Scotland  should  have  an  equivalent,  or 
compensation  in  money,  for  such  parts  of  the 
public  debt  of  England  contracted  before  the 
Union,  as  the  taxes  levied  in  Scotland  should 
be  applied  to  extinguish  ;  and,  for  that  pur- 
pose, commissioners  were  appointed  under  sta- 
tute to  examine  and  state  the  debts,  and  to 
dispose  of  the  equivalent.  See  Articles  of 
Union,  art.  15;  also  the  Scotch  Acts  1707, 
caps.  15  and  16  ;  Statutes  1  Geo.  I.,  c.  26 ;  3 
Gto.  /.,  c.  13;  5  Geo.  I.,  c.  19.  The  Act  of  Se- 
derunt 21st  June  1707,  regulates  the  manner 
of  intimating  assignations  by  those  pretend- 
ing right  to  the  equivalent,  and  of  laying 
arrestments  in  the  hands  of  the  Commission- 
ers. By  13  and  14  Vict.,  c.  63,  the  annuity 
(L.10,000)  payable  to  the  "Equivalent  Com- 
panv"  is  redeemed. 

&asares.  Deeds  or  other  formal  writings 
erased  in  substantialibus  are  not  deemed  pro- 
bative ;  and  such  defects  are  not  suppliable 
by  parole  evidence.  Various  legal  questions 
having  arisen  as  to  the  efiect  of  erasures  in 
instruments  of  sasine,  and  of  resignation  ad 
Tmanentiam,  the  stat.  6  and  7  Will.  IV.,  c. 
33,  in  order  to  increase  the  security  afforded 
b;  the  public  records  of  deeds  and  instru- 
ments concerning  land-rights  in  Scotland, 
enacted,  that  instruments  of  sasine  or  of  re- 
signation ad  remanentiam,  should  not  be  chal- 
lengeable, on  the  ground  that  any  part  of 
these  instruments  is  written  on  an  erasure  ; 
unless  it  should  be  averred  and  proved  that 
such  erasure  was  made  for  the  purpose  of 
fraud;  or  unless  the  record  thereof  is  not 
conformable  to  the  instrument  as  presented 
for  registration.  The  statute  does  not  affect 
jadgments  pronounced  before  12th  May  1835. 
Neither  does  it  extend  to  instruments  of  sa- 
ane,  or  of  resignation  and  sasine  fropriis  ma- 
nifriM.  Nor  does  it  affect  the  validity  of 
feudal  titles  of  property  or  titles  in  secarity, 
vhich  have  been  completed  in  order  to  re- 
medy or  supply  defects  arising  from  erasures 
in  instruments  of  sasine.  Bell's  Com.  i.  p.  675',; 
Bdfs  Princ.  §  344 ;  lUust.  §  344, 827 ;  Ross's 
Led.  L  145 ;  Thomson  on  Bills,  See  Deed. 
Testing  Clause.    Duplicate. 

Eiectare  essonia  ab  aliquo  facta ;  to  reckon, 
esteem,  or  judge  essonzies,  or  accusations  made 
by  any  person.     Skene,  h.  t. 

Erection,  Lords  of.  Those  of  the  nobility, 
or  others  of  the  laity,  to  whom,  after  the  Re- 
formation, the  king,  jure  coronce,  made  grants 
of  the  lands  or  tithes  which  had  formerly  be- 
longed to  the  Popish  ecclesiastical  establish- 
ment, were  called  Lords  of  Erection,  and 
sometimes  Titulars  of  the  Tithes ;  because, 
under  their  grants,  they  had  the  same  rights 
to  the  erected  benefices,  both  lands  and  tithes, 


which  were  formerly  rested  in  the  monasteries 
or  other  religious  houses.  Those  grants  were 
made  under  the  burden  of  providing  compe- 
tent stipends  to  the  reformed  clergy,  an  obli- 
gation which,  prior  to  the  dates  of  the  de- 
crees-arbitral by  Charles  I.  in  1629,  was 
much  neglected  by  the  grantees.  See  Stair, 
B.  ii.  tit.  8,  §  35 ;  Ersk.  B.  ii.  tit.  lO,  §  18  ; 
Connell  on  Tithes;  BeWs  Princ.  §  1147. 

Erection  of  a  Barony.  Lands  cannot  be 
erected  into  a  barony  except  by  the  sovereign; 
nor,  after  the  erection,  can  the  privilege  of 
barony  be  communicated  by  any  base  or  sub- 
altern infeftment  to  be  held  of  the  baron ; 
because  no  feudal  erection  importing  a  dig- 
nity (as  baronies  formerly  did)  c^n  be  con- 
ferred but  by  the  Crown,  or  enjoyed  but  by 
those  holding  immediately  of  the  Crown. 
Hence,  a  barony  cannot  be  conveyed  so  as  to 
confer  the  privileges,  unless  by  disponing  it 
to  be  held  of  the  Crown.  When  lands  are  to 
be  erected  into  a  barony,  a  petition  must  be 
presented  to  the  Lords  of  the  Treasury,  which 
is  remitted  for  consideration  to  the  Barons  of 
Exchequer  in  Scotland ;  and,  if  they  approve 
of  it,  the  signature  is  superscribed  by  the 
King  (or  Queen.)  In  the  Crown  charter  of 
the  barony,  after  the  description  of  the  lands, 
it  is  declared,  that  his  or  her  Majesty  creates, 
unites,  erects,  and  incorporates  the  lands,  &c. 
into  one  whole  and  free  barony,  to  be  called 
by  such  a  name.  This  charter  confers  on  the 
lands,  thus  united  and  erected,  all  the  privi- 
leges of  barony,  and  had  the  effect  not  only 
of  uniting  them  when  discontiguous,  but  one 
sasine  taken  upon  the  barony  was  sufficient 
for  all  the  subjects  compi-ehcnded  in  it,  how- 
ever distinct  they  may  be,  such  as  lands,  pa- 
tronages, and  the  like,  which  could  not  be 
accomplished  by  a  simple  charter  of  union 
without  a  special  dispensation.  The  aliena- 
tion of  a  part  of  the  barony  does  not  prejudice 
the  right  of  barony  as  to  the  remainder ;  but 
the  part  disponed  has  not  the  privilege  with- 
out a  new  erection.  Stair,  B.  ii.  tit.  3,  § 
45,  and  tit.  4,  §  18  ;  Morels  Notes,  cxcii. ; 
Bank.  B.  ii.  tit.  3,  §  86  ;  Ersk.  B.  ii.  tit.  3, 
§  46,  and  tit.  4,  §  18  ;  Jurid.  Styles,  i.  469. 
See  also  Baron.    Barony,     Union. 

Error  in  Essentials.  An  error  in  any 
essential  point  vitiates  a  contract ;  because 
those  who  err  as  to  the  substance  of  their 
agreement  have  not  interposed  that  consent 
on  which  the  validity  of  all  contracts  depends. 
This  rule  applies  whether  the  error  regard 
the  person  of  one  or  other  of  the  contracting 
parties,  or  the  subject-matter  of  the  contract; 
but  if  the  error  be  in  accidental  qualities 
merely,  the  contract  is  valid.  Error  calculi 
may  always  be  rectified,  because  it  must  be 
presumed  that  the  parties  never  intended  to 
consent  to  an  error  of  this  description.  Stair, 


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ESC 


B.i.  tit.  10,  §  13,  and  B.  iv.  tit.  40,  §  24 ; 
More's  Notes,  xiv.;  Bank.'B.  i.Jtit.  23,  §63; 
Enk.  B.  iii.  tit.  1,  §  16;  BdCt  Com.  i.  294, 
et  seg.,  5th  edit. ;  Bdh  Princ.  §§11, 534,  879  ; 
Ttlust.  ib. ;  Bell  on  Purchaser's  Title,  2d  edit, 
p.  171 ;  Broton  on  Sak,  p.  153,  et  seq.;  Hun- 
ter's Landlord  and  Tenant,  p.  552 ;  Karnes^ 
Equity,  92,  179,  296. 

Enror,  Sninmoiu  of.  Where  one  was  served 
heir  to  a  deceased  person  while  a  nearer  heir 
existed,  the  erroneous  service  was  formerly  in 
use  to  be  set  aside  by  a  process,  commencing 
with  what  was  called  a  summons  of  error  ;  in 
which  the  pursuer,  on  the  ground  that  he  was 
a  nearer  heir  than  the  person  wrongfully 
served,  craved  that  the  service,  and  all  fol- 
lowing on  it,  might  be  reduced,  and  the  in- 
quest who  served  found  to  have  erred.  The 
summons  was  drawn  in  Latin.  Of  old,  the 
reduction  of  services  was  proceeded  in  by  an 
assize  of  error,  or  grand  inquest  of  landed 
gentlemen,  on  a  precept  out  of  Chancery  ;  the 
object  of  the  proceeding  being,  not  only  to  set 
aside  the  service,  but  to  have  the  former  in- 
quest punished  under  the  act  1471,  c.  47,  as 
tenure  jurantcs  super  assisam.  Such  was  also 
the  practice  as  to  inquests  in  criminal  causes ; 
but  assizes  of  error,  having  been  included  in 
the  list  of  grievances  presented  to  William 
III.  by  the  states  of  the  kingdom  in  1689, 
have  not  been  used  since  the  Revolution. 
And  now,  instead  of  a  summons  of  error,  an 
erroneous  service  is  set  aside  in  an  ordinary 
action  of  reduction  in  the  Court  of  Session. 
Mackenzie's  Inst.  B.  iv.  tit.  1.,  §  8  ;  Stair,  B. 
iii.  tit.  6,  §  43  ;  Bank.  B.  iii.  tit.  5,  §  92,  et 
seq. ;  Acts  of  the  Estates  of  Scotland,  c.  18. 
See  also  Service  of  Heirs. 

Error,  Clerical.    See  Clerical  Error. 

Error,  Writ  of.  A  writ  of  error  is  an 
Encrllsh  law  term,  signifying  a  commission  to 
the  judges  of  a  supreme  court,  by  which  they 
are  authorized  to  examine  the  record  upon 
which  a  judgment  was  given  in  an  inferior 
court ;  and,  on  such  examination,  to  affirm  or 
reverse  the  same  according  to  law.  Tomlins' 
Dirt.  h.  t. 

Escape ;  is  a  secret,  or  a  violent  evasion 
out  of  lawful  custody  or  confinement.  See 
Breaking  of  Prison.  Those  who  aid  or  assist 
persons  committed  for  capital  crimes,  in  es- 
caping, or  attempting  to  escape,  though  they 
succeed  not,  are  guilty  of  felony,  and  punish- 
able by  transportation  for  seven  years.  If 
the  prisoner  be  committed  for  a  minor  offence, 
or  for  debt,  those  aiding  him  in  his  escape, 
or  in  attempting  to  escape,  besides  being  ci- 
villy liable  for  the  debt,  where  the  imprison- 
ment is  for  debt,  are  guilty  of  a  misdemea- 
nour, and  punishable  by  fine.  The  prosecu- 
tion must  be  commenced  within  a  year  after 
the  offence  ;  16  Geo.  II.,  c.  31.     The  offonop 


of  assisting  a  prisoner  of  war  to  escape,  either 
out  of  prison  or  from  the  limits  to  which  he 
is  confined  by  his  parole,  is  punishable  arbi- 
trarily at  common  law ;  and,  by  statute, 
the  punishment  is  made  transportation  for 
life,  or  for  fourteen  or  seven  years.  The 
crime  is  committed  although  the  prisoner, 
after  his  escape,  may  have  been  prevented, 
by  arrest,  or  otherwise,  from  leaving  the 
country ;  52  Geo.  III.,  c.  156  ;  Hume,  i.  519, 
note  3.  A  messenger-at-arms,  who,  throogh 
negligence  or  collusion,  allows  a  debtor  to 
escape  after  he  has,  or  might  have,  taken 
him  into  custody,  will  be  liable  for  the  debt 
in  the  caption,  provided  the  escape  has  not 
been  eflfected  by  means  of  violence  or  resist- 
ance sufiicient  to  overpower  the  messenger 
and  his  assistants.  Bank,  B.  i.  tit.  10,  §  196, 
et  seq. ;  Ersk.  B.  iv.  tit.  3,  §  14  ;  Stair,  B.  iv. 
tit.  48,  §  20,  et  seq. ;  Mare's  Notes,  p.  cixi. 
cccxxii. ;  BdVs  Com.  vol.  ii.  pp.  545, 646, 5th 
edit.    See  also  Prison.    Prisoner. 

Escheat ;  from  the  French  word  eehoir,  to 
fall,  signifies  any  forfeiture  or  confiscation 
whereby  a  man's  estate,  heritable  or  move- 
able, or  any  part  thereof,  falls  from  him. 
Single  escheat  is  the  forfeiture  to  the  Crown 
of  one's  moveable  estate,  incurred  not  only  on 
conviction  of  certain  crimes,  but  which,  until 
1748,  followed  upon  denunciation  for  non- 
payment or  non-performance  of  a  civil  debt 
or  obligation.  Liferent  escheat  is  the  for- 
feiture to  the  superior  of  the  annual  profits 
of  the  vassal's  lands  during  his  life,  or  while 
he  remains  unrelaxod,  which,  in  like  manner, 
formerly  fell  when  a  denounced  debtor  had 
remained  year  and  day  at  the  horn,  nnrelaxed. 
A  total  forfeiture  to  the  Crown  of  all  one's 
property,  heritable  and  moveable,  is  a  penalty 
which,  in  Scotland,  is  peculiar  to  the  crime  of 
high  treason.  By  the  statute  20  Geo.  II.,  c. 
50,  the  casualties  of  single  and  liferent  es- 
cheat, incurred  by  homing  and  denunciation 
for  civil  debts,  were  abolished  from  and  after 
the  25th  March  1748.  But  both  single  and 
liferent  escheats  are  still  incurred  in  the  case 
of  crimes.  Thus  single  escheat  is  one  article 
of  the  statutory  pains  of  deforcement,  bigamy, 
perjury,  and  some  other  offences.  It  also  falls 
upon  denunciation  following  on  a  sentence  of 
fugitation  or  outlawry  ;  and,  if  the  rebel  re- 
main a  year  in  this  condition,  the  liferent 
escheat  falls  to  his  superior — not,  however,  as 
a  punishment  for  the  crime  with  which  he  is 
charged,  but  on  account  of  his  contumacy  and 
rebellion,  in  failing  to  appear  and  underlie 
the  law.  Single  escheat  also  follows  every 
sentence  for  a  capital  crime;  and  in  case,  after 
sentence,  the  convict  should  make  his  escape, 
there  seems  to  be  ground  for  holding  that, 
until  he  surrender  himself  to  justice,  his  life- 
rent escheat  will  accrue  to  his  superior.  See, 


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on  the  subject  of  tfais  article,  Madmzie'i  Inst. 
B.  ii.  tit.  5,  §  23,  et  seq. ;  Stair,  B.  iii.  tit. 
2,  §  15 ;  Morels  Notes,  p.  cccxi. ;  Bank.  B.  iii. 
tit.  iii.  §  2,  e<  seq.;  Ersk.  B.  ii.  tit.  6,  §  53,  et 
seq. ;  Hume,  vol.  i.  p.  538,  and  vol.  ii.  pp.  262, 
464,  473 ;  Bdl's  Prine.  §  729,  et  seq.;  Illust. 
ib. ;  Bell  on  Leases,  4th  edit.  vol.  i.  p.  29 ; 
Ross's  Led.  i.  274 ;  Jurid.  Styles,  2d  edit.  vol. 
)i.p.338;  vol.  iii.  pp.  194-6;  Karnes'  Stat.  Law 
Ahridg.  h.  t.  See  also  Denunciation.  Fugitation. 
Espousals.  Espousals,  or  sponsalia,  are  a 
contract  or  mutual  and  solemn  engagement 
between  a  man  and  a  woman  to  marrj  each 
other.  By  the  law  of  Scotland  all  promises  of 
marriage,  whether  private  or  contained  in 
written  contracts,  may  be  resiled  from,  pro- 
Tided  a  copula  has  not  followed  on  the  pro- 
mise ;  for  in  that  case  the  marriage  is  com- 
plete. But  the  party  resiling  from  such  an 
engagement,  without  just  cause,  will  be  liable 
to  the  other  in  damages  for  breach  of  promise, 
to  the  extent  not  only  of  any  pecuniary  loss 
which  may  have  been  sustained,  but  in  solatium 
of  his  or  her  injured  feelings.  Stair,  B.  i.  tit. 
4, 5  6 ;  Bank.  B.  i.  tit.  6,  §  2 ;  Ersk.  B.  i.  tit. 
6,  §  3 ;  Hogg  against  Gow,  27th  May  1812, 
Foe.  Coll.    See  Marriage. 

Esqnire ;  a  title  of  dignity  next  in  degree 
to  that  of  knight.  This  addition  is  now  con- 
ferred by  courtesy,  without  regard  to  any  par- 
ticular qualification,  or  authority  for  using  it. 
Easoninm ;  an  essoinzie  or  exousation. 
Skene,  h.L 

Essonzie ;  an  old  law  term  met  with  in  the 
Regiam  Majestatem,  and  the  earlier  statutes  of 
the  Scotch  Parliaments,  signifying  an  excuse, 
by  reason  of  sickness  or  other  sufBcient  cause, 
for  the  non-appearance  of  a  party  in  an  action 
or  court  to  which  he  is  cited,  or  where  he  is 
bound  to  attend.  The  term  has  a  similar 
import  in  the  law  of  England.  See  Tomlins' 
Diet,  voce  Essoign. 

Estate.  The  term  estate,  in  its  most  ordi- 
dinary  acceptation,  signifies  a  person's  land 
estate;  but  it  is  also  frequently  applied  to 
moveables.  Thus,  a  man's  personal  estate 
comprehends  both  his  moveable  effects  and 
the  personal  debts  due  to  him.  Bank.  B.  ii. 
tit.  iii.  p.  597. 

Estates  of  the  Kingdom.  The  ancient 
Parliament  of  Scotland  consisted  of  the  King 
and  the  three  Estates  of  the  Kingdom,  viz., — 
1<<,  The  archbishops  and  bishops,  and,  before 
the  Reformation,  all  abbots  and  mitred  priors; 
2(2,  The  barons,  comprehending  all  the  no- 
bility as  well  as  the  commissioners  for  shires 
and  stewartries  ;  and,  Zd,  The  commissioners 
irom  the  royal  burghs.  All  the  three  Estates 
usembled  in  one  house,  forming  one  aggre- 
gate meeting,  by  a  majority  of  the  votes  of 
which,  in  ordinary  cases,  all  matters,  whe- 
ther legislative  or  judicial,  were  determined. 


Through  ignorance  or  inadvertence  the  Oiree 
Estates  of  the  realm  are  frequently  spoken  of 
as  consisting  of  King,  Lords,  and  Commons. 
This  is  a  mistake.  The  three  Estates  are — the 
Lords  temporal,  the  Lords  spiritual,  and  the 
Commons.  Mackenzi^s  Inst.  B.  i.  tit.  3,  §  3 ; 
Bank.  B.  iv.  tit.  1,  §  2  ;  Ersk.  B.  i.  tit.  3,  §  2, 
d  seq.  See  Parliament.  Convention  of  Estates. 
Eledion  Law. 

Estoppel ;  in  English  law,  an  impediment 
or  bar  to  a  right  of  action,  arising  from  a  ( 
man's  own  act.     Tomlins'  Diet.  h.  t.  ] 

EstoTeriiim;  sustentation,  nourishment.  A 
vassal  in  ward  was  entitled  to  an  estoverinm 
from  his  superior,  proportioned  to  the  quan- 
tity of  the  heritage.     Skene,  h.t. 

Estoays ;  valuable  animals,  not  wild,  found 
straying  without  a  known  owner.  The  finder 
of  such  animals  must  forthwith  acquaint  the 
sheriff,  that  he  may  have  them  proclaimed  at 
the  market-cross  of  the  county  town,  and  at 
the  parish-church ;  and,  if  the  owner  do  not 
claim  them  withu  year  and  day  after  such 
notice,  they  are  held  to  be  derelinquished, 
and  Ml  to  the  Crown,  or  the  donatary  of  the 
Crown.  Bank.  B.  i.  tit.  8,  §  2,  et  seq.;  Ersk.  B. 
ii.  tit.  1,  §  12.   See  Dereliction.  Strays.  Waifs. 

Estreat ;  is  an  English  law  term,  signify- 
ing the  true  extract,  copy  or  note  of  some 
original  writing  or  record,  and  especially  of 
fines,  amerciaments,  &c.,  entered  on  the  rolls 
of  a  court,  to  be  levied  by  the  officers  of  the 
law.     Tomlins'  Diet.  h.  t. 

Ere  et  Treve;  slaves  or  servants,  whose 
father,  gudesire,  grandsire,  and  forbears,  have 
been  servants  to  any  man  and  his  predecessors. 
Skene,  h.  t. 

Eves  Droppers.    See  Eaves  Droppers. 

Evictioii ;  is  the  dispossessing  one  of  pro- 
perty, whether  in  land  or  in  moveables,  in 
virtue  of  a  preferable  legal  title  in  the  person 
of  him  by  whom  the  eviction  is  made.  The 
dispossessed  party  will  be  entitled  to  institute 
an  action  against  his  anther,  the  extent  of  the 
pursuer's  claim  in  which  action  wUl  be  regu- 
lated by  the  natnre  of  the  warrandice  given. 
Where  the  warrandice  has  been  absolute, 
which  is  the  implied  warrandice  in  all  oner- 
ous contracts,  he  from  whom  the  property  has 
been  evicted  will  have  a  claim  against  his 
author,  or  his  author's  representatives,  to  the 
full  extent  of  the  value  of  the  evicted  pro- 
perty as  at  the  period  of  eviction,  and  for  all 
loss  or  damage  which  he  may  have  sustained 
through  the  defective  title.  Stair,  B.  ii.  tit. 
3,  §  46;  More's  Notes,  p.  xci. ;  Mackenzie, 
B.  ii.  tit.  3,  §  12 ;  Bank.  B.  ii.  tit.  3,  §  120, 
et  seq. ;  Ersk.  B.  ii.  tit.  3,  §25,  et  seq. ;  Bell's 
0«».i.  645;  ii.  279;  5«ZPsPn«c.§§  121, 126; 
Bell  on  Purchaser's  Title,  2d  edit.  p.  56 ;  Karnes' 
Equity,  116,183 ;  Hunter's  Landlord  and  Ten- 
ant, ii.  261.    See  Warrandice. 

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Evidence ;  is  the  proof,  either  written  or 
parole,  which  the  parties  in  a  civil  or  criminal 
y  cause,  may  legally  adduce  in  support  of  the 
facts  and  circumstances  on  trhich  their  re- 
spective pleas  or  defences  depend.  In  this 
article  the  subject  vill  be  considered  under 
the  following  arrangement : — 

1.  Evid€nee  by  writ, 

2.  Evidence  by  oath. 

3.  The  order  in  which  evidence  it  to  he  received; 
mth  tome  general  nUet  as  to  evidence. 

I.  Or  EviDKlfOB  BY  WaiT. 

The  evidence  afforded  by  writing  is  ac- 
counted the  highest  description  of  legal  proof. 
It  may  he  considered  under  the  following 
heads : — 1.  Of  a  formal  deed ;  2.  Of  notarial 
instruments,  and  the  executions  of  o£Bcers  of 
the  law ;  3.  Of  acts  of  court,  extracts  from 
judicial  records,  Sie. ;  4.  Of  public  instruments 
and  documents  not  by  officers  of  the  law ;  6. 
Of  merchants'  books;  6.  Of  writings  in  re 
mercatoria. 

1.  0/ a  formal  deed. — A  formal  deed,  signed 
and  authenticated  according  to  the  rules  pre- 
scribed by  the  law  of  Scotland,  affords  com- 
plete legal  evidence  ofthe  contract,  obligation, 
or  other  transaction  which  it  sets  forth.  Such 
a  deed  is  held  in  law  to  be  a  higher  species  of 
evidence  than  parole  testimony ;  and,  for  that 
reason,  it  is  the  only  evidence  admitted  to 
prove  the  constitution  or  transmission  of  a 
right  to  heritable  property ;  nor  will  parole 
evidence  be  received  to  qualify  the  terms  or 
conditions  of  the  written  deed.  When  the 
authenticity  or  validity  of  a  formal  deed  is 
disputed  on  any  ground  not  apparent  ex  facie 
of  the  instrument,  the  challenge  must  be  made 
in  the  form  of  a  regular  action  of  reduction  ; 
and,  until  decree  is  obtained  in  that  action, 
setting  aside  the  deed,  the  evidence  it  affords 
remains  unimpeachable.  The  legal  rules  for 
the  authentication  of  deeds,  so  as  to  render 
them  fully  probative — ^the  effect  given  to 
holograph  writings — to  deeds  subscribed  by 
initials,  or  by  notaries  for  the  parties — to 
writings  in  re  mercatoria — or  to  deeds  defaced 
or  vitiated,  or  otherwise  defective  in  the  sta- 
tutory or  consuetudinary  formalities — and  the 
consequence  of  r«t<n(«rt>«n<us  or  homologation, 
asralidating  informal  writings — ^areexplained 
under  the  following  articles  : — Deed.  Writ. 
Holograph  Deed,  Tetting  Clause,  Privileged 
Dtedt.  Rei Interventus.  Homologation.  Eratures. 

2.  Of  notarial  inttrumenls,  and  the  executions 
of  officers  of  the  law. — A  notarial  instrument  is 
a  written  attestation,  under  the  hand  of  a 
notary,  of  a  fact  or  of  facts  falling  within  his 
observation.  In  some  cases  such  an  instru- 
ment is  an  indispensable  solemnity.  Thus, 
the  fact  of  infeftment  having  been  given  in 


heritable  property,  cannot  be  proved  other- 
wise than  by  a  notarial  instrument  of  sasine. 
In  like  manner,  instruments  of  resignation,  of 
requisition,  of  consignation,  of  intimation  of 
assignations,  of  protests  on  bills  of  exchange, 
and  the  like,  are  deemed  fully  probative; 
and,  although  all  such  instruments  may  be 
set  aside  by  reason  of  informality,  or  im- 
proven  in  an  action  of  reduction  on  the 
ground  of  falsehood,  yet  parole  evidence  wiU 
not  be  admitted  by  way  of  exception  to  dis- 
prove the  facts  set  forth  in  them,  of  which 
they  are  the  proper  aud  only  legal  evidence. 
Notarial  instruments,  however,  cannot  be 
effectually  founded  on  as  legal  evidence  of 
anything  more  than  the  mere  act  which  the 
law  requires  to  be  so  proved.  Thus,  an  in- 
strument of  sasiae  will  not  be  received  as  evi- 
dence of  the  charter  on  which  it  proceeds; 
nor  will  a  notarial  instrument,  where  it  is 
not  essential  as  a  solemnity,  relieve  the  party 
producing  it  from  the  necessity  of  legally 
proving  the  fact  asserted  on  it,  or  prevent  the 
opposite  party  from  disproving  it,  either  by 
written  or  by  parole  evidence.  By  consent  of 
the  opposite  party,  notarial  copies  of  deeds  or 
other  writings  are  sometimes  admitted  as 
evidence  ;  but  such  copies  are  not  sufficient  if 
objected  to.  See  as  to  the  evidence  afforded 
by  notarial  instruments.  Stair,  B.  iv.  tit  42, 
§9 ;  B.  ii.  tit.  3,  §  16 ;  and  B.  iv.  tit.  2,  §  8 ; 
Bank.  B.  iv.  tit.  27,  §  3,  «<  seq. ;  and  B.  iv.  tit. 
5,  §  6 ;  Ersk.  B.  iv.  tit.  2,  §  6,  «<  seq. ;  Tait  on 
Evidence,  pp.  21-41,  and  p.  214.  See  also 
Notary-Public,  and  authorities  there  cited. 

Executions  by  messengers-at-arms,  or  other 
officers  of  the  law,  are  attestations  under  their 
hands  that  they  have  given  the  Stations,  or 
executed  the  diligences  conformably  to  their 
warrants ;  and  wherever  the  execution  is  by 
law  essential,  it  affords  evidence  which  can- 
not be  redargued  except  by  improbation  in 
an  action  of  reduction.  But  even  where  such 
executions  are  essential  solemnities,  they  will 
not,  more  than  notarial  instruments,  be  re- 
ceived as  evidence  of  extrinsic  facta  which 
have  no  relation  to  the  solemnities  of  the 
execution.  Bank.  B.  iv.  tit.  6,  §  9,  «(  seq.; 
Ersk.  B.  iv.  tit.  2,  §  5 ;  Tait  on  Evidence, 
pp.  4-21,  and  authorities  there  cited.  See  also 
Execution.    Messenger-at-arms. 

3.  Of  acts  of  court  extracts  from  judicial  re- 
cords, Ac. — All  acts  and  deeds  under  the 
hands  of  clerks  of  court,  and  keepers  of  pohlie 
records,  are,  generally  speaking,  held  to  be 
probative.  Extracts  of  judicial  proceedings 
from  the  records  of  a  court,  the  warrants  of 
which  are  in  the  custody  of  the  Court,  are  ad- 
mitted to  prove  what  was  done  in  court,  or 
alleged  by  the  parties,  but  not  to  prove  the 
truth  of  those  allegations ;  and  the  decrees 
and  the  judicial  acts  of  the  courts  of  a  foreign 

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eonntry  are,  ex  comitate,  admitted  to  be  proved 
bj  exemplifications  or  extracts,  probative  ac- 
cording to  the  law  of  that  country.  On  the 
same  principle,  judicial  transumpts,  whether 
made  under  authority  of  the  supreme  or  of 
sn  inferior  court,  are  probative  in  all  ordi- 
nary cases.  See  Transvmpt.  An  extract  of 
the  deed,  authenticated  by  the  proper  officer, 
whether  it  be  in  the  record  of  the  supreme  or 
that  of  an  inferior  court,  is  as  good  evidence 
u  the  deed  iteelf.  Such,  for  example,  is  the 
ease  (except  in  improbations)  with  respect  to 

Srivate  deeds  having  a  clause  of  registration, 
int  where  there  is  no  such  clause,  and  where 
the  deed  is  merely  recorded  as  a  probative 
writ,  the  principal  deed  being  returned  to  the 
party  at  whose  desire  it  was  recorded,  the 
general  rule  is,  that  the  extract  of  such  a 
deed  is  not  admissible  as  evidence,  the  party 
being  in  possession  of  the  principal  deed, 
which  he  may  produce.  Even  this  rule,  how- 
erer,  is  subject  to  several  exceptions.  Thus, 
charters  by  subjects,  dispositions,  bonds,  con- 
tracts, tacks,  and,  in  general,  all  other  pro- 
bative writs,  although  not  having  a  clause  of 
registration,  are,  by  special  statute,  allowed 
to  be  registered  as  probative  writs,  and  an 
extract  under  the  hand  of  the  keeper  of  the 
record,  declared  to  make  faith  in  all  cases 
except  that  of  improbation ;  1698,  c.  4.  Public 
instruments  appointed  to  be  registered  for 
publication  are  also  excepted ;  and  although 
the  principals  are  returned  to  the  parties, 
extracts  from  the  record  of  sasines,  reversions, 
or  regresses,  and  the  like,  are  declared  to  be 
probative  in  all  cases,  except  where  the  writ 
10  recorded  is  sought  to  be  improven ;  1617, 
c  16 ;  1669,  c.  3.  The  same  exception  ex- 
tends to  the  register  of  inhibitions  and  inter- 
dictions; 1581,  c.  119,  No.  1 ;  to  summonses 
to  interrupt  the  prescription  of  real  rights ; 
1696,  c.  19  ;  and  to  the  register  of  homings 
and  relaxations ;  1579,  c.  75.  Extracts  under 
the  hands  of  the  proper  officers  in  Chancery, 
of  charters  of  lands  held  of  the  Crown,  re- 
toBfs  of  services,  &c,  which  are  recorded  in 
Chancery,  are  probative  except  in  improba- 
tions; 49  Geo.  III.,  c.  42,  §  16.  In  reduc- 
ti(m-improbation,  although  an  extract  of  a 
deed  or  instrnment  nnder  the  hand  of  the 
proper  officer,  or  even  a  specification  by  the 
defender  of  the  register  in  which  it  is  re- 
corded, will  stop  the  certification,  yet  it  is 
nltimately  incumbent  on  either  the  defender 
or  the  pursuer  to  obtain  a  warrant  for  the 
production  of  the  principal  deed  from  the  re- 
cord, and  that  whether  the  deed  has  been  re- 
corded merely  as  a  probative  writ,  or  in  virtue 
of  a  clause  of  registration.  Where  the  re- 
gistration has  been  made  in  the  books  of  an 
inferior  court,  the  Court  of  Session  will  grant 
a  warrant  to  transmit  the  principal  writing 


to  the  clerk  of  the  process.  See  Stair,  B.  iv. 
tit  42,  §  10 ;  Bank.  B.  iv.  tit.  4,  §  21 ;  Ersk. 
B.  ii.  tit.  3,  §  43,  and  B.  iv.  tit.  1,  §  63 ;  Tait 
on  Evidence,  pp.  184-197,  and  200,  and  autho- 
ritiei  there  cited. 

4.  0/  public  instrumentt  and  documents  not 
by  officers  of  the  law, — Entries  in  public  re- 
cords, not  judicial,  where  certified  by  the 
proper  officers,  are,  in  the  ordinary  case,  ad- 
mitted as  evidence.  Such  are  entries  in  the 
journals  of  the  Houses  of  Lords  and  Commons 
— in  bank  books — ^in  parish  registers  of 
deaths,  baptisms,  or  marriages — in  prison 
books — in  corporation  books — and  the  like. 
Public  acts  of  Parliament  are  presumed  to  be 
known  to  all ;  and  the  statute  book,  printed 
by  the  Queen's  printer,  may  be  judicially  re- 
ferred to.  Private  acts  of  Parliament,  neither 
printed  in  the  statute  book,  nor  declared 
public  acts,  nor  specially  directed  to  be  printed 
by  the  Queen's  printer,  and  to  be  admitted 
as  evidence  by  all  judges,  must  be  proved  by 
examined  copies  from  the  parliamentary  rolls; 
but,  to  obviate  that  inconvenience,  a  special 
clause  is  usually  inserted  in  every  private  act, 
declaring  it  public  to  that  extent.  Royal 
proclamations,  the  articles  of  war,  and  the 
like,  as  printed  by  the  Queen's  printer,  or  in 
the  Gazette,  are  held  to  be  probative,  without 
production  of  the  proclamations  themselves ; 
and  in  the  same  way  addresses  from  the  people 
to  the  Crown  may  be  proved.  But  gazettes 
are  not  evidence  of  private  titles  or  interests, 
such  as  presentations  to  clergymen,  or  grants 
by  the  Sovereign  to  individuals.  Tait,  50, 
et  seq.,  201. 

Histories  are  admitted  to  prove  ancient 
facts,  such  as  propinquity  of  blood,  primogeni- 
ture, &e.,  if  authentic  and  uncontradicted  by 
other  histories  of  equal  authority.  Stair,  B. 
iv.  tit.  42,  §  16 ;  Ersk.  B.  iv.  tit.  2,  §  7. 

5.  Of  merchants'  books. — In  general,  a  mer- 
chant's books  will  be  held  as  good  evidence 
against  himself;  and  where  they  appear  to 
have  been  regularly  and  accurately  kept, 
they  will  afford  what  is  called  a  semiplena 
probatio  in  his  favour,  or  that  degree  of  evi- 
dence by  which,  in  matters  admitting  of 
parole  proof,  a  fact  may  be  legally  proved  by 
one  witness,  and  the  oath  of  the  party  himself 
in  supplement.  Erik.  B.  iv.  tit.  2,  §  4 ;  Bank. 
B.  iv.  tit.  27,  §  6 ;  Beies  Com.  i.  330 ;  Tait, 
122;  Hall,  Dow's  App.  Cases,  ii.  376;  Smith, 
ib.  538;  Dunbar,  Bligh,  ii.  351.  See  Book 
Debts. 

6.  Of  writings  in  re  mercatoria. — Under  this 
description  are  Included  orders  for  goods, 
mandates,  procurations,  guarantees,  offers,  and 
acceptances  to  sell  or  buy,  or  transport  mer- 
chandise ;  fitted  accounts  between  merchants, 
and,  in  general,  all  letters,  engagements,  re- 
ceipts, acknowledgments,  and  the  like,  which 

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the  various  exigencies  of  trade  may  require, 
as  to  all  of  which  the  law,  from  favour  to 
trade,  has  relaxed  the  rigour  of  the  ordinary 
rules  of  authentication.  Hence,  such  writings 
are  probative,  although  not  holograph,  and 
although  they  want  the  name  and  designation 
of  the  writer,  and  are  not  subscribed  before 
witnesses,  a  privilege  which  is  not  extended 
to  missives  or  to  settlements  of  accounts  un- 
connected with  mercantile  transactions.  In 
like  manner,  mercantile  writs,  such  as  bills  of 
exchange  or  promissory-notes,  checks  upon 
bankers,  and  the  like,  whether  arising  out  of 
mercantile  transactions  or  not,  are  valid,  al- 
though neither  holograph  nor  tested.  In 
connection  with  this  head  it  may  be  observed, 
that  receipts  and  discharges  granted  to  ten- 
ants for  rent,  however  large  the  snm,  are 
probative,  although  neither  hologi'aph  nor 
tested ;  and,  in  practice,  although  perhaps  in- 
correctly, it  is  usual  to  grant  similar  receipts 
for  termly  payments  of  interest,  annuities, 
and  the  like.  The  privilege  is  said  to  be  ex- 
tended to  tenants  on  account  of  their  igno- 
rance of  business.  Ersk.  B.  iii.  tit.  2,  §§  23-24 ; 
BeWt  Com.  i.  330 ;  Tail,  112,  d  seg.,  and  c<ue* 
and  auihoritiet  there  cited.  See  also  Privileged 
Deeds. 

II.  Or  BviDKifCK  BY  Oath. 

Evidence  by  oath  formerly  consisted, — 1«(, 
Of  the  oaths  of  persons  unconnected  with  the 
parties  in  the  cause,  and  having  no  disquali- 
fying interest  in  the  decision ;  and,  2d,  Of  the 
oath  of  party. 

1.  O/ihe  Oaths  of  Witnesses.— The  testi- 
mony of  witnesses  is  called  parole  proof;  and 
on  this  branch  of  the  subject  it  is  proper  to 
inquire, — 1st,  Who  can  be  received  as  wit- 
nesses? 2d,  In  what  manner  their  testimony 
is  taken?  Si,  In  what  cases,  and  to  what 
points  this  species  of  evidence  is  admitted? 
and,  4th,  to  say  something  of  the  nature  and 
effect  of  circumstantial  and  presumptive  proof. 
1.  Who  canhe.received  as  witnesses. — The  gene- 
ral rule  formerly  was,  that  all  persons  of  legal 
age  and  of  sane  mind,  who  believed  in  Ood 
and  a  future  state  of  rewards  and  punishments, 
whether  Christians  or  not,  and  who  were  not 
liable  to  any  objection  on  the  grounds  of  re- 
lationship, enmity,  infamy,  or  of  interest  in 
the  issue  of  the  cause,  might  bear  testimony. 
For  recent  changes  in  the  law  of  evidence,  see 
Infra.  The  following  enumeration  compre- 
hends the  objections  which  formerly  might  be 
stated  to  the  admissibility  of  a  witness : — (1.) 
From  age  or  sex. — ^Persons  under  fourteen  years 
of  age,  as  being  incapable  of  understanding 
the  moral  obligation  of  an  oath,  are,  in  the 
ordinary  case,  inadmissible.  Exceptions  to 
this  rule  have  been  sometimes  admitted,  where 


the  individual  seemed  to  understand  the  sa- 
ture  of  an  oath,  and  was  above  twelve  years 
of  age ;  and,  in  criminal  cases,  children  even 
under  that  age  have  been  sometimes  examined, 
but  not  upon  oath  ;  the  weight  to  be  attached 
to  the  declarations  of  such  witnesses  being 
left  to  the  jury.     By  our  more  ancient  prac- 
tice, women  were  inadmissible  as  witn^ses; 
but  the  practice  in  that  respect  has  changed, 
and,  both  in  civil  and  criminal  cases,  female 
witnesses  are  admissible.    A  female,  however, 
cannot  be  an  instrumentary  witness  to  the 
subscription  of  a  deed  or  other  written  instra- 
ment;  Stair,  B.  iv.  tit.  43,  §  7-9 ;  Bank.  B. 
iv.  tit.  30,  §  6 ;  Ersk.  B.  iv.  tit.  2,  §  22-27 ; 
Tait,  84-342 ;  Hume,  ii.  329-330.    (2).  From 
mental  incapacity. — All   persons  deprived  of 
reason,  whether  idiots  or  furious  persons,  are 
inadmissible.     But  the  testimony  of  a  person 
subject  to  occasional  fits  of  derangement  will 
be  admitted,  cum  nota,  as  to  04x;nrences  during 
a  lucid  interval,  provided  no  fit  of  derange- 
ment have  intervened  between  the  fact  sworn 
to  and  his  deposition  ;  Hume,  vol.  ii.  p.  329 ; 
-Stair,  B.  iv.  tit.  43,  §  7 ;  Bank.  B.  iv.  tit.  30, 
§5;  TaU, 342.    SwIdioL    (3).  FrmH^MUf. 
— The  testimony  of  infamous  persons,  ii^amit 
juris, — i,e.,  by  being  convicted  of  crimes  infer- 
ring infamy,  was  formerly  inadmissible,  and 
unless  a  pardon  had  been  granted,  infamy  was 
a  perpetual  disqualification ;  Blade,  22d  Dec. 
1815,  Fac.  Coll.    But  now,  where  the  party 
convicted  has  endured  the  punishment  (unless 
the  crime  has  been  perjury  or  subornatioD  of 
perjury),  he  is  not  inadmissible  by  reason  of 
his  conviction,  but  may  be  a  competent  mir 
ness  in  any  court  or  proceeding,  civil  or  crimi- 
nal ;  1  WiU.  IV.,  c.  37,  §  9.     And  moral  in- 
famy, or  bad  moral  character,  is  no  disquali- 
fication.   The  evidence  of  such  witneases,  how-  ■ 
ever  will  be  received  cum  nota;  Ersk.  B.  iv. 
tit.  2,  §  23 ;  Stair,  B.  iv.  tit,  43,  §  7 ;  Bnk. 
B.  iv.  tit  30,  §  4.    See  Infamy.    (4).  Frm 
relationship,  connection,  legal  eonjidmce  or  iep^ 
dence. — Formerly,  all  who  stood  within  thoee 
degrees  of  relationship  to  the  party,  which,  is 
the  case  of  a  judge,  would  authorize  a  decli- 
nature, were  incompetent  witnesses  for  their 
kinsman,  although  they  might  be  received 
against  him.    See  Declinature.    Husband  sod 
wife,  however,  were  in  no  case  allowed  to  bear 
testimony,  even  against  each  other,  except  in 
criminal  prosecutions  for  crimes  committed 
by  the  one  against  the  other ;  and  it  woold 
rather  seem  that  the  evidence  of  children 
against  their  parents,  and  of  parents  against 
their  children,  was  inadmissible,  unless  in  the 
case  of  domestic  crimes  or  occult  facts  (see 
Domestic  Crimes) — the  principle  of  the  law  of 
Scotland  being,  that  unless  the  ends  of  justice 
absolutely  required  it,  a  witness  was  never  to 
be  placed  in  a  situation  where  he  might  be 


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tempted  to  eommit  perjury.  Natnral  child- 
nn  were  not,  in  law,  recognised  as  the  child- 
ren of  their  reputed  father  ;  but  an  objection 
to  their  testimony,  on  the  ground  of  actual  re- 
lationship to  the  party  adducer,  was  good ; 
Ersk.  B.  iv.  tit.  2,  §  24 ;  Bank.  B.  iv.  tit.  30, 
5  9-11 ;  Hutu),  vol.  ii.  p.  337 ;  Tait,  362. 
See  Rdationthip.  Tutors  and  curators  were 
formerly  inadmissible  as  witnesses  in  favour 
of  their  wards,  where  they  had  an  interest 
to  prore  acts  and  deeds  done  by  themselves, 
«r  where  they  had  taken  an  active  part 
in  the  process  in  which  they  are  proposed 
to  be  adduced.  Formerly,  agents  could  not 
be  witnesses  for  their  clients  in  the  causes  in 
which  they  were  employed ;  although  they 
might  be  witnesses  for  the  same  party  in  other 
causes.  See  ParUal  Counsel.  They  are  still 
ueompetent  witnesses  against  their  clients  to 
prove  confidential  communications;  and,  on 
the  same  principle,  as  well  as  on  account  of 
the  object  of  the  communication,  a  clergyman 
to  whom  a  prisoner  has  confessed  a  crime, 
u  order  to  obtain  spiritual  consolation,  cannot 
be  called  as  a  witness  to  disclose  what  has 
been  so  communicated  to  him ;  but  similar 
eonfeesions  to  other  confidential  persons,  such 
IS  surgeons  or  physicians,  or  intimate  friends, 
may  be  proved  by  the  testimony  of  such  per- 
ioDS.  See  Confidentiality.  Attorneys  or  trus- 
tees who  had  not  given  partial  counsel,  and 
who  had  no  personal  interest  in  the  action, 
were  admissible  for  their  constituent.  The 
testimony  of  domestic  servants  and  of  tenants 
at  will,  in  favour  of  their  master  or  landlord, 
WIS  formerly  rejected  on  account  of  their  sup- 
posed dependence ;  but  such  persons  are  now 
Kifflissible  witnesses.  Artificers  or  labourers 
hired  by  the  day  or  week,  are  competent  wit- 
.  news  for  their  employers ;  Enk.  B.  iv.  tit.  2, 
§§  24, 25 ;  Bank.  B.  iv.  tit.  30,  §§  12, 13,  21 ; 
^Isir,  B.  iv.  tit.  43,  §  9 ;  Hvme,  vol.  ii.  pp.  324, 
331,338;  Tbii,  366,  «< ««}.  (b.)  From  partial 
<M»td,  or  leing  vltroneout. —  Witnesees  who 
W  given  partial  counsel, — i.e.,  who  had  in- 
ttigated  the  plea,  or  advised  with  the  party 
er  bii  agents  as  to  the  method  of  conducting 
it,  or  been  present  at  consultations,  were  ob- 
jectionable. The  recent  practice  in  this  re- 
spect was  not,  however,  so  rigid  as  the  older 
practice  was,  the  course  being  rather  to  admit 
the  witness  aim  not^.  Ultroneous  witnesses, 
—ie.,  witnesses  who  offer  their  testimony  with- 
ont  being  regularly  cited, — were  formerly  in- 
idmissible ;  but  this  objection  afterwards  only 
affected  their  credibility ;  and,  at  any  rate, 
it  was  competent  to  remove  the  objection, 
hy  givmg  the  witness  a  citation  at  any  time 
before  he  was  sworn,  even  after  he  had 
wane  into  court  to  be  examined ;  Tait,  369. 
And  in  criminal  trials,  it  was  declared,  by 
teUrte,  to  be  no  longer  competent  to  state  any 


objection  to  a  witness  on  the  ground  of  his 
having  been  irregularly  cited,  or  having  ap- 
peared without  citation,  provided  his  desig- 
nation is  correct  in  the  list  of  witnesses  served 
on  the  panel ;  9  Geo.  IV.,  c.  29,  §  10 ;  Alison'$ 
Prac.  394.  See  also  Stair,  B.  iv.  tit.  43,  §  9 ; 
Bank.  B.  iv.  tit.  30,  §  7 ;  Erth  B.  iv.  tit.  2, 
§  28 ;  Hitrne,  vol.  ii.  p.  339  ;  Tait,  368,  d  seq., 
and  eases  there  cited.  See  Partial  Counsel.  (6.) 
From  interest. — Formerly  a  person  having  any 
present  interest  in  the  issue  of  the  cause,  or 
whose  character  might  be  affected  by  his 
testimony,  was  inadmissible  as  a  witness. 
Magistrates  and  other  officers  of  royal 
burghs  could  not  be  witnesses  in  causes  con- 
cerning the  common  good  of  the  burgh;  but 
members  of  council  were  admitted  cum  nota. 
Private  burgesses,  except  where  they  had 
a  patrimonial  interest,  were  admissible. 
In  criminal  cases,  a  socius  criminit  is  admis- 
sible as  a  witness  against  those  concerned 
along  with  him  in  the  commission  of  the 
offence ;  commonly,  however,  with  a  reserva- 
tion as  to  his  credibility ;  and  the  mere  act 
of  calling  such  a  person  as  a  witness  liberates 
him  from  all  future  prosecution  on  account  of 
his  accession  to  that  offence ;  Ersk.  B.  iv.  tit. 
2,  §  25 ;  Bank.  B.  iv.  tit.  30,  §  6  ;  Tait,  349, 
et  seq. ;  Hume,  ii.  351-354.  See  Interest,  and 
authorities  there  cited.  (7.)  From  enmity. — ^En- 
mity to  the  party  against  whom  the  witness 
is  adduced  will  disqualify;  but  the  enmity 
must  be  substantial,  arising  from  injury  done 
or  attempted,  and  not  inferred  from  mere  ex- 
pressions of  ill-will.  Where,  however,  ex- 
pressions inferring  enmity  are  proved,  al- 
though they  will  not  disqualify,  they  will  be 
admitted  to  influence  the  credibility  of  the 
witness ;  Hume,  vol.  ii.  pp.  345-351 ;  Stair,  B. 
iv.  tit.  43,  §  7  ;  Bank.  B.  iv.  tit.  30.  §  6 ;  Tait, 
370.  See  Enmity.  (8.)  From  hribery,  and  in- 
structing how  to  depone. — A  witness,  otherwise 
unobjectionable,  will  be  disqualified  if  the 
party  adducing  him  has  given,  or  promised  or 
offered  him,  a  reward  or  bribe  for  his  testi- 
mony ;  or  if  he  has  tutored  or  instructed  him 
as  to  what  he  is  to  swear ;  and  this  disquali- 
fication will  operate,  tn  odium  corrumpentit, 
even  where  the  bribe  has  been  refused  and 
theinstructionsdisregarded.  Although, there- 
fore, a  party  is  fully  entitled,  before  citing  a 
witness,  to  question  him  as  to  his  knowledge 
of  the  facts  in  dispute,  yet  care  should  be  taken 
to  avoid  anything  which  may  bias  or  em- 
barrass the  witness  in  giving  his  testimony. 
Hence,  although  not  an  absolute  disqualifi- 
cation, it  is  dangerous  to  take  down,  in  pre- 
sence of  the  proposed  witness,  a  written  state- 
ment of  what  he  can  say ;  and  if  he  subscribe 
statements  of  this  kind,  it  may  even  amount 
to  a  total  disqualification.  Where  a  witness, 
as  sometimes  happens,  has  emitted  a  deposi- 


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tion  which  has  been  committed  to  writing,  or 
where  he  has  subscribed  any  written  account 
whatever  of  the  transaction  concerning  which 
he  is  again  to  be  examined  as  a  witness; 
before  deponing  of  new  he  may  require  that 
his  former  deposition  or  declaration  shall  be 
cancelled,  although,  even  if  it  were  not  can- 
celled, it  never  could  be  used  against  him,  or 
appealed  to  as  discrediting  his  snbseqnent 
testimony.  It  may  disqualify  the  witness  al- 
together if,  before  his  re-examination,  his 
previous  written  statement  or  deposition  be 
shown  to  him  ;  Ersk.  B.  iv.  tit.  2,  §  28  ;  Bank. 
B.  iv.  tit.  30,  §  7  ;  ifwiw,  vol.  ii.  pp.  363-367 ; 
Stair,  B.  iv.  tit.  43,  §  9 ;  Tait,  379,  and  au- 
ikoritUt  there  died.  (9.)  From  indigenee. — 
Witnesses  who  were  not  worth  the  king's  un- 
law, as  it  was  termed, — that  is,  L.IO  Scots 
(16s.  8d.), — were,  by  our  former  practice,  in- 
admissible; Stair,  B.iv.tit.  43,  §  9;  Sume,  vol. 
ii.  p.  355.  (10.)  From  irregnlar  citation,  mit- 
notner,  &c. — It  was  at  one  time  an  objection 
to  the  examination  of  a  witness  on  the  par- 
ticular trial,  that  he  had  been  irregularly 
cited ;  but  that  objection  has  been  so  far  re- 
moved, in  the  manner  above  explained.  There 
never  was  any  fixed  inducim  for  the  citation 
of  witnesses ;  Hume,  ii.  356-357 ;  55  Geo.  III., 
c.  42,  §  16.  Several  of  the  disqualifications 
here  enumerated,  particularly  those  founded 
on  relationship,  agency,  dependence,  and  the 
like,  were  sometimes  disregarded  in  cases  of 
occult  or  private  facts,  where  there  was  a 
penwria  tettium,  especially  in  the  case  of  occult 
or  domestic  crimes,  the  witnesses  thus  ad- 
mitted being  received  cum  nota — i. «.,  with  a 
certain  degree  of  suspicion  of  their  credibi- 
lity; Stair,  B.  iv.  tit.  43,  §  8;  Ertk.  B.  iv. 
tit  2,  §  26 ;  Bank.  B.  iv.  tit.  30,  §  15.  See 
also  Domettic  Crimes.  Objections  to  the  ad- 
missibility of  a  witness  ought  to  be  stated 
before  he  depones;  and  they  are  usually 
proved  by  the  examination  of  the  witness 
himself  in  initialibtu.  But  they  may  also  be 
proved  by  other  nnexceptionable  witnesses, 
either  instantly  adduced,  or  (if  reprobators 
have  been  protested  for)  examined  afterwards 
in  a  process  of  reprobator,  of  which  process, 
however,  there  is  no  recent  example.  See 
Reprobator.  With  regard  to  the  disqualifi- 
cations of  witnesses,  there  was  a  distinction 
between  those  objections  which  concerned  the 
admissibility  and  those  which  went  to  the  cre- 
dibilitj/  only  of  the  witness.  Under  the  latter 
class  of  objections  were  included  all  circum- 
stances likely  more  or  less  to  bias  or  influence 
the  witness,  which,  although  they  might  not 
amount  to  absolute  disqualifications,  yet  might 
relevantly  be  brought  into  view  to  the  effect 
of  admitting  the  full  application  of  the  maxim, 
Tutimonia  ponderanda  non  nwneranda  sunt; 
and  it  may  be  observed  generally,  that  the 


inclination  of  modem  practice  was,  to  allo# 
all  objections  to  go  rather  to  the  credibility 
than  to  the  admissibility  of  witnesses.  Stair, 
B.  iv.  tit.  43,  §  9  ;  Ersk.  B.  iv.  tit  2,  §  26; 
Bank.  B.  iv.  tit  30,  §  18 ;  Tait,  398. 

Qw^ifieations  of  we  former  law. — ^Recent 
legislation  has  introduced  some  changes  in 
the  law  of  evidence.  By  the  act  3  and  4 
Vict,  c  19, 1845,  it  is  no  objection  to  the 
admissibility  of  any  witness,  that  he  or  she  is 
the  father,  or  mother,  or  son,  or  daughter,  or 
brother,or  sister  (by  consanguinity  or  affinity), 
or  uncle,  or  aunt,  or  nephew,  or  niece  (by 
consanguinity),  of  any  party  adducing  such 
witness ;  and  it  is  incompetent  for  any  witnes 
to  decline  to  give  evidence  on  the  ground  of 
any  such  relationship.  It  is  now  no  longer 
necessary  to  examine  a  witness  in  initialibus, 
although  it  is  competent  to  do  so.  The  pre- 
sence of  a  witness  in  Court  during  all  or  uj 
part  of  the  proceedings  is  now  sn  imperstire 
ground  of  disqualification ;  but  it  is  com- 
petent for  the  Court,  in  its  discretion,  to 
admit  such  witness,  where  it  shall  appear 
that  his  presence  was  not  the  consequence  of 
culpable  negligence  or  criminal  intent,  and 
that  he  has  not  been  unduly  instructed  or  in- 
fluenced by  what  took  place  during  his  pre- 
sence in  Court,  or  that  injustice  will  not  be 
done  by  his  examination.  The  party  against 
whom  a  witness  is  adduced  and  sworn  in  caw* 
is  entitled  to  examine  such  witness  not  in 
cross  merely,  but  also  >'»  causa. 

By  the  15  and  16  Vict,  c.  27,  1852,  no 
person  adduced  as  a  witness  is  excluded  from 
giving  evidence  by  reason  of  having  been  con- 
victed of,  or  having  suffered  punishment  for 
crime,  or  by  reason  of  interest,  or  by  reason 
of  agency,  or  of  partial  counsel,  or  by  reason 
of  having  appeared  without  citation,  or  hj 
reason  of  having  been  precognosced  subse- 
quently to  the  date  of  citation ;  but  snch  wit- 
ness may  be  examined  on  any  point  tending  to 
affect  his  credibility.  A  witness  may  be  ex- 
amined as  to  whether  he  has,  on  any  specified 
occasion,  made  a  statement  on  any  matter 
pertinent  to  the  issue  tried  different  from  tho 
evidence  given  by  him  at  the  trial ;  and  evi- 
dence may  be  adduced  to  prove  that  the  wit- 
ness has  made  a  different  statement  on  the 
occasion  specified.  It  is  now  competent  for 
the  judge,  or  other  person  taking  the  proof, 
on  the  motion  of  either  party,  to  permit  s 
witness  to  be  recalled  who  may  have  already 
been  examined. 

By  the  act  16  and  17  Vict,  c.  20,  1853, 
any  party  to  an  action,  or  the  husband  or 
wife  of  any  such  party,  may  bo  examined  as 
a  witness  whether  they  are  individually  named 
in  the  record  or  proceeding  or  not  But  the 
husband  or  wife  of  any  person  who,  on  any 
criminal  proceeding,  is  charged  with  the  con- 


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mugioD  of  an  indictable  offence,  or  any  offence 
punighable  on  sammary  conviction,  is  incom- 
petent to  give  evidence  for  or  against  himself 
or  herself,  his  wife  or  her  husband,  except  in 
80  far  as  it  was  formerly  competent  to  do  so ; 
nor  is  any  person  compellable  to  answer  a 
question  tending  to  criminate  himself;  nor  is 
a  hnsband  or  wife  competent  to  give  evidence 
against  each  other,  of  any  matter  commu- 
sicated  to  them  during  the  marriage.  All 
actions  in  eonseqnence  of  adultery,  or  for  dis- 
solving any  marriage,  or  for  breach  of  promise 
of  marriage,  or  action  of  declarator  of  mar- 
riage, nnlli^  of  marriage,  putting  to  silence, 
legitimacy  or  bastardy,  or  action  of  adhe- 
rence or  separation,  are  excluded  from  the 
operation  of  the  statute.  The  adducing  a 
party  as  a  witness  by  the  adverse  party  has 
not  the  effect  of  a  reference  to  the  oath  of  the 
party  so  adduced ;  but  if  a  party  calls  and 
examines  the  adverse  party  as  a  witness,  he 
ia  not  entitled  to  refer  the  cause,  or  any  part 
of  it,  to  his  adversary's  oath.  In  all  other 
respects  the  right  of  reference  to  oath  re- 
mains as  before,  and  the  authority  and  prac- 
tice of  the  courts  remains  unaltered  and  un- 
alfbeted. 

2.  In  what  manner  evidence  is  taken. — ^Parole 
evidence  in  the  Conrt  of  Session  was,  until 
lately,  with  few  exceptions,  taken  by  a  com- 
missioner under  a  warrant  from  the  Court  or 
from  the  Lord  Ordinary.  When  evidence  is 
w  taken,  the  witnesses  are  compelled  to  ap- 
pear to  give  their  testimony,  by  letters  of  di- 
ligence issuing  under  warrant  of  the  Court ; 
and  m  virtue  of  which,  in  case  of  contumacy, 
the  witness  may  be  imprisoned.  See  Dili- 
fow.  On  his  appearance  before  the  com- 
missioner, and  the  counsel  and  agents  for  the 
parties,  the  witness  is  sworn  in  these  terms  to 
tell  the  truth :  "  I  swear  by  Almighty  God, 
and  as  I  shall  answer  to  God  at  the  Great 
Day  of  Judgment,  that  I  will  tell  the  truth, 
the  whole  truth,  and  nothing  but  the  truth, 
in  so  far  as  I  know  and  shall  be  asked  in  this 
cause."  Formerly  the  commissioner  then 
asked  the  witness  whether  he  was  acquainted 
*ith4he  parties  in  the  cause — whether  he 
hore  any  malice  or  ill-will  to  the  party 
against  whom  he  was  called — or  had  received 
anj  reward,  or  promise  of  reward,  for  his  evi- 
dence—or had  been  instructed  as  to  what  he 
*as  to  say.  If  he  answered  these  questions 
satisfactorily,  he  was  then  examined  in  the 
cause  by  the  counsel  or  agent  of  the  party  by 
*hom  he  was  adduced,  subject  to  the  cross 
questions  of  the  other  party  after  his  exami- 
nation in  chief  is  concluded.  If  the  opposite 
party  had  any  disqualifying  objection  to  the 
witness,  it  was  stated  at  this  stage  of  the  pro- 
ceedings, and  supported  either  by  the  exami- 
aatiop  of  the  witness  himself  in  initialibus,  or 


by  other  witnesses.    The  witness  under  exa- 
mination is  bound  to  answer  all  pertinent  in- 
terrogatories, the  answers  to  which  do  not 
tend  to  criminate  himself,  or  to  involve  him 
in  any  criminal  charge  inferring  infamy;  but 
he  is  not  entitled  to  decline  answering  a  ques- 
tion merely  because  the  answer  may  infer 
against  him  fraud  or  damage.  The  import  of 
the  witness's  testimony,  as  nearly  as  possible 
in  his  own  words,  is  taken  down  in  writing ; 
and  the  deposition,  after  being  read  over  to 
the  witness,  to  enable  him  to  correct  any  in- 
accuracy in  taking  it  down,  is  signed  by  the 
witness,   the  commissioner,  and  the  derk. 
When  the  proof  is  completed,  the  report  of 
the  evidence,  authenticated  by  the  subscrip- 
tion of  the  commissioner  and  clerk,  is  trans- 
mitted to  the  clerk  of  the  process  and  report- 
ed to  the  judge,  who  is  to  decide  on  its  legal 
effect.   The  duties  of  commissioners  in  taking 
proofs,  under  authority  of  the  Court  of  Ses- 
sion, are  pointed  out  by  the  acts  of  Sederunt 
11th  March  1800,  and  22d  June  1809.    In 
the  inferior  courts,  parole  evidence  was  taken 
either  on  commission,  granted  in  the  ordinary 
case  to  the  clerk  of  the  Court,  or  before  the 
inferior  judge  himself ;  but  by  the  act  1 6  and 
17  Vict.,  c.  80, 1853,  §  10,  the  sheriff  is  di- 
rected to  take  a  note  of  the  evidence  with  his 
own  hand,  and  proof  by  commission  is  disal- 
lowed.   The  testimony  of  the  witnesses  is 
committed  to  writing,  except  in  the  case  of 
proceedings  before  justices  of  the  peace  or 
sherifis,  or  under  the  small  debt  acts,  or  be- 
fore justices  or  other  magistrates  vested  with 
the  power  of  summary  conviction  and  punish- 
ment for  minor  delinquencies,  without  the  in- 
tervention of  a  jury.    In  the  Court  of  Jus- 
ticiary, the  testimony  of  the  witnesses  exa- 
mined before  the  jury  was  formerly  committed 
to  writing  by  the  clerk  of  Court ;  but  by  the 
statutes  21  Geo.  II.,  c.  19,  and  23  Geo.  III., 
c.  45,  this  practice  was  abolished,  reserving 
power  to  the  Court  to  resort  to  the  former 
practice  when  they  see  cause,  and  now  no 
such  record  of  the  testimony  of  the  witnesses 
is  preserved.    In   criminal  cases,  witnesses, 
whether  resident  in  Scotland,  in  England,  or 
in  Ireland,  may  be  compelled  to  attend  and 
give  evidence,  under  letters  of  second  dili- 
gence issued  in  Scotland,  and  indorsable  in 
the  courts  of  Westminster  and  certain  other 
courts ;  54  &eo.  III.,  c.  186  ;  Eume,  ii.  362, 
368.    In  civil  causes,  until  1816,  parole  evi- 
dence was  almost  invariably  taken  by  a  com- 
missioner.   But  the  introduction  of  jury  trial 
in  civil  causes,  under  the  statutes  55  Geo.  III., 
c.  42,  and  59  Geo.  III.,  c.  35,  made  a  very 
important  change  on  the  former  practice;  and 
although  neither  of  those  statutes  deprives 
the  Court  of  Session  of  the  power  of  granting 
commissions  for  taking  evidence^et,  in  prac- 

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tice,  that  course  is  seldom  followed.  See 
Jury  TruU. 

When  a  proposed  witness  is  bo  far  ad- 
vanced in  age,  or  where  his  health  is  so  pre- 
carious, as  to  render  it  probable  that  his  evi- 
dence might  be  lost  by  delay,  or  where  he  is 
about  to  leave  the  country,  as  soon  as  a  pro- 
cess has  been  raised,  a  warrant  may  be  ob- 
tained for  his  examination.  The  Court  is 
even  in  use  to  authorise  such  an  examination 
before  the  case'  has  come  into  Court.  For- 
merly, authority  to  this  effect  could  not  be 
obtained  during  vacation  or  recess ;  but  by 
A.S.Uth  July  1828,  §  117,  it  is  declared 
competent  to  the  Lord  Ordinary  on  the  Bills, 
in  time  of  vacation  or  recess,  on  an  applica- 
tion duly  intimated,  forty-eight  hours  before, 
to  the  known  agent  of  the  opposite  party,  and 
on  production  of  a  process  depending  before  a 
Lord  Ordinary,  or  other  judicial  procedure, 
to  grant  commission  and  diligence  for  taking 
the  examination  of  witnesses,  whose  evidence, 
owing  to  great  age  (not  under  seventy  years), 
or  to  severe  indisposition,  or  to  their  intend- 
ing to  go  abroad,  and  remain  abroad  for  a 
considerable  time,  is  in  danger  of  being  lost. 
Such  examinations  are  sealed  up  by  the  com- 
missioner, and  lie  in  retentis,  subject  to  the 
future  orders  of  Court.  They  are  limited  to 
matters  of  fact  to  be  set  forth  in  a  conde- 
scendence for  the  applicant,  with  or  without 
answers.  The  applicant  must  state,  and,  if 
required,  show,  to  the  satisfaction  of  the  Lord 
Ordinary,  that  he  was  unavoidably  prevented 
from  making  the  application  to  the  Lord  Or- 
dinary in  the  cause,  or  to  the  Court  during 
session.  These  depositions  will  not  be  re- 
ceived as  evidence  at  the  trial,  or  otherwise, 
unless  it  be  satisfactorily  proved  that  the  wit- 
nesses cannot  be  adduced  in  consequence  of 
death,  sickness,  or  continued  absence  from  the 
country.  Jfr  Move's  Notes  on  Stair,  p.  cccxcv. ; 
Darling's  Prof,  i.  228 ;  Maefarlane't  Jury 
Prac.  88,  186  ;  Tail,  412-7 ;  Madaurin's 
Form  of  Process,  185.  See  Commission  to  take 
a  Proof. 

3.  On  what  points  parole  proof  is  admitted. — 
Contracts  in  regard  to  land  (except  leases  for 
one  year),  or  the  borrowing  of  money,  or  con- 
tracts where  it  is  pars  contractus,  that  they 
shall  be  reduced  to  writing,  cannot  be  esta- 
blished by  parole  evidence.  But  contracts  of 
sale,  barter,  and  location  of  moveables,  and, 
in  general,  all  contracts  with  known  presta- 
tions in  regard  to  moveable  subjects,  however 
valuable,  may  be  proved  by  witnesses,  except 
contracts  for  the  transference  of  ships,  or  of 
goods  in  a  bonded  warehouse,  in  the  actual 
possession  of  the  owner,  and  for  the  convey- 
ance of  a  copyright,  which,  by  special  sta- 
tutes, require  writing ;  64  Geo.  Ilf.,  c  156 ; 
6  Geo.  ir.,  c.  37 ;  and  6  Geo.  IV.,  c.  112.  Sub- 


missions and  transactions,  or  compromiMt 
with  regard  to  moveables,  are  not,  in  the  or- 
dinary case,  proveable  by  witnesses.  Verbal 
submissions  and  decrees-arbitral,  however,  ia 
mattere  of  small  importance,  have  been  ad- 
mitted to  be  proved  by  parole  testimony.  See 
Arbitration.  Marriage,  that  is,  the  exchange 
of  mutnal  consent  <{ej7r<E«entt,  or  cohabitation, 
or  habit  and  repnte,  may  be  proved  by  wit- 
nesses. But  a  promise  of  marriage,  if  a  a>- 
pula  has  not  followed,  csm,  like  other  pro- 
mises, be,  in  the  ordinary  case,  proved  only  by 
writ,  or  by  oath  of  party.  Nnncupative  le- 
gacies to  the  extent  of  L.lOO  Scots  (L.8, 68. 
8d.  sterling),  or  onerous  verbal  agreements  to 
the  same  amount,  may  also  be  proved  by  vit> 
nesses ;  but  this  description  of  evidence  is  in- 
admissible to  prove  gratuitous  promises,  how- 
ever small  the  sum.  The  fact  that  a  convey- 
anee  of  heritable  property,  or  of  rights  of  a 
personal  nature,  such  as  assignations  of  debts 
due  by  bond  and  the  like,  Was  made  in  trust, 
is,  by  express  statute,  proveable  by  writ  or 
oath  of  party,  and  not  otherwise ;  1696,  c  25. 
But  the  statute  has  been  held  not  to  apply  to 
trust  in  the  ipsa  corpora  of  moveables.  Frand 
is  proveable  by  evidence  prout  de  jure.  ErA. 
B.  iv.  tit.  2,  §  20,  and  B.  i.  tit.  6,  §  5 ;  Star, 
B.  iv.  tit.  43,  §  4 ;  Bank.  B.  i.  tit.  18,  §  12, 
and  B.  iv.  tit.  27,  §  10,  and  tit.  30,  §  1 ;  2H 
295,  ei  seq. ;  Dickson  on  Evidence. 

Parole  evidence  will  not  be  admitted  to 
extinguish  or  qualify  an  obligation  constitnted 
by  writing.  Thus,  the  payment  of  the  whole, 
or  of  any  part  of  the  contents  of  a  bond  for 
borrowed  money,  is  not  proveable  by  witnessei, 
except  where  the  payment  to  the  creditor  has 
been  made  by  the  hands  of  another ;  e.  g.,  where 
the  debtor's  tenant  has  made  the  payment  on 
account  of  his  landlord,  the  oath  of  the  tenant 
will  be  admitted  to  prove  payment  of  the 
debt.  In  like  manner,  implement  of  a  written 
obligation  to  perform  special  facts, — e.g.,  to 
deliver  a  quantity  of  grain,  to  build  a  bridge, 
a  ship,  or  the  like, — may  be  proved  by  wit- 
nesses. So  also  consignation  of  money  in  the 
hands  of  a  clerk  of  Court  is  proveable  by  wit- 
nesses. Payments  of  debts  under  L.lOO  Scots, 
or,  if  the  whole  debt  be  more,  a  payment  not 
exceeding  that  sum,  may  be  proved  in  the  same 
manner ;  but  in  whatever  way  the  debt  may 
be  constituted,  its  extinction  beyond  L.lOO 
Scots  can  be  proved  by  writ  or  oath  of  party 
only,  and  not  by  witnesses;  A.  S.,  8th  /«*« 
1597.  A  payment  exceeding  L.lOO  Scots, 
however,  may  be  proved  by  parole  evidence, 
where  the  payment  is  made  unico  eontexia 
with  the  bargain,  as  in  the  case  of  purchases 
in  public  market,  paid  for  on  the  spot,  or  even 
after  an  interval,  where  the  payment  is  made 
on  delivery  of  the  article.  Erskine  seems  to 
consider  parole  evidence  admissible  to  prove 

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the  creditor's  renunciation  of,  or  consent  to 
pass  from,  an  obligation  not  constituted  by 
vriting ;  but,  except  to  the  extent  of  L.lOO 
Scots,  this  doctrine  seems  questionable.  See 
Erik.  B.  iii.  tit.  4,  §  8  ;  and  Tait  on  Evidence, 
p.  253 ;  and  on  the  subject  of  parole  evidence 
generally,  see  Stair,  B.  iv.  tit.  43,  §  4 ;  Bank. 
B.  i?.  tit.  27,  §  10 ;  Ersk.  B.  iv.  tit.  2,  §  21 ; 
Tail,  336,  et  seq.;  Bell's  Com.  i.  318,  622,  5th 
edit. ;  Hunter'ii  Landlord  and  Tenant,  281-7 ; 
Macfarlane's  Jury  Frac.  196  ;  Bdl  on  Leases, 
4th  edit.  i.  282-3 ;  M'Adam,  Doufs  Appeal 
Gates,  i.  185.  See  also  Payment.  Dis- 
<karge.     Dickson  on  Evidence. 

i.  Of  the  nature  and  effect  of  circumstantial 
tnd  praumptive  evidence. — Circumstantial  evi- 
dence, or  indirect  proof,  may  be  resorted  to 
in  certain  cases  where  direct  proof  cannot  be 
obtained ;  but  where  other  facts  are  proved 
or  admitted,  having  relation  to  the  fact  sought 
to  be  established,  and  from  which  the  exist- 
tDce  of  that  fact  may  be  inferred,  the  convic- 
tion produced  by  this  description  of  evidence 
is  sometimes  even  stronger  than  that  arising 
from  the  most  direct  testimony ;  for  the  facts 
ud  circumstances  sworn  to  may  be  so  con- 
nected, and,  at  the  same  time,  may  contribute 
so  effectually  to  establish  the  fact  inferred 
from  them,  as  to  remove  all  suspicion  of  col- 
lusion amongst  the  witnesses,  which  is  not 
always  the  case  where  direct  testimony  is  ad- 
daeed.  So  great,  indeed,  is  the  force  of  cir- 
cumstantial evidence,  that  payment,  perfor- 
nanee,  or  discharge,  of  formal  written  obliga- 
tions, has  been  frequently  held  to  be  proved 
by  facts  and  circumstances,  without  any  direct 
proof  of  the  extinction  of  the  obligation ;  and, 
upon  the  same  principle,  although  circum- 
stantial evidence  will  not  be  received  to 
qualify  an  express  clause  or  stipulation  in  a 
deed,  yet  such  evidence  has  in  some  instances 
been  admitted  to  overcome  the  legal  inference 
arising  ex  facie  of  a  formal  deed.  Thus,  in  a 
question  between  two  co-obligants  in  a  bond, 
facts  and  circumstances  have  been  admitted 
to  prove,  that,  notwithstanding  the  terms  of 
the  bond,  one  of  the  co-obligants  was  only  a 
eantioner  for  the  other;  Smollet,  21st  Feb. 
1793,  Mor.  p.  12,354.  For  a  further  illustra- 
tion of  the  weight  attached  te  this  species  of 
evidence,  see  Stair,  B.  iv.  tit.  45 ;  Ersk.  B.  iv. 
tit  2,  §  34 ;  Hume,  vol.  ii.  p.  370-372 ;  Tait, 
434,  «t  seq.  See  also  Circumstantial  Evidence. 
In  connection  with  circumstantial  evidence, 
it  may  be  observed,  that  the  law  of  Scotland 
recognises  certain  presumptions  founded  on 
general  conclusions,  established  by  practice  or 
statute,  or  deducible  from  the  ordinary  in- 
ferences of  common  sense.  Of  these  there 
sre, — 1st,  The  prasumptio  juris  et  de  jure, — 
t.e.,apre8umption  of  the  fact,  against  which  no 
evidence  can  be  received ;  and  hence  such  a 


presumption  may  be  more  correctly  charac- 
terized as  a  legid  doctrine,  resting  on  an  un- 
challengeable assumption  of  fact.  Such  is 
the  presumption  that  a  pupil  is  incapable  of 
managing  his  affairs,  which  presumption  can- 
not be  redargued  by  proof,  however  strong,  of 
his  ability.  The  presumed  incapacity  on 
which  the  law  of  deathbed  is  founded,  and 
the  presumed  fraud,  which  the  act  1696,  c.  5, 
is  intended  to  guard  against,  are  presumptions 
of  the  same  kind.  See  Deathbed.  Bankrupt. 
2d,  The  prwsumptio  juris,  which  is  an  assump- 
tion that  the  fact  is  so,  but  which  may  be 
overcome  by  contrary  proof  or  stronger  pre- 
sumption. Such  are  the  presumptions  that 
the  possessor  of  moveables  is  their  proprietor 
— that  the  child  born  of  a  marriage  is  legiti- 
mate— in  criminal  law,  the  presumption  of 
innocence  until  guilt  be  proved;  and  the  like. 
Lastly,  The  prcesumptio  hominis  vel  judicis, 
which  is  no  more  than  an  inference  or  bias 
arising  from  the  particular  circumstances  of 
the  case,  and  the  ordinary  conduct  of  mankind, 
such  as  the  trite  presumption  that  a  man  will 
not  voluntarily  do  a  deed  to  injure  himself; 
all  which  presumptions  of  course  must  yield 
to  positive  proof,  or  stronger  presumptions  the 
other  way ;  Stair,  B.  iv.  tit.  45,  §  9,  et  seq. ; 
Bank.  B.  iv.  tit.  34;  Ersk.  B.  iv.  tit.  2,  §  35, 
et  seq. ;  Tait,  447, 497 .  See  also  Presumptions. 
Prescription. 

II.  0/  the  oath  of  party. — ^The  oath  of  party 
may  be  taken  either  upon  a  reference  by  the 
opposite  party,  or  by  order  of  the  judge  ;  and, 
with  these  exceptions,  it  was  formerly  a 
general  rule  of  law,  that  no  person  could  be 
admitted  to  give  evidence  in  his  own  favour. 

1.  Oath  on  r^erenee  of  opposite  party. — 
Where  the  opposite  party  refers  the  fact  at 
issue  to  his  adversary's  oath,  and  the  oath  so 
given  is  explicit,  it  is  decisive  of  the  cause. 
This  arises,  not  from  the  superior  weight 
attached  to  this  species  of  evidence,  but  is 
founded  on  the  judicial  contract  between  the 
parties,  whereby  the  referrer  is  held  to  have 
bound  himself  to  allow  the  cause  to  be  decided 
on  the  evidence  of  his  antagonist.  So  binding, 
indeed,  is  this  contract  held  to  be,  that  uo 
evidence  whatever  is  admissible  to  impugn  the 
testimony  of  the  party  to  whom  the  reference 
is  made.  Even  direct  .proof  that  he  has  for- 
sworn himself,  although  it  might  serve  to 
convict  him  in  a  criminal  prosecution  for 
perjury,  will  not  affect  the  decision  of  the 
civil  action,  which  must  be  determined  by  the 
import  of  his  oath.  But  in  such  a  case,  the 
private  party  who  made  the  reference  might, 
with  the  requisite  concourse  of  the  public 
prosecutor,  insist  in  a  criminal  prosecution 
for  the  pains  of  law,  with  the  damages  and 
expenses  he  has  suffered  by  the  perjury; 
Hume,  i.  367 ;  Stair,  B.  iv.  tit.  44 ;  Bank.  B. 


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IT.  tit.  32;  Ertk.  B.  iv.  tit.  2,  §  9,  etteq.; 
Tail,  217,  «t  »eq. 

Where  the  oath  of  the  party  is  not  precise 
or  decisive,  or  where  it  contains  matters 
foreign  to  the  point  at  issue,  questions  of 
great  nicety  arise  as  to  what  are  called  tn- 
triruic  and  extrinsic  qualities  in  the  oath.  It 
cannot  be  expected  that  such  a  subject  (which, 
indeed,  is  more  matter  of  law  and  interpreta- 
tion than  of  evidence)  should  be  treated  here 
much  in  detail ;  but,  in  general,  it  may  be  ob- 
served, that  where  the  qualification  cannot 
be  separated  from  the  fact  sworn  to,  it  will 
be  held  as  an  intrinsic  quality.  Thus,  if  the 
fact  that  a  party  promised  to  pay  a  certain 
sum  of  money  be  referred  to  his  oath,  and  he 
swear  that  he  made  the  promise  conditionally, 
and  that  the  condition  has  not  been  purified, 
the  condition  cannot  be  separated  from  the 
promise,  and  will  therefore  be  accounted  an 
intrinsic  quality  in  the  oath.  Where,  on  the 
other  hand,  the  fact  of  the  existence  of  a  debt 
is  referred  to  the  oath  of  a  party,  and  he 
swears  that  the  debt  is  due,  but  that  he  has 
a  counter  claim  which  extinguishes  it  by 
compensation,  the  counter  claim  so  stated 
will  be  held  an  extrinsic  quality;  because 
compensation,  although  a  valid  defence,  must 
be  established  otherwise  than  by  the  oath  of 
the  party  who  pleads  it ;  hence,  it  cannot  be 
admitted  to  qualify  an  oath  which  distinctly 
admits  the  existence  of  the  debt.  The  de- 
cision of  questions  of  this  kind,  however, 
necessarily  depends  upon  the  true  meaning 
and  extent  of  the  reference,  which  must  be 
ascertained  by  an  accurate  discrimination  of 
the  facts  which  the  party  referring  intends, 
or  is  bound  by  this  mode  of  procedure  to  peril, 
on  the  good  faith  of  his  adversary.  See  the 
subject  fully  treated,  Ersk.  £.  iv.  tit.  2,  S§ 
11-14:  Stair,  B.  iv.  tit.  44,  §  14;  Bank.  B. 
iv.  tit.  32,  §  16 ;  Tait,  240. 

Reference  to  oath  of  party  is  not  admissible 
to  supply  the  want  of  public  instruments  re- 
quired as  solemnities,  such  as  instruments  of 
sasine,  of  requisition,  and  the  like.  In  like 
manner,  where  matters  are  entire,  the  want 
of  writing  in  transactions  concerning  the  titles 
to  heritable  subjects,  including  leases  exceed- 
ing one  year's  endurance,  cannot  be  supplied 
by  oath  of  party.  Writing  is  also  indispens- 
able, and  not  to  be  supplied  by  oath  of  party, 
in  the  nomination  of  an  executor ;  but  verbal 
legacies  to  any  amount  are  good,  if  admitted 
by  the  party  liable  to  pay  them,  and  may  be 
proved  by  reference  to  his  oath,  although  not 
by  witnesses,  if  they  exceed  L.lOO  Scots; 
Ersk.  B.  iii.  tit.  9,  §  7.  Where  there  are 
manifest  errors  or  inaccuracies  in  a  deed,  its 
contents  may  be  overruled  or  controlled  by 
oath  of  party ;  but  it  seems  more  doubtful 
whether  a  cause  or  obligation  can,  on  such 


evidence,  be  added  to  a  finished  written  agrees 
ment ;  Tait,  225,  and  eases  there  cited.  In  al- 
most all  cases,  however,  in  which  writing  is 
essential  to  bind  the  parties,  they  will  be 
bonnd  without  it,  if  there  have  been  a  ret 
interventus,  or  performance,  total  or  partisl, 
by  either  party,  on  the  faith  of  the  contract ; 
and  after  such  a  rei  interventus,  the  contract, 
if  denied,  may  be  proved  by  oath  of  party, 
and  in  some  cases  even  by  witnesses.  Thus, 
a  rei  inierventut  has  been  held  sufficient  to 
supply  the  want  of  writing,  both  in  leases 
exceeding  a  year,  and  in  sales  of  heritage — 
in  the  constitution  of  servitudes — in  submis- 
sions concerning  heritage — in  cautionary  obli- 
gations— in  agreements  where  writing  was 
pars  contractus — and  the  like ;  not,  however, 
in  sales  of  ships,  even  although  the  price  had 
been  paid,and  possession  given — writing  being 
in  that  ease  a  statutory  requisite  ;  Tait,  227 ; 
Stair,  B.  iv.  tit.  44,  §  5  ;  Ersk.  B.  iv.  tit.  2, 
§9. 

In  criminal  prosecutions,  a  party  cannot  be 
required  to  swear  npon  a  reference  to  his 
oath  in  any  matter  in  which  his  confesion  of 
guilt  would  infer  infamy  or  personal  punish- 
ment. By  express  statute,  however,  such  a 
reference  is  competent  in  a  trial  for  usury ; 
1600,  c.  7  ;  and  in  all  crimimd  proseoutions 
concluding  for  fine  only,  or  restricted  to  that 
by  the  prosecutor,  the  defender  may  be  re- 
quired to  swear  on  a  reference  to  his  oath. 
In  criminal  cases  it  seems  to  be  incompetent 
for  the  accused  to  refer  the  truth  of  the 
charge  generally  to  the  oath  of  the  prose- 
cutor, public  or  private,  this  being  a  species 
of  contract  on  the  panel's  side  hardly  reoon- 
cileable  with  the  principles  of  criminal  juris- 
prudence ;  Hume,  i.  368,  and  ii.  325  and  387. 
In  civil  actions  reference  to  oath  is  excluded 
in  all  cases  of  an  infamous  nature,  such  as 
theft,  swindling,  and  the  like,  and  even  in 
cases  which,  although  not  infamous,  may,  if 
prosecuted  criminally,  involve  the  party  in 
personal  punishment.  Stair,  B.  iv.  tit.  44,  § 
6 ;  Bank.  B.  iv.  tit.  82,  §  4 ;  Ersk.  B.  iv.  tit.  2, 
§  9,  and  tit.  4,  §  94 ;  Tait,  233. 

The  reference  to  oath  is  a  bar  to  any  new 
process  upon  the  same  interest  and  cause  of 
action,  but  will  not  afifect  third  parties  who 
have  not  sanctioned  it.  To  this  rule  there  is 
an  exception  in  the  case  of  arrestments ;  for 
the  arrestee  may  refer  his  defence  against  the 
arrester,  to  the  oath  of  the  common  debtor ; 
and  by  that  oath  the  arrester  will  be  bonnd ; 
Ersk.  B.  iii.  tit  6,  §  16.  The  oath  of  a  bank- 
rupt, upon  reference  by  an  alleged  debtor  to 
his  estate,  rather  appears  at  one  time  to  have 
been  thought  admissible  against  the  estate, 
where  there  was  no  objection  on  the  ground 
of  relationship  to  the  party  referring,  or  other 
suspicious  circumstances;  BdTs  Gam.  IL  484. 


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84  also  where  a  creditor  of  the  estate  proposed 
to  refer  the  debt  to  the  oath  of  the  bankrapt, 
the  competency  of  the  reference  seeipa  at  one 
time  to  have  depended  on  the  question,  whe- 
ther or  not  the  bankrupt  had  an  interest  in 
the  issue,  the  distinction  between  the  oath  of 
a  witness  and  the  oath  of  party  being,  it  was 
stated,  that  interest  in  the  witness  formed  the 
ground  of  exclusion  ;  whereas,  in  reference  to 
oath,  interest  was  the  ground  on  which  it 
rested.    Hence  it  was  thought,  that  if  the 
fact  in  dispute  be  proveable  by  parole  evi- 
deuee,  the  party  might  refer  to  the  bankrupt's 
oath,  if  he  had  an  interest,  and  might  have 
the  benefit  of  his  evidence  as  a  witness,  if  his 
interest  be  at  an  end.    See,  on  this  subject, 
Jfew,  11th  July  1829,  1  S.  <k  D.  902,  and 
authorities  there  cited.    It  seems  now,  however, 
to  be  held,  that  reference  to  the  oath  of  a 
bankrupt  is  incompetent,  on  the  ground  that, 
by  the  sequestration,  he  is  divested  in  favour 
of  his  creditors,  and  is  no  longer  a  party.  See 
the  case  otAdam  v.  MacladUan,  Jan.  29, 1847, 
9  D.  566.     The  admission  of  one  cO'Obligant 
or  co-creditor,  on  a  reference  to  his  oath,  does 
aot  bind  the  others ;  nor  will  the  other  co- 
ebligants  or  co-creditors  be  bound  by  the  de- 
position, in  a  reference  made  to  oath  by  one 
ef  their  number.    But  the  rule  appears  to  be 
different  as  between  principal  and  cautioner ; 
for  the  cautionary  obligation,  being  merely 
aoeessary,  must  stand  or  fall  with  the  principtd 
obligation,  and,  consequently,  may  be  affected 
either  by  the  oath  on  reference,  or  by  the  re- 
ference to  oath,  made  by  the  principal  debtor; 
Tail,  258.     The  oaths  on  reference  of  guar- 
dians, trustees,  and  managers  for  others,  or 
the  references  to  oath  made  by  them   in 
matters  within   their    administration,  bind 
their  .constituents ;  e.  g.,  the  oaths  or  refer- 
eaees  of  guardians  for  minors  bind  their  wards; 
the  oaths  of  wives  prceposita  rebus  domesticis, 
•r  of  children  in  fatnilia,  to  prove  necessary 
fornishings,  bind  the  husband  or  father ;  the 
oaths  of  magistrates,  although /uncti  ojkio,  to 
prove  contracts  made  by  them  while  in  office, 
bind  the  corporation  ;  and  the  like ;  Ersk.  B. 
iv.  tit.  2,  §  10 ;  Bank.  B.  iv.  tit.  32,  §  3;  TaU, 
264.    The  assignee,  until  intimation  of  the 
assignation,  will  be  bound  by  the  cedent's 
oath ;  but,  after  intimation,  the  cedent's  oath 
is  inadmissible  to  prove  compensation,  pay- 
pient,  or  any  other  direct  defence  against  the 
debt ;  except — 1st,  Where  the  assignation  has 
l)«en  gratuitous,  or  in  trust  for  the  cedent ; 
2i,  Even  where  the  assignation  is  onerous,  if 
it  have  been  made  after  the  subject  of  it  has 
become  litigious  by  an  action  (not  a  mere 
citation),  at  the  instance  of  the  debtor  against 
the  cedent,  on  the  same  groiuds  on  which  the 
debtor  afterwards  disputes  the  assignee's  claim; 
H  If  the  assignee  hare  followed  out  diligence 


commenced  in  name  of  the  cedent ;  ith'.  If 
compensation  against  the  cedent  hare  been 
proved  scripto,  and  the  assignee  pleads  recom- 
pensation  in  the  person  of  the  cedent,  the 
cedent's  oath  is  admissible  against  the  assignee 
to  elide  the  plea  of  recompensation — upon  the 
principle  that  the  ground  of  recompensation 
is  still  in  the  person  of  the  cedent  unassigned; 
Ersk.  B.  iii.  tit.  5,  §§  9, 10 ;  Stair,  B.  iii.  tit. 
1,  §  18 ;  Bank.  B.  iii.  tit.  1,  §  26.  A  re- 
ference to  oath  by  the  public  prosecutor  in 
a  criminal  process,  with  a  negative  oath  by 
the  accused,  wiU  not  defeat  the  private  party's 
civil  claim  for  damages ;  nor,  on  the  other 
hand,  will  a  similar  reference  by  the  private 
party  in  a  civil  action  compromise  the  right  of 
the  public  prosecutor  to  insist  against  the  de- 
fender ad  vindictam  publicam ;  Tail,  272.  See 
farther,  on  the  subject  of  this  section.  Stair, 
B.  iv.  tit.  44,  §  8 ;  Bank.  B.  iv.  tit.  32,  §§  5  and 
6;  ^rafc.  B.  iv.  tit.  2,  §  10. 

Where  a  reference  to  oath  is  proposed,  the 
usual  course  is,  for  the  party  referring  to  put 
into  process  a  minute  of  reference,  which  is 
seen,  and,  if  necessary,  answered,  or  objected 
to,  by  the  opposite  party ;  and  the  terms  of 
the  reference  being  finally  adjusted  and  ap- 
proved of  by  the  judge,  the  deposition  is  taken 
by  the  judge  or  by  a  commissioner,  in  the 
ordinary  manner,  and  the  cause  decided  ac- 
cording to  its  import.  Reference  to'  oath, 
where  otherwise  competent,  may  be  made  at 
any  time  before  extract,  and,  according  to 
some  authorities,  even  after  extract,  if  offered 
in  a  suspension.  It  has  also  been  decided, 
that  such  a  reference  is  admissible  after  a 
verdict  in  the  Jury  Court  against  the  party 
referring,  on  account  of  his  failure  to  prove 
his  case ;  Clark,  20th  Nov.  1819,  Foe.  Coll. 
Hitherto,  however,  it  has  not  been  expressly 
settled  whether  or  not  a  reference  to  oath  can 
be  competently  made  where  the  party  referred 
to  has  already  proved  his  case  by  witnesses ; 
Tait,  235. 

2.  Oaths  required  hy  the  judge. — The  oaths  of 
this  description  are  the  oath  in  supplement 
and  the  oath  in  litem.  The  oath  in  supple- 
ment is  admitted  to  supply  deficiences  in  legal 
evidence,  where  the  party  whose  oath  is  al- 
lowed has  brought  what  is  called  a  semiplena 
probatio.  The  ordinary  cases  in  which  such 
an  oath  is  admissible  are  those  in  which  the 
oath  of  a  merchant,  in  supplement  to  regu- 
larly kept  books,  is  admitted  to  prove  fur- 
nishings made  by  him  ;  or  where,  in  questions 
of  filiation,  the  oath  of  the  mother  of.au  ille- 
gitimate child  is  admitted  to  establish  the 
paternity,  provided  she  has  been  enabled,  by 
other  evidence,  to  prove  such  intimacy  or 
familiarity  between  herself  and  the  putative 
father,  as  raises  not  a  suspicion  merely,  but  a 
reasonable  belief  that  illicit  intercourse  must 


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have  taken  place  within  the  reqnisite  time. 
As,  however,  oaths  in  supplement  do  not  rest 
on  any  implied  contract  between  the  litigants, 
they  may  be  redargued  by  contrary  proof 
afterwards  discovered,  or  the  cause  may  be 
brought  under  review  of  a  superior  Court,  on 
the  ground  that  the  oath  ought  not  to  have 
been  allowed ;  Ersk.  B.  iv.  tit.  2,  §  14 ;  Tait, 
273.    See  Semiplena  Probatio, 

The  oath  «»  litem,  is  the  oath  of  the  pur- 
suer of  an  action  as  to  the  amount  of  the  loss 
or  damage  which  he  has  sustained  through 
the  defender ;  and  it  is  admitted  only  in  two 
classes  of  cases :  1«(,  Where  there  is  full 
proof  that  the  defender  has  been  engaged  in 
some  illegal  act,  as  spuilzie,  or  the  like ;  and, 
2(%,  In  the  case  of  losses  which  a  party  is 
entitled  to  recover  under  the  edict  Nautce, 
caupones,  stabularii.  In  either  case  the  oath 
t'n  litem  is  conclusive  as  to  the  quaniiliet  lost ; 
but,  in  so  far  as  regards  the  price  or  valve  put 
on  the  articles,  it  is  subject  to  modification 
by  the  Court.  Ertk.  B.  iv.  tit.  2,  §  18,  and 
B.  iii.  tit.  1,  §  29 ;  Stair,  B.  iv.  tit.  44,  §  4 ; 
Bank.  B.  i.  tit.  10,  §  133,  and  tit  16,  §  1 ; 
B.  iv.  tit.  32,  §  11 ;  Tait,  279,  et  neg. 

Where  a  party  has  been  required  to  give 
his  oath,  either  on  reference  or  by  the  judge, 
the  requisition  is  made  under  the  certifica- 
tion that,  in  default  of  his  appearing  to  make 
oath,  or  on  his  declining  to  swear,  he  shall  be 
held  as  confessed ;  that  is,  his  failure  to  ap- 
pear, or  his  silence,  will  be  deemed  equiva- 
lent to  an  acknowledgment,  on  oath,  that  the 
fact,  as  stated  by  the  other  party,  is  correct. 
For  this  purpose,  however,  it  is  necessary  that 
the  party  who  is  to  swear  shall  have  been 
regularly  cited  either  apud  acta  (t.«.,  by  the 
judge  notifying  the  day  to  him  in  Court),  or 
by  a  messenger-at-arms.  See  Citation.  If 
the  party  appear  and  swear  non  memini  to  a 
fact,  so  recent  that  he  cannot  be  supposed  to 
have  forgotten  it,  that  will  be  held  equiva- 
lent to  a  refusal  to  swear,  and  he  will  be  held 
as  confessed.  Ersk.  B.  iv.  tit.  2,  §  14 ;  Tait, 
287  and  240. 

The  law  sanctions  or  requires  several  judi- 
cial or  voluntary  oaths,  affidavits,  and  decla- 
rations of  parties.  ls(.  The  oath  of  calumny, 
as  known  in  our  older  practice,  was  a  decla- 
ration upon  oath  by  a  party,  on  the  requisi- 
tion of  his  adversary,  of  his  belief  in  the  truth 
of  the  averments  on  which  his  plea  rested. 
See  Calumny,  Oatk  of.  2d,  The  bankrupt  sta- 
tute requires  from  the  bankrupt  and  those 
connected  with  his  affairs,  and  from  the  cre- 
ditors, sundry  affidavits,  oaths  of  verity  and 
credulity,  and  other  declarations  upon  oath, 
as  to  which,  and  all  similar  statutory  oaths 
or  affidavits,  it  may  be  observed,  that,  except 
against  the  deponents  themselves,  they  are 
uot  legal  evidence.    The  examinations  upon 


oath  of  the  'bankrupt  and  others  as  to  th« 
state  of  his  affairs,  are  in  law  regarded  as 
mere  inquisitorial  investigations  of  the  nature 
of  a  precognition  ;  and  it  is  only  in  the  event 
of  the  death  of  the  parties  by  whom  they  are 
made,  that  snch  depositions  will  be  admitted 
even  as  adminicles  of  evidence.  The  affida- 
vits and  oaths  of  verity  and  credulity  by  cre- 
ditors, again,  can  be  viewed  as  nothing  better 
than  the  solemn  attestation  of  a  party  in  his 
own  favonr,  not  as  legal  evidence  where  the 
claim  is  disputed ;  Bell't  Com.  it.  399,  485. 
3d,  Neither  party  can  insist  for  a  judicial 
examination  of  his  adversary  as  matter  of 
right,  it  being  entirely  in  the  discretion  of 
the  judge  to  admit  it  or  not ;  and  the  decla- 
ration of  a  party  on  such  an  examination, 
although  good  evidence  against  himself,  can, 
as  against  his  opponent,  be  received  as  no 
more  than  the  deliberate  statement  of  a  party. 
Such  examinations  are  altogether  incompe- 
tent,— let.  Where  a  reference  to  oath  is  in- 
tended, or  is  the  only  mode  of  proof  compe- 
tent in  the  circumstances  of  the  case ;  2d, 
Where  writing  is  indispensable;  and,  3ii, 
Wheie  the  facts,  in  regard  to  which  the  party 
is  proposed  to  be  judicially  examined,  are 
such  as  would  infer  personal  punishment  or 
infamy  against  him,  if  prosecuted  criminally ; 
Gordon,  22d  December  1809,  Fae.  CoJL;  Tait, 
291,  et  leq.  4ih,  In  criminal  prosecutions  the 
voluntary  declarations  emitted  by  the  accused 
in  the  course  of  a  precognition,  or  before 
the  libel  has  been  served  upon  him,  may  be 
founded  upon  at  his  trial,  and,  taken  along 
with  the  other  evidence  adduced,  may  con- 
tribute to  his  conviction.  See  Dedamtitm. 
Lastly,  The  admissions  or  confessions  made  by 
a  party,  either  on  a  judicial  examination  or 
voluntarily  in  court,  or  even  extrajudicially, 
if  seriously  made,  may  supersede  the  neces- 
sity of  resorting  to  other  evidence,  all  such 
admissions  or  confessions  being  good  evidonee 
against  the  party  making  them.  From  this 
rule  are  excepted  admissions  or  concessions 
made  in  the  course  of  extrajudicial  commun- 
ings for  a  settlement  of  the  case ;  for  it  is 
presumed  that  a  party  is  willing  to  make 
large  concessions  in  order  to  avoid  a  law-ssit ; 
besides,  were  such  communications  to  betaken 
advantage  of,  it  might  prove  a  serious  ob- 
stacle to  compromises.  Ersk.  B.  iv.  tit.  2,  § 
33 ;  Stair,  B.  iv.  tit.  45,  §§  5-8  ;  Bank.  B.  iv. 
tit.  33,  §§  18, 19 ;  Tait,  293. 

III.  Op  the  Order  m  which  Evidescb  is 

TO  BE  RECEIVED  ;    WITH  SOME  GeNBEAI. 

KuLEs  AS  TO  Evidescb. 

The  best  evidence,  and  that  to  which  a 
party  ought  first  to  resort  in  support  of  his 
plea,  is  a  written  deed.    Where  that  does 


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not  exist,  parole  proof,  where  otherwise  ad- 
miaible,  may  be  resorted  to ;  and  failing  both 
of  these,  the  party  may,  where  each  a  mode 
of  proof  ia  competent,  refer  the  point  at  issue 
to  the  oath  of  his  opponent. 

Tlie  following  rules  applicable  to  the  sub- 
ject of  evidence  generally  maybe  of service : — 

I.  Neither  judges  nor  juries  can  legally  pro- 
ceed upon  their  own  private  knowledge  con- 
cerning matters  of  fact  at  issue  before  them  ; 
bat  are  bound  to  decide  solely  according  to 
the  legal  evidence  judicially  adduced.  Hume, 
ii.  310. 

II.  The  best  evidence  to  be  had  in  the  cir- 
enmstances  must  be  adduced.  Thus,  it  is  in- 
competent to  prove  the  contents  of  a  written 
document  otherwise  than  by  the  document 
itself,  if  it  be  in  existence  ;  except  in  the  case 
of  extracts  from  public  or  judicial  records,  as 
already  explained.  And,  on  the  same  prin- 
ciple, hearsatf  evidence,  generally  speaking,  is 
inadmissible;  that  is,  where  a  fact  or  facts 
pertinent  to  the  issue,  and  in  the  knowledge 
of  a  competent  witness,  are  proposed  to  be 
proved,  not  by  that  witness  himself,  bnt  by 
the  evidence  of  one  who  heard  him  state  them. 
To  this  rule  there  are  exceptions,—!.  In  a 
criminal  prosecution,  the  dying  declaration 
of  the  injured  party  as  to  the  mortal  injury, 
ottered  in  the  prospect  of  death,  is  allowed 
to  be  proved  by  hearsay  on  a  trial  for  his 
marder.  2.  Even  in  civil  cases  hearsay  evi- 
dence is  admitted  where  the  statements  of  a 
competent  witness,  in  relation  to  the  matter 
at  issue,  are  offered  to  be  proved  after  his 
death,  or  after  he  has  become  insane.  3.  It 
it  stated  by  some  authorities,  that  hearsay  is 
admitted  in  evidence  where  it  forms  part  of 
the  transaction  which  is  the  subject  of  in- 
qairy.  Bnt  where  the  transaction  in  ques- 
tion concerns  words  spoken  (as  in  the  case  of 
defamation),  and  those  words  are  attempted 
to  be  proved  by  a  witness  who  was  present 
and  heard  them,  that  plainly  is  not  hearsay, 
as  technically  understood.  See  Hearsay.  Tail, 
430 ;  Phillips  on  Evidence,  p.  278,  4th  edit. ; 
Hume,  ii.  391 ;  Murray's  Jury  Court  Reports, 
»ol.  i.  pp.  95  and  424. 

III.  By  the  law  of  Scotland,  no  fact  can  be 
legally  proved,  and,  in  criminal  cases,  no  con- 
viction can  follow,  on  the  unsupported  testi- 
mony of  a  single  witness,  however  unimpeach- 
able his  credit  may  be.  But  where  one  wit- 
ness swears  distinctly  to  a  fact,  the  want  of 
a  second  witness  to  the  same  specific  fact 
may  be  supplied  by  a  witness  to  corroborative 
circamstances ;  and  in  cases  of  circumstantial 
evidence,  two  witnesses  are  not  required  to 
prove  each  circumstance  of  the  same  transac- 
tion. Nor,  where  a  specific  offence  is  charged, 
is  it  necessary  to  prove  each  reiterated  act  by 
two  witnesses,  unless  where  the  acts  have  no 


connection  with,  or  relation  to  each  other. 
Thus,  if  in  a  prosecution  for  defamation,  one 
witness  swear  that  he  heard  the  defender 
utter  the  slander,  and  another  swear  that  he 
heard  him  use  expressions  of  a  similar  import 
on  a  different  occasion,  that  will  amount  to 
legal  proof ;  handles,  18th  July  1816,  Murray's 
Jury  Court  Reports,  i.  79.  But,  if  successive 
acts  of  uttering  forged  notes  to  different  per- 
sons and  in  different  places  be  charged,  two 
witnesses  to  each  act  are  requisite  ;  Hume,  ii. 
371-372 ;  Tait,  437.  Several  exceptions  to 
the  general  rule  of  the  common  law  are  in- 
troduced by  special  statutes,  authorising  con- 
viction on  the  oath  of  one  credible  witness, ' 
as  in  the  caso  of  certain  offences  against  the 
laws  of  Customs  and  Excise,  the  game  laws, 
and  the  like ;  Bank.  B.  iv.  tit.  30,  §  2.  See 
Oame. 

IV.  It  is  a  trite  rule  in  evidence,  that  a 
party  cannot  be  required  to  prove  a  negative ; 
but  when  evidence  is  adduced  in  support  of 
the  affirmative,  such  evidence  may  be  rebutted 
by  opposite  proof,  which  is  not  properly  prov- 
ing a  negative,  but  merely  proving  a  propo- 
sition inconsistent  with  that  which  is  affirmed; 
Hutch.  Justice  of  Peace,  B.  i.  c.  6,  p.  277. 

V.  Every  member  of  the  community,  if 
legally  capable,  is  bound  to  give  evidence 
when  required  by  competent  authority ;  and 
peers  as  well  as  commoners,  when  examined 
as  witnesses,  must  be  sworn  to  tell  the  truth. 
Quakers  and  other  sectarians,  on  account 
of  religious  scruples,  are,  by  special  sta- 
tutes, allowed  to  make  a  solemn  affirmation 
instead  of  an  oath ;  and  these  affirmations  are 
declared  to  have  the  effect  of  an  oath,  in  all 
places,  and  for  all  purposes  whatsoever,  where 
an  oath  is  required,  either  at  common  law  or 
by  statute ;  22  Geo.  II.,  c.  46,  §  34 ;  3  and  4 
WiU.  IV.,  c.  49,  and  c.  82 ;  1  ami  2  Vict.,  c. 
77, 1838  ;  Tait,  288  and  422. 

VI.  Witnesses  must  be  examined  apart 
from  each  other ;  and  examined  must  have 
no  communication  with  unexamined  witnesses, 
lest  the  latter  should  be  biased  by  hearing 
what  the  others  have  deponed.  Neither,  ge- 
nerally speaking,  are  unexamined  witnesses 
permitted  to  be  present  in  Court,  or  before 
the  commissioner,  while  the  case  is  going  on, 
or  while  objections  to  their  admissibility,  or 
to  the  competency  of  the  questions  proposed 
to  be  put  to  them,  are  under  discussion ;  Stair, 
B.  iv.  tit.  43,  §  18 ;    Tait,  420. 

VII.  Witnesses  are  entitled  to  the  expenses 
of  travelling  to  and  from  the  place  to  which 
they  are  cited  to  give  evidence,  and  of  their 
stay  while  they  are  detained.  The  Act  of 
Sederunt,  21st  Dec.  1765,  fixes,  on  a  very 
moderate  scale,  the  rates  of  such  allowanres 
to  witnesses  in  cases  before  the  Court  of  Ses- 
sion, and  authorises  the  expenses  to  be  levied 


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by  summary  warrant  against  the  agent  of  the 
party  adducing  them ;  and  although  a  wit- 
ness may  not  be  entitled  to  enforce  payment 
of  more  than  the  rates  so  fixed,  yet  in  prac- 
tice, a  sum  sufficient  to  defray  the  reasonable 
expenses  incurred  by  the  witnesses  is  allowed, 
without  regard  to  the  rates  of  the  Act  of  Se- 
derunt. But  where  a  witness,  by  disobeying 
the  first  citation,  renders  letters  of  second 
diligence  necessary,  he  forfeits  the  allowance 
for  expenses ;  Ersk.  B.  iv.  tit.  2,  §  30 ;  Tait, 
417.  In  criminal  cases,  in  like  manner,  wit- 
nesses are  entitled  to  a  reasonable  sum  for 
travelling  expenses,  although  they  may  be 
compelled  to  come  from  any  part  of  Qreat 
Britain  or  Ireland  to  bear  testimony  on  a 
criminal  trial,  without  any  previous  tender 
of  expenses ;  54  Geo,  III.,  c.  186.  Their  ex- 
penses are  paid  by  the  parties  who  adduce 
them ;  and,  in  case  of  refusal  or  delay,  pay- 
ment may  be  enforced  by  letters  of  horning 
against  the  adducers ;  and  there  are  examples 
on  record  of  such  homings  being  issued,  even 
against  the  Crown  lawyers;  Hume,  ii.  368, 
note.  Witnesses  do  not  appear  to  be  entitled 
to  anyremuneration  for  loss  of  time,  although 
persons  in  the  working  classes  are  usually 
allowed  wages  at  the  ordinary  rate  of  their 
trade;  and  it  is  said  to  be  the  practice  in 
England  to  make  allowances  for  loss  of  time 
to  medical  men  and  attorneys,  in  addition  to 
their  travelling  expenses ;  Phillips  on  Evidence, 
i.  4. 

Lastly,  A  ^rootprout  dejure,  means  a  proof 
by  all  the  legal  means  of  probation, — «.«.,  by 
writing,  by  witnesses,  and  by  oath  of  party ; 
although,  in  practice,  the  phrase  is  usually 
employed  to  signify  a  proof  of  facts  and  cir- 
cumstances by  witnesses,  in  support  of  an 
averment,  in  contradistinction  to  a  proof 
limited  to  writ  or  oath  of  party ;  Bank.  B.  iv. 
tit.  27,  §  1 ;  Ersk.  B.  iv.  tit.  2,  §  1 ;  Dunbar, 
Bliah's  App.  Cases,  ii.  350.    See  Prout  de  Jure. 

Eridents;  a  word  used  by  conveyancers 
as  synonymous  with  mrits  or  title-deeds,  by 
which  property  is  proved.  See  Balfour's 
Practiek*  anent  Charteurit  and  Evidentis,  p. 
187,  et  seq. 

Ewest ;  nearest.  The  word  is  used  in  this 
sense  in  our  older  statutes.  Thus  the  act 
1572,  c.  48,  in  regard  to  manses  and  glebes, 
provides,  that  the  manses  "  maist  ewest  to  the 
kirk"  shall  pertain  to  the  minister  or  reader, 
"  together  with  four  acres  of  land  of  the  glebe 
at  least  lyand  contigue,  or  maist  ewest  to  said 
manse,  gif  there  be  sa  meikle."    See  Glebe. 

Ex  Officio ;  is  a  term  applied  to  acts  done 
by  a  functionary  in  virtue  of  his  office,  and  not 
at  the  suit,  or  on  the  employment,  of  any 
other  party.  An  ex  officio  information,  in  the 
law  of  England,  is  an  information  (analogous 
to  a  Scotch  indictment)  filed  by  the  Attorney- 


General  ex  propria  motu,  and  without  the  u- 
tervention  of  any  judicial  authority.  See  Ton- 
lint'  Diet.  h.  t. 

Ex  Parte.  In  judicial  proceedings  a  step 
is  said  to  be  taken  ex  parte,  when  the  advene 
party,  either  by  neglect  or  refusal  to  affur, 
has  not  been  heard,  or  has  not  stated  his  rea- 
sons why  what  is  asked  should  not  be  granted. 
See  Absence.    Default. 

Ex  Post  Paoto ;  is  a  term  used  in  law  to 
signify  something  done  in  order  to  affect  some 
right  or  demand,  which  had  been  brought 
into  question  before  the  ex  post  facto  act  ordeed 
was  done.  An  ex  post  facto  law,  is  a  law 
which  operates  retrospectively;  as,  for  ex- 
ample, which  imposes  a  penalty  on  an  act  or 
deed  done  before  the  law  was  enacted,  and 
which  act  or  deed,  when  done,  was  not  peeal 
or  prohibited.  This  is  an  extraordinary  re- 
medy resorted  to  in  extreme  cases,  and  which 
seems  to  be  justifiable  only  where  the  law  so 
made,  is  directed  against  some  unquestionable 
moral  wrong,  which,  from  the  infreqnency  of 
its  occurrence,  or  from  its  enormity,  may  not 
have  been  hitherto  made  the  object  of  legisla- 
tion.    Vide  Tomlin^,  h.  t. 

£x  Deliberatione  Dominomm  ConoiliL 
These  words  are  annexed  to  all  signet  letters 
which  pass  the  Royal  Signet  for  Scotland,  on 
bills  presented  at  the  Bill  Chamber  of  the 
Court  of  Session ;  such  as  privileged  sum- 
monses, letters  of  suspension,  supplement,  and 
the  like,  letters  of  horning  on  decrees  of  in- 
ferior judges,  letters  of  caption  and  other  di- . 
ligences  requiring  bills.  The  words  are  sub- 
joined to  the  signet  letter  immediately  above 
the  subscription  of  the  writer  to  the  Signet. 
See  Bills  of  Signet  Letters.  Bill  Chamber.  See 
also  Stair,  B.  iv.  tit.  3,  §§  4  and  32 ;  Bank, 
B.  iv.  tit.  27,  §  9. 

Exaction ;  as  understood  in  the  law  of 
England,  is  a  wrong  done  by  an  o£Bcer  or  one 
in  pretended  authority,  by  taking  a  fee  or 
reward  which  the  law  does  not  allow  him. 
As  contradistinguished  from  extortion,  it  is 
said  to  be  an  exaction  when  the  officer  wrests 
a  fee  or  reward  where  none  is  due ;  whereas 
it  is  extortion,  when,  something  being  due,  the 
officer  extorts  more  than  he  is  entitled  to. 
Tomlins'  Diet.  h.  t. 

Examination  of  a  PriMner.  See  Decora- 
tion.   Criminal  Prosecution. 

Examination,  JndiciaL    See  DedaraUo*. 

Examination  of  a  Witiiess.  See  Evidence. 

Examination  of  a  Bankrupt  See  Bank- 
rupt.    19  and  20  Vict.,  c.  79,  §§  87-95. 

Examined  Copies.  In  the  phraseolc^  of 
the  English  law,  an  examined  copy  of  a  deed, 
writing,  or  record,  is  a  copy  or  extract  of  the 
deed  or  entry  in  the  record,  examined  and 
certified  by  the  proper  officer.  The  term  is 
nearly  synonymous  with  the  Scotch  law  term 


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ExhrocU  As  to  the  effect  of  such  examined 
copies  or  extracts,  and  of  notarial  copies  when 
produced  as  evidence,  see  the  article  Evidence, 
tupn,  p.  367. 

Euamluoii ;  is  the  legal  name  of  the  con- 
tract whereby  one  piece  of  land  is  exchanged 
for  another.  The  deeds  by  which  the  con- 
tract is  completed  ought  to  bear,  that  the 
lands  are  excambed  and  disponed  in  excam- 
bion.  The  implied  warrandice  of  this  con- 
tract is  real  warrandice,  in  virtue  of  which, 
either  party,  in  case  of  eviction  of  the  land 
which  he  has  received  in  excambion,  niay  re- 
cover possession  of  the  land  which  he  gave  in 
exchange.  This  right  to  recur  to  the  ori- 
ginal property  in  case  of  eviction,  is  compe- 
tent to  the  original  excamber  and  his  heirs 
and  singular  successors,  against  the  party 
with  whom  he  contracted  and  his  heirs  and 
singular  successors,  even  although  the  sin- 
plar  successor  may  have  acquired  his  right 
prior  to  the  eviction.  The  original  title  of 
the  party  claiming  under  this  warrandice  is 
proved  by  the  recital  in  the  contract  of  ex- 
cambion, it  being  presumed  that  when  the 
exchange  was  made,  he  delivered  the  title- 
deeds  of  the  portion  excambed  to  the  other 
party,  unless  the  contrary  appear.  In  order 
to  constitute  this  sort  of  warrandice,  the  deeds 
most  expressly  bear  that  the  lands  are  mu- 
toally  given  in  excambion.  Heirs  possessing 
nnder  deeds  of  entail  have  a  statutory  privi- 
lege, under  10  Geo.  III.,  c.  51  (called  the 
Montgomery  Act),  of  exchanging  or  making  ex- 
eambions  of  certain  portions  of  the  entailed 
lands.  This  privilege  was  conferred  by  that 
statute,  not  only  to  benefit  the  heirs  of  entail, 
bat  also  to  promote  tho  general  improvement 
of  the  country.  But  no  more  than  thirty 
seres  of  arable  land,  or  one  hundred  acres  of 
ground  unfit  for  the  plough,  can  be  so  ex- 
obaoged.  In  order  to  carry  such  an  arrange- 
ment into  effect,  the  heir  of  entail  proposing 
to  make  the  excambion  must  apply  to  the 
sheriff  or  steward  of  the  county  where  the 
entailed  estate  lies,  who  appoints  two  or  more 
skilful  persons  to  adjust  the  value  of  the  lands 
to  be  exchanged.  Upon  their  settling  the 
marches,  and  reporting  upon  oath  that  the 
eiefaange  wiU  be  just  and  equal,  the  sheriff 
antborises  the  exchange  to  be  made  by'a  con- 
tract of  excambion,  which  is  effectual  on  being 
executed,  and  afterwards  recorded  in  the  she- 
riff^onrt  books  of  the  county  in  which  the 
estate  is  situated,  within  three  months  after 
the  execution  of  the  deed.  The  land  given 
in  exchange  to  the  entailed  estate  is  thence- 
forth held  as  part  thereof,  and  that  given 
irom  it  held  as  free  of  the  fetters  of  the  en- 
tail ;  10  Geo.  III.,  c.  61,  §  27.  By  the  re- 
tent  statute,  6  and  7  Will.  IV.,  o.  42,  this 
power  has  been    greatly  extended.     It  is 


thereby  enacted,  that  notwithstanding  the 
prohibitory,  irritant,  and  resolutive  clauses 
in  any  entail,  it  shall  be  lawful  for  the  re- 
spective heirs  of  entail  in  possession,  without 
consent  of  any  other  heir,  to  make  excambion 
of  any  portion  of  the  entailed  estate  for  an 
equivalent  in  lands,  estates,  or  heritages  lying 
contiguous  to  the  same,  or  to  some  other  part 
of  the  entailed  estate,  or  being  convenient  to 
be  holden  with  the  same,  whether  belonging 
to  himself  in  fee-simple  or  to  any  other  per- 
son, and  that  although  the  heritages  to  be 
giveu  and  taken  in  exchange  consist  of  dif- 
ferent descriptions  of  heritable  property. 
Notice  of  the  intention  to  make  such  excam- 
bion must  be  given  (three  months  previous  to 
the  application  to  the  Court  of  Session  after 
mentioned)  to  the  five  heirs  or  substitutes  of 
entail,  or  to  the  whole,  if  their  number  be 
less  than  five,  next  in  the  order  of  succession 
to  the  heir  so  applying.  When  any  of  these 
five  heirs  is  under  age,  or  under  any  other 
disability,  the  notice  must  be  given  to  his  cu- 
rator or  other  administrator ;  and  if  three  or 
more  be  under  such  disability,  the  notice  must 
also  be  given  to  the  two  heirs,  next  in  succes- 
sion after  such  five  heirs,  who  are  under  no 
disability.  When  any  of  the  said  heirs  is 
forth  of  the  kingdom,  notice  must  be  given  to 
his  known  agent  or  factor.  After  such  notice, 
for  the  purpose  of  ascertaining  and  adjusting 
the  value  of  the  lands,  iic,  proposed  to  be 
exchanged,  an  application  must  be  made  by 
summary  petition  to  one  or  other  division  of 
the  Court  of  Session,  setting  forth  the  objects 
and  expected  advantages  of,  and  praying  for, 
such  excambion.  The  said  Court,  after  proof 
made  to  them  of  notice  having  been  given  as 
above,  and  hearing  any  party  having  a  title 
and  interest  to  be  heard,  appoint  two  or  more 
skilful  persons  to  inspect  and  adjust  the  value 
and  settle  the  marches  of  the  lands,  &o.,  to  be 
exchanged.  Upon  receiving  their  report,  and 
being  satisfied  of  the  respective  value  of  the 
lands,  &c.,  and  the  expediency  of  the  ex- 
change, the  Court  authorises  the  excambion. 
The  eontract  of  excambion  is  then  executed 
at  the  sight,  and  with  the  approbation  of  the 
Court,  and  recorded  in  the  Sheriff-court  books 
of  each  of  the  shires  in  which  the  lands  are 
situated,  and  also  within  three  months  in  the 
Register  of  Tailzies.  The  expenses  incurred 
by  any  party  having  a  title  or  interest,  ap- 
pearing as  aforesaid,  are  borne  either  by  such 
party,  or  by  the  heir  of  entail  applying  for 
the  excambion,  as  the  Court  may  think  just. 
Such  excambions  cannot  be  made  of  the  prin- 
cipal mansion-house  or  offices,  or  the  garden, 
park,  home  farm  or  policy,  of  any  entailed 
estate,  nor  of  more  than  one-fourth  in  value 
of  the  entailed  heritages ;  and  if  a  fourth 
part  has,  under  authority  of  the  act,  been 

Digitized  byCjOOQlC 


348 


EXG 


BXC 


excambed,  no  further  excambion  is  competent 
to  any  heir  of  entail.  The  land  given  in  ex- 
change to  the  entailed  estate  is  thenceforth 
held  ns  part  thereof,  subject  to  all  the  pro- 
hibitory, irritant,  and  resolutive  clauses,  and 
that  given  from  it  held  as  free  of  the  fetters 
of  the  entail.  No  debt  contracted  by  any 
heir  of  entail  during  the  execution  and  regis- 
tration of  the  contract  of  excambion,  affects 
the  lands  contained  in  the  contract,  and 
thereby  added  to  the  estate.  Any  excess  of 
value  on  either  side,  not  exceeding  L.200,  is 
paid  to  the  proprietor  to  whom  the  lands  of 
similar  value  are  awarded.  But  if  any  party 
to  an  excambion  gives  or  receives  any  consi- 
deration other  than  the  lands  to  be  ex- 
changed, or  aforesaid  excess  not  exceeding 
L.200,  the  excambion  is  null  and  void. 
Where  any  part  of  an  entailed  estate  is  un- 
der more  than  one  deed  of  entail,  descendible 
to  the  same  series  of  heirs,  such  deeds  of  en- 
tail are,  in  reference  to  the  application  for 
excambion  under  this  act,  to  be  construed  as 
one  deed  of  entail.  The  act  10  Geo.  III., 
c.  51,  continues  in  force,  except  in  so  far  as 
repealed  by  any  of  the  provisions  of  the  late 
act.  Excambions  under  the  act  6  and  7 
Will.  IV.,  c.  42,  may  be  carried  through 
under  the  forms  of  the  Entail  Amendment 
Act  11  and  12  Vict.,  c.  36, 1848.  See,  on 
the  subject  of  this  article,  Ersk.  B.  ii.  tit.  3, 
§  28  ;  Stair,  B.  I.  tit.  14,  5  1 ;  Bank,  B.  i. 
tit  19,  §  4 ,-  BdPs  Com.  vol.  i.  p.  693,  6th 
edit. ;  BM't  Prine.  §  1772 ;  BeU  on  Pur- 
chaio's  Title,  2d  edit.  p.  130  ;  Bdl  on  Leases, 
4th  edit.,  vol.  i.  p.  296 ;  Hunter's  Landlord 
and  Tenant,  p.  508. 

Exception ;  is  a  term  borronred  from  the 
Roman  law,  and  used  in  the  law  of  Scotland 
as  synonymous  with  Defences.  According  to 
Stair, "  Exceptions  are  so  termed  by  the  Ro- 
man law  from  the  formulm  of  actions  in  that 
law  and  the  edicts  of  the  praetors,  which,  if 
they  did  bear  conditions  not  to  hold  in  such 
cases,  these  conditions  were  thence  called  ex- 
ceptions ;"  Stair,  B.  iv.  tit.  40,  §  14.  In  Spot- 
tiswood's  Annotations  on  Hope's  Minor  Prae- 
ticlts,  there  is  the  following  note  on  the  word 
Exception : — ^"  This  word  is  from  the  law  of 
the  Romans  ;  and  in  their  language  excipere 
signifies  to  defend,  and  so  an  exception  is 
called  a  defence ;  or  it  may  be  said  to  be  taken 
from  the  style  or  formula  of  the  summons, 
which  was  in  use  to  be  givon  with  a  nisi,  un- 
less si  non,  if  the  other  party  do  not  extra 
quamsi,  without  the  defender  do  this  or  that, 
&c.  And  the  Emperor  Justinian,  in  the  title 
of  his  Institutes,  which  treats  of  exceptions,  at 
the  beginning  says,  "  Thai  exceptions  are  de- 
vised to  defend,  and  are  introduced  for  the  sake 
of  those  against  whom  the  action  is  raised ;  be- 


the  pursuit  b«  according  to  law,  yet  it  is  unjiu/t 
against  him  who  is  called  to  it."  A  defender, 
who  comes  prepared  for  his  defence,  either 
denies  that  the  pursuer  has  right  and  title  in 
law  to  pursue,  or,  though  he  finds  the  ac- 
tion competent,  yet  propounds  something  that 
either  removes  it  wholly  or  diminishes  the 
claim ;  and  this,  in  a  proper  sense,  and  not 
the  inficiation  or  total  denial,  is  an  exception. 
But,  generally  speaking,  everything  which 
one  alleges  for  defending  himself,  and  for 
eliding  the  action,  is  called  an  exception;" 
Hope's  Minor  Practicks,  by  Spottiswood,  tit.  1  of 
the  Form  of  Process,  p.  29,  note.  In  the  rawe 
correct  acceptation  of  the  term  exception,  there- 
fore, it  is  not  applicable  to  a  defence,  which 
denies  the  relevancy  of  the  libel  as  laid ;  or 
which  resolves  into  an  objection  to  the  cita> 
tion  of  the  party,  and  the  like  ;  since,  strictly 
speaking,  an  exception  must  assume  that  the 
libel  is  relevant,  but  allege  that  the  defender 
is  not  liable  in  the  conclusion,  in  respect  of 
the  exception  which  he  pleads.  This  distinc- 
tion, however,  has  not  hitherto  been  much 
attended  to  in  our  practice.  See  Dtfeiacts. 
It  is  a  question  of  some  practical  importance 
whether  the  defence  against  an  action  is  plead- 
able by  way  of  exception,  or  whether  it  murt 
not  bemade  good  by  a  separate  action.  This 
difficulty  arises  in  cases  where  the  demand 
rests  on  a  deed  ex  fade  valid  and  regular,  but 
which  is  reducible  on  the  head  of  deathbed, 
or  of  fraud,  force,  or  fear,  or  the  like  ground. 
It  seems  to  be  settled,  that  ex  facte  nnUities, 
whether  at  common  law  or  founded  on  statute, 
are  pleadable  by  way  of  exception.  Bat  the 
exceptions  of  fraud,  force,  or  tear,  if  the  deed 
alleged  to  have  been  thus  legally  obtained 
relate  to  heritage,  cannot  be  pleaded  by  way 
of  exception.  The  defender  in  such  a  case 
must  reduce  the  deed  to  which  he  objects. 
The  same  is  the  rule  as  to  deathbed  deeds — 
deathbed  being  pleadable,  not  by  way  of  ex- 
ception, but  by  reduction ;  although  by  onr 
older  practice  the  rule  seems  to  have  been 
different  in  petitory  and  declaratory  actions 
at  least.  See  Galderwood  against  Schaw,  14th 
Nov.  1668,Mor. p.  12,607,and p. 2737;  Stair, 
B.  iii.  tit.  iv.  §  31.  According  to  one  antbo< 
rity  the  distinction  between  allegations  pro- 
ponable  by  way  of  exception,  and  those  which 
must  be  established  by  way  of  action,  is 
founded  in  "  the  circumstances  of  the  process ; 
as  when,  in  defending  the  right,  quarrelled 
incidenter,  other  persons  not  called  to  the 
principal  action  are  concerned,  or  the  pro- 
cess will,  if  that  allegiance  be  instantly  re- 
ceived, expatiate  into  another  form  or  kind 
of  action,  of  higher  and  more  weighty  conse- 
quence than  the  principal  process,  or  that  this 
will  be  retarded,  the  question  being  only  a 


causa," continues, he  "  it  ofienhappensthat,  though  I  prejudicium  or  preparatory,  and  which,  though 

Digitized  byCjOOQlC 


BXC 


BXC 


849 


(Qgt&ined,  will  not  determine  the  principal 
eanse."  SpoUiswoo^s  Notes  on  Hope's  Minor 
Pnetieks,  pp.  29-30.  See  also  Stair,  B.  iv.. 
tit.  40,  §  16,  et  stq.;  Karnes'  Equity,  297; 
Humsm  on  Bills,  280. 

Exceptions,  Bill  of.    In  England,  if  the 
eonnsel  for  either  party,  at  the  hearing  or 
determining  of  a  cause,  apprehend  that  the 
judge,  either  in  his  directions  or  decisions, 
mistates  the  law,  they  may  require  him  to 
seal  a  bill  of  exertions,  stating  the  point  where- 
in he  is  supposed  to  err ;  which  hill  is  of  the 
nature  of  an  appeal  to  the  next  superior 
Court;  Bladist.  vol.  iii.  p.  372.    And  when 
jury  trial  in  civil  causes  was  extended  to  Scot- 
land by  the  statute  55  Qeo.  III.,  c.  42,  it 
having  been  deemed  proper  to  adopt  sundry 
English  law  terms  and  forms  in  preference 
to  those  which  our  own  law  supplied,  amongst 
others,  bills  of  exceptions  were  introduced,  as 
to  which  the  following  provisions  were  made 
in  section  7  of  the  statute : — "It  shall  be  com- 
petent to  the  counsel  for  any  party,  at  the 
trial  of  any  issue  or  issues,  to  except  to  the 
opinion  and  direction  of  the  judge  or  judges 
before  whom  the  same  shall  be  tried,  either 
as  to  the  competency  of  witnesses,  the  admis- 
sibility of  evidence,  or  other  matter  of  law 
arising  at  the  trial."    The  ground  of  excep- 
tion required  to  he  first  stated  verbally  to 
the  Jury  Court,  and  then  reduced  into  writing, 
according  to  a  form  prescribed  in  the  App.  to 
&t  Acts  of  Sederunt,  9th  December  and  Sd  July 
1823,  and  signed  by  the  judge  or  judges  of 
the  Jury  Court.    But  notwithstanding  such 
exception  the  trial  was  to  proceed,  and  the 
jary  to  return  their  verdict ;  and  after  the 
trial,  the  judge  who  presided  was  forthwith 
to  present  the  bill  of  exceptions,  with  the 
order  or  interlocutor  directing  the  issue,  and 
the  verdict  of  the  jury  indorsed  thereon,  to 
the  Division  of  the  Court  of  Session  by  which 
the  issue  or  issues  had  been  directed ;  "  which 
shall  thereupon  order  the  said  exception  to 
be  heard  in  presence  on  or  before  the  fourth 
sedemnt-day  thereafter."    If  the  Court  of 
Session  allowed  the  exception,  another  jury 
was  directed  to  be  summoned  for  the  trial  of 
the  issue ;  if  the  exception  was  disallowed,  the 
verdict  indorsed  on  the  bill  was  declared  final 
and  conclusive ;  the  party,  however,  against 
whom  any  interlocutor  was  pronounced  on 
the  matter  of  the  exception,  was  entitled  to 
appeal  to  the  House  of  Lords  against  that 
interlocutor ;  the  appellant  attaching  a  copy 
of  the  exception  to  the  petition  of  appeal; 
and  provided  that  such  appeal  was  presented 
to  the  House  of  Lords  within  fourteen  days 
after  the  interlocutor  was  pronounced  if  Par- 
liament was  then  sitting,  and,  if  not,  then 
within  eight  days  after  the  commencement  of 
the  next  session  of  Parliament.    These  ap- 


peals had,  under  this  statute,  a  precedence, 
being  appointed  to  he  heard  on  or  before  the 
fourth  cause  day  after  the  time  limited  for 
laying  the  printed  appeal  cases  upon  the  table 
of  the  House  of  Lords  ;  55  Geo.  III.,  c.  42,  § 
7.  In  the  more  recent  statute,  49  Geo.  III., 
c.  35,  §  16,  it  was  provided  that,  in  all  cases 
in  which  general  verdicts  were  found  by  the 
jury,  the  motion  for  setting  aside  the  verdict 
and  granting  a  new  trial  should  be  made  in 
the  Jury  Court,  in  presence  of  two  at  least  of 
the  Jury  Court  judges,  and  not  in  the  Court 
of  Session  ;  and  the  order  granting  or  refusing 
such  new  trial  by  the  Jury  Court  was  not 
subject  to  review  by  petition,  representation, 
appeal  to  the  House  of  Lords,  or  otherwise, 
unless  the  motion  for  setting  aside  the  verdict 
was  founded  on  misdirection  of  the  judge  at 
the  trial,  in  matter  of  law,  or  on  the  undue 
admission  or  rejection  of  evidence ;  in  which 
cases  (§  17X  "  it  shall  be  competent  to  the 
party  against  whom  judgment  is  given  by  the 
Jury  Court,  to  tender  a  bill  of  exceptions  to 
such  judgment,  iu  the  same  manner  as  at  a 
trial ;  and  the  proceedings  on  such  bill  of  ex- 
ceptions shall  be  conformable  in  all  respects 
to  the  provisions  of  the  act  55  Geo.  III.,  c. 
42 :  Provided,  nevertheless,  that  the  interlo- 
cutor to  be  pronounced  on  such  motion  shall 
be  finaf,  and  shall  not  be  subject  to  review 
by  petition,  representation,  appeal  to  the 
House  of  Lords,  or  otherwise."  The  pro- 
cedure on  bills  of  exceptions  is  now  regulated 
by  A.  S.  letk  February  1841,  entituled  "An 
Act  of  Sederunt,  regulating  proceedings  in 
jury  causes."  By  this  act  of  sederunt,  which 
was  passed  after  the  union  of  jury  trial  in 
civil  causes  with  the  jurisdiction  of  the  Court 
of  Session,  and  which  repeals  all  former  acts 
of  sederunt  on  the  subject,  it  is  provided 
(sect.  32)  "  That  where  the  counsel  for  either 
party  shall  except  to  points  of  law  laid  down 
by  the  presiding  judge  in  the  course  of  a  trial, 
or  in  his  charge  to  the  jury,  the  counsel  ten- 
dering such  exception  shall  deliver  in  a  note 
thereof  to  the  judge  at  the  time  the  excep- 
tion is  taken  ;  and  the  same,  if  it  shall  state 
correctly  what  was  decided,  or  directed,  or 
omitted  by  the  judge  to  be  directed,  shall  be 
certified  by  the  judge  at  the  time,  by  sub- 
scribing his  name  to  such  note ;  and  a  note 
of  all  such  exceptions  taken  in  the  course  of 
the  trial,  or  to  the  charge  of  the  judge,  shall 
be  finally  settled  and  certified  as  aforesaid 
before  the  jury  is  enclosed  to  consider  their 
verdict."  This  note  forms  the  basis  of  the 
bill  of  exceptions,  which  is  afterwards  pre- 
pared and  adjusted ;  and,  by  section  38  of  the 
same  act  of  sederunt,  it  is  enacted  "  That  it 
shall  not  be  competent  to  proceed  in  any  bill 
of  exceptions,  unless  each  bill  shall  be  lodged 
within  six  days  after  the  commencement  of 

Digitized  byCjOOQlC 


350 


BXC 


EXC 


the  next  session,  or  of  the  meeting  of  the 
Court  after  the  Christmas  recess,  if  the 
cause  has  been  tried  after  the  end  of  the 
session  at  the  sittings  in  March  or  July, 
or  during  the  Christmas  recess,  or  upon  cir- 
cuit, or  within  ten  days  if  the  case  has  been 
tried  during  the  session,  or  immediately  be- 
fore the  sitting  down  of  the  session,  or  if  the 
exception  has  been  taken  on  a  motion  for  a 
new  trial,  except  leave  has  been  obtained 
from  the  Court  to  prolong  the  period  for 
presenting  the  bill."  The  exception  must  be 
to  the  law  laid  down  by  the  judge,  inclading 
his  judgment  on  the  admission  or  rejection  of 
evidence ;  his  refusal  to  adopt  a  direction  in 
point  of  law,  suggested  from  the  bar,  or  the 
like.  Where,  in  the  course  of  his  charge,  the 
judge  makes  any  mistake  in  point  of  fact,  the 
practice  is  for  the  counsel  who  thinks  he  has 
erred  to  interrupt  him  and  to  set  him  right 
The  bill  of  exceptions  sets  forth  so  far  the 
procedure  at  the  trial ;  and  as  both  parties 
are  entitled  to  see  that  this  is  correctly  done, 
the  practice  is  to  communicate  the  proof- 
prints  of  the  bill  to  the  opposite  agent ;  and, 
in  the  ordinary  case,  the  bill  is  ultimately 
adjusted  at  a  meeting  of  the  counsel,  with  the 
judge  who  tried  the  cause.  Considerable  dis- 
cussion has  arisen  concerning  the  proper  limits 
and  contents  of  bills  of  exceptions ;  as  to  which, 
all  that  can  be  said  in  a  work  such  as  the 
present  is,  that  the  whole  matter  must  be  pre- 
sented in  such  a  form  as  to  admit  of  its  being 
judged  of  by  the  Court.  See  various  forms 
of  bills  of  exceptions  in  Maefarlane't  Jury 
Practice,  App.  p.  352,  et  seq. ;  and  see  Lord 
Chief-Justice  Tindall's  answer  to  certain  que- 
ries put  by  the  Dean  of  Faculty  on  this  sub- 
ject, 15  S.  A  D.  App.  1312.  A  judge  who 
presided  at  a  trial  may  sign  a  bill  of  excep- 
tions after  he  has  resigned  the  judicial  office ; 
SmitK,  27th  Jan.  1835, 13  S.  A  D.  323.  By 
7  Will.  IV.,  c.  14,  it  is  enacted,  that  in  all 
cases  in  which  any  bill  of  exceptions  is  brought 
before  the  Court  of  Session,  or  carried  by 
appeal  to  the  House  of  Lords,  it  shall  not  be 
competent  to  the  Court  of  Session  or  to  the 
House  of  Lords,  in  pronouncing  judgment  on 
such  bill  of  exceptions,  to  make  any  order,  or 
to  pronounce  any  judgment,  ordering  a  new 
trial,  unless  the  said  Court  or  House  of  Lords 
are  of  opinion  that  the  exception  is  to  be  al- 
lowed. And  when  the  Court  or  House  of 
Lords  are  of  opinion  that  the  law  directed  at 
the  trial,  or  the  determination  to  receive  or 
reject  evidence  excepted  to,  is  correct,  they 
are  to  make  an  order  that  the  hill  of  excep- 
tions shall  be  disallowed,  and  that  the  ver- 
dict found  by  the  jury  shall  be  carried  into 
effect,  by  a  judgment  pronounced  thereon,  for 
the  party  in  whose  favour  the  said  verdict 
was  found.    By  the  Conrt  of  Session  Act  18 


and  14  Vict.,  c.  36,  §  45,  it  u  provided, "  That 
a  bill  of  exceptions  shall  not  be  allowed  in 
any  cause  before  the  Court  of  Session,  npon 
the  grround  of  the  undue  admission  of  evi- 
dence ;  if,  in  the  opinion  of  the  Court,  the  ex- 
clusion of  such  evidence  could  not  have  led 
to  a  different  verdict  than  that  actually  pro- 
nounced ;  and  it  shall  not  be  imperative  on 
the  Court  to  sustain  a  bill  of  exceptions  on 
the  ground  of  the  undue  rejection  of  docu- 
mentary evidence,  when  it  shall  appear  from 
the  documents  themselves  that  they  ought 
not  to  have  affected  the  result,  at  which  the 
jury  by  their  verdict  have  arrived.  But  see 
Camer<m  v.  Cameron's  Trustees,  Dec.  21,  1850, 
13  D.  412.  It  has  been  held  by  the  House 
of  Lords, — (1.)  That,  in  preparing  the  formal 
bill  of  exceptions,  it  is  irregular  for  the  judge 
to  make  any  alteration  upon  the  exceptions, 
as  they  appear  by  the  note  tendered  by  the 
party,  and  signed  by  the  judge  himself  at  the 
trial ;  but,  (2.)  That  if  such  alteration  be 
made,  the  Court  cannot  adjudicate  upon  any 
other  exceptions  than  those  set  forth  in  the 
formal  bill ;  Earl  of  Glasgow  r.  Hurlet  Ahim 
Co.,  June  26, 1850,  7  Bdl  100  ;  Jurid.  Styles, 
iii.  p.  920  ;  Maefarlaiufs  Jury  Prac.  236,  271, 
etseq.    See  Appeal.    Jury  Trial.    New  TrUd. 

Exoeptio  Hon  Hnmerate  Peeuaite.  This 
was  one  of  the  Roman  law  exceptions,  founded 
on  the  obligatio  literarum  of  the  Romans.  The 
obligatio  2t<«rarui»  was  constituted  by  a  writing, 
the  grantor  of  which  acknowledged  receipt 
from  the  creditor  of  a  certain  sum  of  money. 
But  as  the  obligation  was  sometimes  granted 
before  the  money  was  advanced,  spe  numeran- 
da  pecunice  by  the  Roman  law,  the  obligation, 
until  the  lapse  of  two  years  after  its  date  and 
delivery,  did  not  prove  the  receipt  of  the 
money ;  and  the  debtor  against  whom,  with- 
in that  time,  a  demand  for  re-payment  was 
made,  might  plead  the  esceptio  non  numerate 
pecuniae;  that  is,  that  the  money  of  which 
re-payment  was  demanded,  was  truly  never 
advanced.  This  exception  was  suflicient  to 
elide  the  demand,  unless  the  creditor  proved 
that  he  had  advanced  the  money.  In  the 
older  form  of  the  Scotch  bond  for  borrowed 
money,  the  debtor  was  made  to  renounce  "  the 
exception  of  not  numerated  money,"  from  a 
groundless  apprehension  that  the  Roman  law 
exception  might  be  pleadable.  It  does  not 
appear,  however,  to  have  been  at  any  time 
recognised  in  the  law  of  Scotland.  This  re- 
nunciation, therefore,  is  only  one  among  many 
proofs  of  that  over-anxiety  in  conveyancers, 
whereby  points,  otherwise  free  from  all  doubt,, 
have  been  sometimes  brought  into  question. 
See,  as  to  this  exception,  Ersk.  B.  iii.  tit.  2, 
§  5 ;  Stair,  B.  i.  tit.  10,  §  11. 

Ibcoeptio  Sei  Jndieua ;  is  an  exception 
pleadable  by  a  party  who  had  formerly  had 

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the  matter  in  controversy  ju4icially  deter- 
mined by  a  competent  tribunal,  in  a  question 
with  the  same  parties,  or  with  parties  in  the 
tame  interest,  and  proceeding  on  the  same 
medi'iiei  condtidendi,  or  cause  of  action.  Where 
a  party  has  been  condemned  by  a  sentence  of 
a  competent  foreign  court,  which  sentence  has 
received  full  execution,  he  cannot  lawfully 
raise  an  action  in  this  country  in  order  to  ob- 
tain what  may  be,  in  effect,  a  reversal  of  the 
foreign  decree.  The  exeeptio  reijudieaUe  might 
be  Bttccessfnlly  pleaded  against  such  an  ac- 
tion; for  the  defender  may  legally  found  on 
the  sentence  recovered  by  him  in  the  foreign 
Court,  as  a  defence  against  a  new  action,  on 
the  same  grounds  in  this  country  ;  to  admit 
which  would  be  virtually  to  confer  on  the 
Courts  of  this  country  a  right  to  review  the 
sentences  of  foreign  Courts.  Ersk.  B,  iv.  tit. 
3.  §  4 ;  Stair,  B.  iv.  tit.  40,  §  16  ;  Karnes' 
Equity,  516.  See  Res  Judicata,  and  authorities 
there  cited. 

Exchange,  Bill  of.     See  Bill  of  Exchange. 

Exchange  and  £e-Exchange.  Exchange 
has  been  defined  to  be,  the  difference  in  the 
valae  of  money  at  a  place  where  a  bill  is 
drawn,  and  the  place  where  it  is  payable ;  or 
rather,  as  the  premium  or  discount  (as  it  may 
happen)  paid  or  received  as  the  price  or  va- 
lae of  a  draft,  drawn  in  one  country  and  pay- 
able in  another.  The  term  seems  to  have 
originated  in  the  circumstance  of  such  bills 
or  drafts  on  foreign  countries  being  drawn  in 
a  country  where  one  species  or  denomination 
of  coin  is  the  current  money,  and  payable  or 
exdiangeablt  in  another  country  for  money  of 
the  denomination  current  in  that  country. 
Exchange,  however,  may  now  be  said  to  be 
a  term  almost  exclusively  applicable  to  the 
preminm  or  discount  paid  in  one  country  for 
a  draft  payable  in  another — that  premium  or 
discount  varying,  of  course,  with  the  supply 
of,  or  the  demand  for,  such  drafts.  Re-exchange 
is  due  where  a  draft  or  bill,  procured  as  above, 
h  not  accepted  or  not  paid  by  the  drawee  ; 
in  which  case  the  holder  of  the  dishonoured 
draft  or  bill  is  entitled  to  re-draw  upon  the 
original  drawer,  and  to  add  to  his  re-draft 
the  premium,  discount,  or  cost,  attending  the 
transaetion,  and  arising  Irom  the  dishonour 
of  the  original  bill  or  draft.  The  holder  of 
the  dishononred  draft  is  entitled  to  raise  money 
to  its  iiill  amount,  at  the  drawer's  expense,  in 
whatever  currency,  or  at  whatever  rate  of  ex- 
change it  was  made  payable  ;  and  if  the  re- 
draft cannot  be  sold  but  at  a  discount,  the 
holder  of  the  dishonoured  draft  may  add  to 
his  re-draft  a  snm  snfScient  to  cover  that  dis- 
connt.  The  sura  thus  added  to  the  amount 
of  the  original  draft  is  termed  re-exchange. 
The  same  rules  which  regulate  exchange  and 
re-exchange  in  the  caw  of  foreign  bills  of  ex- 


change are  applicable  to  inland  bills ;  for  the 
course  of  exchange  between  two  places  in  the 
same  country  rests  upon  principles  precisely 
similar.  See  Bell's  Com.  i.  p.  405.  See  this 
subject  concisely  and  distinctly  treated  in 
Thomson's  Law  of  Bills  of  Exchange,  p.  593,  et 
seq.  See  also  Glen  on  BiUs,  pp.  9-16, 2d  edit. ; 
Stair,  B,  i.  tit.  11,  §  7,  et  seq. ;  BelFs  Princ. 
§  342.  See  Bill  of  ExelMnge.  Draft.  Drawer 
cfaBill. 

Exchequer,  Court  o£  The  Scotch  Court 
of  Exchequer,  prior  to  the  Union,  was  the 
king's  revenue  court,  and  consisted  of  the 
treasurer,  the  treasurer-depute,  and  as  many 
lords  of  Exchequer  as  the  King  chose  to  ap- 
point. The  ministerial  part  of  the  treasurer's 
office  was,  to  receive  casualties  due  to  the 
king,  either  as  sovereign  or  as  feudal  supe- 
rior; with  which  ofBce,  about  a  century  before 
the  Union,  was  united  the  office  of  comptroller, 
whose  duty  it  was  to  levy  the  rents  of  Crown 
lands,  burgh  rents  and  customs,  and  to  ex- 
amine the  treasurer's  accounts.  By  article 
19  of  the  treaty  of  Union,  it  was  provided, 
that  the  Scotch  Court  of  Exchequer  was  to 
continue  until  anew  Revenue  Court  should  be 
established  in  Scotland  by  Parliament ;  and, 
by  6  Anne,  c.  26,  the  Court  of  Exchequer 
was  established  on  the  footing  on  which  it 
continued  till  the  recent  changes.  The  judges 
of  the  then  new  Court  were,  by  that  statute, 
declared  to  be  the  High  Treasurer  of  Great 
Britain,  with  a  Chief  Baron  and  four  Barons, 
who  must  have  been  either  serjeants-at-law, 
or  English  barristers,  or  Scotch  advocates  of 
five  years'  standing.  All  barristers  might 
plead  before  this  Court  who  were  entitled  to 
practise  in  the  Courts  of  Westminster  or  in 
the  Court  of  Session ;  and  the  privileges  be- 
longing to  members  of  the  College  of  Justice 
were  communicated  to  the  barons  and  other 
members  of  the  Court,  "  excepting  only  that 
they  might  be  pursued  in  justice  before  the 
Lords  of  Session  for  causes  not  competent  to 
the  Court  of  Exchequer."  This  Court  had, 
under  the  statute  by  which  it  was  established, 
a  private  jurisdiction  as  to  the  duties  of  cus- 
toms, excise,  or  other  revenues  appertaining 
to  the  King  or  Prince  of  Scotland ;  and  as  to 
all  honours  and  estates  which  might  accrue 
to  the  Crown,  in  which  matters  they  were  to 
judge  according  to  the  forms  of  proceeding 
used  in  the  English  Court  of  Exchequer ;  bnt 
under  the  limitation,  1st,  That  no  debt  due 
to  the  Crown  should  affect  the  Crown  debtor's 
real  estate  in  Scotland,  in  any  other  manner 
than  as  such  estate  might  be  affected  by  the 
law  of  Scotland ;  and,  2dly,  That  the  validity 
of  the  Crown's  title  to  any  honours,  lands,  or 
casualties  in  Scotland,  should  be  tried  as  for- 
merly by  the  Court  of  Session.  The  barons 
were  also  vested  with  the  powers  which  be- 

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longed  to  the  ancient  Scotch  Court  of  Ex- 
chequer, whereby  it  was  their  province  to 
pass  the  accounts  of  sheriffs,  and  other  officers 
who  hare  the  execution  of  writs  issuing  from, 
or  returnable  to,  the  Court  of  Exchequer,  and 
to  receive  resignations  of  lands,  and  to  pass 
signatures  of  charters,  tutories,  or  other  gifts 
of  casualties,  &c,  as  the  Scotch  Exchequer 
formerly  did.  But  this  power  in  the  Scotch 
Exchequer  was  always  limited;  for  when  a  sig- 
nature imported  a  conveyance  of  more  than 
was  conferred  by  the  Crown  vassal's  former 
charter,  besides  being  passed  by  the  barons, 
it  must  have  been  subscribed  by  the  King 
himself.  If  such  a  signature  had  passed,  of 
course,  in  Exchequer,  it  would  not  have  been 
effectual  to  the  grantee  qtuMd  the  new  right. 
Oifts  of  escheat,  and  some  other  gifts  of  minor 
importance,  might  pass  in  Exchequer  without 
a  special  warrant ;  but  remissions  of  crimes 
and  gifts  of  forfeiture  on  conviction  of  high 
treason,  required  the  King's  sign-manual  as 
their  warrant.  And,  in  general,  although 
all  such  signatures,  gifts,  &c.,musthave  passed 
in  Exchequer,  it  was  the  Court  of  Session 
only  that  could  competently  judge  of  their 
preference  after  they  were  completed ;  Ersk. 
B.  i.  tit  3,  §  30,  a  seq.  See  also  Baiik.  B. 
iv.  tit.  11,  and  BdCi  Com.  ii.  41,  and  i.  106, 
5th  edit.,  and  a  work  printed,  but  unpub- 
lished, entitled.  An  Historical  View  of  the 
Forms  and  Powers  of  the  Court  of  Exchequer  in 
Scotland,  by  Baron  Sir  John  Clerk,  Bart,  and 
Baron  Scrape,  4to,  1820  ;  Stair,  B.  iv,  tit.  1, 
§  29;  More's  Notes,  p.  ccclxx.  By  the  statute 
6  Anne,  c.  26,  §  12,  it  was  declared  compe- 
tent for  parties  affected  by  the  judgments  of 
the  Court  of  Exchequer  in  Scotland,  and  who, 
by  law,  were  entitled  to  "  maintain  a  writ  or 
writs  of  error  thereupon,  to  sue  and  prose- 
cute, out  of  the  Court  of  Chancery  in  Eng- 
land, a  writ  or  writs  of  error  to  be  made  in 
nsual  manner  upon  any  such  judgment  re- 
turnable in  the  Parliament  of  Great  Britain ;" 
and,  in  the  prosecution  of  such  writs  of  error, 
the  same  course  was  to  be  followed  which  is 
adopted  in  similarappeals  from  English  courts. 
But  appeals  of  any  kind  from  the  Court  of 
Exchequer  in  Scotland  to  the  House  of  Lords 
were  of  very  rare  occurrence  ;  and  the  judg- 
ment appealed  from  must  have  been  pro- 
nounced in  a  cause  in  which  the  judges  acted 
as  such,  ex  officio,  and  not  ministerially  as 
romroissioners  under  an  act  of  Parliament. 
There  is  no  example  of  an  appeal  from  the 
proceedings  of  the  Barons  in  the  exercise  of 
their  powers  in  receiving  resignations,  pass- 
ing signatures,  making  gifts,  and  the  like. 
See,  on  this  subject.  Form  of  Procedure  in  the 
Hoiise  of  Lords  upon  Appeals  from  Scotland, 
pp.  97-100,  8vo,  1821. 

The  Court  of  Exchequer  has  of  late  been 


made  the  subject  of  various  legislative  enact- 
ments. By  2  Will.  IV.,  c.  54,  it  was  pro- 
vided, that  successors  should  not  be  appointed 
to  such  of  the  barons  as  should  retire  or  die, 
and  that,  after  the  retirement  or  death  of  the 
last  remaining  baron,  the  duties  of  the  Conrt 
should  be  discharged  by  a  judge  of  the  Court 
of  Session,  with  an  addition  to  his  salary  of 
not  more  than  L.600.  By  3  Will.  IV.,  c 
13,  all  the  powers  and  duties  of  the  Conrt  of 
Exchequer  bearing  in  any  way  upon  the  di- 
rection of  the  revenue,  are  transferred  to  the 
Commissioners  of  the  Treasury  ;  and  the  said 
Commissioners  are  authorised  to  regulate  the 
powers  and  duties  of  the  ofSces  of  King's  Re- 
membrancer, ttc,  and  to  call  upon  the  Barons 
of  Exchequer  to  execute  conveyances  of  pro- 
perty vested  in  them  by  the  recited  acts  re- 
lative to  the  Court  of  Exchequer.  The  legal 
jurisdiction  of  the  Court  of  Exchequer  is  ex- 
cepted from  the  operation  of  the  act,  and  it 
is  declared,  that  all  debts,  duties,  revenues, 
fines,  penalties,  and  forfeitures,  sbsJl  continas 
to  be  sued  for  as  heretofore.  By  4  Will.  IV., 
c.  16,  the  office  of  Recorder  of  the  Great  Boll, 
or  Clerk  of  the  Pipe,  was  abolished.  See 
Clerk  of  the  Pipe.  By  6  and  6  Will.  IV.,  e. 
•46,  continued  by  6  and  7  Will.  IV.,  c.  73, 
and  made  perpetual  by  1  Vict,  e.  65,  provi- 
sions were  made  for  the  Lord  Ordinary  on 
the  Bills  performing  the  duties  during  the 
last  remaining  baron's  indisposition,  or  during 
the  indisposition  of  the  judge  of  session,  who, 
upon  his  death,  should  be  appointed  to  the 
office.  The  Lord  Ordinary  on  the  Bills  having 
continued  to  perform  these  duties  after  the 
death  of  the  last  remaining  baron,  and  pre- 
vious to  the  appointment  by  his  late  Msjesty, 
of  one  of  the  judges  to  perform  the  duties,  his 
acts  are,  by  1  Vict.,  c.  65,  declared  valid; 
and  it  is  provided  for  the  future,  that  it  shall 
be  competent  to  the  Lord  Ordinary  on  the 
Bills,  atier  the  death  of  the  judge  so  appointed, 
or  of  any  judge  to  be  thereafter  appointed, 
and  previous  to  the  appointment  of  his  suc- 
cessor, to  perform  the  duties  in  like  manner 
as  during  the  indisposition  or  unavoidable 
absence  of  the  judge  so  appointed.  The  same 
act  vests  in  the  Treasury  the  rights  of  tiie 
Court  of  Exchequer  relatively  to  appoint- 
ments or  offices  in  the  said  Court,  and  makes 
perpetual  the  above-recited  act  5  and  6  WilL 
IV.,  c.  46. 

The  Court  of  Exchequer  is  now  merged  in 
the  Court  of  Session  by  the  act  19  and  20 
Vict.,  c.  56  (1856).  By  that  act  one  of  &e 
Lords  Ordinary  is  appointed  Lord  Ordinary 
in  Exchequer  causes,  and  the  procedure  is 
such  causes  is  regulated. 

Exchequer,  Court  of,  tn  England.  The 
English  Court  of  Exchequer  is  a  supreme 
Court  of  record,  but  the  lowest  in  rank  of  Um 


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four  courts  which  git  in  Westminster  Hall, 
viz., — the  Court  of  Chancery,  the  Court  of 
Queen's  BepcT),  the  Court  of  Common  Fle^ 
and  the  Court  of  Exchequer.  This  court  is 
said  to  derive  its  name  from  the  chequered 
cloth,  resembling  a  chess-board,  which  covers 
the  table  of  the  court,  and  on  which  cloth, 
when  certain  of  the  accounts  are  made  up, 
the  sums  are  marked  and  scored  with  counters. 
The  Judges  of  the  Court  of  Exchequer  are 
the  Chief  Baron,  and  four  puisne  Barons. 
The  court  consists  of  two  divisions,  the  Receipt 
of  the  Exchequer,  which  manages  the  royal 
revenue,  and  the  Court  or  judicial  part  of  it. 
It  was  formerly  subdivided  into  a  Court  of 
Equity  and  a  Court  of  Common  Law,  but  by 
5  Vict.,  c.  5,  its  equity  jurisdiction  was  trans- 
ferred to  the  Court  of  Chancery. 

Exchequer  Bills ;  form  the  principal  part 
of  the  unfunded  public  debt  of  Great  Britain. 
Those  bills,  which  were  first  issued  in  the 
reign  of  William  III.,  are  issued,  under  au- 
thority of  Parliament,  for  sums  varying  from 
L.I00O  to  L.IOO.  They  bear  interest,  and 
may  be  transferred  from  hand  to  hand  with- 
out any  formal  transfer ;  and  the  holders  may 
also  receive  their  amount  periodically  from 
Government,  at  par,  with  the  interest  due  on 
them,  with  an  option  to  exchange  them  for 
new  bills,  to  which  the  same  advantages  are 
extended.  The  interest  borne  by  Exchequer 
bills  has  fluctuated  since  they  were  first  issued. 
Originally  the  interest  seems  to  have  been 
M.per  L.IOO  per  diem,  or  L.7,  128.  Id.  per 
annum :  latterly  it  has  varied  from  2jd.  to 
2d,  uid  even  to  1  Jd.  per  h.lQO per  diem,  being 
about,  or  a  fraction  under,  L.3  per  annum. 
Tmlim,  h.  t. 

Exchequer  Honung.  Execution  was 
awarded  on  the  decrees  or  judgments  of  the 
Scotch  Court  of  Exchequer  relating  to  the 
customs  or  excise,  or  other  revenue  matters 
falliog  under  its  cognizance,  according  to  the 
forms  used  in  the  English  Court  of  Exche- 
quer. But  the  diligences  of  horning  and  cap- 
tion, agreeably  to  the  former  law  and  prac- 
tice of  Scotland,  may  still  be  resorted  to  under 
authority  of  the  Court  of  Exchequer,  for  en- 
forcing payment  of  the  land-tax  for  feu- 
duties  specified  in  the  reddendo  of  Crown 
charters,  or  the  like.  Such  diligences  are 
subscribed  by  a  writer  to  the  Signet,  and  pass 
the  Signet  in  the  usual  form.  The  horning 
is  obtained  upon  a  bill  presented  in  Exche- 
quer, which  is  the  warrant  for  signeting  the 
letters.  These  letters  bear  in  the  end,  "  Ex 
ddiberatione  Baronum  Scaccarii.  "  By  43  Geo. 
111.,  c  150,  §  44,  diligence  by  horning  may 
issue  from  Exchequer  against  collectors  of 
revenue  in  certain  circumstances ;  and,  gene- 
rally, it  may  be  observed,  that  the  writ  of 
extent  contains  a  capias  on  which  horning 
z 


may  be  issued,  and  caption  may  follow." 
Under  the  act  19  and  20  Vict.,  o.  56,  consti- 
tuting the  Court  of  Session  the  Court  of  Ex- 
chequer, and  regulating  the  procedure  in 
Exchequer  causes.  Exchequer  decrees  are  put 
in  execution  by  the  sheriffs ;  see.  29,  et  seq. 
See  Juridical  Styles  of  Signet  Letters,  vol.  iii. 
p.  733, 2d  edit. ;  Bell's  Com.  ii,  604, 5th  edit. ; 
Belt's  Prine.  §  1313;  Illust.  ib. 

Excise ;  is  aii  inland  duty  levied  under 
authority  of  Parliament,  and  paid  sometimes 
on  the  consumption  of  the  commodity,  and 
frequently  upon  the  retail  sale.  Excise  is 
now  extended  to  a  great  variety  of  articles, 
such  as  spirits,  cider,  perry,  malt  liquors 
brewed  for  sale,  malt,  hops,  tea,  coffee,  to- 
bacco, paper,  licences  to  auctioneers,  spirit- 
dealers,  &c.  Indeed  this  imposition  extends 
to  so  many  commodities,  that  it  may  be  cor- 
rectly denominated  general  in  its  applicar 
tion ;  and,  by  the  articles  of  Union  (6,  7,  8, 
and  18),  the  law,  with  regard  to  excise  and 
customs,  was  made  the  same  in  England  and 
Scotland.  The  duties  thus  collected  compose 
an  important  branch  of  the  revenue  of  the 
kingdom.  Their  collection  is  managed  under 
a  system  which  has  been  the  subject  of  innu- 
merable legislative  enactments,  the  great  ob- 
ject of  which,  generally  speaking,  is  to  secure 
economy  in  the  collection  of  this  branch  of 
the  revenue,  and  to  prevent  frauds  and  eva- 
sions on  the  part  of  those  from  whom  the 
duties  are  exigible.  Frauds  against  the  ex- 
cise laws  are,  under  the  special  statutes  im- 
posing the  duties,  as  well  as  under  the  general 
consolidating  statutes,  cognisable  by  justices 
of  the  peace  ;  and  the  Supreme  Court  in  re- 
venue matters  in  Scotland  was  formerly  the 
Court  of  Exchequer,  but  its  powers  in  this 
respect  are  now  transferred  to  the  Commis- 
sioners of  the  Treasury,  See  Ex<Aequer. 
The  officers  engaged  in  the  collection  of 
these  duties  are  Commissioners,  who  have 
a  general  board  at  London.  The  Commis- 
sioners have  under  them  collectors,  comp- 
trollei's,  supervisors,  and  gangers,  and  the 
other  necessary  officers  for  the  prevention 
of  frauds  on  the  part  of  those  by  whom  the 
duties  are  payable,  as  well  as  of  those  by 
whom  the  duties  are  collected ;  and  the  sys- 
tem of  superintendence  and  supervision  is  so 
vigilant,  and  the  cheques  and  correctives  of 
inaccuracy,  fraud,  or  negligence,  are  so  well 
arranged,  that  the  strictest  discipline  is  pi  e- 
served  from  the  one  extreme  to  the  other  of 
this  great  establishment.  The  collections  are 
managed  in  such  a  manner,  that  the  proceeds 
of  the  different  duties  are  transmitted  to  Go- 
vernment at  very  short  intervals  after  their 
collection.  Excise  was  first  imposed  by  the 
rebellious  Parliament  of  1643.  See  the  va- 
rious statutes  connected  with  this  subject. 


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digested  and  abridged  in  Huie't  Abridgment 
of  the  Excise  Laws.  See  also  TaiCs  Justice 
of  Peace,  voce  Excise  and  Customs ;  Bell's  Com. 
vol.  ii.  pp.  21  and  61 ;  Blait't  Justice  of  Peace, 
h.t. 

EzclTuive  FriTilege.  This  term  is  used 
in  a  limited  acceptation  to  signify  the  rights 
and  franchises  of  the  nature  of  monopolies, 
formerly  enjoyed  by  the  incorporated  trades 
of  ft  royal  burgh  ;  in  virtue  of  which  the 
craftsmen  or  members  of  those  incorporations 
were  entitled  to  prevent  unfreemen,  or  trades- 
men not  members  of  the  incorporation,  from 
exercising  the  same  trade  within  the  limits 
of  the  bnrgh.  Strictly  speaking,  all  corpo- 
rations formed  without  an  act  of  Parliament, 
or  the  Sovereign's  patent,  are  unlawful ;  and 
it  has  been  repeatedly  held  that  voluntary 
associations  of  tradesmen  have  no  persona 
standi  in  judicio  to  enforce  regulations  made 
by  themselves.  But  it  was  maintained, 
that  the  magistrates  of  a  royal  burgh  neces- 
sarily possess  an  inherent  and  implied  power 
of  creating,  by  seal  of  cause,  subordinate  in- 
corporations of  the  different  trades  within 
burgh,  and  thus  conferring  exclusive  privi- 
leges. Lord  Kames,  on  the  contrary,  held 
that  it  was  ultra  vires  of  the  magistrates  to 
erect  corporations ;  and  he  shows  that,  in  one 
instance,  where  the  town  of  Edinburgh  at- 
tempted to  erect  a  corporation,  it  was  thought 
necessary  to  get  the  act  of  council  confirmed 
by  the  Sovereign,  and  ratified  in  the  Scotch 
Parliament.  It  has  been  decided,  however, 
that  mere  prescription,  without  the  posses- 
sion of  a  charter,  or  even  of  a  seal  of  cause, 
was  sufficient  to  confer  the  exclusive  privileges 
of  an  incorporated  trade;  the  presumption 
being,  that  the  particular  trade  had  origi- 
nally possessed  a  seal  of  cause  or  charter ; 
Skiruinff,  19th  Jan.  1803,  Fac.  Coll.  Mor.  p. 
10921.  See  also  Kames'  Elucidations,  art.  7. 
By  9  and  10  Vict.,  c.  17  (1846)  the  exclusive 
privileges  of  trades  in  burghs  are  abolished. 
As  to  the  exclusive  privilege  granted  to 
authors,  see  Literary  Property.     Engraving. 

Excommnni cation ;  ecclesiastical  censure, 
whereby  the  person  against  whom  it  was  di- 
rected was  excluded  from  the  communion  of 
the  church.  By  the  ancient  law  of  Scotland, 
excommunicated  persons  could  not  enjoy  feu- 
dal rights,  and  were  disqualified  for  holding, 
either  directly  or  indirectly,  the  lands  which 
they  had  formerly  possessed,  and  were  be- 
sides subjected  to  punishment  in  their  per- 
sons. See  sundry  statutes  imposing  those  and 
similar  penalties,  abridged  in  Kames'  Stat. 
Imo,  h.  t.  But  by  1690,  c.  28,  and  10  Anne, 
c.  7,  all  civil  pains  or  penalties  consequent  on 
excommunication  are  removed  ;  and  the  sta- 
tute 10  Anne  farther  prohibits  any  civil  judge 
to  lend  his  aid  for  obliging  any  one  to  appear 


in  a  church  court  when  summoned  in  a  pro- 
cessforexcommunication ;  orforcompellingthe 
excommunicated  person  to  obey  such  sentence 
when  pronounced.  The  lesser  excommunic*- 
tion,  or  suspension  from  the  privileges  of  the 
church,  which  is  directed  against  personsnnder 
scandal,  is  the  highest  censure  which  kirk- 
sessions  usually  inflict.  The  greater  excom- 
munication requires  the  sanction  of  the  pres- 
bytery. Neither  has  any  civil  eflfects,  and 
the  presbytery  on  being  satisfied  of  repent- 
ance, will  relieve  the  persons  of  the  sentence; 
Ersk.  B.  ii.  tit.  3,  §  16  ;  Hume,  vol.  i.  p. 
565  ;  Swinton's  Ahridg.  h.  t. ;  Hutch.  Justice  <f 
Peace,  vol.  i.  p.  88.  et  seq.,  2d  edit.;  Rots't 
Lect.  i.  90,  248 ;  Hill's  Church  Prac.  21.  See 
Cursing,  Letters  of.     Desertion.     Divorce. 

Exculpation,  Letters  of;  are  a  warrant 
granted  at  the  suit  of  the  panel  or  defender 
in  a  criminal  prosecution,  for  citing  and  com- 
pelling the  attendance  of  witnesses  in  proof 
either  of  bis  defence  against  the  libel,  or  of 
his  objections  against  any  of  the  jury  or  wit- 
nesses, or  in  support  of  whatever  else  may 
tend  to  his  exculpation.  These  letters  are 
issued  as  a  matter  of  course  on  application  at 
the  Justiciary  Office,  or,  in  the  case  of  Sheriff 
Court  libels,  to  the  Clerk  of  Court ;  but  as  s 
condition  of  receiving  the  benefit  of  letters  of 
exculpation,  it  is  incumbent  on  the  panel 
(although  in  practice  this  is  not  always  at- 
tended to),  to  serve  a  copy  of  the  letters,  and 
a  list  of  the  witnesses,  on  the  prosecutor; 
1672,  c  16.  If  there  are  any  special  de- 
fences, a  written  statement  of  these,  along 
with  all  articles  to  be  founded  on,  and  the  list 
of  witnesses,  must  be  lodged  in  the  hands  of 
the  Clerk  of  Court  the  day  before  the  trial ; 
20  Geo.  IL,  c.  43,  §  41 ;  Act  of  Adj.,  Mar.  17, 
1827,  §§  13, 14  (2  Alism,  p.  42) ;  flarper;  1 
Broun' s  R.  441.  As  to  proof  in  exculpation, 
see  Alison's  Prac.  615,  et  se;.,°and  on  the  sub- 
ject of  this  article  generally,  see  Stair,  B.  iv. 
tit.  14,  §  17  ;  Hume,  ii.  383  ;  Ersk.  B.  iv.  tit 
4,  §  90  ;  Dickson  on  Ev.  943 ;  1  ani  2  Fiet, 
c.  119,  §24. 

Executed  and  Executory ;  in  English  law, 
are  terms  expressive  of  the  different  stages 
in  a  contract.  A  thing  is  executory  with  re- 
gard to  which  a  contract  exists,  binding  on 
the  possessor  to  transfer  it  to  some  one  else : 
a  thing  is  executed,  when  the  property  is  al- 
ready transferred.  Thus,  an  executory  estate 
is  one  created  by  deed  or  fine,  but  which  must 
afterwards  be  executed  by  entry,  livery,  writ, 
&c.  In  the  question  of  condictio  indebili,  this 
distinction  is  of  importance.  "When  the  pay- 
ment has  been  only  executory, — i.e.,  when  the 
grantor  has  only  bound  himself  to  deliver  a 
certain  thing, — he  may  be  freed  from  his  obli- 
gation, by  proving  that  he  was  under  an  error 
in  law,  with  regard  to  the  consideration  of  it ; 


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but  when  the  payment  has  been  ezecnted, 
error  in  law  is  no  ground  for  repetition. 
Tomlins"  Did.  h.  t. 

Execution,  by  a  Masenger-at-Arms  or  other 
Officer  of  the  Law.  An  execution  is  an  attes- 
tation, under  the  hand  of  the  messenger  or 
other  officer,  that  he  has  given  the  citation, 
or  executed  the  diligence,  in  terms  of  his 
warrant  for  so  doing.  Executions  must  be 
anbscribed  by  the  executors  and  witnesses, 
otherwise  they  are  null ;  and  where  the  exe- 
cntion  consists  of  more  pages  than  one,  each 
page,  or  at  least  each  leaf,  ought  to  be  signed 
by  the  executor  and  witnesses ;  although  an 
accidental  omission  to  sign  a  page  may  not 
be  fatal.  The  witnesses  cannot  validly  sub- 
scribe by  initials ;  and  they,  as  well  as  the 
officer,  must  subscribe  each  page,  or  at  least 
each  leaf ;  for  they  are  witnesses  to  the  fact 
attested,  not  to  the  subscription  of  the  officer, 
whom,  therefore,  it  is  not  necessary  that  they 
ihoald  see  subscribe.  And,  coirectly ,  the  exe- 
eation  ought  to  bear  that  the  witnesses  were 
witnesses  to  the  premises,  or,  at  least,  the  fact 
that  they  were  witnesses  must  follow  by  direct 
implication  from  what  is  stated  in  the  execu- 
tion. In  executions  of  inhibitions,  interdic- 
tions, homings  and  arrestments,  the  witnesses, 
besides  subscribing,  must  be  designed  ;  1681, 
e.  5.  In  other  executions,  their  designation 
is  not  required,  although  their  subscription 
is ;  1686,  c.  4.  But  it  is  usual  and  proper 
to  design  the  witnesses  in  all  executions.  No 
witness  ought  to  be  taken  who  might  not  com- 
petently be  a  witness  to  the  subscription  of  a 
private  deed.  Executions  ought  to  mention 
the  letters  which  are  their  warrant ;  and  exe- 
eotions  of  summonses  must  also  expressly  name 
and  design  the  pursuers  and  defenders,  other- 
wise they  will  not  be  sustained;  1672,  c.  6, 
and  A.  S.,  8th  July  1831.  W  here,  however, 
the  execution  is  indorsed  upon  the  summons, 
and  not  written  on  a  separate  sheet  from  that 
on  which  the  summons  is  written,  a  reference 
to  the  parties,  as  within  named  and  designed, 
appears  to  be  sufficient.  But  even  in  that 
case,  the  safer  practice  is  to  mention  the 
names.  See,  on  this  subject,  Dunbar,  20th 
Feb.  1756,  Mor.  3746 ;  Watt,  10th  Feb.  1827, 
5S.iD.3M;  Stewart,  12th  Jan.  1831, 9  S. 
*  D.  260 ;  Creightons,  16th  Nov.  1832, 11  S. 
<*  A  30 ;  CoUier,  3d  June  1834,  12  S.  <fc  D. 
^i;  Globe  Insurance  Co.,  Dec.  10, 1842, 5  D. 
294.  It  is  not  indispensible  to  design  the 
parties  in  executions  of  diligence ;  the  rule 
twing  limited  to  the  case  of  summonses.  In 
the  execution,  the  messenger  or  other  officer 
mnst  detail  what  he  did,  in  order  that  it  may 
appear  that  he  proceeded  lawfully;  aud  it 
seems  to  be  now  settled,  that  if  the  execution 
should  omit  to  state  any  essential  step  which 
"as  actually  taken,  that  omission  cannot  be 


competently  supplied  by  the  parole  evidence 
of  the  witnesses  who  were  present  and  saw  it 
performed. 

In  addition  to  the  requisites  above  men- 
tioned, certain  executions,  with  their  war- 
rsknts,  must  be  registered,  under  the  sanction 
of  nullity.  Thus  homings,  with  the  execu- 
tions of  charge  and  of  denunciation,  must  be 
registered  within  fifteen  days  after  denuncia- 
tion, otherwise  a  caption  cannot  be  obtained ; 
1679,  c.  75.  (See  Denunciation.)  In  like 
manner,  inhibitions  and  interdictions,  with 
the  executions  of  their  publication,  must  be 
registered  within  forty  days  after  publication, 
under  sanction  of  nullity ;  1681,  c.  119.  (See 
Inhibition.  Interdiction.)  So  also,  executions 
of  summonses  to  interrupt  prescription  of  real 
rights  must,  with  their  executions,  be  regis- 
tered within  sixty  days  after  the  date  of  the 
execution  and  instrument  of  interruption, 
otherwise  they  are  ineffectual  against  sin- 
gular successors ;  1696,  c.  19.  Blank  exe- 
cutions,— I. «.,  executions  which  persons,  rely- 
ing on  the  faith  of  the  executor,  are  prevailed 
on  to  sign,  as  witnesses  along  with  him,  blank 
orunfiUed  up, — are  declared  to  be  voidandnnll 
to  all  intents  and  purposes;  and  the  lieges 
are  prohibited  to  fill  up  such  blank  execu- 
tions. The  penalty  to  the  executor  is  depri- 
vation and  perpetual  incapacity  to  hold  the 
office  of  a  messenger ;  and  to  the  witnesses, 
infamy  ;  A.  S.  28th  Jme  1704. 

Two  witnesses  were  formerly  required  to 
executions,  -but  one  is  now  sufficient,  except 
in  cases  of  poinding,  in  which  cases  two  wit- 
nesses are  still  necessary ;  1  <£  2  Vict.,  c.  114, 
§  32 ;  9  «*  10  Vict.,  c.  67,  §  1 ;  1  «t  2  Viet., 
c.  119,  §  23.  By  the  statute  1692,  c.  141, 
it  is  enacted,  that  "  all  copies  of  summounds 
and  letters,  quhilkis  sail  be  delivered  to  ony 
party,  be  sutocrived  be  the  officiar  executor 
thereof."  It  is  to  be  observed,  however,  that 
the  word  summons,  as  here  used,  is  held  to 
signify  merely  the  citation,  and  that  it  is  suf- 
ficient that  the  citation  has  been  subscribed ; 
Izatt  V.  Robertson,  25th  January  1840,  2  D. 
476.  It  is  not  requisite  that  the  citation  be 
signed  by  the  witness ;  Beattie  v.  Lee,  14th 
Feb.  1823,  2  Sh.  220  (N.  B.  194);  Shand's 
Prac.  249.  By  1693,  c.  12,  it  is  enacted, 
but  only  under  the  sanction  of  deprivation 
and  tinsel  of  office  to  the  messenger,  that 
"  all  copies  of  summons,  charges,  inhibitions, 
arrestments,  or  other  letters  whatsoever,  given 
to  the  party,  shall  bear  at  length,  and  not  in 
figures,  the  day  and  date  of  the  delivery 
thereof,  as  also  the  names  and  designations  of 
the  witnesses  in  such  sort  as  the  execution 
and  indorsation  did  and  doth  bear  the  same." 
According  to  Stair  (iv.  38,  §  12),  the  word 
indorsation  is  merely  another  namo  for  execu- 
tion.   As  to  the  executions  of  citations  and  of 


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charges,  see  the  articles  Charge,CiUttion,Edictal 
CiUUicn,  Execution  of  Sentences  and  Decrees. 

There  are  numerous  recent  illustrations  of 
I  the  accuracy  and  punctuality  required  in  the 
'  executions,  especially  of  diligence.  See  the 
cases  of  Glen,  Nov.  19, 1841, 42).  36 ;  Graig, 
Nov.  23,  1841,  4  D.  54;  Clason,  Feb.  16, 
1842,  4  D.  743 ;  SeoU,  June  27, 1844,  6  D. 
1221,  App.  5  Bell,  126 ;  Burleigh,  July  20, 
1848,  10  D.  1617;  Hanna,  March  2,  1849, 
11  Z).  941  ;  Henderson,  Feb.  28,  1852,  24 
Jut.  285, 1  Stuart  527. 

Much  information  as  to  the  solemnities  re- 
quisite in  the  executions  of  warrants  of  impri- 
sonment is  to  be  found  in  the  report  of  the 
case  of  Scott,  January  18, 1855,  17  D.  292. 

Where  an  execution  is  ex  facie  regular  and 
complete,  it  cannot  be  contradicted  by  way 
of  exception,  or  set  aside  by  the  production 
of  the  copy  citation  or  charge ;  and  objections 
interring  falsehood  in  the  writ,  are  not  en- 
tertained except  in  an  action  of  reduction 
improbation ;  Barb6ur,  22d  June  1838,  16 
Sh.  1184;  Balfour,  2d  February  1839, 1  D. 
458.  Amended  executions  have,  in  certain 
circumstances,  been  sustained ;  as  where  an 
execution  bore  that  a  citation  had  been  given 
on  the  26th  March,  instead  of  on  the  26th  ; 
and  it  appears  to  have  been  held  that  this 
was  competent,  although  the  amended  execu- 
tion was  not  lodged  until  after  the  summons 
had  been  called  in  court,  and  objection  had 
been  taken  to  the  execution  ;  Henderson,  23d 
May  1848, 10  D.  1035.  But  see  also  Allan, 
26th  May  1848,  ib.  1060.  The  form  of  exe- 
cutions of  charge  is  provided  for  by  1  and  2 
Vict.,  c.  114,  sched.  2 ;  and  that  of  summonses 
by  A.  S.,  8th  July  1831,  §  1,  sched.  6.  The 
fact  of  execution  is  to  be  distinguished  from 
the  officer's  attestation  or  writ,  called  an  exe- 
cution ;  hot  that  writ  is  the  only  competent 
evidence  of  the  fact  of  execution.  See  Stair, 
iv.  38,  §  12 ;  and  HenAerson,  23d  May  1848, 
ut  tup.  Warrants  must  be  executed  by  a 
proper  and  competent  officer.  All  writs 
issued  in  the  name  of  the  Sovereign  may  be 
executed  by  messengers-at-arms,  and,  in  civil 
matters,  by  them  only.  As  to  criminal  war- 
rants, see  Execution  of  the  Libel.  Signet  let- 
ters can  only  be  executed  by  messengers ;  but 
in  special  circumstances,  as  where  there  hap- 
pened to  be  no  messenger  within  reach  of  the 
place  where  the  service  was  to  be  made,  spe- 
cial authority  has  been  granted  by  the  Court 
of  Session  to  sheriff-officers  to  execute  its 
warrants;  Cooper,  1854,  16  D.  1104.  It  is 
sufficient,  however,  that  the  person  intrusted 
with  the  execution  of  a  writ  shall  have  been 
at  the  time  habit  and  repute  qualified ;  Ersk. 
i.  4,  §  33 ;  and  iv.  2,  §  6 ;  Stair,  iv.  42,  §  12. 
But  after  public  intimation  in  the  newspapers 
of  a  messenger's  deprivation,  all  executions 


by  him  are  null.  Executions  must  proceed 
on  competent  authority,  and  must  be  conform 
to  their  warrants.  As  a  general  rule,  war- 
rants are  only  authoritative  within  the  juris- 
diction of  the  court  from  which  they  are 
isBued  ;  but  by  recent  statutes  provision  is 
made  for  the  execution  of  sheriffi'  warrants, 
extra  territoritim ;  1  and  2  Vict.,  c  114  ;  and 
1  and  2  Vid.,  c.  119. 

See,  on  the  subject  of  this  article  generally, 
Darling  on  Messengers;  Gillespie  on  Sherif 
Officers ;  Mernies'  Lectures,  p.  285,  et  seq. ; 
Dickson  on  Evidence,  p.  609;  Ersk.  B.  iil 
tit  2,  §  17  ;  Stair,  B.  iii.  tit.  3,  §  2,  et  seq.  ; 
B.  iv.  tit.  38;  Kame^  Equity,  280-9,  389; 
Ross's  LecL  i.  300, 478 ;  ii.  534 ;  Jurid.  Styles, 
iii.  5,  381-971 ;  Karnes"  Stat.  Law  Abriig. 
h.  t.;  Tait  on  Evidence,  4  ;  Shand's  Prae.  228; 
MQlashan's  Sheriff  Prac.  181  -368 ;  Alexander's 
Abridg.  of  A.  S.  45,  49,  54.  See  also  this 
Dictionary,  voce  Evidence,  supra ;  alao  Citation. 
Charge  on  Letters  of  Homing.  Edictal  CiUUien. 
Domicile.  As  to  the  execution  of  deeds,  see 
Deeds.     Writ.     Testiy  Clause. 

Ezecation  of  the  LibeL  Under  the  arti- 
tides  Criminal  Prosecution  and  Edictal  Citation, 
some  account  will  be  found  of  the  mode  of 
serving  the  indictment,  or  the  criminal  let> 
ters  on  the  accused.  Under  the  present 
article,  therefore,  it  is  only  necessary  to  ob- 
serve, that  the  messenger  or  macer,  by  whom 
the  libel  has  been  served,  must  verify  the 
fact  by  a  written  execution  under  his  own 
hand,  and  the  hands  of  witnesses  specially 
designed  (1587,  c.  85),  in  whose  presence  tlra 
service  must  have  been  made.  In  the  ordi- 
nary case,  and  unless  where,  from  there  being 
two  indictments  against  the  same  person,  or 
otherwise,  there  be  room  for  ambiguity,  it 
will  be  sufficient  that  the  execution  mention 
the  dat«  of  the  libel,  and  the  names  of  the 
prosecutor  and  panel,  without  taking  notice 
of  the  crime  laid  to  his  charge.  The  manner 
of  citing  panels,  when  within  Scotland,  is 
regulated  chiefly  by  the  statutes  1656,  c  33, 
1587,  c.  86,  and  1672,  c.  16 ;  and,  in  connec- 
tion with  that  subject,  it  may  here  be  ob- 
served, that  it  has  been  the  practice  of  late 
years  for  the  messenger  or  macer  who  exe- 
cutes the  libel,  to  number  at  the  top,  in  hit 
own  hand,  and  to  sign  at  the  bottom,  every 
page  of  the  copy  left  for  the  panel ;  Sitme, 
ii.  236-264.  An  execution  must  also  be  re- 
turned, by  the  officer  who  has  cited  the  wit' 
nesses,  attesting  that  he  has  done  so ;  and  the 
same  form  is  required  to  prove  the  citation  of 
the  jurymen ;  which,  however,  is,  by  uniform 
custom,  valid  without  witnesses,  and  under 
the  hand  of  the  officer  alone ;  Hume,  iL  300 ; 
Beirs  Notes,  222 ;  and  1  and  2  Viet.,  c  11^. 
§§  24-6 ;  16  and  17  Vict.,  c.  80,  §  33 ;  Alison's 
Prac.  310-39. 


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By  11  and  12  Vict.,  c.  79,  all  writs  and 
warrants,  including  indictmente  and  criminal 
letters,  may  be  served  or  executed  by  sheriff- 
officers  of  the  county  within  which  such  exe- 
cation  is  to  be  made.  See  on  the  subject  of 
this  article,  the  articles  Citation.  Dwelling- 
Houte. 

ExeoationofSeBtenoeaaiidDeorees.  The 
ezeeutire  power  of  the  State  is  vested  in  the 
Sovereign  ;  and,  by  the  law  of  Scotland,  all 
execution  of  decrees  and  sentences,  whether 
eivfl  or  criminal,  proceeds  either  directly  in 
the  name  of  the  Sovereign,  in  virtue  of  let- 
ters or  writs  of  execution,  under  the  Royal 
Signet,  or  on  the  authority  of  judges  or 
magistrates,  to  whom  a  certain  portion  of 
executive  power  is  delegated  by  the  Sovereign. 
Inferior  judges  are  vested  not  only  with 
jurisdiction  to  a  limited  extent,  but  with 
power  80  far  to  execute  their  own  sentences; 
subject,  generally  speaking,  to  appeal  to  the 
Supreme  Courts.  But  the  chief  execittorials 
(as  they  are  termed  by  our  institutional 
writers),  or  the  means  of  obtaining  civil 
execution  against  the  person  or  estate  of  the 
debtor,  are  letters  or  writs  in  the  Sovereign's 
uame,  passing  under  the  Signet  for  Scotland. 
Personal  diligence,  or  execution  in  civil 
causes,  was  formerly  warranted  almost  exclu- 
sively by  letters  of  horning  and  caption ;  the 
Mt  of  warding  of  magistrates  of  royal  burghs, 
and  the  statutory  power  of  justices  of  the 
peace, under  the  Small  Debt  Acts,  to  authorise 
imprisonment,  being  the  only  exceptions ;  and 
civil  execution  against  heritable  or  moveable 
property,  was,  as  it  still  is,  warranted  by  the 
diligences  of  poinding,  arrestment,  confirma- 
tion as  executor  creditor,  and  adjudication. 
The  nature  of  those  several  diligences  is  ex- 
plained nnder  separate  articles. 

By  the  Personal  Diligence  Act,  1  and  2 
Viet.,  e.  114,  improvements  have  been  made 
in  the  form  of  diligence  against  the  persons 
of  debtors,  and  the  law  as  to  arrestment  and 
poinding  has  been  amended.  Under  that 
act,  all  extracts  of  decrees,  "  on  which  execu- 
tion may  competently  proceed,"  now  contain 
warrants  to  charge,  under  the  pain  of  poind- 
ing and  imprisonment,  and  to  arrest  and 
poind.  Upon  the  extract,  it  is  made  lawful 
to  arrest,  and  to  charge  the  debtor  or  obli- 
gant  to  pay  or  perform,  within  the  days  of 
charge.  Upon  the  expiration  of  the  days 
of  charge  without  payment  or  performance, 
puindiog  may  follow ;  and  the  execution  of 
charge  being  registered  within  year  and 
day,  such  registration  has  the  same  effect  as 
if  the  debtor  or  obligant  had  been  denounced 
rebel  in  virtue  of  letters  of  horning.  There- 
upon, a  certificate  of  registration  being  writ- 
ten upon  the  extract  and  execution  (if  it  be 
apart),  application  may  be  made  for  warrant 


to  imprison^and,  "  if  there  be  no  lawful  cause 
to  the  contrary,"  the  Bill  Chamber  Clerk,  or, 
in  cases  of  sheriff-court  decrees,  the  Sheriff 
Clerk,  "  shall  write  on  the  extract  this  deli- 
verance "  Fiat  ut  peiitur,  "  and  shall  date  and  . 
subscribe  the  same."  The  extract  and  deli- 
verance are  then  a  warrant  to  imprison. 
Reference  is  made  to  the  Act  for  the  forms, 
and  for  the  particular  procedure  in  the  case 
of  decrees  of  the  Supreme  Court,  and  of  the 
Sheriff  Courts  respectively.  The  provisions 
of  the  Act  apply  to  decrees  of  the  Court  of 
Teinds  and  Court  of  Justiciary,  as  well  as  of 
the  Court  of  Session ;  but  the  provisions  for 
carrying  a  charge  into  execution  by  impristntf- 
ment  do  not  apply  to  the  case  of  deci-ees  which 
are  not  in  use  to  be  enforced  by  caption  and 
imprisonment,  as, — (1.)  Decrees  of  remov- 
ing, which  are  enforced  by  letters  of  ejec- 
tion ;  (2.)  Decrees  of  adherence,  which  are 
enforced  by  decree  of  divorce ;  (3.)  Decrees 
against  superiors  to  enter  vassals  and  decla- 
rators of  tinsel  of  superiority,  on  which  no 
farther  execution  is  competent  beyond  horn- 
ing and  execution  thereof;  and  on  the  expiry 
of  the  recorded  charge,  the  vassals  complete 
their  rights  in  another  way  than  by  caption. 
The  homings  in  all  these  cases  grant  warrant 
to  charge  "  under  pain  of  rebellion  and  put- 
ting to  the  horn,"  and  not  under  the  pain 
specified  in  the  Personal  Diligence  Act.  It 
may  be  observed,  generally,  that  the  Per- 
sonal Diligence  Act  provides  only  for  that 
description  of  diligence  which  can  be  com- 
pleted by  incarceration.  Diligence  executed 
under  the  provisions  of  this  act  has  the  same 
effect  as  if  it  had  been  executed  by  virtue  of 
letters  of  horning  or  of  caption,  or  as  if  arrest- 
ments and  poindings  had  been  executed  under 
the  forms  theretofore  in  use. 

In  criminal  cases,  the  sentence  is  carried 
into  execution  either  by  the  magistrates  of 
the  burgh,  or  by  the  sheriff  of  the  county, 
according  as  the  sentence  is  to  receive  exe- 
cution within  the  territory,  comprehended  in 
the  jurisdiction  of  the  one  or  of  the  other. 
The  warrant  for  the  execution  is  the  sentence 
of  the  court  or  judge  by  whom  the  criminal 
was  tried ;  that  being  sufficient  without  the 
special  intervention  of  the  Royal  anthority, 
which  is  never  interposed  between  the  sen- 
tence and  the  execution,  except  for  the  pur- 
pose of  pardoning  the  convict,  or  delaying  the 
day  of  his  execution,  or  mitigating  the  rigour 
of  his  punishment ;  and,  in  executing  the 
sentence,  the  terms  of  the  judgment  must  bo 
precisely  and  literally  adhered  to.  Formerly, 
under  11  Geo.  I.,  c.  26,  a  sentence  import- 
ing capital  punishment,  pronounced  in  Edin- 
burgh, or  in  any  place  southward  of  the 
Firth  or  River  of  Forth,  could  not  be  put 
to  execution  within  le&>  than  thirty  days 

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from  its  date ;  and  if  pronounced  to  the  north- 
ward of  the  firth,  wiuiin  less  than  forty  days. 
But  now  (from  and  after  1st  August  1831), 
the  day  of  execution  of  a  capital  sentence, 
southward  of  the  Firth  of  Forth,  must  not 
be  less  than  fifteen  nor  more  than  twenty-one 
days  after  the  date  of  the  sentence ;  and  north- 
ward of  the  firth,  not  less  than  twenty  or  more 
than  twenty-seven  days ;  1  Will.  JV.,  c.  37, 
§  2.  See  articles  Criminal  Prosecution.  Fine, 
imprisonment.  Transportation.  Capital  Punisk- 
ment.     See  also  Hume,  ii.  445-475. 

Executioner.     See  Doomster. 

Ezecator.  An  executor  is  the  legal  ad- 
ministrator of  the  moveable  estate  of  a  de- 
ceased person,  for  behoof  of  all  concerned 
therein ;  or,  more  correctly,  perhaps,  he  may 
be  said  to  be  a  judicial  trustee  for  the  col- 
lection and  distribution  of  the  defunct's 
moveable  estate  and  effects  amongst  those 
interested,  according  to  the  rules  of  law. 
The  ofiSce  of  executor  is  conferred  either  by 
the  written  nomination  of  the  defunct,  or, 
failing  that,  by  decree  of  the  Commissary ; 
the  executor,  in  the  former  case,  being  called 
an  executor-«oini>u><«,  and,  in  the  latter,  an 
eieenlor-dative.  In  either  case,  the  executor 
must  complete  his  title  to  administer,  by  a 
judicial  proceeding,  called  a  conjirmation,  with- 
out which  he  has  no  jus  exigetuli;  nor  are  the 
debtors  to  the  defunct  in  safety  to  pay  to 
him.  See  Conjirmation.  Persons  applying 
to  the  Commissary  for  confirmation  as  exe- 
cutors, are  preferred  to  the  office  in  a  certain 
order ;  the  executor-nominate,  whether  a  re- 
lation to  the  defunct  or  not,  being  invariably 
preferred  in  the  firet  place ;  failiug  such  no- 
minee, universal  disponees  are  preferred; 
then  the  next  of  kin ;  all  in  the  same  degree 
being  entitled,  if  they  please,  to  be  coqjoined 
in  the  office ;  then  the  relict ;  then  creditors 
in  liquid  grounds  of  debt ;  and,  lastly,  a  spe- 
cial legatee.  Under  the  recent  Moveable 
Succession  Act,  18  Vict.,  c.  23,  although 
surviving  next  of  kin  have  still,  in  their 
order,  exclusive  right  to  the  office,  the  chil- 
dren or  descendants  of  next  of  kin  predeceas- 
sing,  are  entitled  to  confirmation  when  no 
next  of  kin  compete.  According  to  the  above 
order,  the  Commissary  will  proceed  in  con- 
ferring the  office;  the  parties  claiming  it 
respectively  proving  their  title  to  be  con- 
firmed in  the  particular  character  in  which 
they  claim.  The  office  of  executor  being,  in 
eflfect,  a  trust,  the  executor,  before  l^ing 
confirmed,  is  required  to  find  caution  for  the 
faithful  discharge  of  his  trust ;  except  in  the 
case  of  an  executor-nominate,  who,  under  the 
statute  4  Geo.  IV.,  c.  98,  §  2,  is  exempted 
from  the  necossity  of  finding  caution.  But, 
in  all  other  cases,  the  same  statute  provides, 
that  the  Court,  in  granting  confirmation,  shall 


fix  the  amount  of  the  sum  for  which  caution 
is  to  be  found  by  the  person  or  persons  con- 
firmed ;  the  caution  not  exceeding  the  amount 
confirmed.  The  executor  confirming  is  also 
required,  under  certain  penalties,  to  exhibit, 
upon  oath,  in  the  Commissary  Court,  a  full 
inventory  of  the  whole  estate  and  effects  to 
be  recorded  —  the  principal  object  of  the 
statutes  being  to  prevent  evasion  of  the  duties 
payable  to  Government.  The  statutes  rega- 
lating  this  subject  are  the  44  Geo.  111.,  c.  Hi, 
48  Geo.  III.,  c.  149,  and  55  Geo.  III.,  c  184. 
See  Inventory.  By  4  Geo.  IV.,  c.  98,  certain 
other  important  alterations  on  the  law  with 
regard  to  executors  were  made.  1st,  By  §  1, 
it  was  enacted,  that,  "  in  all  cases  of  intestate 
succession,  where  any  person  or  persons  who, 
at  the  period  of  the  death  of  the  intestate, 
being  next  of  kin,  shall  die  before  confirma- 
tion be  expede,  the  right  of  such  next  of  kin 
shall  transmit  to  his  or  her  representatives, 
so  that  confirmation  may  and  shall  be  granted 
to  such  representatives,  in  the  same  manner 
as  confirmations  might  have  been  granted  to 
such  next  of  kin  immediately  upon  the  death 
of  such  intestate."  2i%,  Every  person  re- 
quiring confirmation  is,  by  section  3,  bound, 
upon  oath,  to  confirm  the  whole  moveable 
estate  of  the  defunct  known  at  the  time ;  it 
being  lawful  to  eik  to  such  confirmation  any 
part  of  the  estate  which  may  afterwards  b« 
discovered ;  the  whole  of  such  estate  so  dis- 
covered being  in  like  manner  added  upon 
oath — saving  the  provision  of  the  act  16!>0, 
c>  26,  with  regard  to  special  assignatiom, 
which  remain  as  fixed  by  that  statute.  My, 
It  was  provided  (§  4),  that  in  the  case  of  con- 
firmation by  executors-creditors,  the  confir- 
mation may  be  limited  to  the  amount  of  the 
debt  and  sum  confirmed,  to  which  the  cre- 
ditor shall  make  oath ;  provided  that  notice 
of  every  application  for  confirmation  by  an 
executor-creditor  shall  be  inserted  in  the 
Edinburgh  Gazette  at  least  once  immediately 
after  such  application  ;  in  evidence  whereof, 
a  copy  of  the  Gazette,  containing  the  adver- 
tisement, must  be  produced  in  court  before 
confirmation. 

In  the  case  where  the  execntor  is  an  exe- 
cutor-nominate or  a  residuary  legatee,  or  one 
of  the  next  of  kin,  who  de  jure  are  entitled 
to  certain  proportions  of  the  executry,  it  may 
be  observed,  that  although  such  executors, 
when  confirmed,  are  trustees  for  all  concerned, 
yet  the  creditors  of  such  executors  have  an 
interest  in  their  debtor's  reversionary  right  to 
the  executry,  of  which,  at  common  law,  those 
creditors  might  have  been  deprived  by  the 
executors  refusing  to  confirm.  To  remedy 
this,  it  was  provided  by  the  act  1695,  c.  41, 
"  That,  in  the  case  of  a  moveable  estate  left 
by  a  defunct  and  falling  to  his  nearest  of  kin. 


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who  lies  oat  and  doth  not  confirm,  the  crtdilors 
of  the  nearest  of  \nn  may  either  require  (he 
procDrator-fiscal  to  confirm  and  assign  to 
them,  under  the  peril  and  pain  of  his  being 
liable  for  the  debt  if  he  refuse,  or  they  may 
obtain  themselres  decerned  executors-dative 
to  the  defunct  as  if  they  were  creditors  to 
him:  With  this  provision  always,  that  the 
creditors  of  the  defunct  doing  diligence  to 
affect  the  said  moveable  estate,  within  year 
and  day  of  their  debtor's  decease,  shall  always 
be  preferred  to  the  diligence  of  the  said 
nearest  of  kin."    In  reference  to  this  pro- 
vision, it  may  be  observed, — 1«<,  That  if  the 
executor  have  confirmed,  and  if  the  funds 
vith  which,  in  that  character,  he  has  intro- 
mitted,  can  be  distinguished  and  separated 
from  his  own  funds,  the  defunct's  creditors 
have  a  preference  over  the  funds  of  their 
debtor  in  the  executor's  hands,  even  after 
the  expiration  of  the  year;  and,  2(Wy,  If, 
on  the  other  hand,  the  executor  have  not 
confirmed,  his  creditors  may  apply  to  the 
proenrator-fiscal,  in  the  manner,  and  to  the 
effect  pointed  out  in  the  statute,  or  may  be 
themselves  decerned  executora-dative  to  the 
defunct,  as  if  they  had  been  Ai»  creditors; 
tahject  to  the  above  preference  in  favour  of 
the  actual  creditors  of  the  deceased.    This 
preference,  however,  is  a  preference  which 
was  fully  recognised  at  common  law,  inde- 
pendently of  the  statute,  the  object  of  which, 
indeed,  rather  appears  to  hare  been,  iu  cer- 
tain circumstances,  to  limit  the  endurance  of 
the  preference  to  one  year;  BdVi  Com.  ii. 
il,«tteq.:  Ersk.  B.iii.tit.9,§§  35,46.  When 
two  or  more  persons  have  been  confirmed 
executors,  tfaey  hold  the  office  pro  indiviso, 
ud  must  concur  in  suing  the  defunct's  debt- 
ors; and,  if  one  of  such  executors  refuse  his 
eoDcnrrence,  he  may  be  excluded  from  the 
office  at  the  suit  of  the  co-executors.    But, 
after  the  debt  has  been  established  in  the 
executors  by  decree,  each  executor  may,  by 
himelf,  recover  his  own  share,  which  the 
debtor  is  in  safety  to  pay  him.  A  debtor  to  the 
executory,  however,  ought  not  to  make  pay- 
ment of  any  part  of  his  debt  to  an  executor- 
creditor,  without  the  concurrence  of  the  other 
executors  confirmed ;  because  the  right  of  an 
executor-creditor  to  receive  payment  depends 
on  the  justice  of  his  alleged  debt ;  and  if,  on 
inreitigation,  it  prove  not  to  have  been  le- 
gally duei  the  debtor  who  pays  him  may  be 
compelled  to  pay  a  second  time  to  the  other 
executors.     (Generally  speaking,  indeed,  it  is 
prudent  in  a  debtor  to  the  executory  to  de- 
cline paying  to  one  executor,  where  there 
*n  more  than  one  confirmed,  unless  the  other 
executors  are  parties,  or  consenting  to  the 
payment.    All  the  co-executors  having  thus 
an  equal  right  to  the  debts  due  to  the  de- 


funct, it  follows  that  they  are  only  liable  pro 
rata  for  the  debts  due  by  him,  unless  it  ap- 
pear that  the  executor  sued,  has  by  himself 
actually  intromitted  with  as  much  of  the 
executory  as  will  cover  the  debt  sued  for ; 
Ertk.  B.  iii.  tit.  9,§  40.  An  executor  being, 
as  already  explained,  a  trustee  for  all  con- 
cerned, does  not,  by  bis  confirmation,  incur  a 
universal  responsibility  for  the  debts  of  the 
defunct.  On  the  contrary,  he  is  only  liable 
to  the  value  of  the  inventory  in  the  confirma- 
tion, non  ultra  vires  inventarii.  But  he  is  liable 
in  diligence  for  making  the  inventory  effec- 
tual. See  Diligence.  A  year  after  confirma- 
tion is  usually  allowed  for  this  purpose  (1503, 
c.  76) ;  and  a  decree  and  registered  horning 
is  accounted  sufficient  diligence  against  debt- 
ors to  the  executory.  In  like  manner,  an 
executor-creditor,  who  confirms  more  than  the 
precise  amount  of  his  debt,  is  liable  in  dili- 
gence for  the  recovery  of  what  he  confirms ; 
A.  S.  14th  Nov.  1679.  Executors,  it  is  thought, 
are  liable  in  interest  on  the  sums  belonging 
to  the  executory  recovered  by  them,  although 
the  contrary  is  laid  down  by  Erskine,  who 
states  that  they  are  not  accountable  for  the 
interest  they  receive,  since  they  lend  the 
money  at  their  own  risk ;  Ertk.  B.  iii.  tit.  9, 
§  41 ;  Bank.  B.  iii.  tit.  8,  §  57.  An  executor 
has  always  been  held  bound  to  communicate 
to  all  having  interest  in  the  executory,  the 
benefit  of  eases  got  in  transacting  the  debts 
acquired  by  him  after  confirmation ;  Ersk. 
ibid.  §  42. 

It  is  a  general  rule,  that  an  executor 
should  pay  no  debt  of  the  defunct's  without 
the  authority  of  a  decree ;  and  even  where  a 
decree  is  produced,  that  he  should  pay  no 
debt  within  the  six  months  immediately  fol- 
lowing the  defunct's  decease.  But  from  this 
rule,  there  is  an  exception  in  favour  of  what 
are  called  privileged  debts ;  such  are, — 1. 
Deathbed  and  funeral  charges.  2.  A  year's 
rent  of  the  house  in  which  the  deceased  re- 
sided at  the  time  of  his  death ;  and  his  ser- 
vants' wages  for  the  year  or  term  current  at 
his  death,  according  as  the  wages  are  pay- 
able yearly  or  termly.  3.  Whore  the  de- 
funct has  been  an  office-bearer  in  a  friendly 
society,  a  statutory  preference  over  his  effects, 
for  payment  of  sums  due  by  him  to  such  so- 
cieties, is  provided  by  18  and  19  Vict.,  c. 
63,  §  23 ;  such  debts  being  directed  to  be 
paid  "before  any  of  the  other  debts  are 
paid  or  satisfied."  4.  The  expense  of  con- 
firmation and  management  comes  off  tho  to- 
tal of  tho  executory,  and,  like  privileged 
debts,  is  preferable  ;  Ersk.  B.  iii.  tit.  9,  §  46. 
Those  privileged  debts  may  be  paid  by  the 
executor  without  a  decree,  and  without  wait- 
ing the  expiration  of  tlio  six  months.  The 
executor  might  also  at  one  time  have  retained. 


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the  executory  funds,  without  judicial  autho- 
rity, in  payment  of  debts  due  to  himself  by 
the  defunct ;  and,  in  like  manner,  he  might, 
unless  legally  interpelled,  have  paid  such 
debts  as  the  defunct  acknowledged  to  be  due 
in  his  testament.  But,  since  the  date  of  the 
Act  of  Sederunt,  28th  Feb.  1662,  this  has  not 
been  held  admissible  to  the  prejudice  of  the 
jNirt  passu  ranking  of  creditors  claiming 
within  the  six  months.  But,  if  no  claim 
be  made  within  the  sis  months,  the  executor, 
after  the  lapse  of  that  period,  may,  unless  in- 
terpelled, both  retain  in  payment  of  debts 
due  by  the  defunct  to  him,  and  pay  the  resi- 
due primo  venienti.  Even  when  a  decree  is 
produced  to  the  executor,  he  cannot  compe- 
tently make  payment  to  the  party  producing 
it,  to  the  prejudice  of  creditors  whose  debts 
the  defunct  admits  to  be  due  in  his  testament; 
for  the  acknowledgment  of  the  debts  by  the 
defunct  in  his  last  will,  which  it  is  the  duty 
of  the  executor  to  execute,  is  accounted  a 
BufBcient  interpellation  to  protect  the  inter- 
ests of  testamentary  creditors  without  the 
necessity  of  any  step  on  their  part ;  Ersk.  B. 
iii.  tit.  9,  §  43,  et  seq. ;  Stair,  B.  iii.  tit.  8,  § 
72.  It  follows  from  the  nature  of  the  exe- 
cutor's office,  that  he  is  accountable  to  the 
parties  interested,  for  the  due  collection  and 
distribution  of  the  executory.  If,  therefore, 
he  fail  in  the  performance  of  his  duty,  he  is 
liable,  qua  executor,  and  to  the  extent  of  the 
inventory,  to  a  personal  action  at  the  instance 
of  any  of  the  parties  beneficially  interested ; 
decree  in  which  action  will  authorise  pei-sonal 
diligence  against  him,  and  will  also  entitle 
the  creditor  to  attach,  by  poinding  or  arrest- 
ment, the  funds  unrecovered  in  the  hands  of 
the  defunct's  debtors.  Or,  if  the  executor 
has  taken  bonds  from  such  debtors  in  his  own 
name,  the  executory  creditors  may  attach  the 
sums  in  those  bonds,  and  they  will  be  prefer- 
able over  those  sums  to  the  executor's  own 
creditors.  And  where  the  executory  funds 
and  the  individual  funds  of  the  executor  have 
been  so  mingled  that  they  cannot  be  identi- 
fied, diligence  ma^  proceed  against  the  per- 
son and  the  individual  estate  of  the  execu- 
tor ;  failing  which,  recourse  may  be  had  on 
the  cautioner  in  the  confirmation  ;  BelFs  Com. 
ii.  81,  5th  edit.  So,  also,  if  there  be  omis- 
sions in  the  inventory  made  up  by  the  execu- 
tor in  the  confirmation,  or  if  the  articles  in 
that  inventory  bo  undervalued,  any  creditor 
of  the  defunct  may  bring  an  action  against 
the  executor  for  the  value  of  the  subject 
omitted,  if  the  executor's  intromission  with 
that  subject  can  be  proved.  Or  the  creditor 
may  apply  to  the  Commissary  Court  to  be 
himself  confirmed  executor  ad  omissa  vel  male 
apj/retiata,  to  which  application  the  executor 
already  confirmed  must  be  made  a  party ; 


and  the  only  effect  of  such  a  proceeding,  gene- 
rally speaking,  is  to  obtain  the  omitted  or 
undervalued  effects  added  to  the  inventory  at 
their  true  value;  BeWsCom.ubicit.Tf.  81 ;  BnL 
B.  iii.  tit.  9,  §  36,  et  seq. ;  Jurid.  Styles,  ii.  498. 

The  share  of  the  executry  to  which  for- 
merly an  executor-nominate  was  himself  en- 
titled, varied  according  to  circumstances: 
\st.  Where  a  stranger  was  nominated  to  th« 
office  by  the  defunct,  he  was,  by  the  act  1617, 
c.  14,  allowed  to  retain  to  himself  one-third 
part  of  the  dead's  part,  after  deducting  debts. 
The  eldest  son  or  heir  in  heritage,  when 
named  executor  by  his  father,  as  being  a 
stranger  quoad  the  moveable  succession,  where 
there  were  younger  children  and  an  heritable 
succession,  was  entitled  to  retain  a  third 
under  this  statute.  The  widow,  in  like  man- 
ner, when  nominated  executrix,  was  accounted 
a  stranger,  not  being  one  of  the  next  of  kin, 
and  she  also  was  entitled,  qua  executrix,  to  the 
third  of  the  dead's  part.  It  followed,  that  if 
the  dead's  part  was  exhausted  by  legacies,  the 
executor-nominate,  where  he  was  a  stranger 
and  not  a  legatee,  was  entitled  to  no  remu- 
neration whatever  for  his  trouble.  2d,  Where 
the  defunct  bequeathed  a  legacy  to  a  stranger 
executor-nominate,  the  legacy  was,  in  terms 
of  the  last-mentioned  statute,  imputed  pro 
tanto  of  the  executor's  third ;  and,  if  the 
legacy  exceeded  the  third  of  the  dead's  part, 
it  was  declared  that  the  executor  should  be 
entitled  to  his  legacy,  but  to  no  part  of  the 
third.  3d,  If  the  executor-nominate,  as  one 
of  the  next  of  kin,  was  entitled  to  a  share  of 
the  moveable  succession,  he  could  claim  no 
allowance  for  his  trouble  as  executor,  unless 
his  interest  in  the  succession  was  less  than  s 
third,  in  which  case  he  might  have  retained 
as  much  of  the  dead's  part,  as,  when  added 
to  his  legal  share,  made  up  a  third.  Hh, 
Executors-dative  were  not,  under  the  statute 
1617,  c.  14,  nor  at  common  law,  entitled  to 
any  remuneration  for  trouble,  nor  to  any- 
thing more  than  reimbursement  of  the  actual 
expenses  they  incnr.  Lastly,  Where  astranger 
is  named  by  the  defunct,  not  only  executor, 
but  universal  legator  or  legatee,  the  whole 
free  residue  of  the  executry  goes  to  him,  to 
the  prejudice  of  the  next  of  kin,  who,  in  such 
circumstances,  hare  no  interest  (unless  ss 
legatees)  in  the  dead's  part ;  Ersk.  B.  iii.  tit. 
9,  §  26 ;  Stair,  B.  iii.  tit  8,  §  63 ;  Batik.  B. 
iii.  tit.  8,  §  4  ;  Mackenzi^s  Obs.  on  Stats,  pp. 
350,  351.  See  Dead's  Part.  By  the  act  18 
and  19  Vict.,  c.  23, 1855,  executors-nominate 
are,  as  such,  no  longer  entitled  to  retain  a 
third,  or  any  portion,  of  the  dead's  part. 

The  office  of  executor,  like  other  trusts,  is 
personal,  and  not  descendible  to  heirs.  Henec, 
where  two  or  more  have  been  confirmed  exe- 
cutors, on  the  death  of  one  of  them,  the  office 


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aeeroes  to  the  snrvivors  or  survivor,  and  falls 
entirely  on  the  death  of  the  whole.     In  the 
latter  case,  the  Commissary  was  formerly  in 
use  to  appoint  an  executor-dative  quoad  non 
exemla,   who   was  accountable,  not  to  the 
next  of  kin  of  the  deceased  executors,  but  to 
the  nest  of  kin  of  the  defunct,  the  unexecuted 
part  of  the  testament  being  held  to  be  still 
u  bonis  of  him.     The  part  executed,  and  the 
responsibilities  therewith  connected,  were,  of 
coarse,  transmitted  to  the  next  of  kin  of  the 
deceased  executors  in  the  ordinary  course  of 
BDceession.     But,  for  upwards  of  a  century 
and  a  half,  the  confirmation  has,  in  every 
case,  been  held  to  have  the  effect  of  an  assig- 
nation or  procuratory  <n  rem  «iKim,  whereby 
the  full  right  to  the  subjects  confirmed,  and, 
consequently,  the  right  to  execute  the  testa- 
ment, in  so  far  as  unexecuted,  is  transmitted 
to  the  representatives  of  the  deceased  exe- 
cutors; Ersk.  B.  iii.  tit.  9,  §  38.     It  was  for- 
merly the  practice  for  executors  who  desired 
to  have  their  accounts  settled,  and  to  be  dis- 
charged of  their  trust,  to  raise  actions  before 
the  Commissary  Court,  concluding  for  decree 
of  exoneration.     This  form  of  action  is  gone 
into  desuetude ;  and,  according  to  the  present 
practice,  no  formal  exoneration  is  considered 
necessary ;  but  when  an  executor  is  sued  by 
creditors  or  others  interested,  and  ehtitled  to 
call  him  to  account,  he  may  competently 
plead,  by   way  of  exception   against   such 
action,  that  the  inventory  in  the  confirmation 
is  exhausted  by  lawful  payments,  not  by  mere 
decrees  ordaining  him  to  make  payment.     If 
there  be  any  debts  mentioned  in  the  inventory 
as  due  to  the  defunct,  which  have  not  been 
received  by  the  executor,  he  will  be  exone- 
rated as  to  those,  by  producing  decrees  and 
registered  homings  against  the  debtors,  and 
by  granting  assignations  thereof  to  the  de- 
funct's creditors  who  are  insisting  in   the 
action  against  the  executor,  so  as  to  enable 
them,  it  they  please,  to  sue  the  defunct's 
debtors  for  payment ;   Stair,  B.  iii.  tit.   8, 
§75,  et  seq. ;  Mote's  Notes,  p.  cccliv,  et  seq. ; 
BrsL  B.  iii.  tit.  9,  §  47.     See  generally, 
on  the  subject  of  the  present  article.  Stair, 
B.  iiu  tit.  ti ;  Mackemie,  B.  iii.  tit  9 ;  Ersk. 
B.  iii.  tit.  9  ;  Kamet^  Stat.  Law  Abridg.  voce 
EttcHtor;  Karnes'  Elucid,  art.  16;  Graham, 
Dow's  App.  Cases,  ii.  24 ;  BelPs  Com.  il.  81,  et 
seq.;  BeU's  Princ.  §  1869,  1888, et  seq.;  Ross's 
Led.  i.  65-76  ;  Karnes'  Eqaity,  273,  293,  497, 
502.    As  to  the  intromission  of  an  executor 
without  confirmation,  see  in  this  Dictionary 
the  article  Vitums  Intromission.    As  to  ques- 
tions of  relief  between  heir  and  executor,  see 
Ditaution ;  Heir  and  Executor;  and,  in  connec- 
tion with  the  subject  of  the  article,  see  Jus 
Rdidtm.    Legitim.    Dead's  Part.     Testament. 
Legacy.    See  also  Executors. 


ConJimuUion  of  Executors  under  the  Recent 
Act.— By  the  act  21  and  22  Vict.,  cap.  56 
(1858),  the  law  relating  to  confirmation  of 
executors  is  amended.  The  practice  of  rais- 
ing edicts  of  executry  for  the  decerniture  of 
executors  is  abolished,  and  it  is  now  no  longer 
competent  for  a  party  to  obtain  himself  de- 
cerned executor  in  virtue  of  such  an  edict. 
A  person  desirous  of  being  decerned  executor 
or  dispooee,  next  of  kin,  creditor,  or  in  any 
other  competent  character,  or  of  having 
some  other  person  possessed  of  such  charac- 
ter decerned  executor,  must  present  a  peti- 
tion to  the  Commissary  for  the  appointment 
of  an  executor  as  nearly'  as  may  be  in  the 
form  given  in  the  schedule  annexed  to  the 
act.  Where  the  deceased  died  domiciled  in 
Scotland,  the  petition  may  be  presented  to 
the  Commissary  of  the  county  in  which  he 
was  domiciled ;  and  where  he  died  domiciled 
furth  of  Scotland,  or  without  any  fixed  or 
known  domicile,  the  petition  must  he  pre- 
sented to  the  Commissary  of  Edinburgh.  In 
place  of  publishing  the  petition  at  the  kirk 
door  and  market-place,  as  was  the  practice 
in  regard  to  edicts,  it  must  be  intimated  by 
the  Commissary-Clerk  affixing  a  full  copy  of 
the  petition  on  the  door  of  the  Commissary 
Court-House,  on  some  conspicuous  place  of 
the  court,  and  of  the  office  of  the  Commissary- 
Clerk,  in  such  manner  as  the  Commissary 
may  direct,  and  by  the  keeper  of  the  record 
of  Edictal  Citations  at  Edinburgh  inserting, 
in  a  book  kept  by  him  for  that  purpose,  the 
names  and  designations  of  the  petitioners, 
and  of  the  deceased,  and  the  place  and  date 
of  his  death,  and  the  character  in  which  the 
petitioner  seeks  to  be  decerned  executor. 
On  the  expiration  of  nine  days  after  certifi- 
cation of  intimation  and  publication,  the 
petition  may  bo  called  in  court,  and  an  exe- 
cutor decei-ned,  or  other  procedure  take  place, 
according  to  the  forms  in  use,  in  case  of 
edicts  of  executry,  and  with  the  like  force  and 
effect.  A  decree-dative  may  be  extracted 
three  days  after  it  has  been  pronounced ;  but 
the  law  as  to  executors  finding  caution,  re- 
mains as  formerly  ;  only  bonds  of  caution 
may  be  partly  printed  and  partly  written. 
The  course  of  procedure  in  use  before  the 
act  in  regard  to  confirmations  of  executors- 
nominate  remains  unaltered.  Inventories  of 
personal  estates  of  deceased  persons  and  rela- 
tive testamentary  Writings  may  be  given  up 
and  recorded  in,  and  confirmation  may  bo 
granted  and  issued  by,  any  Commissary  Court 
to  which  it  is  competent  to  apply  under  the 
act  for  the  appointment  of  an  executor- 
dative.  The  inventory  of  the  personal  estate 
of  any  person  who  has  died  domiciled  in 
Scotland  may  include  any  personal  estate  of 
the  deceased  situated  in  England  or  Ireland, 


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or  in  both  ;  but  the  person  applying  for  con- 
firmation must  satisfy  the  Commissary  that 
the  deceased  died  domiciled  in  Scotland ;  and 
the  Commissary  must  find  by  his  interlocutor 
that  he  died  so  domiciled ;  and  such  inter- 
locutor is  conclusive  evidence  of  the  fact  of 
domicile.  The  value  of  the  personal  estate 
situated  in  England  or  Ireland  must  be 
separately  stated  in  the  inventory,  and  the 
inventory  must  be  impressed  with  a  stamp 
corresponding  to  the  entire  value  of  the 
estate  in  the  inventory,  wherever  situated. 
Oaths  and  affirmations  in  inventories  may  be 
taken  either  before  the  Commissary  or  his 
depute,  or  the  Commiasary-Clerlt  or  his  de- 
pute, or  before  any  commissioner  appointed 
by  the  Commissary,  or  before  any  magistrate 
or  justice  of  the  peace  within  the  United 
Kingdom  or  the  colonies,  or  before  any  Bri- 
tish consul.  A  confirmation  to  a  party  who 
has  died  domiciled  in  Scotland,  and  which 
includes  personal  estates  situated  in  England 
or  Ireland,  on  being  produced  in  the  prin- 
cipal Court  of  Probate  in  England,  or  in  the 
Court  of  Probate  in  Dublin,  and  duly  sealed, 
has  the  same  force  and  efiect  in  England  or 
in  Ireland,  as  if  a  probate  or  letters  of  ad- 
ministration had  been  granted  by  these  courts. 
In  the  same  manner,  any  probate  or  letters 
of  administration  granted  in  England  or 
Ireland,  to  the  executors  of  a  person  therein 
stated  to  have  died,  domiciled  there,  on 
being  produced  in  the  Commissary  Court 
of  the  county  of  Edinburgh,  and  indorsed 
by  the  Commissary-Clerk  with  the  certifi- 
cate in  the  form  prescribed  by  the  sta- 
tute, has  the  same  operation  in  Scotland  as 
if  it  had  been  granted  by  the  Commissary 
Court.  In  order  to  secure  the  payment  of 
the  full  and  proper  stamp  duties.  Probates 
or  letters  of  administration  are  considered  to 
be  granted  for  the  whole  of  the  personal 
estate  of  the  deceased  in  the  United  King- 
dom, and  in  the  same  manner  the  inven- 
tory exhibited  in  the  Commissary  Court, 
before  obtaining  confirmation,  must  include 
the  whole  of  the  personal  estate  of  the  de- 
ceased in  the  United  Kingdom,  and  the  value 
thereof.  On  applying  for  probate  or  letters 
of  administration,  the  affidavit  required  must 
specify  the  fact  that  the  deceased  was  domi- 
ciled in  England  or  Ireland,  according  to 
the  deponent's  belief;  and  such  affidavit  is 
sufficient  to  authorise  th9  fact  of  domicile  to 
be  so  stated  in  or  upon  the  probate  or  letters 
of  administration;  butsuch  statement,  and  the 
interlocutor  of  the  Commissary  finding  that 
the  deceased  was  domiciled  in  Scotland,  is 
evidence  only  for  the  purposes  of  the  act, 

Executor-Creditor.  Where  the  executor- 
nominate,  and  the  other  executors  legally 
entitled  to  expedo  confirmation,  have  declined 


confirming,  any  creditor  of  the  deceased  hold- 
ing a  liquid  ground  of  debt  may  obtain  him- 
self confirmed  executor-creditor,  to  the  effect  of 
administering  as  much  of  the  estate  as  may 
be  sufficient  to  pay  his  debt;  A.  S.  litkNot. 
1679.  The  creditor's  right,  or,  more  cor- 
rectly speaking,  this  diligente,  is  completed 
by  the  confirmation — the  mere  decree-dative 
of  the  Commissary,  which  precedes  the  con- 
firmation, not  being  sufficient  to  complete  the 
right.  And  where  other  creditors  are  in 
circumstances  to  do  so,  they  may  apply  to  the 
Commissary,  and  be  confirmed  «dong  with  tl>« 
first;  or  another  creditor  may  himself  eoafirm 
executor-creditor  also,  and  summon  the  first 
to  communicate  a  share  oCthe  fund  which  he 
has  confirmed ;  Bell's  Com.  ii.  81.  Where, 
again,  the  debt  of  the  creditor  of  the  defunct 
is  not  constituted,  the  act  1695,  c.  41,  pro- 
vides, that  it  shall  be  lawful  for  the  creditor, 
who  has  a  depending  cause  or  claim  against 
the  defunct,  at  the  time  of  his  death,  "  to 
charge  the  defunct's  nearest  of  kin  to  confirm 
executor  to  him  within  twenty  days  after  the 
charge  given ;  which  charge,  so  executed, 
shall  be  a  passive  title  against  the  person 
charged,  as  if  he  were  a  vitions  intromitter, 
unless  he  renounce;  and  then  the  charger 
may  proceed  to  have  his  debt  constitute,  and 
the  haireditat  jacens  of  moveables  declared 
liable  by  a  decree  cognitionis  caupa ;  upon  the 
obtaining  whereof,  he  may  be  decerned  exe- 
cutor-dative to  the  defunct,  and  so  affect  his 
moveables  in  common  form ; "  ErtL  B.  iii. 
tit.  9,  §  34,  et  seq.;  BeWs  Com.  ii.  81.  In 
order  to  secure  an  equitable  distribution  of 
the  funds  of  a  defunct,  it  was  provided,  by 
1654,  c.  16  and  18,  enacted  during  the  Usur- 
pation, "  that  hereafter  there  be  no  exe- 
cutor-creditor decerned  and  confirmed  to  any 
defunct  until  half  a  year  be  passed  after  the 
defunct's  decease ;  and  that  no  decree  for 
payment  be  extracted  against  any  executor 
for  six  months  after  the  defunct's  death ;  and 
that  all  creditors  who  shall  use  diligence 
against  the  executor,  within  the  said  six 
months,  shall  come  tn  pari  passu  with  othen 
who  have  decrees  ready  to  extract."  This 
enactment  was  repealed  at  the  Restoration, 
but  substantially  re-enacted  by  the  declara- 
tory Act  of  Sederunt,  28th  Feb.  1662  ;  whetp- 
by  it  was  provided,  "  that  all  creditors  of 
defunct  persons  using  legal  diligence  at  any 
time  within  half  ane  year  of  the  defunct's 
death,  by  citation  of  the  executors  and  intro- 
mitters  with  the  defunct's  goods,  or  by  ob- 
taining themselves  decerned  and  confirmed 
executors-creditors,  or  by  citing  of  any  other 
executors-creditors  confirmed,  the  said  cre- 
ditors using  any  such  diligence  before  the 
expiry  of  half  ane  year,  as  said  is,  shall  come 
r»  pari  patau  with  auy  other  creditors  who 


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have  used  more  timely  diligence."  The  pos- 
terior creditors,  before  taking  benefit  by  the 
infentory  confirmed,  being  bound  to  pay  a 
proportional  part  of  the  expense  incurred  by 
the  executor-creditor  first  decerned  and  con- 
firmed; and  it  being  lawful  for  such  posterior 
creditor  or  creditors  to  obtain  themselves  con- 
joined with  the  first  in  the  office  of  esecutors- 
ereditors.  The  distinction  between  the  pari 
pauu  preference  thus  introduced,  and  that  of 
adjudication  within  year  and  day  of  the  first 
effectual  one,  is  that,  in  the  case  of  adjudi- 
cations, the  participation  of  creditors  adjudg- 
ieg,  after  the  expiration  of  the  year  and  day, 
in  the  benefit  of  the  first  adjudication,  is 
absolutely  excluded ;  whereas,  claims  upon 
the  executry  may  be  made,  notwithstanding 
the  expiration  of  the  six  months,  so  as  to 
give  the  claimant  a  share  of  the  fund,  if  it  be 
$tiU  widiviied;  Bell's  Com.  vol  ii.  81.  See 
also  Bank.  £.  iii.  tit.  8,  §  81,  et  teq. ;  Erik. 
B.  iii.  tit.  9,  §  45,  ei  teq.; MPs  Princ.  §  1896; 
Stair,  B.  iii.  tit.  8,  §  63;  Morels  Notes, 
eclxxxix.  ccclx. 

Exeentors.  This  term  is  sometimes  applied 
detignative  to  the  next  of  kin  of  a  defunct  who 
are  entitled  to  his  moveable  succession  ab 
inteslato.  In  this  acceptation,  the  executors, 
or  k<erede»  in  mobiles,  are  the  whole  next  of 
kin  of  the  defunct — i.  e.,  all  the  nearest  in 
degree  of  blood ;  for,  although  an  only  child 
is  both  heir  and  executor  to  his  or  her 
&ther,  yet,  if  there  be  two  or  more  children, 
or,  failing  children,  if  there  be  two  or  more 
equally  near  in  degree,  they  succeed  ab  intes- 
tate to  equal  portions  of  the  moveable  estate, 
without  regard  to  primogeniture,  and  with 
no  preference  of  males  to  females,  except 
where  a  person  dies,  leaving  both  heritage 
and  moveables.  In  that  case,  where  one  of 
the  next  of  kin  (e.g.,  the  eldest  son)  is  heir 
to  the  heritage,  he  is  not  entitled  to  any 
share  of  the  moveable  succession,  unless  he 
choose  to  exercise  the  privilege  of  collation. 
Heiresses-portioners  who  succeed  ab  intestato 
to  equal  portions,  pro  indiviso,  of  the  heritable 
estate,  are  all  equally  entitled,  as  next  of 
kin,  to  shares  in  the  moveable  succession. 
Henee,  although  the  eldest  sister  should  take 
the  heritable  estate  destinatiotte  of  her  father, 
or  under  an  entail,  she  is  not  thereby  de- 
prived of  her  share  of  the  moveables  which 
she  may  claim  without  collation.  See  Col- 
lation. The  jus  reprcBsentationis  had  no  place 
in  moveable  succession.  Thus,  the  defunct's 
snrvivmg  children  were  formerly  his  next  of 
kin  or  executors,  to  the  exclusion  of  a  grand- 
child by  a  son  or  daughter  who  had  pre- 
deceased the  defunct.  In  like  manner,  if 
one  died  without  issue,  leaving  two  sisters, 
and  a  nephew  or  niece  by  a  third  sister,  de- 
ceased, the  two  surviving  sisters  succeeded  to 


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the  whole  moveable  estate,  to  the  exclusion 
of  the  child  of  the  sister  who  predeceased  her 
father.  This  is  now  altered  by  the  act  18  and 
19  Vict.,  c.  23,  1855.  It  is  of  importance 
to  attend  to  a  distinction  in  the  case  of  full 
and  half  blood.  In  the  line  of  ascendants 
and  descendants,  all  are  said  to  be  full  blood  ; 
that  is,  all  the  defunct's  lawful  children, 
though  by  dtfiierent  mothers,  are,  with  re- 
spect to  their  father's  moveable  succession, 
his  next  of  kin.  But  in  the  collateral  line 
the  rule  is  diflerent ;  for  in  that  succession 
children  by  the  same  father  and  mother,  or 
brothers  and  sisters  german,  and  their  issue, 
are  accounted  nearer  in  degree  than  their 
brothers  and  sisters  by  the  half  blood. 
Hence,  it  is  a  rule  in  moveable  as  well  as 
heritable  succession,  that  the  full  blood  ex- 
cludes the  half  blood  in  the  same  line  of  suc- 
cession. Thus,  if  the  deceased  leave  a  sister- 
consanguinean, — ».  e.,  by  the  father's  side, — 
and  a.nephew  by  a  sister-german  who  has  pre- 
deceased the  defunct,  the  nephew  will  succeed 
to  his  uncle's  moveable  estate,  to  the  entire 
exclusion  of  the  sister  by  the  half  blood. 
Failing  descendants  both  i>j  the  full  and 
by  the  half  blood,  ascendants  succeed ;  for  it 
is  a  rule  that  the  father  and  his  brothers, 
and  other  kindred  in  the  ascending  line, 
never  succeed  a&  intestato,  while  any  of  the 
father's  children  or  their  issue  exist.  Where 
the  father  succeeds  as  his  child's  next  of  kin, 
he. succeeds  to  the  entire  exclusion  of  the 
mother,  who  formerly  was  in  no  case  ac- 
counted as  of  kin,  to  the  effect  of  succeeding 
ab  intestato  to  her  children,  even  although 
the  property  should  have  come  originally 
from  her.  And,  upon  the  same  principle, 
all  persons  related  through  the  mother,  in- 
cluding brothers  and  sisters  uterine,  are  ex- 
cluded. See  Stair,  B.  iii.  tit.  8,  §  32 ;  Bank. 
B.  iii.  tit.  4,  §  16,  et  seq. ;  Ersk.  B.  iii.  tit.  9, 
§§  2,  3.  \V  here  the  defunct  has  not  nomi- 
nated an  executor  or  administrator  of  his 
moveable  estate,  nor  disponed  it  in  favour  of 
a  general  disponee,  the  whole  next  of  kin  or 
executors  are  entitled  to  the  administration 
pro  indiviso,  and  may  obtain  confirmation 
accordingly.  The  authorities  cited  under  the 
article  Executor  may  be  consulted  as  to  this 
article  also.    See  Executor.     Confirmation. 

Executry ;  is  the  general  name  given  to 
the  whole  moveable  estate  and  effects  of  a 
defunct  (with  the  exception  only  of  heirship 
moveables),  and  is  the  proper  subject  of  the 
executor's  administration.  It  includes  not 
only  what  belongs  to  the  executor  by  his 
office,  or  succession,  but  all  that  belongs  to 
the  defunct's  relict,  children,  or  nearest  of 
kin,  legatees,  and  creditors.  Stair,  B.  iii.  tit. 
8,  §  1 ;  Ersk.  B.  iii.  tit.  9,  §  1 ;  BeWs  Com.  i. 
141 ;  Sandford  on  Seritable  Succession,  i.  43 ; 

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See  Goods  in  Communion.    Jus  RdicUe.     Le- 
gitim.     Dead's  Part. 

EzeroitOT.  An  exercitor  is  the  person  to 
whom  the  profits  of  a  ship  or  trading  vessel 
belong,  whether  he  be  the  actual  owner  or 
merely  the  freighter.  According  to  Erskine, 
the  word  is  derived  from  exereere,  to  employ 
— an  exercitor  being  one  who  employs  the 
ship  in  the  way  of  trade  on  his  own  account. 
An  exercitor  is  liable  for  all  repairs,  pro- 
visions,  or  furnishings,  of  whatever  kind, 
necessary  for  the  ship  or  crew,  and  ordered 
by  the  master,  or  by  the  person  in  the  actual 
charge  of  the  ship.  This  obligation  is  founded 
on  an  implied  mandate,  which  the  exei'citor  is 
presumed  to  have  granted  in  favour  of  the  mas- 
ter, to  the  effect  of  procuring  whatever  may  be 
needful  for  the  successful  prosecution  of  the  voy- 
age. Hence,  the  master  may,  in  thatcharacter, 
competently  bind  the  exercitor  for  such  fur- 
nishings, even  although  the  master  may  be 
himself  incapable  of  contracting  a  binding 
obligation  on  his  own  account ;  for  any  one 
may  be  appointed  master,  "  without  distinc- 
tion of  age,  sex,  or  condition  ;  even  pupils, 
and  women  clothed  with  husbands;"  Ersk. 
infra  cit.  But  although  the  contractions  of 
a  shipmaster,  who  is  not  sui  juris,  thus  bind 
his  constituents,  yet,  in  the  ordinary  case,  the 
master  as  well  as  the  exercitor  is  personally 
bound  to  the  furnisher ;  for  a  shipmaster  is 
not  accounted  a  mere  administrator  for  the 
owners.  Whoever  is  in  the  actual  com- 
mand of  the  vessel  is  deemed  to  be  pr(Bpositus, 
jMrtesumptions  juris  et  de  jure,  without  any 
commission  from  the  exercitor,  and  even 
although  he  should  be  acting  as  master 
without  the  exercitor's  knowledge,  and  con- 
trary to  his  orders.  The  exercitor  is  also 
liable  for  the  necessary  furnishings,  whether 
the  master  has  purchased  them  with  his  own 
money,  or  has  borrowed  money  for  the  pur- 
pose. It  is  to  be  observed,  however,  that  a 
shipmaster's  obligations  for  borrowed  money 
bind  the  exercitor,  only  where  the  advance 
has  been  made  in  a  foreign  port ;  while  con- 
tractions for  ordinary  and  necessary  furnish- 
ings bind  the  exercitor,  although  made  to 
the  master  in  a  home  port;  Lindsay  and 
Allan,  18th  June,  1800;  Fac.  Coll.,  Mor. 
App.  voce  Mandate,  No.  2.  And  as  the  master 
can  in  no  case  bind  the  exercitor  in  matters  not 
falling  within  the  trust  committed  to  him  as 
master,  it  is  proper  that  bonds  for  money 
advanced  for  the  use  of  the  vessel  should 
expressly  mention  the  cause  for  which  the 
money  is  borrowed.  The  furnisher  or  lender, 
in  order  to  make  good  his  claim  against  the 
exercitor,  is  not  bound  to  prove  that  the  fur- 
nishings or  advances  of  money  have  been 
properly  applied  by  the  master ;  but  he  must 
be  able  to  show  that  the  furuishiugs  ur  the 


repairs,  for  which  the  advances  were  made, 
were  ordinary,  necessary,  and  proper.  If 
there  be  more  than  one  exercitor,  they  are 
all  liable,  singuli  in  tolidum,  for  the  master's 
contractions,  without  regard  to  their  respec- 
tive shares  in  the  vessel — the  exercitor  who 
pays  being  entitled  to  relief,  pro  raia,  from 
the  others.  Where  the  exercitors  manage 
the  ship  themselves,  without  appointing  a 
master,  and  without  devolving  the  ostensible 
and  exclusive  management  on  any  one  of 
their  own  number,  each  is  accounted  master, 
quoad  his  own  share  ;  and  his  contract  binds 
himself  alone.  The  shipmaster's  contracts 
concerning  the  cargo  do  not  bind  the  exer- 
citor, unless  the  master's  commission  contain 
an  express  authority  to  that  effect  —  the 
management  of  the  cargo,  and  of  the  eon- 
tracts  therewith  connected,  being  usually  in- 
trusted to  a  supercargo.  The  exercitors,  as 
well  as  the  master,  are  included  under  the 
edict,  Nautm,  caupones,  stabuUtrii — not,  how- 
ever, m  solidum,  but  pro  rata,  according  to 
their  interests  in  the  vessel ;  and  that  whe- 
ther the  exercitors  be  owners  or  mere  freight- 
ers. And,  by  the  statutes  7  Geo.  II.,  c  15, 
and  26  Geo.  III.,  c.  86,  the  owners  of  ships 
(provided  they  had  no  knowledge  of,  or  par- 
ticipation in,  the  fraud  or  negligence),  are 
declared  to  be  no  further  liable  for  embez- 
zlement, negligence,  or  fraud,  on  the  part  of 
the  master  or  crew,  than  to  the  amoant  of 
the  value  of  the  ship,  and  the  freight  dae  on 
the  voyage  in  the  course  of  which  the  em- 
bezzlement took  place ;  Ersk.  B.  iii.  tit.  1, 
§  29 ;  Bank.  B.  i.  tit.  18,  §  30.  Exereikry 
obligations,  as  they  are  termed,  being  pro- 
perly maritime,  were  fornrerly  cognisable, 
judicially,  in  the  Admiralty  Court,  in  the 
first  instance ;  Stair,  B.  i.  tit.  12,  §  18.  See 
generally,  on  the  subject  of  this  article, 
Mor^s  Notes,  p.  Ixxiii. ;  Ersk.  B.  iii.  tit.  3, 
§  43,  et  seq. ;  Batik.  B.  i.  tit.  18,  §  24 ;  fetfi 
Com.  i,  477,  et  seq.;  BelPs  Princ  §  451; 
Brown's  Synop.  k.  t.;  Abbot,  34. 

Ezhibitum.  This  term  is  applied  to  an 
action  for  compelling  production  or  delivery 
of  writings,  and  may  be  resorted  to  either  for 
the  recovery  of  writings  which  belong  to  the 
pursuer,  or  it  may  be  raised  at  the  instance 
of  an  apparent  heir,  to  force  production  of 
writings  and  title-deeds  relative  to  his  pre- 
decessor's estate,  in  order  to  enable  the  heir 
te  deliberate  as  to  the  propriety  of  entering 
heir,  and  thereby  incurring  a  responsibility 
for  his  predecessor's  debts  and  obligations. 

1.  Exhibition  and  delivery  by  a  proprietor  <^ 
the  writs  calkd/or. — This  is  an  ordinary  peti- 
tory and  principal  action,  whereby  the  owner 
of  a  writing  requires  the  defender  to  produce 
it,  and  to  deliver  it  to  him.  Being  a  real 
action,    it  may  be  insisted  in  against  any 


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btflder  of  the  document  required — the  pursuer 
being  bound  to  specif;  the  maTioer  iu  which 
the  defender  became  possessed  of  the  docu- 
ment ;  and  ako  to  prove  (which  he  may  do 
b;  witnesses)  that  the  defender  had  the  writ 
in  his  possession  at  the  date  of  the  citation, 
or  since.  After  that  has  been  established,  it 
is  incumbent  on  the  defender  either  to  pro- 
dace  the  writing,  or  to  prove  that  he  warrant- 
ably  parted  with  it,  or  fairly  lost  possession 
ofit;  and,  if  the  pni-suer  be  not  satisfied  with 
tlie  defender's  statement,  he  may  compel  him 
to  answer,  upon  oath,  all  pertinent  interroga- 
tories in  relation  to  his  having  the  writing, 
or  putting  it  away,  or  as  to  his  knowledge  or 
suspicion  concerning  the  person  or  persons 
who  may  have  got  possession  of  it ;  A.  S.  22d 
Feb.  1688.  Stair,  B.  iv.  tit.  33,  §  1,  and  B. 
i.  tit  7,  §  14 ;  Mor^s  Notes,  p.  li. ;  Bank.  B.  i. 
tit  8,  §  41,  et  $eq.;  Ersk.  B.  iv.  tit.  1,  §  62 ; 
f<ii(<m  Evidence,  p.  315 ;  Jurii,  Styles,  2d  edit, 
vol.  iii.  p.  45,  656 ;  BeWs  Com.  ii.  72. 

2.  Exhibition  ad  ddiberandum  by  an  apparent 
Mr. — This  action  has  more  the  character  of 
an  accessory  action  than  the  preceding  has, 
and  may  be  pursued  against  third  parties  as 
well  as  relations,  by  every  heir  who  may  com- 
petently be  charged  to  enter  heir  to  a  de- 
ceased person.  The  right  to  insist  in  the 
action  is  one  of  the  privileges  of  an  apparent 
heir ;  and  he  may  raise  it  either  within  the 
ttiBif%u  deliberandi,  or  after  its  expiration,  and 
at  any  time  before  his  entry  as  heir.  In  the 
action  the  apparent  heir  is  entitled  to  call 
for  exhibition  of  all  deeds  granted  to  or  by 
his  predecessor,  whether  the  deeds  have  been 
perfected  by  sasine  or  not,  to  the  effect  that 
he  may  thereby  be  enabled  to  deliberate 
whether  or  not  it  will  be 'prudent  for  him  to 
take  up  the  succession  which  has  opened  to 
him.  Any  deed  of  the  predecessor,  by  which 
the  heir  is  excluded  from  the  succession,  will 
aiford  a  good  defence  against  the  action. 
Hence  an  irredeemable  disposition,  or  a  deed 
of  entail,  by  which  the  ancestor  has  been 
divested  and  the  heir  excluded,  will  be  a 
sufficient  defence  to  the  disponee  against  ex- 
hibiting the  writings  relative  to  such  dispo- 
sttitm  or  deed  of  entail ;  and  that  whether 
sasine  has  followed  on  the  deed  or  not.  In 
like  manner,  if  the  apparent  heir  have  been 
charged  to  enter  heir  by  a  creditor  of  the  de- 
funct, and  have  renounced,  tho  heir  cannot 
legally  insist  in  an  exhibition  ad  deliberandum 
against  the  creditor  on  whose  charge  he  has 
renounced ;  but  that  renunciation  will  be  no 
bar  to  an  action  of  exhibition  ad  deliberaiidum 
against  any  other  creditor  of  the  defunct. 
Although  the  heir,  before  his  entry,  may  re- 
quire exhibition  of  writings  ad  deliberandum, 
he  cannot,  until  his  actual  entry  as  heir, 
compel  delivery  of  the  title-deeds  or  other 


documents  belonging  to  his  ancestor,  in  the 
hands  of  third  parties ;  neither  cau  he  enforce 
payment  of  the  debts  proved  by  such  docu- 
ments to  be  due  to  the  ancestor.  Ersk.  B.  iii. 
tit.  8,  §  56,  et  seq.;  Stair,  B.  iv.  tit.  33;  Bank. 
B.  iii.  tit.  4,  §  66,  and  tit.  5,  §  7 ;  BelPs  Prine. 
§  1688 ;  niutt.  ib. ;  Jurid.  Styles.  2d  edit.  vol. 
iii.  p.  266.     See  also  Apparent  Heir. 

3.  An  exhibition  ad  probandum,  was  an- 
other accessory  action  formerly  in  use.  This 
was  an  action  competent  to  the  party  to  a 
suit,  when  he  wished  to  prove  a  fact  pertinent 
to  the  cause,  by  the  production  of  writings 
belonging  to,  or  in  the  custody  of,  third 
parties — technically  called  Havers.  But,  in 
practice,  this  action  has  been  long  superseded 
by  incident  diligences,  granted  in  the  course  of 
the  principal  action  against  the  haver  of  the 
writing.  Ersk.  B.  iv.  tit.  1 ,  §  52  ;  Stair,  B. 
iv.  tit.  33,  §  2,  and  tit.  41,  §  5,  et  seq. ;  Mote's 
Notes,  p.  cccxv. ;  Dickson  on  Evidence,  669. 
See  Diligence.    Haver.    Incident  Diligence. 

Exhibition:  the  benefactions  settled  for 
the  maintenance  of  scholars  in  the  English 
Universities,  not  depending  on  the  founda- 
tion, are  called  Exhibitions.  In  this  sense, 
the  term  is  analogous  with  the  Scotch  term 
bursary.  An  exhibition  was  the  name  for- 
merly given  to  an  allowance  of  meat  and 
drink,  such  as  was  customary  among  the  re- 
ligious appropriators  of  churches,  who  usually 
made  it  to  the  depending  vicar.  Tomlins'  Diet, 
h.  t.     See  Bursary.     Altarages, 

Exhumation.  This  term  is  sometimes  ap- 
plied to  the  offence  of  disinterring  a  dead 
body.    See  Dead  Body. 

lExHe,    See  Transportation. 

Exitos ;  the  issues  or  profits  of  anything. 
Exitus  terra,  the  rents,  fruits,  and  profits  of 
the  land.  Exitus  justitiarice,  the  profit  of  the 
justice  aire.  Exitus  curice,  the  issues  and  com- 
modity of  a  court,  as  amerciaments,  and  the 
like.     Skene,  h.  t. ;  Stair,  B.  ii.  tit.  ^,  §  64. 

Exoneration ;  a  discharge ;  or  it  signifies 
the  act  of  being  legally  disburdened  of,  or 
liberated  from,  the  performance  of  a  duty  or 
obligation.  Conclusions  for  exoneration  are 
generally  inserted  in  actions  of  multiplepoind- 
ing  at  the  instance  of  trustees,  executors,  and 
others.  See  3  Jurid.  Styles,  2d  edit.  p.  313, 
et  seq.  Petitions  for  exoneration  and  dis- 
charge of  purchasers  and  factors  in  rankings 
and  sales  are  also,  in  certain  circumstances, 
competent ;  3  Jurid.  Styles,  861-864.  Peti- 
tions for  the  discharge  of  judicial  factors, 
tutors,  and  others,  under  the  Pupil's  Protec* 
tion  Act,  are  regulated  by  12  and  13  Vict., 
c  51,  §  34 ;  and  20  and  21  Vict.,  c.  56,  §  4. 
See  Discharge.  Multiplepoinding.  Shand's  Prac. 
pp.  582-583,  595. 

Expeding  Letters.  This  expression  is 
said  to  be  derived  from  the  French  verb 


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expedier,  which  signifies  to  make  out  the  prin- 
cipal copies  of  letters,  judgments,  and  other 
juridical  writs.  In  the  phraseology  of  the 
Scotch  law,  to  expede  letters,  means  to  write 
out  the  principal  writ,  and  get  it  sigueted, 
sealed,  or  otherwise  completed.  Thus,  after 
a  bill  of  suspension  or  of  advocation  had  been 
passed  by  the  Lord  Ordinary  on  the  Bills,  the 
act  of  writing  out  the  letters  of  suspension  or 
of  advocation,  and  of  obtaining  them  signeted, 
was  termed  aepeding  the  letters — the  passed  bill 
being  the  warrant  for  so  doing.  In  like 
manner,  the  act  of  passing  a  royal  charter 
through  the  seals  was  formerly  termed  exped- 
ing  a  charter,  although  now  the  technical 
expression  is,  passing  a  charter.  See  Ross's  Lect. 
vol.  i.  p.  236.  See  Suspetision.  Advocation. 
Expenses,  or  Costs  of  Suit.  In  judicial 
procedure,  this  term  is  applied  to  the  charges 
exigible  from  a  party  to  a  process,  as  court- 
dues,  fees  to  counsel  and  agents,  and  other  ex- 
penses incurred  in  the  prosecution  of  the  ac- 
tion. It  is  almost  the  invariable  practice  for 
the  pursuer,  or,  generally  speaking,  for  the 
party  making  any  claim  judicially,  not  only 
to  demand  payment  or  performance  of  the  ob- 
ligation, or  declarator  or  reduction  of  the  right 
which  is  in  question,  but  also  to  conclude  for 
the  expenses  of  the  process  which  he  has  found 
it  necessary  to  institute.  Expenses  may  be 
given,  however,  without  being  specially  con- 
cluded for.  They  are  not,  properly  speaking, 
part  of  the  subject-matter  of  an  action  ;  Hop- 
kirh,  21  Dec.  1855,  18  D.  300.  In  like 
manner,  it  is  the  practice  for  the  defender  or 
respondent  to  demand  the  expense  attending 
his  defence ;  and  the  Court  (except  where 
special  statute  or  rules  of  court  regulate  the 
matter  otherwise)  are  in  use  to  exercise  a  dis- 
cretionary power  on  this  point.  Regularly, 
the  question  of  expenses  ought  to  be  deter- 
mined in  the  decree  which  settles  the  point 
of  law ;  for  the  expenses  are  not  demandable 
in  a  new  action.  By  6  Geo.  IV.,  c.  120,  $  17, 
it  is  directed,  "  that  in  pronouncing  judgment 
on  the  merits  of  a  cause,  the  Lord  Ordinary 
shall  also  determine  the  matter  of  expenses, 
fio  far  as  not  already  settled,  either  giving  or 
refusing  the  same  in  whole  or  in  part ;  and 
every  interlocutor  of  the  Lord  Ordinary  shall 
be  final  in  the  Outer-House."  It  frequently 
happens,  however,  that  decrees  are  allowed 
to  be  extracted,  which  contain  a  reservation 
of  the  question  of  expenses,  the  process  to  that 
extent  remaining  in  dependence.  In  the  case 
of  decrees  in  absence,  the  stat.  1  and  2  Geo. 
1  v.,  c.  38,  §  33,  provides,  that  it  shall  not  be 
lawful  to  extract  any  decree  for  the  random 
sum  of  expenses  concluded  for  in  the  summons; 
but  that,  in  all  cases  of  decrees  in  absence,  an 
account  of  expenses  shall  be  lodged  in  process, 
And  taxed  by  the  Auditor ;  and  that  a  report 


thereon  by  the  Auditor  shall  be  a  sufficient 
warrant  to  the  extractor  to  fill  up  the  amount 
of  the  expenses  to  be  awarded  against  the 
defender,  without  the  necessity  of  bringing 
the  Auditor's  report  before  the  Lord  Ordi- 
nary, unless  by  his  own  direction  or  that  of 
the  Auditor,  or  on  the  motion  of  any  party 
interested.  See  Decree.  Where,  in  a  liti- 
gated cause,  expenses  have  been  found  due  to 
either  party  by  the  Court  of  Session  or  by  a 
Lord  Ordinary,  the  practice  is,  for  the  Court 
or  Lord  Ordinary  to  make  a  remit  to  the  Au- 
ditor of  Court  to  tax  the  account  of  expenses. 
The  account,  together  with  a  copy  of  the 
interlocutor  finding  expenses  due,  prefixed 
thereto,  is  lodged  with  the  Auditor,  who  there- 
after fixes  a  time  for  the  taxation,  and  a  copy 
of  the  account,  together  with  the  Auditor's 
warrant  for  taxing,  is  served  on  the  agent  for 
the  party  or  parties  found  liable  in  expenses, 
that  he  may  attend  at  the  time  so  fixed.  The 
agent  for  the  party  found  entitled  to  expenses 
attends  at  the  same  time,  and  produces  the 
process,  or  such  part  of  it  as  may  be  necessary 
for  the  taxation  of  the  account,  together  with 
the  drafts  or  copies  of  papers,  and  other 
vouchers  of  his  account,  to  the  Auditor.  After 
the  account  is  tiixcd,  the  agent  is  entitled  to 
get  back  the  process,  in  order  to  return  the 
same  to  the  clerk,  except  in  those  cases  where 
it  may  be  necessary  for  the  Auditor  to  retain 
it  for  further  examination,  in  which  case,  a 
receipt  is  given  by  the  Auditor  or  his  clerk, 
for  the  process ;  A.  S.  llth  July  1828,  §  69. 
The  Auditor  is  empowered  to  hear  the  agents 
for  the  parties,  but  not  in  writing,  on  their 
objections.  The  Auditor  returns  a  short 
report  on  the  account,  specifying  the  taxed 
amount ;  and,  if  no  objection  be  made,  the 
Court  or  Lord  Ordinary  before  whom  the  pro- 
cess depends,  approves  of  the  report  and  de- 
cerns for  the  amount.  In  case  either  party 
means  to  object  to  the  Auditor's  report,  he 
must  immediately  lodge  with  the  clerk  of  the 
process  a  short  note  of  his  objections  without 
argument,  a  copy  of  which  must  be  transmitted 
to  the  agent  on  the  other  side,  and  the  Court 
or  Lord  Ordinary  may  either  direct  the  objec- 
tions to  be  answered  viva  voce,  or  in  writing; 
the  expense  of  the  discussion  being  laid  on  the 
objector  if  he  fail  in  making  good  his  objection, 
and  the  interlocutor  thereon  being  final ;  J.  5., 
6tt  Feb.  1806.  The  expense  of  the  jndicial 
discussion  is  always  laid  on  the  party  object- 
ing, where  his  objections  are  repelled;  but 
not  necessarily,  if  the  objection  has  been  stated 
by  him  to  the  Auditor,  and  reported  by  the 
Auditor  to  the  Court,  for  determination.  An 
intimation  of  an  appeal  to  the  House  of 
Lords,  is  not  enough  to  stop  decree  being  pro- 
nounced for  expenses ;  but  where  the  appeal 
has  been  actually  presented,  and  service  of  an 


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order  thereon  has  taken  place,  a  motion  for 
expenses  is  incompetent.  On  petition  to  the 
Court,  however,  interim  execution  pending 
appeal,  is  granted  as  to  expenses,  the  party 
finding  caution  to  repeat,  it'  the  Judgment  be 
reversed ;  Cochrane,  12  D.  302.  If  the  agent 
vho  has  conducted  the  cause  wish  it,  the  de- 
cree for  the  expenses  will  be  allowed  to  issue 
and  be  extracted  in  his  name.  Expenses  be- 
long to  the  agent,  and  the  party  found  liable 
in  them,  cannot  prevent  his  getting  such  de- 
cree, by  pleading  a  counter  claim  against  his 
client;  MiUer,  22d  June  1848,  10  D,  1384. 
The  taxation  of  the  expenses,  where  either 
party  is  found  liable  to  pay  them,  is,  of  course, 
a  taxation  as  between  parti/  and  party,  not 
as  between  agent  and  client;  for,  although 
a  party  who  is  found  liable  in  his  adversary's 
expenses,  is,  under  such  an  award,  bound  to 
pay  the  regulated  expenses  of  a  judicial  dis- 
cussion, conducted  in  the  ordinary  manner,  he 
lies  under  no  obligation  to  pay  all  the  expenses 
which  an  anxious  or  capricious  litigant  may 
hare  incurred  in  the  conduct  of  his  cause ;  A. 
S.  19tt  Dee.  1836.  But,  although  such  ex- 
penses are  not  included  under  an  award  of  the 
expenses  of  process,  it  is  equally  clear  that  the 
litigant  is  bound  to  pay  his  own  agent  for  all 
the  unnece^ary,  and,  very  often,  useless  ex- 
pense boTia  fide  occasioned  by  the  litigant's 
own  over-anxiety,  and  at  his  express  desire. 
Hence  arises  the  distinction  which  has  been 
recognised  between  a  taxation  of  costs  as  be- 
tveen  party  and  party,  and  as  between  agent 
and  client.  Independently,  however,  of  such 
capricious  and  extraordinary  costs,  it  neces- 
sarily happens,  that,  in  almost  every  case,  the 
agent  for  one  or  other  of  the  parties  (and, 
vfaere  no  expenses  are  found  due  to  either 
party,  the  agent  for  each  party)  has  an  account 
to  claim  from  his  own  employer.  The  Act  of 
Sederunt  accordingly  provides  in  like  manner 
for  the  taxation  of  accounts  as  between  agent 
and  client,  by  authorising  a  summary  appli- 
cation to  be  made  by  the  party  to  the  Lord 
Ordinary  before  whom  the  cause  depends,  or 
has  formerly  depended,  to  get  the  account 
claimed  by  hfs  agent  remitted  to  the  Auditor 
to  be  taxed  according  to  the  existing  regula- 
tions ;  the  report,  in  that  case  also,  being  re- 
turned to  the  Lord  Ordinary,  and  disposed  of 
as  above,  and  the  sum  so  ascertained  forming 
the  proper  charge  by  the  agent  against  his 
client.  So  also,  when  an  agent  or  his  re- 
presentative raises  an  action  against  his  em- 
pkyer  for  payment  of  a  professional  account, 
the  Lord  Ordinary  may,  and  usually  does  in 
the  first  place,  remit  the  account  claimed 
to  the  Auditor  to  be  taxed ;  and  no  decree, 
either  in  absence  or  after  hearing  parties, 
can  be  pronounced  in  such  a  case  until  a  re- 
port has  been  made  by  the  Auditor;  A.  S. 


6ih  Feb.  1806.  Expenses  awarded  in  jury 
causes  are  also  appointed  to  be  taxed  and  re- 
ported upon  by  the  Auditor  of  the  Court  of 
Session ;  59  Geo.  III.,  e.  35,  §  33.  By  A.  S. 
29th  Nov.  1825,  §  39,  it  was  necessary  to 
lodge  two  accounts,  the  one  containing  the 
expenses  incurred  in  the  Court  of  Session, 
and  the  other  the  expenses  incurred  in  the 
Jury  Court.  But  since  the  incorporation  of 
the  two  Courts,  one  account  only  is  lodged. 
The  auditing  in  jury  causes  is  regulated  on 
the  same  principles  as  in  other  Court  of 
Session  cases.  There  are  necessarily,  however, 
certain  things  peculiar  to  jury  causes.  Where 
the  country  agent  is  competent  to  take  pre- 
coguitions,  and  has  been  all  along  engaged  in 
the  case,  an  Edinburgh  agent  undertaking 
that  duty  will  only  be  allowed  to  charge  the 
opposite  party  at  the  rate  at  which  the  country 
agent  would  have  charged.  But,  in  general, 
the  Court  is  disposed  to  allow  the  Edinburgh 
agent's  charges  for  going  personally  to  the 
country.  A  charge  for  two  precognitions, 
one  by  an  Edinburgh,  and  another  by  a 
country  agent,  is  not  good  against  the  oppo- 
site party.  The  agent  has  the  option  of 
charging  for  a'precognition,  either  according 
to  the  actual  time  occupied,  or  the  usual 
drawing  fees  of  a  memorial  or  pleading,  ac- 
cording to  the  length  of  the  precognition. 
As  to  expenses  of  printing  documents  for  jury 
trials,  see  A.  S.  8th  July  1850.  The  amount 
of  fees  paid  to  counsel  is  never  interfered  with, 
if  bona  fide  paid  and  within  reasonable  bounds. 
In  all  cases  where  memorials  are  laid  before 
counsel,  the  fee  paid  therewith,  together  with 
the  date  of  payments,  mnst  be  marked  on  the 
back  in  large  legible  characters  (in  words), 
and  the  paper  must  afterwards  be  got  back 
from  counsel,  indorsed  with  his  signature  or 
initials,  and  produced  to  the  Auditor.  Where 
fees  are  paid  to  counsel  without  a  memorial, 
a  certificate  under  the  hand  of  the  counsel  or 
his  clerk,  must,  if  required,  be  pi'oduced,  that 
such  fees  were  paid  of  the  dates  stated  in  the 
account.  A  party,  after  he  has  been  found 
entitled  to  expenses,  is  not  allowed  to  pay  or 
state  higher  or  additional  fees  to  counsel,  not 
actually  paid  at  the  time.  But  this  rule  does 
not  apply  either  to  cases  on  the  poor's  roll,  or 
to  such  as  have  been  conducted  gratuitously 
by  the  agent  and  counsel,  on  account  of  the 
poverty  of  the  party ;  A.  S.  I9th  Dec.  1835. 
In  general,  the  fees  of  two  counsel  only  can 
be  allowed  against  the  losing  party.  The 
magnitude,  however,  of  the  case,  or  other 
special  circumstances,  may  relax  this  rule. 
The  personal  charges  of  an  unprofessional 
party  are  not  allowed.  The  expression,  ex- 
penses of  the  trial,  in  the  interlocutor,  includes 
the  whole  expenses  of  the  process  preparatory 
to,  as  well  as  at  the  trial.     Where  it  is  ne- 


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cessary  or  proper  to  employ  a  country  agent 
in  condncting  a  cause  in  the  Court  of  (session, 
reasonable  charges  may  be  allowed  for  his 
trouble,  &c.,  provided  that  double  charges 
are  not  thereby  incurred  for  doing  the  same 
business;  A.  S.  I9th  Dec.  1835.  After  a 
case  has  been  decided  in  the  Inner-House 
without  mention  of  expenses,  it  is  thought 
incompetent  to  claim  expenses  from  the  Lord 
Ordinary  ;  Campbell  and  Company,  21st  May 
1803,  Mor.  App.  Expenses,  No.  3;  WyUie, 
5th  Feb.  1820,  Fac.  CM.  But  see  also,  as  to 
claiming  them  in  the   Inner-House  subse- 

ritly,  Gillies,  1843,  5.  D.  1086;  Mat- 
,  1844,  6  D.  1135;  Kerr,  1835,  14 
Sh.  180,  4^.  15  July  1837,  2  Sh.dM'L. 
895.  Where  an  interlocutor  of  a  Lord  Ordi- 
nary not  mentioning  expenses  has  been  re- 
claimed against  by  the  defender,  and  the 
interlocutor  has  been  adhered  to,  without 
mention  of  expenses,  and  the  interlocutor  aU 
lowed  to  become  final,  no  expenses  can  be 
awarded  to  the  pursuer;  FUskers  of  Canongate, 
7th  July  1809,  Fac.  Coll.  A  Lord  Ordinary 
can  in  no  case  give  the  expense  of  any  part 
of  a  process  finally  decided  in  the  Inner- 
House,  without  an  express  remit  for  that 
purpose;  Falccmer,  4th  March  1815,  Fm. 
CoU.  See  also,  Wilson,  12th  Nov.  1814. 
But  it  is  competent  to  apply  to  the  Lord 
Ordinary  for  the  expenses  incurred  in  the 
proceedings  in  a  cause  before  him,  although 
the  Court,  in  adhering  to  the  Lord  Ordi- 
nary's interlocutor,  have  awarded  to  the  re- 
spondent the  expense  of  supporting  it;  Goldie, 
23d  Jan.  1816,  Fac.  Coll.  And  where  an 
interlocutor  of  a  Lord  Ordinary,  finding  ex- 
penses due  generally,  has  been  adhered  to  in 
the  Inner-House,  without  any  mention  being 
made  of  expenses,  it  carries  the  expenses  in- 
curred in  the  Inner-House  ;  Hill,  21st  May 
1824,  S.d;  D.  Where,  however,  the  Lord 
Ordinary  has  said  nothing  about  expenses, 
and  his  interlocutor  is  adhered  to,  the  Court 
cannot  give  the  respondent  more  than  the 
expense  of  supporting  the  interlocutor ;  Borne, 
5th  Dec.  1816,  Fac.  Coll.  In  an  action  on  a 
mutual  contract,  stamped  during  the  de- 
pendence of  the  action  at  the  pui-suer's  ex- 
pense, if  the  pursuer  prevail  and  is  found 
entitled  to  expenses,  the  expense  of  stamping, 
including  penalty  and  solicitor's  fee,  must  be 
borne  by  the  parties  equally  ;  Stewart,  12th 
Feb.  1817,  Fac.  Coll.  A  decree  for  expenses 
in  favour  of  a  party  who  has  been  admitted 
to  the  benefit  of  the  poor's  roll,  in  order  to 
prosecute  the  action,  includes  the  expense  of 
getting  upon  the  roll ;  Cameron,  25th  June 
1814,  Fac.  Coll. ;  Rankine,  31st  May  1821, 
5.  <k  D.  Where  a  judicial  remit  was  made 
by  the  Court  of  Session,  to  an  accountant 
S>r  other  professional  poi-son  to  report,  it  was 


formerly  understood  in  practice,  that  the 
agents  who  conducted  the  remit,  as  well  as  the 
parties,  were  personally  liable  to  the  acountaot 
for  bis  fee  ;  Milne  v.  Maclean,  31st  May  1825, 
iS.d!D.  45.  But,  by  A.  S.  19th  Dec.  1835, 
it  is  declared  that  no  agent  is,  without  special 
agreement,  to  be  held  personally  responsible 
to  an  accountant,  engineer,  or  other  reporter, 
to  whom  a  remit  is  made,  where  the  agent  has 
authority  to  bind  the  party.  The  Lord  Ordi- 
nary in  the  Outer- House,  or  the  Court,  in  the 
event  of  bills  of  suspension  of  decrees  of  in- 
ferior Courts  being  passed,  may  find  the  sus- 
pender entitled  to  the  expenses  he  has  iu- 
curred  in  the  inferior  Court,  as  well  as  in  the 
Court  of  Session;  6  Geo.  IV.,  c.  120,  §  46: 
A.  S.  nth  July  1828,  §  8.  These  expense; 
cannot  be  given  in  the  Bill-Chamber,  but 
only  after  the  letters  have  been  expede,  or 
after  authority  has  been  obtained  to  diseoss 
the  reasons  on  the  bill.  A  general  finding 
of  expenses  in  favour  of  the  suspender  does 
not  carry  his  expenses  in  the  inferior  Court 
In  a  suspension,  the  Court  cannot  remit  to 
the  inferior  Court  to  decide  the  question  as 
to  the  expenses  in  the  Court  of  Session.  As 
to  the  respondent's  expenses,  see  Advocation. 
When  the  Court  remits  a  case  to  the  Sheriff, 
with  instructions  to  repel  the  dilatory  de- 
fences, it  is  competent  to  give  power  to  the 
Sheriff  to  decide  all  questions  of  expenses  re- 
lative to  said  defences.  Where  expenses  have 
been  found  due  and  modified,  the  agent  who 
has  conducted  the  process  for  the  party  who 
has  been  found  entitled  to  expenses,  may  re- 
quire the  Court  or  the  Lord  Ordinary  to 
pronounce  decree  for  the  expenses  in  his  name 
against  the  advei-se  party.  And  where  an 
interlocutor  has  been  pronounced  finding  ex- 
penses due,  or  which,  by  necessary  implica- 
tion, carries  expenses,  the  right  of  the  agent 
to  claim  those  expenses,  and  to  have  decres 
in  his  own  name  for  them,  cannot  be  defeated 
by  a  compromise  of  the  law-suit ;  Hamilton, 
17th  June  1813,  Fac.  CoU. ;  BeWs  Com.  ii.  39, 
and  cases  there  cited.  As  to  the  agent's  pre- 
ference for  his  expenses  over  tlie  fand  re- 
covered, or  in  competition  with 'the  creditors 
of  the  p&rtj,  see  Hypothec.  Lien.  As  to  the  lia- 
bility of  attorneys  or  mandatories  for  expenses, 
see  Defender.  In  jury  causes,  it  is  competent  to 
award  the  expenses  of  discussing  questions  of 
law  and  relevancy  at  the  time  theyare  disposed 
of;  but  thisis  not  usual.  When  a  party  prevails 
on  any  incidental  point,  he  ought  always  to  get 
the  expenses  connected  with  it  at  once.  When 
a  new  trial  has  been  granted,  the  previous 
expenses  are  either  awarded  as  a  condition, 
or  simpliciter  refused,  or  reserved  till  the  issue 
of  the  second  trial.  Cases  illustrative  of  these 
differeut  points  will  be  found  analysed  in 
Macfarlane's  Jury  Prac.  p.  283.    The  general 


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rale  is,  that  a  new  trial  will  be  granted  with- 
out payment  of  previous  expenses,  where 
the  first  verdict  is  set  aside,  through  an  error 
in  law  on  the  part  of  the  presiding  judge  as 
to  the  admission  or  rejection  of  evidence,  or 
in  his  charge  to  the  jury ;  or  in  respect  of 
the  jury  having  disregarded  the  law  given  to 
them  by  the  judge.  But  where  the  new  trial 
is  granted  on  any  ground,  except  an  error  in 
law  on  the  judge's  part,  that  renders  it  essen- 
tial to  the  jnstice  of  the  case  that  it  should  be 
tried  again,  the  expenses  of  the  first  trial  are 
iometimes  allowed,  hut  there  is  no  absolute 
role  on  the  subject ;  Dargie,  19  D.  878.  At  the 
termination  of  the  cause,  the  question  of  ex- 
penses can  only  be  taken  up  in  the  Division  of 
the  Court  to  which  the  case  belongs,  on  a 
motion  duly  lodged  and  intimated,  which  is 
Bsually  done  when  application  is  made  to  hare 
the  verdict  applied.  In  general,  the  party 
obtaining  the  verdict  is  entitled  to  his  ex- 
penses ;  but  this  rule  is,  in  special  circum- 
itaoces,  subject  to  exceptions.  To  get  expenses, 
it  is  not  necessary  that  a  party  should  succeed 
to  the  full  extent  of  his  claims.  It  is  enough 
that  he  has  substantially  succeeded  in  the 
point  at  issue.  Questions  of  expenses  are  for 
the  discretion  of  the  Court  in  consideration  of 
the  eirenmstances  of  each  case,  and  no  abso- 
Inte  rules  can  be  laid  down  on  the  subject.  It 
nay  be  observed,  however,  that  a  losing  party, 
ilthough  he  may  have  been  successful  on  one 
point,  will  not  get  expenses  on  that  point 
miless  it  involved  a  question  of  character,  and 
vas  attended  with  additional  expense.  John- 
fton,  18  D.  1234.  When  the  action  has  been 
bronght  for  defamation,  or  violation  of  per- 
■onal  liberty,  and  no  retractation  or  apology 
hat  been  offered,  the  pursuer,  if  he  obtain  a 
verdict,  though  only  for  nominal  damages,  is 
entitled  to  expenses;  Ami  v.  King,  18  D.  98. 
Bat  see  also,  Maton  v.  Tait,  13  D.  1282 ;  and 
Awiiy,  14  D.  314, 3050.  But  where  the  loss 
alleged  is  definite  and  specific,  a  verdict  for  a 
party  with  nominal  damages  does  not  carry 
expenses.  Expenses  may  be  modified  in  cou- 
nderation  of  pircumstances.  Where  a  party 
is  successful  only  on  some  of  several  issues, 
but  upon  the  whole  gets  damages,  he  is  en- 
titled to  his  expenses,  under  deduction  of  the 
portion  applicable  to  the  issues  which  he  has 
lost,  and  that  portion  he  must  sometimes 
pay  to  the  other  Tparty ;  A.  S.  19 th  Dec. 
1835.  Where  the  loss  has  been  definite,  and 
vhere  the  defender  has  tendered  a  sum  by 
*aj  of  reparation,  along  with  the  expenses 
of  process,  up  to  the  date  of  the  tender,  he 
viU  be  liable  in  expenses,  if  the  jury  award 
««r«  than  that  sum,  but  he  will  be  entitled 
to  expenses  if  they  give  less.  Although  this 
mle  does  not  apply  to  actions  for  defamation, 
and  others  of  that  description,  where  a  pub- 


lic investigation  is  necessary,  yet,  in  one  case, 
the  defender  got  expenses,  in  respect  of  a 
tender  of  L.50,  the  jury  finding  for  the  pur- 
suer only  one  shilling  of  damages.  See  Ten- 
der. With  regard  to  the  expense  of  ap- 
peals to  the  House  of  Lords,  from  judgments 
of  the  Court  of  Session,  the  following  points 
seem  to  be  fixed : — 1st,  Where  expenses  have 
been  awarded  by  the  House  of  Lords,  upon  a 
final  discussion  of  the  appeal,  the  Court  of 
Session  is  in  use  to  grant  decrees  for  those 
expenses  in  a  summary  manner.  But  the 
Court  will  not  do  so  where  the  appeal  has 
been  witlidrawn  with  permission  of  theHouse, 
on  payment  of  costs.  In  that  case,  the  re- 
medy against  the  party  who  attempts  to  re- 
sile, is  to  repudiate  the  arrangement,  and 
apply  to  the  House  of  Lords  for  a  discussion 
of  the  appeal ;  for,  until  the  condition  of  the 
withdrawal  is  complied  with,  the  appeal  is 
still  in  dependence ;  Brown,  20th  July  1784 ; 
Mor.  p.  4042.  2d,  Where  a  judgment  of  the 
Court  of  Session  is  reversed  on  appeal,  and 
the  case  remitted  to  the  Court  of  Session  to 
apply  the  judgment,  without  an  instruction 
to  give  the  appellant  the  expenses  of  the  pre- 
vious litigation,  they  cannot  afterwards  be 
awarded ;  Pringle,  6th  March  1799,  Mor.  App. 
Expenses,  No.  I;  Geddes,  16th  Feb.  1816, 
Foe.  Coll. :  Wilson,  18th  J  une  1818,  Fac.  Coll. ; 
Colquhoun,  17  D.  245. 

By  sundry  statutes  and  acts  of  sederunt 
regulating  procedure  before  the  Court  of  Ses- 
sion, the  Court,  or  the  Lord  Ordinary,  is  em- 
powered to  repone  parties  on  payment  of  the 
whole,  or  of  a  portion  of  the  expenses  pre- 
viously incurred.  Generally  speaking,  a  party 
may  be  reponed  against  any  proceeding  to 
his  prejudice,  which  has  taken  place  in  his 
absence,  or  even  against  judgments  in  foro, 
where,  by  accident  or  inadvertence,  he  has 
allowed  an  interlocutor  against  him  (not 
otherwise  final)  to  become  final.  See  Hon- 
ing. Other  statutes  and  rules  of  Court  have 
rendered  it  imperative  on  the  Court,  in  certain 
cases,  to  award  the  expenses  against  the  un- 
successrul  party.  Thus,  the  bankrupt  statute, 
54  Geo.  III.,  c.  137,  §  28,  provided,  that  the 
unsuccessful  competitorforatrusteeshipshould 
pay  the  expense  of  the  competition  ;  and,  al- 
though there  is  now  no  express  enactment  on 
that  subject,  the  principle  applies  to  competi- 
tions for  the  office  of  common  agent,  and  to 
unsuccessful  objections  to  the  Auditor's  re- 
ports. See  A.  S.  lltt  Juli/ 1794,  §  4 ;  6tt  Feb. 
1806  ;ancJ19<AZ)e«.  1835.  Common  Agent.  lu 
several  British  statutes,  some  of  which  ex- 
tend to  Scotland,  the  successful  party  is  en- 
titled to  donhle  or  treble  costs.  In  such  cases 
the  rule  is,  that  the  costs  given  by  the  Court 
de  incremento,  as  it  is  termed,  are  to  be 
doubled  or  trebled,  as  well  as  those  given  by 


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the  jury.  But  double  or  treble  costs  do  not 
mean,  according  to  their  literal  import,  tieice 
or  thrice  the  amount  of  single  costs.  For  where 
a  statute  gives  double  cost8,theyare  to  be  calcu- 
lated thus:  /r«<,  the  common  costs,  and  then  A<i{^ 
theeommon  costs.  If  treble  costs,j(!r«(  the  com- 
mon costs;  secon({/^,half  of  these;  and  then  half 
of  the  latter.     See  Tomlins'  Diet,  voce  Costs. 

Trustees  on  bankrupt  estates,  litigating 
unsuccessfully,  and  also  other  trustees,  if  they 
litigate  unnecessarily  and  improperly,  will 
be  found  personally  liable  in  expenses.  Torbet, 
1849, 11  D.  694 ;  HiU,  1862,  1  Stuart,  494 ; 
Morrison,  1848,  11  Z).297  ;  Clyiuft  Trustees, 
1840, 2  D.  554 ;  SmiOt,  1838, 16  Sh.  1223. 

As  to  the  expenses  in  which  an  unsuccess- 
ful pursuer  is  to  be  held  liable  where  there 
are  several  defenders,  see  the  cases  of  Edin- 
burgh  and  Glasgow  Railioay  Company,  1858, 
20  D.  677 ;  Leslie,  1858,  ib.  p.  787.  In  jury 
causes,  there  is  no  absolute  rule  requiring  pay- 
ment of  expenses  as  a  condition  of  a  new  trial ; 
Dargie,  1857,  19  D.  878.  In  some  eases  an 
action  may  proceed  as  to  the  matter  of  ex- 
penses when  no  practical  question  as  to  the 
merits  remains ;  but  where  he  pendente  lite 
settles  the  dispute  in  such  a  way  as  to  direst 
bim  of  all  title  to  sue,  he  cannot  in  general 
be  allowed  to  go  on  in  order  to  gel  decree  for 
expenses ;  DMe,  1856,  18  D.  1043.  As  to 
joint  and  several  liability  of  defenders  for 
expenses,  see  cases  of  Madcemie  and  Logan, 
1852,  15  D.  61,  94.  As  to  certain  items  of 
expense  in  jury  causes,  see  A.  S.,  16th  Feb. 
1841,  §  45 ;  \QthJuly  1844 ;  18tt/«ty  1850. 
As  to  expenses  prior  to  litigation,  which  are 
not  carried  by  a  decree  for  expenses,  see 
Prism  Board,  1852, 14  D.  737. 

Under  recent  acts  costs  may  now  be  given 
both  for  and  against  the  Crown ;  18  and  19 
Vict.,  c.  90 ;  19  and  20  Viet.,  c.  56,  §  24.  An 
ai  biter  has  power  to  award  expenses  though 
no  mention  of  them  be  made  in  the  submis- 
sion ;  Ferrier,  5  D.  456,  App. ;  4  Bell,  161.  As 
to  expenses  in  advocations  and  suspensions, 
see  these  articles.  In  advocations  decree  for 
expenses  in  the  Supreme  Court  carries  those 
in  the  InferiorCourt  as  well ;  Sinclair,  1855, 17 
D.  784 ;  but  see  also,  Bosweli,  1848, 10  D.  808. 
In  actious  by  a  husband  against  a  wife  for 
divorce  or  separation,  the  former  is  generally 
bonnd  to  furniiih  the  latter  with  the  means 
of  defending  herself;  and  in  actions  by  the 
wife  against  the  husband,  she  will  also  get 
from  the  Court,  if  she  has  established  a  prinM 
facie  case,  decree  against  the  husband  for  such 
sums  as  maybe  necessary  to  carry  on  the  action. 
Fraser's  Rel.  i.  380;  Shand^s  Prac.  429. 

The  principles  above  explained  apply  to 
the  expenses  in  inferior  courts,  as  well  as  in 
the  Court  of  Session.  In  actions  which  are 
brought  in  an  incompetent  court,  or  in  an 


incompetent  form,  or  in  which  parties  sre 
called  who  ought  not  to  have  been  cited  as 
defenders,  expenses  will  be  awarded  agaiixt 
the  pursuer.  And,  in  inferior  courts,  the 
rate  of  charges  is  fixed  by  the  regulations  of 
the  court  before  which  the  action  depends ; 
Sinclair,  I6th  June  1825.  In  one  case,  the 
question  was  raised,  but  not  decided,  whether 
such  charges  could  be  sustained,  where  the 
inferior  court  rate  of  charges  was  higher 
than  that  fixed  in  the  Court  of  Session ;  Ckr- 
niitghatne,  9th  March  1822,  1  S.d  D.  Zib. 
In  some  counties,  it  is  the  practice  for  the 
Auditor  (in  conformity  with  the  rule  in  the 
Supreme  Court,  introduced  by  A.  S.  19th 
Dec.  1835),  in  taxing  accounts  as  between 
party  and  party,  to  disallow,  of  his  own  ac- 
cord, all  charges  for  pleadings,  iic,  in  which 
the  claimant  of  the  account  has  been  un- 
successful ;  although  he  may  have  ultimately 
obtained  decree  in  his  favour  on  the  whole 
subject-matter  of  the  process.  In  other  coun- 
ties, the  sherifiT,  in  finding  expenses  due,  finds 
that  they  are  subject  to  modification  in  re- 
spect of  such  unsuccessful  pleadings.  The 
auditor  thereupon  taxes  the  whole  item  of 
the  accounts,  agreeably  to  the  scale  of  regu- 
lations, and  the  sheritf  thereafter  applies  the 
modification,  upon  the  Auditor's  report  being 
laid  before  him.  The  parties,  on  being  heard 
before  the  Auditor,  tisually  get  the  portions 
of  his  report,  to  which  they  respectively  ob- 
ject, marked  as  appealed  from.  The  caw  is 
then  put  t«  the  roll,  and  parties'  agents  are 
heard  viva  voce  before  the  sheriff  upon  their 
appeals.  Avizandum  is  thereupon  made,  and 
the  sheriff,  on  considering  the  Auditor's  re- 
port, and  the  vtva  voce  objections  and  answers 
of  parties,  modifies  the  account  to  the  amount 
which  he  may  consider  right,  and  pronounces 
decree  for  the  sum  so  modified.  See  Mac- 
laurin's  Sheriff-Court  Prae.  ii.  398,  H  seq. 

In  criminal  prosecutions,  if  statutory,  no 
costs  can  be  given  unless  sanctioned  by  the 
statute.  By  if  Geo.  IV.,  c.  29,  §  23,  no  fees 
or  expenses  of  any  description  are  exigible  by 
the  clerks  or  other  officers  of  a  criminal 
court  from  any  person  on  whom  a  criminal 
libel  shall  have  been  served,  "unless  the 
same  shall  form  part  of  the  sentence  of  the 
Court."  This  seems  to  imply  that  expenses 
may  form  part  of  a  sentence,  and  expenses 
have  been  awarded  against  procurators-fiscal 
where  the  charge  was  dismissed  as  irrelevant, 
and  as  not  amounting  to  a  crime ;  Prentice,  1 
Broun,  561.  As  to  awarding  expenses  against 
a  panel  pursued  only  by  the  public  pro- 
secutor, see  2  Hume  493,  Note  1 ;  and  on 
the  subject  of  expenses  in  criminal  cases  ge- 
neraUy,  2  Hume,  69, 128, 134,  Note  l.,376, 
382;  2  il/ti<7n,  39, 113, 355,  676.  See,  on 
the  subject  of  this  article  generally,  Stair,  B. 

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IT,  tit.  3,  §2;  Mart's  Notes,  p.  ccxc;  Ersk. 
B.  iT.  tit.  3,  §  18,  et  seq. ;  BdVs  Com.  i.  649  ; 
Brvvn's  Synop.  h.  t.,  and  p.  2168 ;  M'Glashan's 
Sheriff  Courts,  337,  et  seq.;  Shand's  Prac. 
1026,  et  seq;  Shaw's  Digest,  h.  t.  See  Hypo- 
ikee.    Lien.    Retention. 

E^oung  Cluldren.  The  offence  of  ex- 
posing and  deserting  an  infant  child,  if  ac- 
companied with  circamstances  proving  an  in- 
tention to  destroy,  and  followed  by  death  in 
eonieqaence  of  the  expoenre,  amonnts  to  the 
crime  of  mnrder.  Whether  this  be  the  case 
where  there  is  no  evidence  of  an  intention  to 
destroy,  but  the  child  dies  by  an  accident 
connected  with  the  exposnre,  may  be  more 
qnestionable ;  but  on  principle,  the  reckless 
exposnre  of  an  infant  child  to  the  risk  of 
death,  followed  by  death,  seems  to  be  nothing 
lees.  Even  although  the  child  does  not  pe- 
ritb,  its  desertion  and  exposure  to  any  con- 
siderable risk  is  a  crime  punishable  arbitra- 
rily, according  to  the  circumstances  of  the 
esse,  and  which  has  been  punished  with  whip- 
ping, imprisonment,  or  banishment.  A  charge 
of  "wickedly,  wilfully,  and  feloniously,  ex- 
posing an  in&nt  child,  in  a  situation  of  dan- 
ger to  its  life,  by  the  mother  of  such  child," 
has  been  sustained  as  relevant.  Oibson,  1845 ; 
2  Broun,  366  ;  Hume,  i.  295 ;  Alison's  Frinc. 
162.    See  Child-Murder. 

Expiry  of  the  Legal;  is  the  expiration  of 
the  period  within  which  the  subject  of  an  ad- 
jndieation  may  be  redeemed,  on  payment  of 
the  debt  adjndged  for.  Before  the  debtor  can 
be  foreclosed,  and  his  right  of  redemption  cut 
off,  there  must  be  either, — (1.)  decree  in  an 
action  of  declarator  of  expiry  of  the  legal, 
at  the  instance  of  the  adjudger  or  adjudgers, 
against  the  debtor;  or,  (2.)  possession  on 
charter  and  sasine  for -forty  years.  Jurid. 
Styles,  2d  edit.  vol.  iii.  p.  407  ;  Shand's  Prac. 
f.  715.    See  Adjudication.    Legal. 

E^mnniBior.  According  to  the  distinc- 
tion of  the  Roman  law,  an  expromissor  was 
one  who  undertook  the  debt  of  another,  by 
snbstituting  himself  as  principal  debtor,  in 
room  of  the  former  obligant ;  who,  in  so  far 
u  concerned  the  creditor,  was  liberated  from 
hii  obligation.  An  adpromissor  or  fidejussor, 
on  the  other  hand,  was  more  properly  a 
eaotioner,  inasmuch  as  he  merely  acceded  to, 
or  bound  himself  in  terms  of  the  obligation  of, 
the  principal  debtor,  who  also  remained  bound 
to  the  creditor.  Stair,  B.  i.  tit.  17,  §  3; 
Bmk.  B.  i.  tit.  23,  §  25 ;  Ersk.  B.  iii.  tit.  4, 
§  22.     See  Cautionary. 

Extent ;  is  the  name  given  to  the  ancient 
ceuus  or  general  valuation  put  upon  all  the 
lands  in  Scotland,  for  the  purpose  of  regulat- 
ing the  proportion  of  public  subsidies  or  taxes 
exigible  from  them,  as  well  as  for  ascertaining 
the  amount  of  the  casualties  dne  to  the  supe- 


rior. The  precise  period  at  which  a  valua- 
tion of  this  kind  was  first  made,  has  not  been 
clearly  ascertained,  although  it  has  long  been 
the  subject  of  inquiry  and  controversy  amongst 
lawyers  and  antiquaries.  It  appears,  how- 
ever, that,  so  early  as  the  year  1474,  the  old 
extent  or  valuation  had  been  deemed  in- 
adequate ;  and,  accordingly,  the  statute  1474, 
c.  56,  ordains  that,  in  the  retoui-s  made  to 
Chancery,  the  inquest  shall  state  "  what  the 
land  was  of  avail  of  the  auld,  and  the  very 
avail  it  was  worth,  and  gives  the  day  of  the 
serving  of  the  said  brieve."  Under  that 
statute,  according  to  the  generally  received 
theory,  the  practice  for  some  time  prevailed 
of  adducing  evidenee  before  the  inquest,  of  the 
real  rent  or  value  of  the  lands  at  the  time, 
which,  as  well  as  the  old  extent,  or  more  an- 
cient valuation,  was  accordingly  stated  in  the 
retour.  But  after  lands  had  been  once  so 
valued,  it  is  said  that,  on  the  occasion  of 
future  retours,  a  new  valuation  was  not  made, 
but  that  the  amount  of  the  new,  as  well  as  of 
the  old  extent,  was  taken  from  the  former 
retour ;  and  that,  even  where  no  evidence  of 
the  present  value  had  been  adduced,  a  prac- 
tice was  introduced  of  stating  in  the  retour 
the  present  value  at  a  quadruple,  quintuple, 
or  sextuple  of  the  old  extent,  according  to  the 
custom  of  retonring  lands  in  the  particular 
shire;  Hope's  Minor  Practicks,  p.  194,  edit. 
1734.  In  this  manner,  the  new  and  the  old 
extent  are  supposed  to  have  been  ascertained 
— ^the  new  extent  being  the  valuation  thus 
fixed,  and  the  old  extent  consisting,  as  has 
been  generally  understood,  of  a  valuation 
made  in  the  reign  of  Alexander  III.,  or,  at 
any  rate,  at  some  time  prior  to  1474  ;  Ersk. 
B.  ii.  tit.  5,  §  33 ;  Skene,  voce  Extent;  Kame^ 
Law  Tracts,  Tract  JCJV.  Neither  of  these 
valuations  extended  to  church  lands,  the  share 
of  the  subsidies  applicable  to  them  beiug  levied 
from  the  beneficiaries,  according  to  the  value 
of  their  benefices,  as  settled  by  Bagimont's 
Roll ;  Ersk.  B.  iii.  tit.  5,  §  34.  See  Bagimont's 
Boll,  During  the  Usurpation  a  more  equit- 
able rule  of  assessment  was  introduced,  and 
the  rates  laid  upon  each  county  precisely 
fixed.  After  the  Restoration,  yery  nearly  the 
same  system  was  continued — statutory  com- 
missioners being  appointed  to  apportion  the 
general  sum  laid  upon  each  county,  upon  the 
different  lands  in  the  county,  according  to 
their  reqtective  real  rents.  See  &e  Act  of 
Convention,  23d  Jan.  1667.  The  rent  fixed  by 
those  valuations  is  commonly  called  the  v(Uued 
rent;  according  to  which,  the  land-tax,  and 
most  of  the  other  public  and  parochial  assess- 
ments, have  been  since  imposed.  It  was  like- 
wise the  rule,  under  the  old  election  law,  for 
regulating  freehold  qualifications  where  the 
old  extent  did  not  appear ;  1681,  c.  21.    See 

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article  Election  Law*.  Ersltine's  account  of 
old  and  new  extent  18  abridged  from  Lord 
Kamaf  Historical  Law  Tracts,  Tract  IIV.; 
and  the  same  authority  has  been  followed  by 
more  recent  writers,  Lord  Karnes  having  l^een 
indebted  for  the  materials  of  bis  theory  to  Mr 
John  Davidson,  a  very  learned  member  of  the 
society  of  writers  to  the  signet.  But  see  the 
subject  of  extents  largely  and  learnedly  treated, 
and  Lord  Karnes'  views  modified  and  cor- 
rected, in  the  case,  Cranston  v.  Gibson,  18th 
May  1818,  Fac.  Coll., — one  of  the  papers  in 
which  case,  written  by  Mr  Thomson,  deputy- 
clerk  register,  and  extending  to  280  quarto 
pages,  was  stated  from  the  Bench  to  contain 
a  very  learned  treatise  on  the  old  extent. 
See  also  Skwe,  voce  Extent ;  Balfour's  Practick's, 
p.  430 ;  Craig,  d*  Feudis,  lib.  ii.  dieg.  17,  § 
36 ;  Stair,  B.  iii.  tit.  5,  §  38 ;  Mackmsie's 
Inst.  B.  ii.  tit.  5,  §  18 ;  Hope's  Minor  Practicks, 
tit.  iv.  §  14 ;  Bank.  B.  iii.  tit.  5,  §  32 ;  Kames' 
Law  Tracts,  Tract  JIV.;  Kames'  Stat.  Law 
Ahriig.  h.  t. ;  Ersk.  B.  iii.  tit.  5,  §  31,  et  seq. ; 
Hailes'  Annals,  vol.  i.  p.  202 ;  Wight  on  Elec- 
tions, p.  160,  et  seq. ;  BeWs  Election  Law,  p. 
154,  et  seq.;  Bell's  Princ.  §  1830. 

Extent,  Crown's.  An  extent,  in  the  accep- 
tation of  the  English  law,  is  a  writ  of  execu- 
tion or  commission  to  the  Sheriff  for  the 
valuing  of  lands  and  tenements ;  and  some- 
times the  act  of  the  Sheriff  or  other  commis- 
sioner upon  this  writ ;  Tomlins'  Diet  h.  t.  By 
the  treaty  of  Union  between  Scotland  and 
England,  the  revenue  laws  of  the  two  countries 
were  assimilated ;  and  the  Crown's  preference 
and  the  English  execution  by  extent  (so  far 
at  least  as  concerns  moveable  property),  was 
introduced  in  revenue  matters,  under  the  ex- 
ception, and  in  the  manner  explained  under 
the  articles  Cr«vm  Debts  and  Exchequer.  The 
process  of  extent,  thus  introduced,  was  a 
speedy  remedy  given  to  the  Crown  for  recover- 
ing money  due  to  the  public.  Originally,  in 
England,  this  execution  was  confined  to  land ; 
but  by  statute  33  Henry  YIIL,  c.  39,  it  is 
authorized  to  be  given  to  the  Crown  for 
attaching  the  body,  lands,  goods,  and  debts  of 
the  Crown  debtor,  for  the  recovery  of  all  sorts 
of  debts  due  to  the  Crown.  Where  the 
Crown  debt  is  due  by  bond,  either  in  the 
English  or  Scotch  form,  a  writ  of  extent  may 
issue  on  production  of  the  bond  with  an  affi- 
davit, and  without  any  preliminary  step.  If 
the  debt  be  by  simple  contract,  it  must  be 
made,  what  is  termed  in  the  law  of  England, 
maUer  of  record^  before  a  writ  of  extent  can 
issue.  In  the  case  of  a  partnership  debt,  the 
extent  may  issue  against  the  several  copart- 
ners ;  but  for  the  debt  of  an  individual  part- 
ner, the  Crown  can  take  no  more  than  his 
interest  in  the  company  goods,  after  payment 
of  the  company  debts.    The  application  in 


Exchequer,  for  a  writ  of  extent,  is  accom- 
panied by  an  affidavit  stating  the  amount  ef 
the  debt,  and  that  there  is  danger  of  its  \x\n% 
lost  to  the  Crown  unless  the  extent  be  issued. 
The  fiat  or  warrant  for  a  writ  of  extent  may 
be  obtained  at  any  time,  either  during  term 
or  vacation,  on  application  to  the  Judge  in 
Exchequer,  by  whom  the  fiat  is  signed — the 
date  of  the^(  being  the  date  of  the  testii^ 
of  the  writ.  The  writ  is  tested  by  the  Judge, 
and  sealed  with  the  Exchequer  seal.  The 
writ  of  extent  directs  the  Sheriff  to  take  the 
person  of  the  Crown  debtor,  and  to  take  and 
appraise  his  effects  aud  debts.  In  Scotland, 
the  moveable  estate  only  of  the  debtor  coold 
be  taken ;  and  the  general  rules  were, — \A, 
That  all  goods  and  effects,  the  absolute  pro- 
perty of  the  Crown  debtor  at  the  tute  of  the 
writ,  might  be  taken,  into  whose  hands  soever 
they  might  have  come  since  that  time ;  and, 
2d,  That  money  might  be  seized,  and  all 
debts  due  to  the  Crown  debtor,  or  assigned 
by  him  since  the  teste  of  the  writ.  But  Ima 
fide  cash  payments  made  since  the  tesU  were 
not  affected.  The  Sheriff,  in  execution  of  the 
writ,  was  not  authorized  to  sell  or  convert 
the  effects  into  money,  until  the  wnditimi  er- 
ponas  had  issued;  and  after  the  goods  had 
been  sold,  under  that  authority,  to  the  amooat 
of  the  Crown  debt,  the  proceed  were  returned 
to  Exchequer  for  the  use  of  the  Crown,  under 
deduction  of  poundage  aud  extra  allowance, 
which  the  Sheriff  was  entitled  to  claim  on  a 
motion  in  Exchequer.  An  extent  in  the 
second  degree,  as  it  was  termed,  was  the  process 
by  which,  on  the  insolvency  of  a  Crovn 
debtor,  the  debts  due  to  him  by  his  dAlen 
were  made  effectual  to  the  Crown.  This  pro- 
cess was  issued  from  Exchequer  on  an  affidavit 
of  the  Crown  debtor's  insolvency,  on  which 
affidavit  a  fiat  was  granted  for  a  writ  of  ex- 
tent against  the  debtor  of  the  Crown  debtor ; 
and  the  same  process  might  be  repeated  in  the 
third,  and  even  in  the  fourth  degree.  Such 
an  extent  was  called  an  extent  in  chief  in  the 
second,  third,  or  fourth  degree ;  and  it  differed 
from  an  extent  in  aid,  inasmuch  as  it  was  sued 
out  by  the  Crown  as  the  rod  plaintif,  for  the 
direct  recovery  of  the  Crown  debt,  wherets 
an  extent  in  aid  was  sued  out  only  nominaUg 
by  the  Crown,  but  really  by  a  Crown  debtar, 
for  the  recovery  of  a  debt  due  to  himself,  and 
for  his  own  benefit.  An  extent  ts  ais  pro- 
ceeded on  the  fact,  or  fiction,  that  the  Crown 
debtor  was  less  able  to  pay  under  the  Crown's 
extent  against  himself,  than  he  would  have 
been  if  he  could  have  recovered  the  debts  doe 
by  another  to  him.  Hence,  this  extent  was 
said  to  be  obtained  tn  aid  of  a  previous  extent, 
at  the  Crown's  instance,  against  the  applicant 
for  an  extent  in  aid ;  and  the  writ  accordingly 
issued,  not  against  the  Crown  debtor,  bat 

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against  the  debtor  to  the  Crown  debtor.  For 
•  history  of  the  abuses  of  extents  in  aid,  see 
BeWt  Com.  vol.  ii.  p.  47,  5th  edit.  These 
abuses  were  at  last  attempted  to  be  remedied 
by  the  statute  57  Geo.  III.,  c.  117,  proceed- 
ing on  the  preamble, — "  That  extents  in  aid 
hare,  in  many  cases,  been  issued  for  the  levy- 
ing and  recovery  of  larger  sums  of  money 
than  were  due  to  bis  Majesty  by  the  debtors, 
on  whose  behalf  such  extents  were  issued." 
And  also,  "  That  extents  in  aid  have  been 
i«aed  at-  the  instance  and  for  the  benefit  of 
persons  indebted  to  his  Majesty  by  simple 
contract  only."  To  remedy  which  evils,  it 
was  enacted, — 1st,  That  the  amount  of  the 
debt  doe,  or  claimed  to  be  due,  by  the  prin- 
cipal debtor  to  the  Crown,  should  be  stated 
in  tht/aL  2d,  That^  where  the  sum  found 
due  to  the  Crown  debtor  should  be  equal  to, 
or  exceed  the  Crown  debt,  as  stated  in  the 
/at,  the  amount  of  the  debt  in  the /at  should 
be  indorsed  on  the  writ  of  extent  in  aid,  and 
should  be  deemed  the  authority  as  to  the 
amoant  to  be  levied.  3d,  That,  where  the 
debt  due  to  the  Crown  debtor  should  be  less 
than  the  debt  due  to  the  Crown,  as  staled  in 
the  fiat,  the  amount  of  the  debt  due  to  the 
Crown  should  be  indorsed  on  the  writ,  as  the 
aothority  for  the  amount  to  be  levied,  the 
money  so  levied  being  paid  over  to  the  Crown, 
in  latisfaetion  pro  tanto  of  the  Crown  debt. 
4<&,  That  where,  in  consequence  of  the  neres- 
lity  otherwise  of  splitting  the  debt,  more  than 
the  sum  indorsed  was  necessarily  levied,  the 
overplus  should  be  paid  into  the  Court  of 
Exchequer,  together  with  the  amount  of  the 
torn  indorsed ;  and  that  the  Court,  on  sttm- 
aary  application,  might  make  an  order  for 
the  return,  or  for  the  proper  disposal  of  snch 
nrplus.  5th,  That  the  Crown  debtor  should 
not,  by  the  extent  in  aid,  be  prejudiced  of 
other  means  of  recovering  his  debt.  As  to 
the  second  evil,  the  statute  declared  that  no 
extents  in  aid  should  be  given  to  debtors  by 
simple  contract,  for  debts  arisiug  to  the  Crown 
io  the  course  of  trade,  saving,  however,  the 
rights  of  debtors  who  had  become  so  by  simple 
contract  in  the  collection  or  receipt  of  money 
arising  from  his  Majesty's  revenue  for  his 
nse.  Any  Crown  debtor,  against  whom  an 
extent  in  chief  might  issue,  was  entitled  to 
have  an  extent  in  aid.  So  also  cantionera  or 
saretiestothe  Crown  for  debts  due  by  account- 
ants or  receivers  for  the  Crown — collectors  of 
taxes  who  have  actually  received  money  be- 
longing to  the  Crown  —  bankers,  or  other 
depijsitaries  of  money  arising  from  duties  or 
taxes,  or  deposited  officially  by  the  receiver- 
general —  persons  bound  as  distributora  of 
•tamps,  who  have  forfeited  their  bonds — 
traders  dealing  in  exciseable  commodities 
•ad  liable  to  account  at  stated  periods  for  the 


accruing  duties— farmers  of  duties,  and  the 
like  Crown  debtors — were  entitled  to  the 
benefit  of  this  writ.  But  it  was  not  enough 
that  one  should  be  indebted  to  the  Crown  for 
duties  as  an  individual ;  otherwise  any  one 
might  have  obtained  an  extent  in  aid.  The 
principle  on  which  an  extent  in  aid  was 
issued  was,  that,  without  it,  the  Crown  debtor 
would  be  insolvent  towards  the  Crown, — ». «., 
unable  to  discharge  the  debt  he  owed  the 
Crown.  But  the  fact,  whether  or  not  the 
Crown  debtor  were  actually  insolvent,  was 
not  very  scrupulously  inquired  into,  both  on 
account  of  the  difficulties  attending  such  an 
investigation,  and  also  on  grounds  of  expe- 
diency— ^the  public  interest  requiring  that 
facilities  should  be  given  for  the  recovery  of 
Crown  debts.  The  affidavit  for  an  extent  in 
aid  stated, — l«t.  The  debt  due  to  the  Crown 
by  the  Crown  debtor.  2d,  The  debt  due  to 
the  Crown  debtor  by  the  person  against  whom 
the  writ  was  to  issue ;  and  that  it  was  bona 
fide  due,  and  not  in  trust.  Sd,  That  the  debt 
due  to  the  Crown  debtor  was  in  danger  of 
being  lost  by  the  defendant's  insolvency ; 
and,  4th,  That  the  Crown  debtor  was  thereby 
less  able  to  pay  the  Crown  the  debt  due  by 
him.  On  this  affidavit,  an  extent  pro  forma 
was  issued  against  the  Crown  debtor,  which, 
with  the  affidavit  and  relative  grounds  of 
debt,  were  the  warrant  for  B.fiat,  authorising 
an  extent  in  aid  to  issue  against  the  debtor 
to  the  Crown  debtor ;  on  which  extent  exe- 
cutionfoUowed  in  the  mannerabove  explained. 
The  foregoing  account  of  extents  in  chief  and 
in  aid  is  abridged  from  Bell's  Com.  vol.  ii.  p. 
41,  et  seq.,  5th  edit. ;  which  work  may  be  con- 
sulted for  a  fuller  account  of  those  writs, 
accompanied  by  references  to  authorities. 
Karnes'  Stat.  Law  Abridg.  h.  t. ;  BelPs  Princ. 
§  2374,  et  seq.,  and  authorities  there  cited; 
Swiut.  Abridg.  voce  Exchequer. 

By  the  recent  Court  of  Exchequer  Act 
(19  and  20  Vict.,  cap.  66)  the  forms  of  pro- 
cedure against  Crown  debtors  have  been  remo- 
delled, and  to  a  considerable  extent  assimilated, 
to  the  procedure  in  other  cases.  Reference  is 
made  to  the  act  for  its  provisions.  By  these,  the 
Crown's  writ  of  extent,  although  not  expressly 
abolished,  appears  to  be  superseded.  See  par- 
ticularly the  provisions  as  to  procedure  on  affi- 
davit of  danger  (§  16)  and  the  form  and  exe- 
cution of  exti-act  decrees  (§  28,  et  seq.). 

Extortion.  Extortion,,  in  its  most  general 
acceptation,  is  any  oppression  under  colour 
of  right.  Hence,  in  the  law  of  England,  the 
term  is  usually  applied  to  the  abuse  of  public 
justice  which  consists  in  the  unlawful  taking, 
by  a  public  officer,  under  colour  of  his  office, 
of  any  money  or  valuable  thing  from  a  person 
where  none  is  legally  due ;  or  were  less  than 
the  sum  demanded  is  due  ;  or  where  the  sum 

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demanded  has  not  yet  become  due.  The  dis- 
tinction between  bribery  and  extortion  is  said 
to  be,  that  the  former  consists  of  the  offering 
or  accepting  of  a  present,  unduly  to  influence 
the  conduct  of  the  party  to  whom  it  is  offered, 
or  by  whom  it  is  accepted ;  whereas,  the  latter 
consists  in  demanding  a  fee  or  present,  by 
colour  of  office ;  Tomlint'  Diet.  h.  t.  See  also 
Exaction.  Bribery.  But,  in  the  phraseology 
of  the  law  of  Scotland,  the  term  extortion  is 
also  applied  to  the  offence  or  delict  of  com- 
pelling one  by  force  or  fear  to  execute  a  deed, 
or  to  perform  an  act,  or  to  contract  an  obli- 
gation, which,  of  his  own  inclination,  he 
would  not  have  done.  Such  force  or  fear 
excludes  that  liberty  of  action  which  is  requi- 
site to  constitute  legal  consent ;  for,  according 
to  the  expression  of  the  Roman  law,  Quamvis 
si  liber  esset,  noluisset,  tamen  coacttu  voluit. 
Acts  and  deeds  thus  extorted  may,  by  the  law 
of  Scotland,  be  set  aside  by  an  action  of  reduc- 
tion before  the  Court  of  Session;  in  which 
action,  if  the  party  alleging  extortion  prove 
his  allegation,  he  will  be  relieved  from  the 
consequences  of  the  act  or  deed,  even  against 
third  parties;  Wightman,  1787  ;  Mor.  1521; 
and  the  offender,  besides,  may  be  subjected  in 
damages.  Extortion,  as  well  as  fraud,  when 
stated  as  the  ground  for  reducing  a  deed,  may 
be  proved  by  evidence  prout  de  jure.  Stair, 
B.  i.  tit.  9,  §  8,  and  B.  iv.  tit.  40,  §  25 ;  Mon^g 
Notes,  p.  Iviii. ;  Bank.  B.  i.  tit.  10,  §  50,  et 
seq.;  Ersk.  B.  iv.  tit.  1,  §  26;  BeWs  Com.  i.  295, 
and  ii.  450.  See  also  Z>«2<c<.  Evidence.  As  to 
the  amount  offeree  or  fear  requisite  to  consti- 
tute extortion,  see  Force  and  Fear ;  Diet.  Vis 
et  Melus;  Priestnell  v.  Hutchison,  19  D.  495. 

Extract.  The  term  extract,  in  the  law  of 
Scotland,  signifies  either  the  proper  written 
evidence,  or  warrant  on  which  diligence  or 
execution  on  a  judicial  decree  may  issue ;  or 
it  signifies  a  copy,  authenticated  by  the  proper 
oflicer,  of  a  deed,  writing,  or  other  entry,  the 
principal  of  which,  either  is  in  a  public  record, 
or  a  transcript  of  which,  taken  from  the  prin- 
cipal, has  been  preserved  in  a  public  record. 
I.  The  extract  of  a  decree  is  a  written  instru- 
ment signed  by  the  proper  officer,  containing 
a  recital  of  the  claim  and  procedure  in  an 
action,  and  concluding  with  the  judicial  sen- 
tence or  award,  and  a  warrant  for  diligence 
in  execution,  the  form  of  which  is  regulated 
by  1  and  2  Vict.,  c.  114 ;  or,  in  the  case  of 
Exchequer  decrees,  by  19  and  20  Vict.,  cap. 
56.  See  ExecHtimi  of  Decrees.  The  extract 
must  be  signed  on  every  page  by  the  extractor 
or  other  officer  whose  duty  it  is  to  give  ex- 
tracts ;  nor  can  it  be  validly  attested  by  any 
other  person,  not  even  by  the  judge  who  pro- 
nounced it.  The  officer  who  makes  the  ex- 
tract being  a  public  functionary,  the  extract 
will  be  sufficiently  authenticated  by  his  sub- 


scription (without  witnesses)  to  every  page, 
the  number  of  pages  of  which  it  consists 
being  mentioned  mi  the  last  page.  But  it  is 
not  necessary  that  the  extract  should  be 
written  by  the  extractor,  nor  indeed  the 
writer  be  named  or  designed.  If  the  extractor 
gives  out  an  erroneous  exteact,  he  may  rectify 
the  mistake  by  a  second  extract ;  Tait  os 
Evidence,  p.  182,  et  seq.  The  long  extracts 
of  decrees  of  the  Court  of  Session,  and  of 
some  of  the  inferior  courts  formerly  in  use, 
in  which  the  whole  record  of  the  case  wai 
transcribed  verbatim,  were  abolished,  and 
abridged  forms  of  extracts  directed  to  be 
substituted.  See  60  Geo.  HI.,  e.  112 ;  land 
2  Geo.  IV.,  c.  39,  §  7 ;  4  Geo.  IV.,  c.  S»7. 
And,  by  1  and  2  Geo.  IV.,  c.  38,  §  17,  the 
signature  of  the  extractor  by  whom  the  decree 
in  the  Court  of  Session  is  extracted,  is  de- 
clared a  sufficient  authentication,  without 
requiring  the  subscription  ofa  principal  clerk 
of  Session,  as  was  formerly  the  practice.  See 
Decree.  II.  Extracts  of  deeds  or  writings, 
or  entries,  registered  in  judicial  or  public 
records,  are  certified  copies  of  the  deeds  or 
entries,  whether  they  be  deeds  by  public 
officers,  as  notarial  instruments,  or  executions 
by  messengers,  or  the  deeds,  obligations,  or 
contracts  of  private  parties,  or  the  entries  in 
registers  of  births,  deaths,  or  the  like.  Soeh 
extracts  are  in  like  manner  authenticated  by 
the  subscription  of  the  keeper  of  the  record, 
or  other  officer  duly  authorised.  Where  the 
deed  has  been  recorded,  in  virtue  of  a  clause 
of  registration,  consenting  to  execution,  an 
extract  or  decree  of  registration  which  is  a 
mere  transcript  of  the  deed,  with  a  decree  of 
the  Court  interponed  jictione  jwris,  in  terms 
of  the  consent,  is  issued,  on  the  demand  of  the 
party  ordaining  implement  of  the  obligation, 
which  extract  is,  like  the  extract  of  a  judicial 
decree,  signed  by  the  extractor,  and  may  be 
the  warrant  for  diligence  to  enforce  payment 
or  performance  in  terms  of  the  obligatioo 
contained  in  the  deed.  See  Decree  tf  Regis- 
tration. As  to  the  evidence  afforded  by  ex- 
tracts, whether  from  judicial  or  other  records, 
see  Evidence,  supia,  p.  367  ;  Dickson  on  Evi- 
dence, pp.  625-635.  On  the  subject  of  the 
present  article  generally,  see  Stair,  B.  ii. 
tit.  3,  §  24,  and  B.  iv.  tit  1,  §  45 ;  Mor^s 
Notes,  p.  r.  and  cccixxxi. ;  Batii.  B.  iv.  tit. 
36,  §  1 ;  and  B.  ii.  tit.  3,  §  44 ;  Ersk.  B.  iv. 
tit.  2,  §  6 ;  Shmd's  Prae.  p.  381 ;  Maekuri^'s 
Sheriff-Court  Prac.  428,  et  seq.;  M'Giofki't's 
do.,ii58,etseq.;  Ross'sLect.  i\.  208;  Alexander's 
Abridg.  of  A.  S. ;  Tait  on  Evidence,  p.  184,  <*  seq. 
Extractor;  is  the  official  person  by  whom 
the  extract  of  a  decree  or  other  judicial  pro- 
ceeding is  prepared  and  authenticated.  This, 
generally  speaking,  is  the  duty  of  the  clerk  of 
court.   Tho  Stat.  50  Geo.  III.,  c.  92,  by  which 

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the  abridged  forms  of  extracts  of  the  decrees  of 
the  Court  of  Session  were  introduced,  directs 
that  the  extracts  shall  be  prepared  by  the  six 
aasittants  of  the  principal  clerksofSession,each 
extract  being  authenticated,  as  formerly,  by  the 
signature  of  one  of  the  principal  clerks.  But,  by 
the  statute  1  and  2  Geo.  I V.,  c.  38,  §  17,  extracts 
of  the  decrees  of  the  Court  of  Session  from  and 
after  the  20th  Jaue  1821,  were  directed  to  be 
prepared  by  one  or  other  of  four  extractors  to 
be  nominated  by  the  principal  clerks  of  Session, 
vho  were  responsible  for  the  due  discharge  of 
the  official  duty  of  the  extractors.  The  ex- 
tractors thus  appointed  were  under  the  super- 
intendence and  control  of  the  principal  clerks, 
and  removable  at  their  pleasure.  The  salary 
of  each  extractor  was  L.250  per  annum,  and 
he  was  entitled  to  no  other  fee  or  emolument, 
except  the  ordinary  charge  forcopying.  By  this 
statute  it  was  also  provided,  that  the  signa- 
ture of  a  principal  clerk  of  Session  should  be 
DO  longer  necessary  to  authenticate  an  ex- 
tract, but  that  each  extract  should  be  legally 
authenticated  by  the  signature  of  the  ex- 
tractor by  whom  it  was  prepared.  Duplicates 
of  decreets  for  the  record,  and  abbreviates  of 
decreets  of  adjudication,  were  in  like  manner 
to  be  authenticated  by  the  signature  of  the 
extractors  respectively,  by  whom  the  decreets 
should  be  prepared  and  signed — the  signature 
of  the  Lord  Ordinary  to  an  abbreviate  of 
a4jiidication,  required  under  the  Act  of  Regu- 
Utions,  June  1696,  and  the  signature  of  a 
principal  clerk  required  by  the  Act  of  Se- 
derunt, 26th  Nov.  1793,  to  authenticate  the 
abbreviate  of  an  adjudication  under  the  bank- 
rupt statute,  being  no  longer  necessary. 

By  1  &  2  Vict.,  c.  118,  §§  18,  19,  the  office 
of  extractor  wais  placed  upon  a  new  footing ; 
and  under  that  act  there  is  now  one  principal 
extractor,  with  an  assistant  nominated  by  him, 
and  such  engrossing  clerks  as  may  be  neces- 
lary.  The  principal  and  assistant  extractors 
are  paid  entirely  by  salary,  the  principal 
L.500,  and  the  assistant  L.300  per  annum. 
The  clerks  are  paid  by  their  writings.  The 
junior  principal  clerk  of  Session  has  a  super- 
iotendeuce  of  the  office,  and  reports  each 
Session  to  the  Court  on  the  subject. 

The  Act  of  Sederunt,  6th  July  1748,  or- 
dains extractors  to  take  the  oaths  to  Govern- 
ment; 4th  Jan.  1751,  prohibits  them  from 
acting  as  agents  in  processes ;  and  23d  Feb. 
1687,  extends  the  privileges  of  the  College  of 
Justice  "to  four  extractors  in  each  of  the 
three  clerk's  offices  of  the  Session." 

Eztngndicial ;  not  judicial,  or  not  trans- 
acted under  judicial  cognisance  or  superin- 
tendence. The  term  is  usually  applied  iu 
contradistinction  to  judicial,  to  something  said 
or  dune  in  the  course  of  a  process,  or  before 
an  action  has  been  brought  into  court,  but 


which  is  not  intended  to  form  any  part  of  the 
record,  or  of  the  judicial  pleadings  or  admis- 
sions of  the  parties,  such  as  communings  or 
correspondence,  having  in  view  a  private 
settlement  of  the  matter  in  dispute,  or  the 
like.  Extrajudicial  concessions  or  admissions 
made  by  a  party  in  the  course  of  communica- 
tions for  a  compromise,  or  in  order  to  avoid  a 
lawsuit,  cannot  be  competently  founded  upon, 
or  proved  against  him  judicially,  where  the 
object  of  the  negotiation  has  failed ;  Snathe, 
20th  May  1809,  Fac.  Coll.  It  was  formerly 
incompetent  to  prove  an  extrajudicial  state- 
ment by  a  witness,  different  from  his  judicial 
statement,  in  order  to  discredit  him ;  but  this 
rule  is  now  abolished  15  Vict.,  c.  17,  §  3.  The 
witness  himself,  however,  must  be  first  interro- 
gated on  the  point.  Dicksonon  £t)ti.,  pp.66, 900 ; 
Stair,  B.  iv.  tit.  44,  §  7.     See  also  Evidence. 

Extraordinary  Aotioiu.  The  Act  of  Se- 
derunt, 11th  July  1828,  §  103,  under  the 
head  Extraordinary  Actions,  enumerates  pro- 
cesses of  adjudication,  count  and  reckoning, 
ranking  and  sale,  sale  of  a  pupil's  heritage, 
division  of  commonty,  division  of  runrig  lands, 
division  among  heirs-portioners,  choosing  of 
curators,  poinding  of  the  ground,  and  the 
like ;  and  declares,  with  regard  to  them,  that 
it  shall  be  in  the  power  of  the  Court,  or  the 
Lord  Ordinary,  to  require  of  parties  to  pro- 
ceed according  to  the  forms  applicable  in 
ordinary  actions,  in  so  far  as  in  each  parti- 
cular instance  it  shall  appear  fit  and  expedient 
to  apply  these ;  but,  excepting  iu  so  far  as 
compliance  with  these  shall  be  specially  re- 
quired, such  actions  shall  proceed  according 
to  the  forms  in  use  in  such  actions  before  the 
passing  of  the  Judicature  Act,  6  Geo.  IV.,  c. 
120,  except  in  regard  to  the  power  and  mode 
of  review  of  any  interlocutor  pronounced 
therein.     Shand's  Prac  p.  345. 

The  procedure  in  the  Court  of  Session  is 
now  regulated  by  the  13  &  14  Vict.,  c.  36 ; 
which  applies  to  all  actions  before  that  Coui*t. 
For  the  pecularities  of  the  enumerated  actions, 
reference  is  made  to  those  articles  respec- 
tively. 

Extraordinary  Lords  of  Session.  After 
the  original  institution  of  the  College  of  Jus- 
tice in  1537,  it  continued  to  be  the  practice 
of  the  Scottish  Kings,  in  addition  to  the 
fifteen  ordinary  Lords  of  Session,  or  Senators 
of  the  College  of  Justice,  to  nominate  other 
Lords  of  the  King's  Council,  as  extraordinary 
Lords  of  Session.  The  number  of  those  extra- 
ordinary Lords  was  limited,  by  the  stat.  1537, 
c.  40,  to  "three  or  four;"  but  the  Kings, 
greatly  to  the  prejudice  of  the  administration 
of  justice,  frequently  nominated  seven  or 
eight.  This  abuse,  together  with  the  power 
of  appointing  extraordinary  Lords  of  Session, 
was  put  an  end  to  by  the  stat.  10  Goo.  I., 


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whereby  it  is  enacted,  that  whenever  the 
places  of  the  four  extraordinary  Lords  of 
Session,  or  any  of  them,  shall  bevome  vacant, 
the  same  shall  not  be  supplied  ;  and  if  any 
presentation  or  nomination  shall  at  any  time 
be  made,  the  same  is  declared  void  and 
null ;  10  Oeo.  I.,  c.  18 ;  Karnes'  Stat.  Law 
AhrUg.  h.  t.;  Prof.  Uor^s  Notw  on  Stair,  p. 
ccclzvi. ;  Ersk.  B.  i.  tit.  3,  §  16.  See  GoUege 
of  Justice. 

Extrinsio.  This  term  when  applied  to 
evidence  generally  signifies  evidence  beyond 
that  afforded  by  the  deed  or  document  under 
consideration,  and  many  questions  arise  as 
to  the  admissibility  of  such  evidence  to  con- 
tradict, modify,  or  explain  writings.  See 
Dickson  on  Evidence,  pp.  93,  109,  114,  130, 
545,  551.    The  general  rule  is,  that  it  is  in* 


competent  to  contradicji  or  modify  the  terms 
of  formal  writings,  unless  fraud  be  alleged 
and  proponed  in  competent  form;  but,  in 
certain  circumstances,  as  where  there  is  ambi- 
guity in  the  writing,  such  evidence  is  admitted 
in  explanation.  The  expression  is  also  ^• 
plied  to  qualifications  of  judicial  statemeDtB, 
or  admissions  by  parties,  particularly  in  oaths 
of  reference.  Questions  as  to  extrinsic  and 
intrinsic  qualities,  in  oaths  on  reference,  are 
frequently  attended  with  great  nicety,  and 
must  be  always,  to  a  certain  extent,  questioni 
of  constrnction.  See  the  article  avidmet, 
supra,  p.  342.  See  also  Dickson  on  Enid. 
pp.818,  752;  Ersk.'B.  iv,  tit.  2,  W  11-14; 
Stair,  B.  iv.  tit.  44,  §  14;  Bank,  B.  iv.  tit. 
32,  §  16 ;  Tait  on  Evidence,  pp.  244-264;  Ms 
Com.  i.  p.  333  ;  Thomson  on  Bills,  652. 


F 


Faeility.  A  person  is  said  to  be  of  a  facile 
disposition,  when,  although  not  a  fit  subject 
for  cognition  as  an  idiot,  he  is  easily  impmed 
upon,  and  liable  to  be  induced  to  do  deeds  to 
his  own  prejudice.  And  the  Court  of  Session, 
either  ex  officio,  when  in  the  course  of  an  ac- 
tion they  discover  a  party  to  be  of  that  dis- 
position, or  on  the  application  of  his  heir  or 
next  of  kin,  will  interdict  him  ;  thereby  pre- 
venting him  from  granting  deeds,  unless  with 
the  consent  of  the  interdictors  whom  they  ap- 
point. A  person,  who  is  conscious  of  such  an 
infirmity,  may  also  voluntarily  place  himself 
under  interdiction.  See  Interdiction.  A  facile 
disposition,  though  it  may  authorise  the  inter- 
ference of  the  Court,  is  not  of  itself  a  ground 
of  reduction  of  any  transaction  into  which  a 
facile  person  may  have  entered  ;  nor  has  in- 
terdiction any  retrospect.  As  a  ground  of 
reduction,  facility  is  quite  distinct  from  inca- 
pacity. The  issue  applicable  to  the  latter 
ground  is  simply,  whether  the  deed  is  not  the 
deed  of  the  grantor  ?  where  the  former  is  al- 
leged, the  issue  is,  whether  the  grantor  at  the 
date  of  the  deed  was  facile  and  easily  imposed 
upon,  and  whether  the  deed  was  impetrated 
by  fraud  and  circumvention  to  his  lesion ;  and 
the  names  of  the  alleged  impetrators  must  be 
condescended  on  ;^atr<{,  1858,20  i>.  1220.  In 
order,  therefore,  to  support  a  reduction  of  the 
deed  of  a  facile  person,  there  must  be  evidence 
of  circumvention  and  of  imposition  in  the 
transaction,  as  well  as  of  facility  in  the  party, 
and  lesion.  But,  "  where  lesion  in  the  deed, 
and  facility  in  the  granter  concur,  the  most 
slender  circumstances  of  fraud  or  circumven- 
tion are  suflicient  to  set  it  aside."  Ersk.  B. 
iv.tit.  1,  §27  ;  see  also  B.  l,tit.7,  §53,  etse;.; 
Stair,  B.  1  tit.  9,  §  8;  More's  Notes,  p.  liv. ; 
Bank.  i.  191 ;  Bell's  Com.  i.  141 ;  Karnes' Equity, 


67  ;  Bdl's  Princ.  §52113  and  2123.  ?m  Ex- 
tortion. Fraud.  Interdiction.  CireumveiUimi. 
Lesion.    Idi(4.    ImbecUity. 

Facto.    See  De  Facto. 

Factor ;  a  person  employed  to  do  bnsioess 
for  another  for  hire.  Factory,  which,  in  mo- 
dern times,  has  almost  entirely  superseded  the 
Mandate  of  the  Roman  law,  differs  from  that 
contract  in  not  being  gratuitous.  Factory  is 
either  express  or  implied  ;  special  or  general. 
The  factor,  unless  he  can  plead  the  excuse  of 
illness  or  some  inevitable  accident,  is  liable  in 
damages  for  not  peiforming  his  eng^agement. 
He  must  account  to  his  principal  for  his  ad- 
ministration, and  pay  over  to  him  all  that 
he  may  have  received  in  his  name.  In  remit- 
ting money  the  ftustor  must  follow  his  princi- 
pal's directions,  or  take  the  risk.  In  absence 
of  express  directions  he  must  remit  tbroagfa 
a  chartered  bank,  or  a  banker  in  g^ood  credit, 
or  follow  the  mercantile  or  local  usage.  If 
he  pay  the  money  into  a  bank  on  his  own  ac- 
count, it  perishes  to  him  on  the  banker's 
failure ;  and  he  becomes  liable  for  the  money 
if  he  put  his  own  name  as  drawer  or  b- 
dorser  on  the  bill  by  which  it  is  sent.  An 
agent  or  factor  is  not  entitled  to  delegate  his 
powers;  although  he  may  employ  a  third 
party  in  any  ministerial  capacity  which  he 
cannot  fulfil  himself.  If,  therefore,  without 
permission,  he  delegate  his  power,  he  is  liable 
for  the  competency  and  solvency  of  the  dele- 
gate. But  if  he  has  received  permission  to 
delegate,  he  is  only  liable  by  his  own  fault 
or  fraud  in  the  choice.  A  factor  binds  his 
employer  to  any  engagement  which  he  con- 
tracts, within  his  powers.  Where  these  powers 
are  expressly  limited,  the  limits  are  absolute, 
both  as  regards  the  right  which  the  factor 
has  to  demand  from  the  principal  relief  of  hit 


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obligations,  and  as  regards  the  right  of  third 
parties  to  call  upon  the  principal  for  imple- 
ment. Bat,  in  the  latter  case,  the  limits  will 
hare  no  effect,  if  they  are  expressed  in  a  pri- 
Tate  stipulation  between  the  principal  and 
agent,  or  if  the  commission  is  of  such  a  nature 
that  it  is  not  usual  for  parties  dealing  with 
the  factor  to  examine  the  extent  of  his  powers. 
The  powers,  too,  of  the  factor  in  relation  both 
to  his  employer  and  the  public,  are  frequent- 
ly extended  or  restricted  by  the  usage  of 
trade.  Power  is  implied  to  perform  any  act 
neMssary  for  the  accomplishment  of  the  en- 
gagement ;  and  a  factor  at  a  distance,  and  in 
difficult  circumstances,  is  entitled  to  exercise 
a  aonnd  discretion.  Third  parties  are  entitled 
to  deal  with  the  factor  as  with  a  principal.  But 
they  can  claim  no  lien  or  right  of  retention 
for  a  general  balance  against  the  principal. 
The  risk  of  the  goods,  &c.,  in  the  factor's  pos- 
session, is,  by  the  general  rule  with  the  em- 
ployer, unless  fault  (culpa  levis)  be  established 
against  the  factor.  Factory  is  recalled  by  re- 
Toeation  if  done  tempesiive,  though  that  may 
not  be  sufficient  to  reach  third  parties,  unless 
accompanied  by  notice.  It  also  falls  by  the 
death  of  the  principal ;  but  transactions  al- 
ready began  may  go  on,  and  those  done  in 
ignorance  of  the  death  are  effectual.  A  factor 
may  renounce,  provided  things  are  entire. 
Revocation  is  implied  by  the  employer's  ap- 
pointing a  new  agent  to  do  the  same  act.  The 
mandate  subsists  notwithstanding  the  man- 
dant's  supervening  insanity.  VVhere  goods 
are  consigned  generally  for  sale,  a  mandate  is 
implied,  empowering  the  consignee  to  sell 
them  at  his  discretion,  as  to  price  and  time ; 
and  if  the  consignee  have  made,  or  got,  ad- 
vances on  the  goods,  his  mandate  to  sell  is 
held  to  subsist,  and  to  be  assignable,  till  he 
is  reimbursed.  A  mandate  is  implied  by  the 
priaeipal's  acquiescence  in  the  factor's  acts. 
Factors,  duly  empowered,  may  grant  leases, 
which  bind  ttie  constituents  in  the  same  man- 
ner as  if  granted  by  the  constituents  them- 
selves. But  factors  with  common  powers  can- 
not grant  rental  rights;  nor  can  they  pur- 
tae  removing  without  express  powers ;  BtlVt 
Cm.  i.  476 ;  Print.  §216 ;  lUutt.  ib. ;  Hun- 
ttt'$  Laniiord  and  Tenant,  i.  167;  ii.  19, 
4*28 ;  Memies,  §  457 ;  Story  on  Agency,  p. 
35,  et  $eq.;  Smith's  Merc.  Law,  p.  121,  et 
teq.;  Russell  on  Factors  and  Brokers.  See 
Mandate.  Principal  and  Agent,  and  aufftorities 
tt«re  eittd.  Agent,  As  to  Judicial  Factors, 
see  that  article. 

Faetories.  From  views  of  humanity,  the 
acts  3  and  4  Will.  IV.,  c.  103,  amended  by 
4  Will.  IV.,  c.  1 ;  7  Vict.,  c.  15,  1844;  13 
»od  14  Vict.,  c  54, 1860 ;  16  and  17  Vict.,  c, 
104 ;  and  19  and  20  Vict.,  c,  38,  were  passed 
to  regulate  the  hours  of  labour  of  children, 


and  young  persons  and  females  employed  in 
mills  and  factories. 

Faetnm  Fnestandnm.  An  obligation  ad 
factum  prcestandum,  is  an  obligation  to  per- 
form an  act.  The  rule  of  the  civil  law  is, 
that  on  the  debtor's  refusing  to  implement 
his  bargain,  the  ci'editor  is  only  entitled  to 
sue  for  damages,  on  the  maxim,  iV«i»o  cogi 
potest  pracise  ad  factum,  sed  in  id  tantum  quod 
interest.  The  law  of  Scotland  is  not  quite 
fixed  upon  this  point,  some  authorities  adher- 
ing to  the  Roman  law  doctrine  ;  while  Stair, 
B.  i.  tit.  17,  §  16,  holds,  that  in  equity,  the 
creditor  should  have  the  alternative  of  cou^ 
polling  performance ;  and  Mr  Bell  (Com.  i. 
335)  says,  that  the  specific  implement  of  bonds 
ad  facta  prmstanda,  may  be  enforced  by  the 
personal  diligence  of  imprisonment.  There 
are  several  decisions  establishingthe  principle, 
that  servants  refusing  to  work,  may  be  im- 
prisoned on  a  summary  warrant.  But  now, 
the  grounds  of  expediency  on  which  this  rule 
is  founded,  are  sufficiently  answered  by  4  Geo. 
IV.,  c.  34,  §  3,  which  visits  such  refusal  with 
penal  consequences.  In  certain  circumstances, 
where  a  party  fails  or  refuses  to  perform  an 
act  to  which  he  is  bound,  the  want  of  his 
voluntary  act  may  be  judicially  supplied. 
Thus,  when  a  party  under  an  obligation  to 
convey  land,  refuses  to  grant  a  voluntary  title, 
the  want  of  it  may  be  supplied  by  adjudica- 
tion in  implement.  See  Adjudication  in  Im- 
plement. When  performance  becomes  im- 
possible, damages  are  substituted,  on  the 
maxim.  Locum facti  imprcestabilis  s^Mt  damnum 
et  interesse ;  with  this  modification,  that,  in 
some  cases,  if  performance  has  been  delayed 
with  the  fraudulent  intent  of  making  it  im- 
possible, personal  execution  by  caption  will 
proceed.  Joint  obligants  for  the  performance 
of  a  fact  are  bound  singuli  in  soUdum;  but 
pro  rata  only,  when  damages  are  substituted 
for  an  imprestable  fact.  See  Solidum  et  pro 
rata.  Cautioners  ad  factum  prcestandum  c&n 
in  no  instance  be  sued  till  the  principal  debtor 
has  been  discussed.  A  debtor  ad  factum  prce- 
standum is  denied  the  benefit  of  the  act  of 
grace,  the  privilege  of  sanctuary,  and  the 
eessio  bonontm ;  Stair,  B.  i.  tit.  17,  §  16  ;  Brsk. 
B.  iii.  tit.  3,  §62  ;  BeWs  Com.  i.  335 ;  ii.  566, 
572;  BeWs  Prine.  6§  29,  58,  190,  569,  and 
authorities  there  cited ;  Jllust.  ib. ;  Ros^s  Led., 
i.  236,  294;  Kamet^  Equity,  214. 

Facility.  In  the  language  of  the  law,  a  fa* 
cultymeansapowerwhich  a  person  isatliberty 
to  exercise ;  hence  it  follows  that  a  faculty  does 
not  fall  under  the  negative  prescription,  since 
it  is  of  the  very  essence  of  the  right  that  it 
may  be  exercised  at  any  time.  Faculties 
may  be  adjudged:  thus,  an  heir's  right  to 
reduce  his  ancestor's  deed  on  the  head  of 
deathbed, — a  minor's  right  to  reduce  a  deed 

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on  the  head  of  minority  and  lesion, — a  fa- 
calty  to  hurden  lands, — a  power  to  recall  an 
annuity, — may  all  be  adjudged.  But  it  has 
been  held  that  the  right  to  pursue  a  declara- 
tor of  irritancy  against  the  heir  of  entail  in 
possession  cannot.  Shand't  Prae.  664,  and 
authorities  there  cited ;  Ertk.  B.  ii.  tit.  12,  §  6 ; 
iii.  tit.  7,  §  10;  Stair,  B.  ii.  tit.  6,  §  10; 
More'i  Notes,  p.  cxciii. ;  Karnes'  Equity,  451 ; 
S.  D.  xii.  413. 

Faenlty ;  in  the  law  of  England ,  is  used  for 
a  privilege,  or  special  dispensation,  granted 
to  a  man  by  favour  and  indulgence,  to  do 
that  which,  by  law,  he  ought  not  to  do.  For 
the  granting  of  these,  there  is  an  especial 
court  under  the  Archbishop  of  Canterbury, 
called  the  Court  of  the  Faculties,  the  chief 
officer  of  which  is  called  the  Master  of  the 
Facidties.     Tomlins'  Diet.  h.  t. 

Facility  of  Advocates.    See  Advocate. 

Faculty  to  Burden.  A  faculty  to  burden 
is  a  power  reserved  in  the  disposition  of  an 
heritable  subject,  to  burden  the  disponee  with 
a  certain  sum  of  money.  This  refers  either 
to  a  real  or  to  a  personal  burden.  Where  it  is 
personal,  the  disponee  only  is  burdened;  and 
the  lands  can  be  burdened  with  the  debt  only 
by  diligence  against  the  disponee  as  proprie- 
tor. Where  the  faculty  is  that  of  constitu- 
ting a  real  burden,  it  is  only  by  an  heritable 
bond  and  infeftment  that  the  faculty  can  be 
exercised.  Stair,  B.  ii.  tit.  3,  §  54 ;  Here's 
Notes,  p.  cxciii. ;  Belts  Com.  vol.  i.  pp.  40-42 ; 
ii.  190,  5th  edit. ;  BeWs  Princ.  §  924  ;  Illutt. 
ib. ;  Bank.  vol.  i.  pp.  579, 127,  «<  seq, ;  vol.  ii. 
213,  20,  et  seq.;  Jurid.  Styles,  2d  edit.  vol.  ii. 
p.  417 ;  Ross'  L.  G.  vol.  iii.  p.  38.   See  Burdens. 

Fairs  and  Markets.  The  right  of  fairs 
and  markets  is  rested  in  the  Crown.  No 
person  or  burgh,  therefore,  can  claim  a  fair 
or  market  without  a  grant  from  the  Crown 
or  prescription  equivalent  to  a  grant.  The 
toll  or  custom  leviable  by  the  owner  is 
regulated  by  act  of  Parliament,  or  usage, 
without  which  no  power  to  levy  can  exist. 
Dues  cannot  be  levied  upon  goods  until  they 
have  been  sold,  unless  by  immemorial  cus- 
tom. The  monopolies  of  burghs  are  occa- 
sionally relaxed  in  favour  of  fairs  and  markets; 
and  it  was  at  one  time  the  rule,  that  while 
attending  them,  neither  person  nor  property 
could  be  arrested  for  previous  debt,  although 
cattle  may  be  distrained  in  a  pasture  on  the 
way.  Forestalling, «.«., — buying  merchandise 
while  on  the  way, — and  regrating,  or  reselling 
victuals  in  the  same  market,  or  within  four 
miles  thereof,  are  forbidden  by  special  sta- 
tute. BdPs  Princ.  §  664 ;  Illust.  ib. ;  Tom- 
lins,  h.  t. ;  Ersk.  B.  i.  tit.  4,  §  29  ;  Bank,  B. 
i.  tit.  19,  §§  12  and  15 ;  Karnes'  Stat.  Law,  A.  t. 
See  Market.    ForestaUing.    Regrating. 

Faloidia  portio;  in  the  Roman  Law,  was 


a  fourth  part  of  the  f\-ee  goods  of  the  testator, 
secured  to  all  heirs,  whether  s*i  or  extrand, 
against  legacies.  The  testator  could  etfectu- 
ally  prohibit  the  heir  from  taking  the  benefit 
of  the  falcidia,  in  which  respect  it  differed 
from  the  natural  portion  of  children.  Stair,  B. 
iii.  tit.  8,  §§  12, 13  ;  Bank.  B.  iii.  tit.  8,  §  30. 

Fallow.  Where  an  outgoing  tenant  has 
left  fallow  which  he  was  not  bound  by  his 
lease  to  leave,  and  as  to  which  the  lease  con- 
tains no  other  stipulation,  it  has  been  said 
that  he  has  a  claim  against  the  landlord  for 
its  value.  BclPs  Princ.  §  1263 ;  lUust  ib. ; 
Hunter's  Landlord  and  Tenant,  ii.  473 ;  Bell  m 
Leases,  i.  341. 

The  only  case  which  is  referred  to  in  sap- 
port  of  this  doctrine  (Pwrves,  Dec.  3, 1822, 2 
S.  69)  is  very  imperfectly  reported,  and  ap- 
pears from  the  Session  papers  to  have  con- 
tained specialties.  The  doctrine,  in  its  full 
extent,  seems  contrary  to  principle,  as  it 
would  entitle  an  outgoing  tenant  to  leave  his 
whole  farm  in  fallow,  and  to  claim  an  allow- 
ance for  so  doing.  The  more  consistent  rule 
is  thought  to  be  that  where  the  lease  con- 
tains no  stipulations  on  the  subject,  the  tenant 
must  regulate  his  conduct  by  the  provisions^ 
if  any,  as  to  cropping  and  labouring;  and 
where  there  are  no  such  provisions,  by  the 
rules  of  good  husbandry,  without  depending  oo 
any  such  claim.  Where  there  is  a  stipalation 
in  the  lease  as  to  fallow  being  left  withont 
any  stipulation  as  to  remuneration,  the  pre- 
sumption seems  to  be  that  the  tenant  was  to 
have  no  claim  for  it.  Obligations  cannot  be 
introduced  into  a  lease  by  implication  or  ex- 
trinsic evidence.  Alexander  y.  OtUon,  22d  Jan. 
1847,  9  D.  524. 

Falsa  demonstratio ;  is  an  erroneont  de- 
scription of  a  subject  or  person  in  a  writing. 
Its  effect  depends  almost  entirely  upon  Uie 
specialties  of  the  case ;  but,  generally,  if  the 
description  istaxative,t.«. — if  it  is  to  be  looked 
on  as  a  condition — its  falsity  vitiates  the  con- 
veyance; if,  however,  it  is  only  exegetieal 
or  expository, /also  demonstratio  turn  obest  nee 
vitiat  cum  constat  de  corpore.  See  Brown's 
Synop,  h.  t.  Scottish  Missionary  Society,  1858, 
20  D.  634. 

Falsehood ;  is  defined  to  be  a  fraudnlest 
imitation,  or  suppression  of  truth,  to  the  pre- 
judice of  another ;  Ersk.  B.  iv.  tit.  4,  §  66. 
Of  this  crime,  forgery,  which  is  the  adhibit- 
ing a  false  name  to  a  writing,  is  the  most  im- 
portant branch.  Bank.  vol.  i.  p.  296,  etteq.; 
Shand's  Prac.  pp.  257,  289,  318  ;  Hume,  u 
137,  et  seq.;  BeU's  Sup.  p.  49.  See  For- 
gery. Swindling.  Falsehood  cannot  be  pro- 
poned against  messengers'  executions,  and  the 
like  writs,  withont  a  reduction  improbatioo. 
See  Execution.    Fraud. 

False  Imprisonment;  in  Engluib  law,a 


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trespass  committed  against  a  person,  by  ar- 
resting and  imprisouiugordetaiiiing  liimwith- 
oot  just  eaose,  and  contrary  to  law.  Tom- 
lint'  Diet.  h.  t.  The  corresponding  Scotch  law 
term  is  Wrongou*  Impritonmeni,  which  see. 

False  Pronation.  Falsely  assuming  the 
name  or  character  of  an  ofBeer,  soldier,  sea- 
man, &c.,  in  order  to  receive  his  wages,  is,  by 
5  Geo.  lY.,  c.  107,  §  5,  declared  felony,  pan- 
iihable  with  transportation  for  life  or  for 
Tears,  or  by  imprisonment  with  or  without 
hard  labonr.  By  11  Geo.  IV.  and  1  WUl. 
IV.,  c.  66,  §  7,  a  similar  punishment  is 
provided  for  the  offence  of  falsely  personat- 
ing a  shareholder  in  some  fund,  for  the  pur- 
pose of  drawing  the  dividends,  &c.  Tomins' 
Did.  k.  t.  These  acts  do  not  extend  to  Scot- 
land. 

False  Swearing.  In  proceedings  under 
the  Bankruptcy  Act  (19  and  20  Vict.,  c.  79) 
any  person  gnilty  of  wilful  falsehood  in  any 
oath  is,  by  sec.  178,  liable  to  a  proeecation, 
either  at  the  instance  of  the  Lord  Advocate, 
or  at  the  instance  of  the  trustee,  with  his 
eoocnrrence  ;  provided,  that  in  the  latter  case 
the  prosecution  shall  be  authorized  by  a  ma- 
jority of  creditors,  at  a  meeting  called  for  the 
pnrposo;  and  such  person,  upon  oonviction,be- 
sides  the  awarded  pnnishment,  forfeits  to  the 
trustee  for  behoof  of  the  creditors,  his  whole 
right,  claim,  and  interest  in  or  upon  the  se- 
qnestration.  As  to  the  former  law  on  the 
subject  of  false  swearing  in  sequestrations, 
see  ShamPt  Prae.  p.  1089  ;  2  BdPs  Com.  343, 
389.  As  to  falsehood  on  oath  generally,  see 
fenury. 

False  Weights.  By  the  act  1607,  c.  2, 
the  users  of  false  weights  are  declared  to  be 

n'  hable  by  the  confiscation  of  moveables. 
.  vol.  i.  pp.  296,  213.  See  Weights  and 
Ueaswret. 

falsing  of  Dooms;  reduction  of  decreets. 
Skent,  h.  t.     See  Doom.     Sok. 

Fama  Clamosa ;  in  the  ecclesiastical  law 
of  Scotland,  is  a  prevailing  report,  imputing 
immoral  deportment  to  a  clergyman,  proba- 
tioner, or  elder  of  the  church.  No  process  is 
commenced  by  the  presbytery  against  a  mini- 
ster, unless  a  complaint  has  been  given  in, 
or  nnlees  the /a«»a  clamota  against  him  is  so 
preat,  that  the  presbytery,  for  their  own  vin- 
dication, see  themselves  necessitated  to  begin 
the  process  without  any  particular  accuser. 
When  there  is  such  a/ama  clamosa,  the  pres- 
bytery first  inquires  into  the  rise,  occasion, 
broaehers,  and  grounds  thereof,  and,  if  it  ap- 
pear, after  this  inquiry,  that  there  ought  to 
be  a  process  against  a  minister,  and  if  no 
private  party  come  forward  to  institute  it, 
they  resolve  to  serve  him  with  a  libel.  A 
libel  cannot  be  sustained  which  rests  only  on 
hearsay.    SilPs  Church.  Prac.  49,  and  autho- 


ritiet  there  cited ;  CooVs  Styles  ;  Wood  on  Li- 
bels, p.  2.    See  also  Minister.    Deposition. 

Familia ;  in  English  law,  signifies  all  the 
servants  beltoging  to  one  master ;  also  a  por- 
tion of  land  sufficient  to  maintain  one  family. 
Tomlins'  Diet.  h.  t. 

FamilisB  EroisoimdsB  Actio ;  in  the  Roman 
law,  was  an  action  competent  to  any  one  of 
co-heirs  for  the  division  of  what  fell  to  them 
by  succession.  It  has  no  place  in  heritable 
succession  by  the  Scotch  law.  Stair,  B.  i.  tit. 
7,  §  15 ;  bank.  B.  i.  tit.  8,  §  36 ;  Brovm's 
Synop.  p.  2334. 

Fang.  A  thief  taken  with  the  fang  (or 
in  the  manner),  is  one  apprehended  while 
carrying  off,  "  in  hand  having,  or  upon  back 
bearing,"  the  stolen  goods.  Ersk.  B.  i.  tit.  4, 
§  4 ;  Bank.  B.  iv.  tit.  16,  §  4 ;  Hvme,  i.  102. 

Faiandman ;  a  stranger  or  pilgrim.  Skene, 
h.t. 

Farding-Deal,  or  farwidd  of  land;  is,  in 
England,  the  fourth  part  of  an  acre.  Tomlin^ 
Did.  A.  t. 

Fare ;  the  money  paid  for  being  carried  by 
land  or  water;  formerly,  the  passage  itself. 
Tomlins'  Diet.  h.  t. 

Farm  Servants.  The  wages  of  farm  ser- 
vants are  a  privileged  debt.  Hunter's  Land- 
lord and  Tenant,  ii.  393 ;  Eraser's  Pers.  Rel. 
ii.  436,  386 ;  Baird  on  M.  and  S.;  Bell  on 
Leases,  i.  411 ;  Bell's  Princ.  §§  1241,  1407  ; 
/Wu»t.§1407.     Sm  Privileged  Debt.     Wages. 

Father.  A  father  is  the  administrator-in- 
law  to  his  children,  and,  as  such,  the  mana- 
ger, and,  as  it  were,  the  tutor  of  his  children 
while  in  pupilarity,  and  their  curator  dur- 
ing minority.  This  power  of  management  ex- 
tends over  the  whole  property  and  estate  of 
the  child,  whether  flowing  from  the  father  or 
from  a  stranger,  with  tli«  following  excep- 
tions:—1.  Where  the  property  descending 
from  a  stranger  has  been  put  under  other 
management ;  2.  Where  the  child  has  a  claim 
against  the  father,  a  curator  ad  litem  will  be 
given  to  him  by  the  judge ;  and,  3.  The 
father's  right  of  administration  is  at  an  end, 
by  the  marriage  of  his  daughter  during  her 
minority.  The  father,  as  administrator,  is 
not  bound  to  make  up  tutorial  inventories. 
Ersk.  B.  i.  tit.  6,  §  64,  et  seq.;  Stair,  B.  i.  tit.  6, 
§  12,  et  seq. ;  B.  iv.  tit.  39,  §  14 ;  More's  Notes, 
p.  xxxi. ;  Bell's  Princ.  §§  1980,  2122,  2068, 
et  seq.,  Eraser's  P.  and  D.  R.  ii.  26;  Sandford 
on  Heritable  Succession,  i.  5, 240.  See  Cureiory. 

Fatnons.  A  fatuous  person,  or  an  idiot, 
is  one  who,  from  a  total  defect  of  judgment, 
is  incapable  of  managing  his  affairs.  He  ia 
described  as  having  an  uniform  stupidity  and 
inattention  in  his  manner,  and  childishness 
in  his  speech.  An  idiot  cannot  act  in  the 
affairs  of  life ;  and  he  is  by  the  law  put  under 
the  protection  of  a  curator.     Where  an  idiot 

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d'uooTere  any  marka  of  judgment,  he  is  said 
to  be  capable,  without  curators,  to  execute  a 
testament,  which  is  rerocable ;  but  he  cannot 
competentlj  bind  himself  irrevocably,  nor  can 
he  enter  into  a  marriage.  With  regard  to 
the  title  to  sue  and  defend,  fatuous  and  furious 
persons  when  cognosced,  seem  situated  like 
pupils  or  minors.  If  a  tutor  has  been  ap- 
pointed by  gift  from  the  Exchequer,  the  ac- 
tion proceeds  in  the  joint  names  of  the  idiot 
and  tutor.  If  the  fatuous  person  has  not  been 
cognosced,  or  if  the  action  is  against  his  tutor 
or  curator,  it  may  be  raised  in  name  of  the 
fittuous  person,  and  a  tutor  ad  litem  will  be 
appointed  when  the  case  comes  into  Court. 
Where  one  has  been  put  under  curatory  by 
the  Court  of  Session,  the  action  proceeds  in 
his  own  name,  with  consent  of  the  factor  or 
curator ;  and  an  action  against  such  a  factor 
or  curator  is  incompetent,  unless  the  fatuous 
person  is  called  as  a  principal  defender. 
Skand's  Prac.  151,  993,  and  authorities  there 
cited;  M'Glathan's  Sheriff  Process,  98;  Ersk. 
B.  i.  tit  7,  §  48 ;  Belfs  Com.  1. 136.  See  also 
Brieve,  (juratory.  Idiot.  Eraser's  Rel.  ii. 
263. 

Fanlt;  in  quality  of  a  commodity  agreed 
for,  may  be  the  ground  of  rejection,  if  the 
commodity  have  been  sold  unseen,  and  turn 
out  inferior  to  what  was  represented.  Bven 
if  the  buyer  saw  the  goods,  a  latent  fanlt  may 
entitle  him  to  reject  them,  and  should  they 
perish  in  consequence  of  it,  he  will  be  relieved 
from  payment,  or  entitled  to  repetition  of  the 
price.  But  if  the  fanlt  or  deficiency  of  a 
commodity  seen  by  the  buyer  is  manifest,  the 
rule  is,  Caveat  emptor,  and  the  buyer's  eye  is 
his  merchant.  The  challenge  of  a  fault  must 
be  made  immediately,  or  without  unnecessary 
delay.  BeU's  Com.  5th  edit.  i.  439;  BeWs 
Princ.  J  95,  et  seq. 

Peal  and  Divot ;  a  rural  servitude,  import- 
ing a  right  in  the  proprietor  of  the  dominant 
tenement  to  cut  and  remove  turf  for  fences, 
or  for  thatching  or  covering  houses,  or  the 
like  purposes,  within  the  dominant  lands.  And 
of  the  same  description  is  the  servitude  of 
/ud,  which  is  a  similar  right  to  cut,  winnow, 
and  carry  away  peats  from  the  servient  moss 
or  peat  land,  for  fuel  to  the  inhabitants  of  the 
dominant  lands.  These  servitudes  will  not 
be  extended  further  than  to  the  usos  of  the 
actual  occupants  of  the  dominant  tenement, 
and  wiU  not  extend  even  to  extraordinary 
uses,  such  as  to  bum  limestone  for  sale,  or  to 
carry  on  the  trade  of  brewing  or  distilling  for 
sale.  The  servitudes  oi  feal,  diwt,  &ai/uel, 
are  distinct  from  the  servitude  of  pasturage, 
and  are  not  iucluded  under  it.  They  may  be 
constituted  either  by  express  grant,  or  by  use 
or  possession  following  on  the  usual  clause  of 
jHuis  and  pertinents.    Stair,  B.  ii.  tit.  7,  § 


1 3 ;  Ersk.  B.  ii.  tit.  9,  §  17 ;  Bank.  B.  ii.  tit 
7,  §  31 ;  BeWs  Princ.  §  1014;  lUust,  ib. 

Fealty ;  in  English  law,  an  oath  taken  en 
the  admittance  of  any  tenant  to  be  true  to 
the  lord  of  whom  he  holds  his  land.  By  this 
oath  the  tenant  holds  in  the  freest  manner, 
since  all  who  have  fee  hold  by  fealty  at  the 
least.    Tomlins'  Diet.  h.  t. 

"Stts.    See  Force  and  Fear. 

Feoialea ;  an  order  of  priests  among  the 
Romans,  consisting  of  twenty  persons,  ap- 
pointed to  proclaim  war,  to  negotiate  peace, 
8k.  The  jus  feciaU  was  all  that  the  Romans 
had  corresponding  to  the  modem  international 
law.    £iK;y.  Brit. 

Fee.  1.  This  term  is  used  to  express  an 
estate  of  succession,  in  contradistinction  to 
liferent  as  "  fee  and  liferent"  See  nest  arlide. 

2.  The  interest  held  by  the  feuar  is  termed 
the  fee.  According  to  Erskine,  this  term 
sometimes  denotes  "  the  subject  itself  granted 
to  the  vassal.  Thus,  it  is  said  that  a  vassal 
falls  from  his  fee,  or  that  a  fee  opens  to  the 
superior.  But  it  is  more  properly  used  to 
expreoB  the  right  resulting  from  th»  feudal 
contract ;  and  in  this  acceptation  it  may  be 
defined  a  gratuitous  right  to  the  property  of 
lands,  made  under  the  conditions  of  fealty  and 
military  service,  to  be  performed  to  the  granter 
by  the  grantee,  the  radical  rights  of  the  lands 
stillremaittingin  the  granter."  Thus  the  right 
acquired  by  a  feu-vassal  under  his  charter  is 
denominated  his  fee.    Ersk.  B.  ii.  tit  3,  §  7. 

3.  The  honorary  due  to  a  physician  for  his 
attendance  is  also  termed  a  fee,  and  is  pre- 
sumed to  be  paid  from  time  to  time,  nnlees 
this  be  contrary  to  the  practice  of  the  place 
(Flint,  June  17,  1796  ;  Mor.  11422),  or  un- 
less the  contrary  can  be  proved,  and  the 
attendance  while  the  patient  is  on  deathbed, 
that  is,  for  sixty  days  preceding  his  death,  is 
not  presumed  to  have  been  paid.  The  honor- 
ary due  to  a  lawyer  may  be  pursued  for, 
though  not  in  the  name  of  hire,  but  as  the 
rewsJd  of  services  which  can  receive  no  pro- 
per estimation.  Ersk.  B.  iii.  tit.  3,  §  32, 
and  B.  iii.  tit.  7,  §  17. 

4.  Fee  or  wages. — ^A  servant  who  u  hired 
for  a  term  is  entitled  to  wages,  though  unable 
to  work  during  part  of  that  term.  Should 
he  die  during  the  currency  of  that  term,  his 
representatives  are  entitled  to  his  wages  down 
to  the  day  of  his  death.  If  the  master  die, 
or,  without  good  reason,  turn  off  a  servant 
before  the  term,  the  servant  is  entitled  to  full 
wages  and  to  maintenance  to  the  term ;  and 
should  the  servant  desert  his  service,  he  not 
only  forfeits  his  claim  to  wages  and  main- 
tenance, but  is  liable  also  in  damages  to  his 
master.  Ersk.  B.  iii.  tit  3,  §  16.  See  also 
Privileged  Debt.    Executor.     Waga. 

Fee  and  Liferent    A  conveyance  to  a 

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pkrent  in  liferent,  and  to  his  children  unborn 
or  unnamed  in  fee,  imports  a  right  of  fee  in 
the  parent,  and  a  spet  suecationis  merely  in 
the  children.    Frog's  Creditors  y.  his  Children, 
25th  Nov.  1735,  M.  4262 ;  Lindsay  v.  Dott, 
9th  Dec.  1807,  M.  App.,Fiar,  No.  1 ;  Domr 
T.  JTfMiKm,  5th  May  1825,  IW.ttS.  161 ; 
Gordon  v.  M'Intosh,  17th  April  1845 ;  4  MPs 
App.  105.  A  conveyance  to  a  parent  in  life- 
rent, for  his  liferent  use  allenarty,  or  under 
restrictive  words  of  similar  signification,  and 
to  his  children  naseiiuri  in  fee,  imports  a 
right  of  liferent  in  the  parent,  and  also  an 
interim  fiduciary  fee  in  him  for  behoof  of 
the  children ;  Netolands  v.  Neuilands'  Creditors, 
26th  April  1798,   M.  4289 ;    Attardice    v, 
AUardiee,  5th  March  1795 ;  MPs  Cases,  156. 
Where  a  father  being  infefl,  conveys  to  him- 
lelf  in  liferent,  for  his  liferent  use  allenarly, 
and  to  his  children  in  fee,  and  upon  this  con- 
veyance takes  infeftment  in  liferent  only,  and 
m  the  instrument  of  sasine  no  mention  is  made 
of  the  children  in  fee,  the  lands  remain  at- 
tachable by  the  father's  creditors  ;   Falconer 
V.  WriM,  22d  Jan.  1824, 2  -S.  433  ;  Houlditch 
V.  SpMinff,  9th  June  1847,  9  D.  1204.    A 
conveyance  to  trustees  for  behoof  of  a  parent 
in  liferent,  and  his  children  nascituri  in  fee, 
imports  a  fee  in  the  children,  and  a  liferent 
merely  in  the  parent;  Seton  v.  Seton's  Creditors, 
6th  March  1793,  M.  4219 ;    Ross  v.  King, 
22d  June  1847,  9  D.  1327.    A  conveyance 
by  a  parent  to  himself  in  liferent,  and  to  his 
chQd  nominatim  in  fee,  imports  a  fee  in  the 
child;  JPIntosh  v.  M'litUsh,  28th  Jan.  1812, 
Fae.  CbtL    When  a  parent  conveys  to  himself 
in  liferent,  and  to  his  child  nominatim  in  fee, 
or  takes  a  conveyance  from  another  in  these 
terms, but  reserves  tohimself  power  to  alienate 
and  burden,  the  substantial  fee  is  in  the  father, 
sad  that  in  the  child  is  nominal  merely ;  but 
if  the  reserved  power  to  alienate  is  not  ex- 
ercised, the  child  takes  as  disponee,  and  does 
not  require  to  be  served  heir  to  his  father ; 
(hitming  v.  His  Majesty's  Advocate,  10th  Feb. 
1756,  M.  4268  and  15854  ;  BaiUie  v.  Clark, 
23d  Feb.  1809,  Fac.  CoU,    A  conveyance  to 
a  hnsband  and  wife,  in  conjunct  fee  and  life- 
rent, for  the  wife's  liferent  use  allenarly,  and 
to  the  child  nominatim  in  fee,  imports  a  right 
of  fee  in  the  father,  and  on  his  decease  the 
child  must  serve  to  him  as  heir  of  provision  ; 
Wilson  r.  Glen,  14th  Dec.  1819,  Fac  Coll    A 
conveyance  to  a  hnsband  and  wife,  and  the 
kmgect  liver,  in  conjunct  fee  and  liferent,  and 
to  &e  heirs  of  the  marriage  in  fee,  imports 
a  right  of  fee  in  the  hnsband ;   Madden  v. 
Cvrtes  Trustees,  22d  Feb.  1842.     A  con- 
veyance to  a  hnsband  and  wife  in  conjunct 
liferent,  during  all  the  days  of  their  liferent, 
ud  to  the  survivor,  and  their  heirs  and  assig- 
ness  in  fee,  imports  a  right  of  fee  in  the  sur- 


vivor ;  McGregor y.Forrestw,\Zi^  April  1835 ; 
Shaw  Maclean,  441 ;  Ferguson  v.  M'George,  22d 
July  1739,  M.  4202  ;  Burrowes  v.  M'Far- 
jtiAar**  Trustees,  6th  July  1842,  4  D.  1484. 
A  conveyance  by  a  husband  or  wife  to  both 
the  spouses,  and  the  longest  liver  in  liferent, 
and  to  the  children  of  the  marriage  in  fee, 
does  not  import  a  right  of  fee  in  the  sur- 
vivor of  the  sponses,  but  leaves  the  fee  nn- 
transferred  ;  Mackellar  v.  Marquis,  4th  Dec. 
1840,  3  D,  172.  A  conveyance  by  a  hus- 
band or  wife  to  both  the  spouses,  in  conjunct 
fee  and  liferent,  for  their  liferent  use  allenarly, 
and  to  the  heirs  of  the  marriage  in  fee,  whom 
failing,  to  the  heirs  whatsoever  of  either  or 
both  of  the  sponses,  leaves  the  fee  untrans- 
ferred  in  the  event  of  there  being  no  heirs  of 
the  marriage,  and  gives  a  spes  suecessionis 
merely  to  the  heirs  whatsoever  of  the  spouses ; 
Wilson  V.  Reid,  4th  Dec  1 827, 6  S.  198.  In  the 
case  of  Myles  v.  Cdman,  12th  Feb.  1857,  acon- 
veyance  of  property  by  a  wife  was  "  in  favour 
of.  herself  and  her  husband,  and  the  longest 
liver  of  them  two  in  conjunct  fee  and  liferent, 
and  to  the  child  or  children  procreate,  or  to 
be  procreate  betwixt  them,  which  failing,  to 
the  said  longest  liver  of  them  two,  and  the  said 
longest  liver,  her,  or  his  heirs  and  assignees 
whomsoever  in  fee,  heritably  and  irredeem- 
ably." There  were  children  of  the  marriage, 
and  the  husband,  after  surviving  the  wife,  was 
sequestrated.  In  a  competition  between  the 
children  and  thetrustee,  in  the  sequestration  it 
was  held  that  the  fee  of  the  wife's  estate  did 
not  vest  in  the  hnsband  but  in  the  wife  herself, 
and  was  therefore  not  carried  by  the  sequestra- 
tion. The  proper  construction  of  the  desti- 
nation was  held  to  be  merely  a  liferent  in 
the  surviving  husband,  and  to  leave  the  right 
of  fee  in  the  wife.  This,  it  was  thought,  was 
the  fair  construction  of  the  destination,  con- 
sidering that  the  property  belonged  to  the 
wife  herself.  The  wife  being  the  grantor  of 
the  deed,  the  legal  presumption  was  held  to 
be,  that  she  did  not  intend,  by  the  destination 
in  the  deed,  to  divest  herself  of  her  right  of 
ownership,  and  that  the  contrary  could  not 
be  held,  unless  the  words  of  the  destination 
would  not  admit  of  any  other  construction. 
The  judgment  in  this  case  is  in  accordance 
with  the  judgment  in  the  case  of  Mackellar  v. 
Marquis,  supra ;  although  that  case  does  not 
appear  to  have  been  founded  on. 

See,  on  the  subject  of  this  article,  Ersk. 
B.  iii.  tit.  8,  §  34,  et  seq.;  BelPs  Prine. 
§  1712;  Conjunct  Rights ;  Ross's  L.  G.  vol.  iii. 
p.  602,  et  sea. 

Fee-Fund;  the  name  applied  to  the  due* 
of  Court  payable  on  the  tabling  of  summinte- 
the  extracting  of  decrees,  &c.,  out  nited  in 
the  clerks  and  other  ofiicers  of  the  ^le  Age*, 
paid.  In  50  Geo.  III.,  c.  112,  tamoce  Feudal 


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thereto  annexed,  will  be  foond  a  table  of  the 
fees  exigible  in  the  varions  proceedings.  The 
same  act  authorises  the  Lord  President  to 
appoint  a  collector  of  the  fees,  holding  bis 
office  ad  vitam  ant  evlpam.  He  is  entitled  to 
a  commiasion  of  4  per  cent,  on  his  receipts, 
until  they  amount  to  L.11,000,  and  of  2  per 
cent,  on  all  gams  beyond  that  amount ;  but 
■hoald  his  commission  fall  short  of  L.600,  he 
may  retain  that  sum  for  his  salary,  including 
the  exmnse  of  a  clerk ;  1  and  2  Geo.  JV., 
c  38,  $  29.  The  salaries  of  certain  of  the 
officers  of  Court  are  paid  quarterly  out  of  the 
fee-fund ;  and  it  is  directed,  that  if  the  fund 
shall  at  any  time  be  insnffieient  for  their  pay- 
ment, the  deficiency  shall  be  supplied  out  of 
the  moneys  provided  by  the  acts  7  and  10  of 
Anne,  for  keeping  up  the  Courts  of  Session, 
Justiciary,  and  Exchequer.  No  fee-fund  is 
exigible  in  Admiralty  or  Consistorial  eases, 
or  in  any  of  the  proceedings  in  cettio,  or  in 
oaases  in  what  is  called  the  Jury  Roll. 
Shtmi'i  Prae.,  269,  424,  825, 118;  Mac/ar- 
lane"*  Jury  Prae.  17.  By  1  and  2  Vict, 
c.  118,  §  23,  certain  alterations  and  modifica- 
tions have  been  made  npon  the  fee-fund  and 
the  dues  leviable.  The  collector  is  now 
appointed  by  the  Crown,  at  a  salary  not  ex- 
ceeding L.400  per  annum. 

F«e4limple.  In  English  law,  a  tenant  in 
fee-tinpls,  is  he  who  has  lands  or  tenements  to 
bold  to  him  and  his  heirs  for  ever.  Tomlint" 
Diet.  h.  t 

Felo  de  M ;  in  English  law,  one  who  be- 
comes a  felon  by  committing  suicide,  in  his 
sound  mind.     Tomlint,  h.  t.  See  Snicide. 

Felonia ;  signifies  not  only  the  falsehood 
or  the  contumacy  of  the  vassal  toward  his 
eferlord,  or  of  the  overlord  toward  his  vassal, 
but  also  all  and  whatsoever  capital  crime,  or 
any  other  fault  or  trespass.    Skene,  h.  t. 

Felony ;  in  English  law,  a  term  applied  to 
all  crimes  punished  by  forfeiture  either  of 
the  fee  or  of  the  goods  and  chattels  of  the 
criminal.     To  this  punishment  that  of  death 
may  or  may  not  be  superadded,  according  to 
the  degree  of  guilt.  But  the  idea  of  felony  has 
long  been  closely  connected  with  that  of  capital 
punishment,  and  the  term  has  been  applied 
to  all  capital  crimes  below  treason  ;  although, 
originally,  treason  itself  was  considered  felony, 
and  although  there  may  both  be  felony  not 
capital,  and  capital  crimM  not  felonies.   Until 
of  late,  when  a  new  offence  was  made  felony 
by  statute,  the  law  implied  the  punishment 
of  death  by  hanging ;  and  in  like  manner, 
an  offence  declared  capital  became  felony, 
^^hough  the  express  term  was  not  employed, 
and  a.  since  the  recent  restrictions  of  capital 
constituiient,  it  would  appear  that  the  Con- 
or possesstetween  felony  and  the  punishment 
parts  and  ps  severed,  a  great  many  felonies, 


formerly  capital,  being  now  punished  vith 
transportation.  The  word  felony  occurs  in 
Scotch  law  bat  very  rarely.  A  man  at- 
tainted of  treason  or  felony,  is  rendered  in- 
eligible as  a  member  of  Parliament,  and  loses 
his  elective  franchise.  Tomlint,  h.  t. ;  BaA. 
6.  i.  tit.  10,  §  18;  Kamet'  Stat.  Law,  k.U; 
Swint.  Ahridg.  h.  t. ;  Chambert'  Election  Law, 
L  t. ;  Hume,  ii.  239,  note  3. 

Feme  Covert ;  in  English  law,  a  married 
woman.      Tomlint^  Diet.  h.  t. 

Feaoes.  On  the  entry  of  the  tenant,  tlie 
landlord,  independently  of  any  stipulation  in 
the  lease,  is  bound  to  put  the  fences  on  the 
farm  in  due  repair ;  and  the  tenant  on  his 
part  must  maintain  them,  and  leave  them  in 
the  state  in  which  he  received  them.  The 
landlord  is  not,  however,  entitled  to  inereate 
the  burden  on  the  tenant,  by  erecting  new 
fences  not  stipulated  for,  unless  they  be  march 
fences,  which,  under  the  statute,  contiguous 
proprietors  may  compel  him  to  erect — a  lia- 
bility which  the  tenant  is  presumed  to  be 
aware  of  when  he  enters.  With  regard  to 
fences  erected  spontaneously  by  the  tenant,  it 
has  been  held  that  if,  being  entitled  to  re- 
move them,  he  allows  them  to  remain,  he 
mu!>t  put  them  in  repair;  but  if  he  is  not 
entitled  to  remove  them,  neither  is  he  boond 
to  repair  them;  BdPi  Prine.,  §  1253: 
lUiut.  ib. ;  BeU  on  Leases,  i.  243 ;  Hunter't 
Landlord  and  Tenant.  In  England,  by  7  and 
8  Geo.  IV.,  c.  29,  S§  23,  40,  44,  the  destrao- 
tion  of  fences  is  declared  to  be  punishable 
summarily  with  a  fine  of  not  more  than  L.5, 
and  in  the  case  of  a  deer-park  fence,  with  a 
fine  of  not  more  than  L.20. 

Feodom  ;  commonly  signifies  the  heritable 
fee  and  property  of  any  thing ;  also  the  fee, 
wages,  or  stipend,  given  to  a  servant  for  his 
service.     Skene^  h.  t. 

Feo£aaieiit ;  in  English  law,  is  the  gift  or 
grant,  with  livery  and  seisin,  of  any  corporeal 
hereditament  to  another  in  fee,  to  him  and 
his  heirs  for  ever  ;  the  granter  being  termed 
the  feoffor,  the  receiver  tlie/e«^.  Littleton 
says,  that  the  difference  between  a  feoffer  and 
a  donor  is,  that  the  former  gives  in  fee-simple, 
the  latter  in  fee-tail.  Tomlint  Diet.  h.  U; 
Bank.  i.  598,  et  seq. 

Feroosta;  an  Italian  word,  a  kind  of  ship 
or  little  boat.     Skene,  h.  t. 

Ferdingmanoi ;  a  Dutch  word,  a  trea- 
surer, penni-maister,  or  thesaurar.   /Scene,  k,  t. 

FeruB ;  in  Roman  law,  were  holidays.  In 
the  Scotch  law,  feriat-timet  are  those  seasons 
in  which  it  is  not  lawful  for  courts  to  be  held, 
execution  to  proceed,  or  any  jadicial  step  to  be 
taken.  Bank.  B.  iv.  tit  42,  §  2.    See  iSom!^. 

Ferial  Days ;  an  English  law  term,  signi- 
fying working  days — i.e.,  all  the  days  of  the 
week  except  Sunday.     Tomlius'  DicL  k.  t 


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Perries ;  are  inter  regalia,  and  belong  to  the 
Crown,  for  the  public  benefit,  unless  where 
they  hare  been  given  out  by  a  royal  gift,  in 
which  case  the  grant  lays  the  grantee  under 
an  obligation  to  keep  sufficient  boats  on  the 
ferry  for  the  use  of  travellers.  Public  ferries 
are  under  the  management  of  the  trustees 
of  the  roads  connected  with  them,  or  are  re- 
gulated by  the  justices  of  peace,  or  by  spe- 
cial acts  of  Parliament.  The  donatary  of  a 
private  ferry  is  empowered  to  levy  fair  and 
reasonable  rates ;  the  amount  of  which,  unless 
when  fixed  in  the  grant,  is  regulated  by  the 
jnstiees  of  peace.  Although  the  grant  does 
not  exclude  neighbouring  heritors  from  hav- 
ing a  boat  to  transport  themselves  and  their 
families,  and  servants,  yet  no  rival  ferry  will 
be  allowed  to  interfere  with  the  right.  The 
right  of  ferry  is  not  permitted  to  interfere 
with  the  general  navigation ;  or  to  supersede 
the  right  of  any  subject  of  Great  Britain  to 
navigate,  in  the  course  of  the  passage,  as  a 
part  of  the  sea,  provided  it  be  not  done  for 
the  sake  of  avoiding  the  regular  ferry.  It  is 
said  that  the  ferry  is  in  respect  of  the  landing 
place,  and  not  of  the  water,  and  that  in  every 
ferry  the  land  on  both  sides  ought  originally 
to  have  been  in  the  same  person,  otherwise 
be  could  not  have  granted  the  ferry ;  but 
this  is  now  mere  matter  of  antiquity.  In 
leases  of  ferries  there  is  no  hypothec ;  but 
where  there  is  a  sublease,  the  lessor  has  a 
preference  over  the  sub-rents.  For  the  form 
of  a  lease  of  ferries,  see  Hunter's  Landlord 
mi  Tmant,  App.  No.  16.  See  also  Ersk.  B. 
ii.tit.  6.  §  17  ;  BeWs  Prine.  §  661,  et  seq.; 
lUtut.  ib. ;  Hvtch.  Justice  of  Peace,  ii.  379, 
448,  483 ;  Tait's  do.  vocibus  Highways,  Sol- 
diers :  Blair's  do.  voce  Highways ;  Hunter's  L. 
*  T.  i.  331,  441 ;  Blackstone,  iii.  228.  By 
8  and  9  Yiet.,  c.  45,  certain  rules  are  laid 
down  for  the  regulation  of  ferries.  It  has 
been  recently  decided  by  the  whole  court  that 
a  charter  of  barony,  with  a  clause  of  parts 
and  pertinents,  is  a  sufficient  title,  when  fol- 
lowed by  the  requisite  position,  to  constitute 
by  prescription  a  right  of  ferry  on  a  navi- 
gable river  without  special  grants.  Dvke  of 
Mmtrose  r.  Macintyre,  March  10, 1848, 10  D. 
896. 

Fea;  in  Latin  feudum,  was  used  to  denote 
the  feudal-holding,  where  the  service  was 
purely  military  ;  but  the  term  has  been  used 
in  Scotland  in  contradistinction  to  ward- 
bolding,  the  military  tenure  of  this  country, 
to  signify  that  holding  where  the  vassal,  in 
place  of  military  service,  makes  a  return  in 
grab  or  in  money — a  species  of  holding  which 
is  coeval  with  feudality ;  for,  even  in  the 
pnrest  ages  of  the  military  system,  innumer- 
able instances  are  to  be  found  of  grants  of 
hud  in  the  feudal  form,  where  the  vassal 


annually  delivered  victual,  or  performed  ag- 
ricultural services  to  his  superior.  Hence, 
this  species  of  right  was  scarcely  to  be  dis- 
tinguished from  the  lease ;  and,  in  this  coun- 
try, the  rental-right  and  the  feu-right,  before 
writing  was  common  in  the  constitution  of 
such  rights,  must  have  been  undistinguish- 
able,  farther  than  by  the  period  of  their 
endurance.  See  Ersk.  B.  ii.  tit.  3,  §  7 ;  Jurid. 
Styles.  See  also  Charter.  Holding.  Superior 
and  Vassai,    Entry. 

Fen-Contraot.  The  contract  of  feu  regu- 
lates the  giving  out  of  land  in  feu,  between 
the  superior  and  vassal.  It  contains  a  nar- 
rative ;  8  dispositive  clause ;  an  obligation 
on  the  superior  to  iufeft,  expressing  the  terms 
of  the  holding ;  a  clause  of  warrandice  ;  an 
obligation  on  the  superior  to  make  the  title- 
deeds  furthcoming  to  the  vassal ;  and  an  as- 
signation to  the  rents.  These  clauses  bind 
the  superior.  Then  there  is  a  reddendo  or 
obligation  on  the  vassal  to  pay  the  feu-duties, 
and  an  obligation  to  relieve  the  superior  of 
the  public  burdens  after  the  vassal's  entry. 
Whatever  other  obligations  the  vassal  may 
come  under  are  inserted  in  this  part  of  the 
deed  ;  and  there  is  also  a  clause  obliging  the 
parties  to  perform  mutually.  This  is  followed 
by  a  clause  of  registration,  precept  of  sasine, 
and  a  testing  clause.  The  difference  between 
the  fen-contract  and  the  feu-charter  is  that, 
by  the  contract,  the  vassal  obliges  himself 
personally,  and,  in  virtue  of  the  clause  of  re- 
gistration, may  be  compelled  by  direct  dili- 
gence to  implement  his  obligation  ;  whereas, 
in  the  feu-charter,  although  the  vassal  is 
equally  liable,  the  means  of  compelling  per- 
formance is  not  so  direct :  it  is  through  the 
medium  of  an  action  and  decree  that  diligence 
can  be  obtained.  Hence,  the  feu-contract  is 
the  preferable  form  in  all  transactions  where 
machinery  is  to  be  erected  or  manufactures 
established,  in  which  the  interest  of  the  supe- 
rior requires  to  be  guarded  by  personal  obli- 
gations, admitting  of  prompt  enforcement. 
Jurid.  Styles.    See  Charter. 

The  Feu-Contract,  like  other  titles  to  land, 
is  simplified  by  the  act  21  and  22  Vict.,  c.  76, 
1858.     See  Titles  to  Land. 

Tendal  System.  In  the  conveyancing  of 
Scotland,  the  forms  of  the  feudal  law  have 
been  preserved ;  and  our  titles  to  heritable 
property  are  framed  in. accordance  with  strict 
feudal  principles.  Hence,  our  lawyers  and 
antiquaries  have  indulged  in  much  historical 
speculation  as  to  the  origin  of  what  has  been 
called  the  feudal  system.  Such  disquisitions 
would  be  out  of  place  in  a  practical  work 
such  as  the  present ;  but  the  subject  is  inte- 
resting, and  will  be  found  fully  treated  in 
the  following  works : — HaUam's  Middle  Ages, 
vol.  i.  p.  200,  et  seq. ;  Eneyc.  Brit,  voce  Feudal 


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Law,  and  Ktitert  Ihgre  cited ;  Robertton't  Charle$ 
V.  Tol.  i. ;  Kamet'  British  Antiquities  ;  Craig 
de  Feudis ;  Ross's  Lect.  vol.  ii.  p.  23,  et  seq. 

Fendun  ex  Camera  tat  Cavena ;  in  feu- 
dal lav,  was  an  annual  sam  of  money  or 
supply  of  corn,  wine,  and  oil,  paid  out  of  the 
lord's  possessions  to  a  soldier  or  other  well- 
deserving  person.  It  resemhied  a  pension. 
Stair,  B.  ii.  tit  5,  §  16 ;  Craig,  lib.  i.  dieg. 
10,  §  11. 

Fea-Dnty ;  the  reddendo  or  annual  return 
from  the  vassal  to  the  superior  in  feu-holding. 
The  feu-duty  is  truly  a  rent  in  cattle,  grain, 
money,  or  services,  generally  agricultural ; 
varying  in  amount  from  an  adequate  to  a 
merely  elusory  rent.  If  payable  in  kind,  the 
feo-duty  may  be  demanded  in  kind,  unless 
otherwise  stipulated ;  and  the  vassal  is  bound 
to  bring  it  to  the  superior  if  within  the 
barony.  The  superior  cannot  compel  the 
fenar  to  grow  the  stipulated  grain,  but  he 
may  demand  in  kind  whatever  other  grain  is 
grown,  although  more  valuable.  If  the  feu- 
duty  be  payable  in  produce  no  longer  to  be 
found  on  the  land,  the  obligation  is  not 
thereby  at  an  end,  unless  "such  as  is  pro- 
duced in  the  land  "  be  expressedly  stipulated. 
In  alternative  payments,  the  vassal  has  the 
election,  unless  it  be  otherwise  expressed. 
Interest  is  not  due  upon  arrears  of  feu-duty, 
unless  expressly  stipulated  in  the  contract; 
Napier,  31st  May  1831, 9S.dbD.  666.  Feu- 
duties  are  heritable,  although  the  arrears  are 
moveable.  Feu-duties  are  <i«Mto/umii;  and, 
in  addition  to  his  personal  action,  an  action 
for  poindine  the  ground  lies  at  the  superior's 
instance.  He  has  also,  as  his  means  of  com- 
pelling payment  of  the  feu-duties,  a  real  right 
in  the  luids,  and  a  consequent  preference  over 
purchasers  and  creditors ;  a  hypothec  over 
the  crop  for  the  last  or  current  feu-duty ;  and 
an  action  of  declarator  of  irritancy  of  the 
feu,  ob  non  sohttum  canonem.  More's  Notes 
on  Stair,  cxxxix. ;  Ersk.  B.  ii.  tit.  6,  §  2 ; 
BdPs  Com.  i.  23-7,  683;  BelFs  Prine.  §  694, 
1479-34; /KtMfcib.  See  Hypothec.  Heritable 
and  Moveable.  Irritancy  of  &e  Feu.  Superior. 
Vas$al.    Poinding  of  Ground. 

Where  a  vassal  conveys  his  fen  to  another 
party,  who  is  entered  by  the  superior  as  vas- 
sal in  his  place,  he  ceases  to  be  liable  for  the 
feu-duty,  but  he  remains  liable  so  long  as  his 
disponee  is  not  entered.  Where,  however,  a 
separate  obligation  for  payment  of  the  feu- 
duty  is  granted  by  a  vassal,  he  and  his  heirs 
continue  liable  for  the  feu-duty  in  all  time 
coming,  notwithstanding  the  fen  may  have 
been  conveyed  to  another,  and  the  disponee 
entered  with  the  superior.  This  continuing 
liability  by  the  original  vassal  arises  from 
a  separate  obligation  having  been  granted, 
and  it  is  construed,  and  has  effect  given  to 


it,  like  any  other  obligation.  The  obliga- 
tion, therefore,  remains  in  force  until  dis- 
charged by  the  superior  or  creditor  in  the 
obligation.  See  the  case  of  King's  CoUege  vf 
Ab^deen  v.  Lady  James  Hay,  March  11, 1852, 
14  Z>.  676 ;  but  reversed  in  the  Hmtst  of 
Lords,  Aug.  11,  1864;  1  Maegueen,  626. 

Fiar ;  as  contrasted  with  liferenter,  is  the 
person  in  whom  the  property  of  an  estate  is 
vested,  burdened  with  the  right  of  liferent. 
The  fiar  cannot  interfere  with  the  liferenter's 
possession,  unless  for  the  necessary  preserva- 
tion of  his  own  right,  as  to  prevent  waste,  on 
cause  shown.  He  may  work  coal,  lime,  mine- 
rals, &C.,  which  are  excepted  from  the  life- 
rent. But  he  must  reserve  enough  for  the 
liferenter's  use,  and  he  must  not  hurt  the 
amenity  of  the  liferenter's  possession ;  yet,  if 
there  be  a  going  coal-pit,  however  disagree- 
able the  effects  may  be,  the  liferenter  is  not 
entitled  to  stop  it.  The  fiar  is  liable  for  sur- 
face damage.  He  cannot  cut  the  ornamental 
timber,  though  he  may  make  the  necessary 
thinnings,  not  hurting  the  amenity.  (See 
Timber.)  Under  the  Reform  Act,  the  life- 
renter,  and  not  the  fiar,  has  the  right  to  rote 
on  those  subjects  to  which  the  right  of  voting 
is  for  the  first  time  attached  by  the  Act  In 
rights  reserved  by  that  Act,  the  fiar  mast 
concur  with  the  lirerenter  in  applying  to  poll ; 
and  his  vote  is  taken  apart,  and  not  reckoned 
where  the  liferenter  has  voted.  ErsL  B.  ii. 
tit.  9,  §  39 ;  Stair,  B.  iii.  tit.  6,  §  51,  et  seq.; 
More's  Notes,  p.  ccxiii.  el  seq.;  BdPs  Princ. 
3d  edit.  §  1061,  tt  seq.,  2198,  and  au&orOies 
there  dted;  Bank.  vol.  i.  p.  676  ;  BeWs  dm. 
6th  edit.  i.  63 ;  Jurid.  Styles,  2d  edit.  vol.  iii. 

L620  ;  Ross's  Lect.  ii.  249 ;  Chambenf  Elect. 
u!,h.t.    Seo  Liferent.    Conjumet  Bights,  Fee 
and  Liferent. 

Fian;  are  the  prices  of  grain  in  the 
different  counties,  fixed  by  the  sneriffi  respec- 
tively, in  the  month  of  February,  with  the 
assistance  of  juries.  The  form  of  striking 
the  fiars  is  prescribed  by  the  acts  of  sederunt, 
Dec.  21, 1723,  and  Feb.  29, 1728.  A  jury 
must  be  called,  and  evidenoe  laid  before  them 
of  the  prices  of  the  different  grains  raised  in 
the  county;  and  the  prices  fixed  by  the 
opinion  of  the  jury,  and  sanctioned  by  the 
judge,  are  termed  the  _fiars  of  that  year  in 
which  they  are  struck,  and  regulate  the 
prices  of  all  grain  stipulated  to  be  sold  at  the 
fiar  prices ;  nor  will  an  error  in  striking 
them  afford  a  ground  of  suspension ;  Town  <^ 
Aberdeen,  August  5,  1760,  Mor.  4415.  The 
fiar  prices  also  regulate  the  price  in  contracts 
concerning  grain  to  be  delivered,  the  prodoee 
of  the  county,  and  where  no  price  has  been 
otherwise  agreed  upon  between  the  parties. 

By  6  and  6  Will.  IV.,  c  63,  §  16,  it  is 
enacted,  that  the  fiar  prices  of  all  grain  ia 


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every  county  shall  be  struck  by  the  imperial 
quarter,  and  that  any  sheriff-clerk,  clerk  of  a 
market,  or  other  person,  offending  against 
this  provision,  shall  forfeit  a  sum  not  exceed- 
ing L.5.  See  Weights  and  Measures.  In 
cases  of  necessity  the  Lords  of  Council  and 
Session  still  interpose  their  authority  to 
regulate  the  striking  of  the  fiars  by  act 
of  sederunt.  See  A.  S.  9th  March  1860. 
Bnt  the  Court  will  not  interfere  unnecessarily. 
Sotedea,  1861,  13  D.  522 ;  Ersk.  B.  i.  tit.  4, 
§  6,  and  B.  iii.  tit.  3)  §  4 ;  Hunter's  Landlord 
lad  Tenant,  ii.  282 ;  Bdl  on  Leases,  il.  187 ; 
CemeU  on  Tithes,  i.  431 ;  Paterson's  Account- 
<f  the  Fiars. 

'  Pictio  Juris ;  is  a  legal  assumption  that  a 
thing  is  true,  which  is  either  not  true,  or 
which  is  as  probably  false  as  true.  Thus,  an 
heir  is  held  to  be  the  same  person  with  the 
ancestor,  to  the  effect  of  making  the  heir 
liable  for  the  debts  of  the  ancestor.  Bnt  the 
Scotch  law  has  seldom  recourse  to  fictions. 
Brtk.  B.  iv.  tit.  2,  §  38 ;  Stair,  B.  ii.  tit  46, 
§  15 ;  Bank.  vol.  iii.  p.  669,  §  9. 

FideicommiBsa ;  or  trusts,  in  the  Roman 
law,  were  either  nnirersal  or  singular.  A 
oniTsrsal  fideieommiss  (called  also  hoereditas 
fideieommissaria,  or  trust  inhentanee)  consisted 
in  the  appointment  of  an  heir,  with  directions 
verhit  precativis,  that  he  should  restore  the 
inheritance  to  a  third  person  mentioned,  the 
heir  being  called  Jiduciariut,  and  the  third 
fenon Ju^ommissarius.  As  the,/!<^'comffits- 
toritu  was  sometimes  directed  to  pass  the 
inheritance  to  a  second,  he  to  a  third,  and  so 
on,  some  authors  have  traced  a  resemblance 
between  Jideicommissa  universalia  and  entails 
in  the  Scotch  law.  The  singular  fideieom- 
miss was  simply  a  trust-legacy,  differing  from 
the  common  legacy  in  nothing  but  the  form 
and  the  words  employed.  See  Trust.  Bank. 
B.  ii.  tit.  3,  §  135  ;  Stair,  B.  iii.  tit.  8,  §  12 ; 
Karnes'  Equity,  322.  In  German  civil  law, 
thijideieommiss  is  intimately  connected  with 
the  law  of  inheritance  among  the  nobility, 
being  the  regulation  according  to  which  the 
whole,  or  part  of  a  family  property,  is  enjoyed 
by  a  certain  member  of  the  family,  on  the 
condition  of  leaving  it  unimpaired  to  the 
person  pointed  out  by  the  particular  family 
arrangement ;  either  to  the  first-born  male, 
when  it  is  called  majorat,  or  to  the  last-born 
male,  when  it  is  called  minorat,  or  to  the 
oldest  member  of  the  family,  without  regard 
to  direct  descent,  when  it  is  called  seniorat. 
The  family  property  is  by  this  means 
rendered  inalienable,  but  it  may  neverthe- 
lea  be  mortgaged. 

Fidmossor.    See  Expromissor.  Cautionary. 

Fidelity;  homage  made  to  superiors  and 
overlords.    Skene,  h.  t.    See  Homagium. 

Fieri  Facias;  in  English  law,  a  writ  that 
2b 


lies  where  a  person  has  recovered  judgment 
for  debt  or  damages,  by  which  the  sheriff  is 
commanded  to  levy  the  debt  and  damages  on 
the  defendant's  goods  and  chattels.  Tomlins, 
h.i.;  SSUp.  Com.  657. 

Filiation ;  the  filiation  of  a  child  means 
the  determination  of  his  paternity.  The 
general  rule  as  to  children  bom  in  wedlock 
is.  Pater  est  quern  nuptiee  demonstrant;  but 
this  presumption  may  be  defeated  by  proving 
the  husband's  impotency,  or  his  continued 
absence  from  his  wife  during  the  period 
between  the  eleventh  solar  and  the  sixth 
lunar  month  preceding  the  birth.  With 
regard  to  natural  children,  a  copula  at  the 
distance  of  more  than  ten  months  does  not 
filiate,  affording  only  a  semiplena  probatio, 
which  may,  however,  be  completed  by  the 
oath  of  the  mother.  Ersk.  B.  i.  tit.  6,  §  50 ; 
Stair,  B.  iv.  tit.  46,  §  20 ;  Mor^s  Notes, 
p.  xxxiv. ;  Bank.  B.  i.  tit.  2,  §  3 ;  B.  ii.  tit.  5, 
§  105.  See  Marriage.  Bastard.  Parent  and 
Child.    Semiplena  Probatio. 

Actions  of  filiation,  and  for  aliment  of 
natural  children,  are  generally  raised  in  the 
sheriff  court,  but  it  is  competent  to  bring 
them  in  the  Court  of  Session.  Shand's  Prae. 
p.  782. 

Final  Judgment.  The  term  final  judg- 
ment is  applied  in  its  most  extensive  significa- 
tion to  a  judgment  which  exhausts  the  merits 
of  a  cause,  and  is  not  subject  to  any  review 
whatever.  But  it  is  more  frequently  used  in 
contradistinction  to  the  expression,  interlocu- 
tory judgment.  Thus,  in  aH  inferior  court,  in 
reference  to  the  competency  of  advocation,  a 
"  final  judgment "  is  a  judgment  whereby  the 
whole  merits  of  the  cause  are  exhausted, 
although  no  finding  or  decerniture  has  been 
pronounced  as  to  expenses;  A.  S.  11th  July 
1828,  §  1 ;  1  and  2  Vict.,  c.  86,  §  1.  In  order 
to  warrant  an  appeal  to  the  Circuit  Court  in 
a  civil  cause  (where  that  mode  of  review  is 
otherwise  competent),  the  final  judgment  must 
not  only  dispose  of  the  merits,  but  the  ex- 
penses, when  found  due,  must  also  have  been 
modified  and  decerned  for ;  A.  S.  I2lh  Nov. 
1825 ;  Maclaurin's  Form  of  Process,  559.  And 
to  warrant  an  appeal  from  a  judgment  of  the 
Court  of  Session  to  the  House  of  Lords,  as 
against  a  final  judgment,  the  judgment  must 
be  one  which  exhausts  the  whole  merits  of 
the  cause,  also  disposing  of  the  question  of 
expenses ;  and  which,  if  not  appealed  against, 
would  put  an  end  to  the  difference  between 
the  parties ;  48  Geo.  IIL,  c.  167,  §  15 ; 
6  Geo.  IV.,  c.  120,  §  21 ;  Smith  on  Appeals, 
17 ;  Paton's  App.  Pr.  pp.  2,  9. 

By  16  and  17  Vict.,  c.  80,  §  22,  appeals  to 
theCircuitCourtarealmostentirelydoueaway, 
and  all  Sheriff-court  judgments  in  causes  the 
value  of  which  does  not  exceed  L.25,  are  final. 

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and  are  not  subject  to  refiew.  Under  the 
same  statute,  §  24,  it  is  competent  in  any 
cause  exceeding  L.25  in  value,  to  bring  under 
review  of  the  Court  of  Session  any  inter- 
locutor of  a  sheriff  sisting  process,  or  giving 
interim  decree,  or  disposing  of  the  whole  merits 
of  the  cause,  but  no  other ;  and  when  any 
such  interlocutor  is  brought  under  review,  it 
is  competent  for  the  Court  also  to  review  all 
the  previous  interlocutors  pronounced  in  the 
cause.  See  Advocation.  Appeal.  Appeal  to 
Circuit  Court.    Interlocutort/  Judgment. 

Fine;  is  the  pecaniary  penalty  for  an 
offence,  usually  imposed  by  statute,  and 
awarded  against  the  offender  by  the  judge 
who  tries  him.  Generally  speaking,  there  is 
a  certain  latitude  left  to  the  Court  to  regulate 
the  amount  of  the  fine,  according  to  the  cir- 
cumstances of  the  case.  The  payment  of  a 
fine  may  be  enforced  by  imprisonment.  See 
Tai(s  Justice  of  Peace,  p.  313 ;  Blair't  do.,  p. 
272 ;  Tomlins'  Diet.  h.  t.  Aa  to  the  form  and 
requisites  of  sentences  of  this  nature,  see 
Pmt/  on  ConvictioM,  287 ;  and  as  to  the  dis- 
position of  fines,  p.  266.  See  also  Hume  v. 
J/eei,  1846 ;  Arkley'i  Rep.  p.  88. 

Fine  of  Lands ;  in  English  law,  was  an 
amicable  composition  of  a  suit,  either  actual, 
or  fictitious,  enrolled  in  the  records  of  the 
court  where  the  suit  was  commenced,  which 
transferred,  settled,  and  limited  the  lands  in 
question,  by  declaring  them  the  property  of 
one  of  the  parties.  It  was  frequently  em- 
ployed to  assure  a  right  in  lands,  as  it  barred 
the  claims  of  strangers,  who,  having  a  present 
interest  in  the  estate,  and  lying  nnder  no 
legal  impediment  to  interposing  their  claim, 
neglected  to  do  so  during  five  years  after  the 
proclamation  of  the  fine.  This  was  one  of 
the  modes  of  transference  which  required  no 
livery  or  sasine,  the  acknowledgment  in  a 
court  of  record  being  considered  su£Scient. 
Tomlin^  Diet.  h.  t.  This  mode  of  conveyance 
has  been  abolished  by  3  and  4  Will.  IV., 
c.  74. 

Finis;  finance,  or  composition  made  with 
thieves,  called  also  theft-bote.  Finis  curix, 
composition  given  in  court  to  the  King. 
Skene,  h.  t.    See  Theft-boU.    Fine. 

FininmBegnndornm  Actio;  in  the  Roman 
law,  was  an  action  for  the  distinction  and 
clearing  of  the  marches  of  contiguous  grounds. 
It  was  almost  precisely  analogous  to  the  action 
of  molestation  in  the  Scotch  law.  Stair,  B.  i. 
tit.  7,  §  15 ;  B.  iv.  tit.  27,  §  2. 

Fire,  Loss  by.  Agricultural  subjects  da- 
maged or  destroyed  by  fire  through  the 
negligence  of  the  lessee,  must  be  restored 
by  him.  But  if  the  fire  be  accidental,  neither 
the  landlord  nor  the  tenant  is  bound,  inde- 
pendently of  stipulation,  to  repair  the  loss, 
even  although,  under  his  lease,  the  tenant 


should  be  taken  bound  to  keep  the  houei 
"  in  tenantable  and  habitable  repair."  Fire 
is,  in  our  law,  considered  an  inevitable 
accident ;  and  the  persons  contemplated  in 
the  edict,  Nautw,  caupone*,  are  not  held 
responsible  for  loss  occasioned  by  it.  It  is 
different  in  the  English  law.  The  insurance 
of  agricultural  subjects  against  fire  is,  by 
statute,  exempted  from  the  payment  of  the 
stamp-duties;  3  and  4  WiU.  IV.,  c.  23. 
Hunter' i  Landlord  and  Tenant;  Bell  on  Leaset, 
i.  240',  et  seq. ;  Ersk.  B.  iii.  tit  1,  §  29,  Ivory't 
note;  Bell's  Com.  i.  470,  562,  e<  uq.;Ba)ne, 
Dole's  Appeal  Cases,  iii.  233.  See  Innie^t. 
Nautw,  Caupones.    Insurance. 

Fire  and  Sword.  Letters  of  fire  and 
sword  were  the  means  anciently  resorted 
to  when  tenants  retained  their  possession, 
contrary  to  the  order  of  the  judge  and  the 
diligence  of  the  law.  Those  letters  issued 
from  the  Scotch  Privy  Council,  and  were 
directed  to  the  sheriff  of  the  county,  author- 
ising him  to  call  the  assistance  of  the  county 
to  dispossess  the  tenant.  By  the  present 
practice,  in  case  of  forcible  resistance  to  legal 
execution,  it  may,  if  necessary,  be  enforced 
manu  militari.  Ersk.  B.  iv.  tit.  3,  §  17; 
Stair,  B.  iv.  tit.  38,  §  27  ;  also  iv.  tit  47, 40 ; 
Ross's  Lect.  i.  274. 

Fire-Anns.  The  wilful,  malicious,  and 
unlawful  use  of  fire-arms  is  punishable  under 
10  Geo.  IV.,  c.  38,  extending  what  is  called 
the  EUenborough  Act  to  Scotland.  Belts 
Sup.  p.  66.  See  also  7  Witt.  IF.,  and  1  Vict, 
c.  88 ;  and  case  of  Duncan,  1845 ;  2  Bnnm, 
455. 

Fire-Baising.  To  constitute  the  crime  of 
fire-raising,  there  must  have  been  actual 
burning,  but  it  matters  not  how  small  the 
portion  of  the  subject  consumed  has  been. 
Ignition  of  furniture  alone,  not  considered 
fixtures  of  the  building,  makes  the  culprit 
liable  to  the  charge  of  an  attempt  at  fire- 
raising  ;  Fleming,  1848 ;  ArkUy,  519.  It  is 
immaterial  whether  the  incendiary  had  the 
intent  to  consume  the  subject  destroyed,  or 
merely  another  subject  which  communicated 
the  fire,  or  whether  the  burning  was  his  ul- 
timate aim,  or  only  the  means  of  furthering 
another  crime.  Fire-raising  is  capital,  where 
the  property  burned  is  houses,  com,  coal- 
heughs,  or  woods  and  underwoods ;  the  word 
houses  comprehending  all  classes  of  buildings, 
except  mere  hovels  or  temporary  places  of 
shelter.  The  burning  of  a  man's  own  house, 
not  so  situated  as  to  endanger  the  property 
of  others,  is  not  indictable,  unless  it  has  been 
done  to  defraud  the  insurers,  of  which  crime 
it  is  doubted  whether  the  punishment  be  ca- 
pital. See  the  case  of  Beck,  1845  ;  2  Broun, 
469.  But  fire  communicated  from  a  per- 
son's own  to  a  neighbonring  proprietor's  te- 


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nement,  will  make  the  offence  capital.  The 
burning  of  ships  to  defraud  insurers  is  capi- 
tal. The  destruction  of  other  property  by 
fire  may  be  punished  with  anything  short  of 
death ;  and  the  attempt  at  fire-raising,  as 
also  threats  and  solicitations,  are  punishable 
arbitrarily.  The  sudden  breaking  out  of  fire 
in  an  uninhabited  house*  or  the  finding  of 
combustibles  strewed  about  in  such  a  way  as 
to  excite  or  accelerate  combustion,  form  strong 
presumptions  of  wilful  fire-raising ;  but  the 
latter  should  be  received  with  caution.  Ha- 
ving ill-will  at,  or  having  been  heard  to  utter 
threats  against,  the  sufierer ;  prepai'ing  com- 
bustibles, and  carrying  them  in  the  direction 
of  the  house ;  insuring  the  premises  or  their 
furniture  at  a  high  value;  insuring  in  se- 
veral ofiices  at  the  same  time,  and  claiming 
from  more  than  one,  will  all  form  presump- 
tions against  the  prisoner ;  1525,  c.  10 ; 
1526,  c  10;  1540,  c.33;  1592,  c.  148;  1 
6m  I.,  c  48 ;  29  Geo.  III.,  c.  46;  43  Geo.  III., 
e.  113 ;  Hume,  i.  126,  et  seq.;  Alison's  Princ. 
429 ;  BumeU,  568 ;  Steele,  124.  Asto  wicked, 
cnlpable,  and  reckless  fire-raising,  as  dis- 
tinguished from  wilful  fire-raising,  see  Mac- 
bean,  1847,  ArM^,  262.  The  statutes  7 
Will.,  IV.  and  1  Vict.,  c.  89,  and;7  and  8  Vict., 
c.  62,  do  not  extend  to  Scotland.   See  Arson. 

Finnaiim;  a  maill-payer,  a  mailler,  or 
mill-man.  Firma  signifies  the  duty  which  a 
tenant  pays  to  the  landlord,  whether  it  be 
silver-maill,  victual,  or  other  duty.  Skene,  h.  t. 

Firm  of  a  Company ;  is  the  social  name 
^plied  to  an  avowed  partnership.  It  is  ei- 
tiier  proper  or  descriptive.  A  proper  or  per- 
utud  firm  is  a  firm  designated  by  the  names  of 
one  or  more  of  the  partners,  as  Hare  db  Co., 
BeU,  Rarmie,  ds  Co.  A  descriptive  firm  has 
reference  to  some  snch  circumstance  as  the 
place  where  the  company  is  established,  or 
the  transactions  in  which  it  is  engaged,  as  the 
Portsoy  Distillery  Co.,  the  MuirUrk  Iron  Co. 

A  mercantile  company,  carrying  on  busi- 
ness under  a  proper  firm,  by  which  they  grant 
obligations,  may  sne  and  be  sued  under  the 
conpsoy  name  without  the  name  of  any 
individual  partner.  See  Forsyth  v.  Hare  and 
Co.,  18th  Nov.  1834,  13  S.  42.  The  same 
rule  applies  to  the  case  of  such  a  company 
doing  diligence ;  Wilson  v.  Swing,  20th  Jan. 
1836, 14  S.  262.  A  different  rule  applies  to 
the  case  of  a  company  with  a  descriptive 
firm.  See  Culcrench  Cotton  Co.  v.  Mathie,  27  th 
Nov.  1822,-  2  /S.  47 ;  Kerr  v.  Clyde  Shipping 
Co.,  8th  June  1839, 1 D.  901.  Neither  can 
the  manager  of  snch  a  company  sue  in  name 
of  the  company ;  Robertson  y.  Anderson,  4th 
June  1841,  3  D.  986.  In  the  case  of  the 
London  and  Glasgow  Shipping  Co.  v.  M'Gorkle, 
19th  June  1841,  3  D.  1045,  the  company 
sued  in  name  of  the  company,  and  of  a  party 


nomnatim  "  agent  therefor,  and  one  of  the 
partners  thereof,"  but  the  instance  was  held 
to  be  insufficient.  The  Court,  however,  inti- 
mated an  opinion  that  the  company  might 
sue  and  be  sued  under  its  descriptive  firm, 
along  with  three  individual  partners  named. 
In  the  previous  case  of  the  Sea  Insurance 
Co.  of  Scotland  v.  Gavin,  17th  Feb.  1827, 
5  S.  375,  the  summons  was  directed  against 
the  company,  and  against  the  manager, 
who  was  a  partner,  and  against  three  other 
partners,  by  whom  the  policy,  which  was  the 
subject  of  the  action,  had  been  subscribed, 
and  the  summons  was  sustained.  A  similar 
judgment  was  pronounced  in  the  House  of 
Lords  in  the  case  of  Pollock's  Trustees  v.  The 
Commercial  Banking  Co.  of  Scotland,  where  the 
summons  was  directed  against  the  company, 
and  several  of  the  individual  partners  nom«n<i- 
tim,  28th  July  1828,  ^W.<t  S.  365.  A  de- 
cree obtained  against  a  company  warrants 
diligence  proceeding  against  all  the  partners 
of  the  company  although  not  named  in  the 
decree ;  Thomson  v.  Little  and  Co.,  2d  July 
1812,  F.  C;  and  Knox  v.  Martin,  12th  No- 
vember 1847, 10  D.  60.  The  same  rule  was 
applied  to  diligence  on  a  bond  signed  by  the 
individual  partners  of  a  descriptive  company, 
by  which  they  obliged  not  only  themselves, 
but  also  the  company,  and  all  other  persons 
who  might  become  partners  thereof;  Maclean 
V.  Rose,  9th  Dec.  1836,  15  Sh.  236. 

A  mercantile  company  cannot  prosecute 
criminally  in  name  of  its  firm.  By  7  Geo. 
IV.,  0.  67,  joint  stock  banking  companies 
may,  on  fulfilling  certain  conditions,  sue  and 
be  sued  in  name  of  their  manager  or  other 
principal  officer.  See  Bank.  On  the  sub- 
ject of  this  article,  see  Mw^s  Notes  to 
Stair,  ci. ;  Bell's  Com.  ii.  627,  et  seq, ;  BeU's 
Princ.  §  367;  Blust.  ib.;  Shand's  Prac.; 
Thomson  on  BiUs,  234, 564.  See  Society.  Joint 
Stock  Companies, 

FislierieB.    For  the  regulations  as  to  Bri- 
tish white  herring  fisheries,  see  14  and  16 , 
Vict.,  c  26. 

Fishes ;  become  the  property  of  him  who 
catches  them,  with  the  exception  of  those 
which  belong  to  the  Crown,  jure  corona,  and 
which  seems  to  be  confined  to  whales  of  a 
large  size.  Salmon-fishing  is  inter  regalia;  but 
although  it  requires  a  royal  grant  to  entitle  a 
man  to  fish  for  salmon,  yet  the  salmon,  when 
taken  by  one  who  has  no  such  grant,  do  not 
belong  to  his  Majesty,  but  to  the  person  who 
takes  them.  ErsL  B.  ii.  tit.  1,  §  10.  See 
Whales.^ 

Fislungs.  The  most  important  is  salmon- 
fishing,  which  belongs  to  the  Crown,  and  may 
or  may  not  be  given  out  with  the  lands. 
Where  it  is  given  in  express  words,  the  right 
is  constituted  from  the  first;  but  even  the 


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general  expresBion  of  Jkbings,  when  joined 
with  forty  years'  possession  of  a  salmon-fish- 
ing, constitutes  a  right  to  that  species  of  fish- 
ing. Where  the  right  has  not  been  given 
out  expressly,  nor  acquired  by  prescription, 
it  may,  notwithstanding  that  the  lands  on 
each  side  of  the  river  have  been  given  out, 
be  conveyed  t«  a  third  party;  and  as  the 
right  of  salmon-fishing  implies  a  power  of 
drawing  the  nets  on  the  banks,  that  power 
will,  under  the  grant,  be  conferred  on  the  dis- 
ponee  from  the  Crown.  See  Ersk.  6.  ii.  tit. 
6,  §  15;  Bell's  Prine.  §S  671,  754,  1112; 
Illust,  ib. ;  Hunter's  Landlord  and  Tenant,  i. 
269 ;  Hutch.  Just,  of  Peace,  vol.  ii.  p.  661,  et 
seq. ;  Taifs  Just,  of  Peace,  h.  t.  As  to  rules 
for  preservation  of  salmon,  see  7  and  8  Vict., 
c  95  (in  the  Tweed,  20  and  21  Fid.,  c.  148) ; 
and  of  trout,  8  and  9  Fid.,  c.  26.  See  Gruives  ; 
and  for  a  more  detailed  account  of  the  law  as  to 
Salmon-fishing,  see  that  article,  and  Stake-Nets. 
Other  fishings,  as  white-fishinga  in  the  sea,  or 
troat-flshings  in  rivers,  may  be  conferred  by 
a  grant  from  the  Crown,  though  a  charter  of 
the  lands  on  the  bank  of  a  river,  followed  by 
the  possession  of  a  trout-fishing  for  the  years 
of  prescription,  will  secure  the  proprietor 
against  the  effect  of  a  special  grant;  Car- 
mickael,  20th  Nov.  1787.  See  Ersk.  B.  ii. 
tit.  6,  §  6 ;  Stair,  B.  ii.  tit.  3,  §  69,  et  seq.; 
More's  Notes,  eci. ;  Bank.  vol.  i.  p.  574,  111 ; 
Ross's  Lect.  ii.  172, 196. 

As  to  trout-fishing,  see  that  article ;  as  to 
mussel  and  oyster  fishings,  see  the  Act  3  and 
4  Vict,  c.  74, 10  ond  11  Ftct.,  c  22,  and  these 
articles ;  and  as  to  limpets  and  shell-fish,  see 
the  case  of  HaU,  14th  Jan.  1852, 14  D.  324. 

Fisk ;  is  the  Crown's  revenue.  This  term 
is  usually  applied  by  Scotch  law-writers  to  the 
moveable  estate  of  a  person  denonnced  rebel, 
which  was,  by  our  older  practice,  forfeited  to 
the  Crown.  Ersk.  B.  ii.  tit.  2,  §  10 ;  Bank.  vol.  i. 
pp.  263, 83 ;  vol.  ii.  pp.  305, 46.    See  Escheat. 

Fixtures ;  are  articles  of  a  personal  nature 
attached  to  land  or  other  heritable  subjects, 
and  acceding  thereto  on  the  principle,  Inadi- 
fieatum  {velplantatum)  solo  solocedit.  Whatever 
is  requisite  to  render  the  premises  entire  and 
complete,  or  whatever  appears  intended  for 
perpetual  use  in  connection  with  them,  is  a 
fixture,  bat  whatever  is  separable,  and  in- 
tended to  be  separated,  is  not  a  fixture.  The 
determination  of  this  point  in  reference  to 
any  moveable  connected  with  any  heritable 
sabject  leads  to  the  decision  of  the  two  ques- 
tions,— 1.  Whether  the  moveable  subject  may 
be  removed  by  the  leasee,  who  voluntarily  con- 
structed it;  and,  2.  Whether  or  not,  by  its  con- 
nection with  the  heritable  sabject,  the  moveable 
also  becomes  heritable.  With  reference  to  the 
first  of  these,  the  doctrine  of  accession  has 
been  very  much  relaxed  in  farour  of  the 


lessee's  claim  to  have  certain  articles  con- 
sidered moveable ;  with  reference  to  the  se< 
cond,  the  strictness  with  which  the  rule  is 
enforced,  varies  according  as  the  question 
arises  between  the  heir  and  the  exeeoton; 
the  heritable  and  the  personal  creditors;  ortht 
fiar  and  the  liferentei^s  executors — the  Isw  in- 
clining much  more  readily  to  consider  a  sab- 
ject as  heritable  in  the  first  of  these  eases  tiian 
in  the  other  two.  But,  in  the  whole  of  them, 
it  seems  to  hold  as  a  general  rule,  that  what- 
ever it  is  impossible  to  remove  withoat  in- 
juring the  heritable  subject,  or  impairing  the 
use  for  which  it  was  intended,  is  a  fixtare, 
and  becomes  heritable  by  accession.  The 
most  important  subjects  of  this  class  are  con- 
structions for  agricultural  purposes,  and  fixed 
machinery  of  all  sorts.  With  regard  to  fences, 
see  the  article  Fences.  Houses  erected  by  the 
lessee,  which  are  in  general  classed  with 
fences,  differ  in  this,  that  he  may  not  remove 
them.  The  built  part  of  a  thrashing-mill  is 
considered  heritable,  the  machinerymoveable; 
but  when  the  lessee  receives  a  mm  of  money 
to  build  a  thrashing-mill,  the  machinery  be- 
comes the  property  of  the  lessor.  Treviases, 
racks,  and  mangers,  pat  up  in  a  building  not 
used  as  a  stable,  may  be  removed ;  but  it  ap- 
pears that  this  would  not  be  the  case  were 
they  put  up  in  a  stable.  In  questions  between 
the  heir  and  the  executor,  the  buckets,  chains, 
and  other  accessory  instruments  for  working 
coal,  are  considered  heritable  ;  but  in  qaes- 
tions  between  lessor  and  lessee  it  is  held  that 
they  may  be  removed.  A  brewer's  copper 
cauldron  is  a  moveable,  and  may  be  removed. 
There  has  been  some  doubt  as  to  whether  the 
machinery  of  a  cotton-mill  is  to  be  included 
in  an  heritable  security  over  the  mill;  hot  it 
is  certain  that  it  may  be  removed.  Large 
vessels  in  a  manufactory,  which  require  to  be 
taken  to  pieces  before  removal,  are  included 
in  an  heritable  secnrity,  but  may  be  removed 
by  the  lessee.  In  an  action  of  eonnt  and 
reckoning  arising  out  of  the  dissolution  of  a 
copartnership  of  cotton-spinners,  the  bell  of 
a  spinning  manufactory  was  found  to  be  a  fix- 
tare  ;  it  is  probable,  however,  that,  in  a  ques- 
tion between  landlord  and  tenant,  it  would  be 
considered  removable.  The  doctrine  of  fix- 
tures has  been  much  more  frequently  disensaed 
in  England  than  in  Scotland,'  perhaps  from 
greater  attention  being  bestowed  in  the  former 
country  in  arranging  contracts  of  temporary 
occupation.  The  same  interests,  however, 
are  concerned,  and  the  law  has  the  same  in- 
clination ;  relaxing  the  rule  of  accession  mnch 
more  readily  in  questions  between  lesspr  and 
lessee  than  between  heritable  and  personal 
claimants.  Whatever  has  been  constmeted 
by  the  tenant  for  trade  or  manufacture,  may 
be  removed  by  him,  if  it  can  be  done  withoat 


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naterinl  iiyary  to  the  subject  to  which  it  is 
attached, — as  vessels,  utensils,  furnaces,  vats, 
machinery,  steam-engines,  &c.  It  is  not, 
however,  so  clearly  established  that  the  tenant 
may  remove  more  substantial  and  permanent 
additions,  as  lime-kilns,  windmills,  and  other 
buildings  actually  let  down  into  the  earth ; 
but  he  may  in  general  prevent  the  accession 
of  buildings,  by  erecting  them  on  rollers, 
pillars,  stilts,  or  plates  of  wood  laid  on  brick- 
work. An  urban  tenant  may  remove  what- 
ever articles  he  has  fixed  up  for  ornament  or 
domestic  use,  as  hangings,  wainscot,  stoves, 
&c  Things  afSxed  for  purposes  purely  agri- 
cultural are  not  removable.  But  such  as  are 
of  a  mixed  nature — i.  e.,  such  as  have  some 
relation  to  trade — are  removable,  although 
they  may  be  the  means  of  obtaining  the  pro- 
fits of  the  land,  as  cider-mills,  machinery  in 
mines,  &c.  A  gardener  cannot  take  down 
hot-houses  or-  other  horticultural  erections. 
Tenants  must  remove  their  fixtures  before 
the  expiration  of  their  tenancy,  for  they  can- 
not insist  on  their  claim  after  the  term,  un- 
less they  have  continued  in  possession.  Of 
course,  all  these  rules  may  be  varied  by 
special  covenant.  BeWs  Princ.,  §§  743, 1473; 
lUust.,  ib.;  BelVs  Com.,  i.  752,  et  teq.;  ii.  2; 
TotfUiMfh.  t.;  Hunter's  Landlord  and  Tenant, 
i.  288,  et  seq,,  and  authorities  there  died  ;  Arh- 
urigbt  v.  BiUinge,  3d  Dec.  1819 ;  Niven  v. 
Pitcaim,  6th  March  1823 ;  Roxhwrgh,  Bligh's 
Am.  Gases,  it  156;  Dixon  v,  Fisher,  6th 
March  1843,  5  D.  775;  House  of  Lords,  4  BeU, 
286.    See  Heritable  and  Moveable.    Fences. 

Flotsam ;  in  English  law,  is  where  a  ship 
is  sunk  or  cast  away,  and  the  goods  are  float- 
ing npon  the  sea.  Where  the  owners  are  not 
known,  flotsam  goes  to  the  Crown ;  where 
they  are  known,  they  iave  a  year  and  day  to 
dauD  their  goods.     Tomlins,  h.  t. 

Flnmen ;  in  the  Roman  law,  signifies  run- 
ing  water  of  any  sort ;  but,  in  the  servitude 
of  stillicide,  the  term  is  specially  applied  to 
water  gathered  in  a  spout.  Ersk.  B.  ii.  tit.  9, 
§  9 ;  Stair,  B.  ii;  tit.  7,  §  7.     See  StiUicide. 

Poddei'  and  Straw.  A  tenant  must  con- 
sume upon  the  farm  the  straw  produced  by 
it,  and  he  is  not  entitled,  even  in  the  absence 
of  prohibitory  stipulation,  to  sell  any  part  of 
the  straw  or  fodder  grown  upon  his  lands, 
except  the  ha^  and  straw  of  his  outgoing 
«rop;  a  rule  applicable  to  assignees  and  sub- 
lessees as  well  as  to  the  principal  lessee.  The 
tenant  of  two  neighbouring  farms,  belonging 
to  different  proprietors,  must  not  consume  the 
green  crop  or  fodder  of  the  one  upon  the 
ether.  Yet  in  a  case  where,  by  special  agree- 
ment, a  lessee  was  entitled  to  manage  two 
farms  by  means  of  the  steading  of  one  of 
tiiem,  this  rule  was  held  to  apply  only  where 
there  are  proper  means  of  manufacturing  the 


grain,  and  consuming  the  fodder  npon  the 
farm.  In  absence  of  special  stipulation,  the 
outgoing  tenant,  who  cedes  possession  of  the 
houses  and  grass  at  the  term  of  Whitsunday, 
retains  the  arable  land,  until  he  has  cut  down 
and  carried  off  the  com,  straw,  and  fodder, 
of  that  year's  crop,  which  is  called  his  away- 
going  crop  ;  although,  in  some  counties,  fod- 
der used  for  making  dung  is  considered  steel- 
bow,  and  given  to  the  incoming  tenant. 
These  mattors,  however,  are  generally  settled 
by  stipulation  in  the  lease.  Etsk.  B.  ii.  tit. 
6,  §  39,  and  Notes  by  Mr  Ivory;  Bell's  Princ.  § 
1261;  Illust.\h.;  Bell  on  Leases,  i.327;  Hunter's 
Landlord  and  Tenant.    See  Steelbow.    Dung. 

Foeniu  ITationm;  that  rate  of  interest, 
proportioned  to  the  risk,  which  a  person  lend- 
ing money  on  a  ship,  or  on  bottomry,  as  it  is 
termed,  is  entitled  to  demand.  Ersk.  B.  iv. 
tit,  4,  §  76 ;  Stair,  B.  i.  tit.  15,  §  6. 

Foelns.  The  destruction  of  an  unborn  in- 
fant, though  an  indictable  offence,  is  not 
homicide.    Hume,  i.  186  ;  Steele,  70,  note. 

Fcetos  of  Cattle.  The  young  of  cattle,  as 
foals,  calves,  &c.,  are  an  accessory  of  the 
mother,  and  belong  to  the  owner  of  the  mother 
by  natural  accession.  Ersk,  B.  ii.  tit.  1,  §  14. 
See  Accessi&n. 

Force  and  Fear.  Force  and  fear  are 
grounds  for  the  reduction  of  a  contract ;  but 
it  is  not  every  degree  of  fear  that  will  be 
sustained  as  su£Bcient.  It  is  a  fear  which 
may  shake  a  mind  of  ordinary  firmness  and 
resolution  which  constitutes  a  sufficient  ground 
of  reduction.  But  the  degree  is  in  every  case 
relative  to  the  situation  and  disposition  of  the 
contracting  party ;  since  comparatively  little 
violence  is  required  to  force  the  consent  of  a 
person  of  weaker  age,  sex,  or  condition. 
Among  the  instruments  of  force  and  fear 
which  have  been  held  to  annul  engagement, 
are  threats  and  terror  of  death ;  or  pain  to 
one's  self  or  child.  The  reverential  fear 
arising  from  the  authority  of  parents,  of  hus- 
bands, or  of  magistrates ;  or  that  proceeding 
from  the  execution  of  lawful  diligence,  is  not 
admitted  as  a  ground  of  reduction;  unless 
where  legal  diligence  is  held  out  as  the  means 
of  extortinga  deed  from  the  debtor,  unconnected 
with  the  debt  on  which  the  diligence  pro- 
ceeds. But  even  where  the  obligation  relates 
to  the  debt  on  which  the  diligence  proceeds, 
if  the  diligence  be  erroneous,  the  obligation 
is  reducible;  Henderson,  20th  Feb.  1782, 
Mor.  14349.  More  vexation  and  inconve- 
nience, as  the  threat  of  a  lawsuit,  is  not  suffi- 
cient to  vitiate  the  consent  thereby  obtained. 
It  has  been  doubted  whether  a  deed  obtained 
by  force  is  null  ab  initio,  or  only  reducible. 
Stair  (B.  i.  tit.  9,  §  8)  says,  that  the  plea  of 
force  and  fear  is  competent,  "  either  by  way 
of  action,  or  sometimes  by  exception."    But 

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it  may  be  questioned  whether  it  can  be  pleaded 
by  way  of  exception  to  the  action  of  a  bona 
fide  onerous  assignee.  In  WigUman  v.  GraAam, 
6th  Dec.  1787,  Mor.  1521,  it  was  held,  that 
the  exception  of  violence,  arising  from  legal 
concussion,  in  extorting  a  bill  of  exchange, 
would  be  available  even  against  a  h<ma  fide 
onerous  indorsee  ;  but  it  has  been  said  of  this 
case  that  it  requires  reconsideration.  Indeed, 
upon  this  point,  text  writers  seem  in  dan- 
ger of  falling  into  a  controversy.  By  one, 
the  effect  of  compulsion  is  declared  to  be 
equally  subversive  of  consent  with  error  t» 
essentimbut,  and  to  be  a  "good  objection 
against  third  parties"  {BelPs  Com.  i.  297) ; 
and,  in  another  part  of  the  same  work,  it  is 
said,  "Restitution  will  therefore  be  given, 
not  only  against  the  buyer,  but  even  against 
purchasers  from  him,  where  the  seller  is  in- 
capable of  full  and  legal  consent ;  or  where 
the  sale  has  proceeded  from  such  fear  and 
compuhion  as  in  law  annuls  and  makes  it 
void;"  lb,  241.  Another  author  takes  a  dis- 
tinction between  the  act  of  taking  goods  by 
violence,  and  the  act  of  compelling  a  party  to 
sell  his  goods.  In  the  former  case,  he  holds 
that  the  violence  inurit  Mem  redem,  so  as  to 
entitle  the  owner  to  recover  the  goods  even 
from  a  bona  fide  purchaser.  In  the  latter 
ease  he  holds,  upon  the  maxim  Volimtas  coacta 
est  voluntas,  that  although  the  contract  is 
clearly  voidable,  it  is  not  ipso  jure  void,  and 
that  the  property  is,  in  the  first  instance, 
transferred  so  as  to  enable  the  wrong-doer  to 
give  a  good  title  to  a  bona  fide  purchaser.  See 
Brown  on  Sale,  397,  and  the  authorities  there 
cited,  in  support  of  the  doctrine.  For  the  form 
of  the  summons  of  reduction  on  the  head  of 
force,  see  Jurid.  Sttfles,  iii.  214 ;  and  on  the 
subject  of  this  article  generally,  see  Ersk. 
B.  iv.  tit.  1,  §  26;  Stair,  B.  i.  tit.  9,  §  8,  and 
tit.  17,  §  14 ;  Mor^s  Notes,  Iviii. ;  BatUe.  i. 
311 ;  BelPs  Com.  i.  295, 241 ;  Brown  on  Sale, 
395,  etseq.;  Bdl's  Princ.  §  12;  Jllust.  ib. ; 
Thomson  on  Bills.    See  Extortion. 

Forcible  Entry;  in  English  law,  an  offence 
against  the  public  peace,  committed  by  vio- 
lently taking  or  keeping  possession  of  lands 
and  tenements  without  the  authority  of  law, 
so  that  the  legal  proprietor  is  excluded. 
Tomlins,  h.  t.  The  corresponding  Scotch  law 
terms  are  Ejection  and  Intrusion,  which  see. 

Forcibly  Defending.  SeeDefendingforciblt/. 

Forehand  Rent.  Rent  is  said  to  be/or«- 
hand  when  it  is  made  payable  before  the 
crop  of  which  it  is  the  rent  has  been  reaped. 
After  the  period  when  it  is  due  and  exigible, 
forehand  rent  is  in  bonis  of  the  lessor,  and 
passes  to  his  executor,  not  his  heirs.  BelPs 
Frinc.  §§  1230, 1499 ;  Illust.  §  1499 ;  Hunter's 
Landlord  and  Tenant,  ii.  308,  424;  i.  433. 
See  Terms,  Legal  and  Conventional. 


Foreign.  Persona  rerident  cot  of  Seotknd 
may  be  cited  to  the  courts  of  this  country  in 
civil  actions  where  they  have  an  estate,  either 
heritable  or  moveable,  in  Scotland.  1.  Where 
the  foreigner  has  an  heritable  estate,  he  may 
be  citededictally  as  a  native  (see  Edictal  Cita- 
tion), because  it  is  presumed  that  he  employs 
an  attorney  in  this  country  to  attend  to  his 
interest,  and  appear  in  all  actions  that  may 
affect  that  estate.  Where  he  has  only  a  per- 
sonal estate  in  Scotland,  his  effects  must  first 
be  attached  by  an  arrestment ^rt«Jictt<mu/tm- 
danda  causa,  and  then  an  action  must  be 
raised  on  which  he  may  be  cited  edictally. 
See  Arrestment  jurisdictionis  fundandcB  causa. 
Abroad.  The  Court  of  Session  is  the  con- 
mune  forum  of  all  foreigners ;  and  hence,  al- 
though an  inferior  court  has  sufficient  juris- 
diction to  attach  the  funds  of  a  foreigner 
within  the  territory  or  jurisdiction  of  the  in- 
ferior jnAg^,  jurisdictionis  fiimdandw  causa,jet 
the  action  itself  must  be  pursued  before  the 
Supreme  Court.  A  Scotchman  forth  of  Scot- 
land, animo  remanendi,  is,  in  this  question,  in 
the  same  situation  as  a  foreigner,  for  it  is 
now  settled  that  the  forum  originis  gives  no 
jurisdiction  per  se.  Proceedings  in  Scotland 
cannot  be  stopped  because  analogous  pro- 
ceedings could  not  be  carried  on  in  another 
country.  Thus,  an  English  creditor,  who  has 
imprisoned  his  debtor  in  England,  may  at- 
tach his  property  in  Scotland,  although,  by 
the  law  of  England,  a  creditor  cannot  both 
incarcerate  his  debtor  and  attach  his  effects. 
But  wherever  a  debt  is  discharged  by  the  law 
of  one  country,  it  must  be  discharged  in  every 
other.  Foreign  or  English  law  is  in  this 
country  matter  of  evidence,  and  the  only  com- 
petent mode  of  proving  such  law,  is  to  adduce 
a  barrister  or  other  person  skilled  in  the  law 
of  the  particular  country,  or  to  produce  his 
written  opinion  on  an  adjusted  case.  See  Ditk- 
son  on  Evidence,  p.  989.  It  has  fireqnently 
been  a  question  with  regard  to  debts  con- 
tracted in  a  foreign  country,  and  sued  for  in 
Scotland,  whether  the  lex  loci  contractus,  or 
the  lex  fori,  is  to  determine  the  rules  of  evi- 
dence, obligation,  and  dissolutiou.  The  prin- 
ciple of  decision  in  all  such  cases  has  been 
very  clearly  announced  and  illustrated  by 
Lord  BHoiTeHAK,in  moving  the  judgment,  in 
the  House  of  Lords,  in  Don  v.  Lipman,  26th 
May  1837 ;  2  Sh.  and  IPL.  682.  A  dis- 
tinction is  taken  between  the  contract  and 
the  remedy.  Whatever  relates  to  the  na- 
ture of  the  obligation,  ad  valorem  coatraetus, 
is  governed  by  the  lex  loci  contractus :  what- 
ever relates  to  the  remedy,  by  suits,  to  com- 
pel performance,  or  by  action  for  a  breach, 
ad  decisionem  litis,  is  governed  by  the  law  of 
the  country  to  whose  courts  the  application 
is  made  for  performance,  or  for  damages. 

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Thus,  in  an  action  before  a  Scotch  court,  the 
pursuer  can  claim  higher  interest  than  5 
per  cent,  upon  a  debt  contracted  in  a  country 
where  higher  interest  is  ezigible.  In  Gamp- 
heU,  15tt  Feb.  1809,  Fac.  CoU.,  8  per  cent,  in- 
terest was  found  due  upon  a  bond  granted  in 
India,  without  any  distinction  being  made 
between  the  time  before  the  parties  eame  to 
be  resident  in  Scotland  and  after.  In  Graham, 
19th  Feb.  1820,  2  Dovi,  17,  and  2  Bligh,  127, 
the  House  of  Lords  found  the  same  princi- 
ple to  apply ;  but  held,  in  addition,  that  after 
the  debtors  were  found  liable  for  the  princi- 
pal sum  in  the  bond,  by  a  decree  in  this 
country,  the  debt  became  a  British  debt,  and 
could  thenceforward  carry  only  British  in- 
terest at  5  per  cent.,  to  be  calculated  on  the 
aggregate  sums.  See  also,  Wilkinson,  28th 
June  1821 ;  Faimer  a»A  Go's.  Assignees,  24th 
Jan.  1835 ;  Beffs  lUvst.  §  32,  Nos.  6,  7,  8, 
and  17.  IJnder  the  second  head  of  (questions 
arising  npon  the  remedy,  are  ranked  the 
rules  of  evidence,  and  law  of  prescription  and 
limitation.  When  an  action  is  brought  in 
Scotland  upon  an  obligation  contracted  in  a 
foreign  country,  the  law  of  Scotland  and  the 
right  of  action  fall  under  the  Scot«h  pre- 
scription, however  entire  the  obligation  might 
be,  were  it  founded  on  in  the  courts  of  the 
country  where  it  was  entered  into.  Such  is 
the  principle  as  established  in  the  case  of 
Don.  It  may  be  mentioned,  however,  Ihat 
previous  to  the  reversal  in  that  case,  there 
had  been  many  conflicting  decisions  of  the 
Conrt  of  Session,  on  the  question,  whether 
the  doctrine  of  limitation  relates  to  the  con- 
tract or  the  remedy.  These  will  be  found 
cited  and  commented  npon  in  the  speech  of 
LoKD  Bbououau  above  referred  to.  (See 
Didcson  on  Evidence,  pp.  293,  626,  218,  &c.) 
See,  in  addition,  Tlumson,  16th  July  1708, 
lfor.4504;5a»«JaU3th  July  1768,  Jfor.  4520; 
Brom^s  Sup.  v.  541 ;  Kerr,  20th  Feb.  1771, 
Mor.  4622  ;  BareU.  4th  Feb.  1772,  ifor.  4524; 
York  Buildings  Go.,  14th  Feb.  1792,  Mor. 
4528 ;  BelPs  8vo.  Gases,  364 ;  Gampbell,  Bow's 
Rep.  vi.  116  ;  Gibson,  9S.dsD.  525  ;  Orubb, 
13  S.  A  D.  603 ;  Robertson,  1 843, 6  Z).  17.  By 
I  Vict.,  c.  29,  it  is  enacted,  that  foreigners 
bearing  her  Majesty's  commission,  may  be 
promoted  to  the  rank  of  general  officers,  and 
that  foreigners  may  enlist  in  Her  Majesty's 
service,  provided  that  in  any  regiment,  bat- 
talion, or  corps,  their  number  shall  not  ex- 
ceed the  proportion  of  one  to  fifty  of  natural- 
bom  subjects.  As  to  the  citation  of  persons 
abroad,  see  Edictal  Citation. 

For  compelling  the  attendance  of  witnes- 
ses in  England  and  Ireland,  see  the  acts  6 
and  7  Vict.,  c.  82  (1843),  and  17  and  18 
Vict,  c.  34  (1854).  A  recent  statute  (19 
and  20  Vict.,  c.  113)  provides  for  taking 


evidence  in  this  country  in  relation  to  mat- 
ters pending  before  foreign  tribunals.  As 
to  foreign  and  international  copyright,  see 
15  Vict.,  c.  12,  and  statutes  there  referred 
to.  See  on  the  subject  of  this  article  gene- 
rally. Stair,  B.  i.  tit.  1,  §  16 ;  B.  iii.  tit  8, 
§§  35  and  65 ;  Mor^s  Notes,  p.  i.  e<  seq. ;  Ersk. 
B.  i.  tit.  2,  §  18 ;  Notes  by  Mr  Ivory,  B.  iii. 
tit.  2,  §  39 ;  BeWs  Com.  ii.  68, 168, 663,  687, 
681 ;  BdPs  Princ.  §  2226,  and  authorities 
there  cited ;  Jurid.  Styles,  2d  edit.  vol.  ii.  pp. 
2,  224,  535 ;  iii.  4, 23,  706 ;  Karnes'  Equity, 
482 ;  Shand^s  Prac. ;  Macfarlan^s  Jury  Frac. 
207  ;  Maclaurin's  Sheriff  Frac.  11,72 ;  Story's 
Conjlict  of  Laws ;  Surges'  Commentaries.  See 
Citation.  Abroad.  Arrestment.  Domicile.  De- 
fender.   Alien. 

Forensis ;  an  unfree  man  who  dwells  not 
within  burgh ;  an  out-dwelling  man,  called 
therefore  rure  manens,  who,  dwelling  aland- 
ward,  has  no  privilege  or  immunity  within 
burgh.     Skene,  h.  t. 

ForestaUing,  or  Regrating ;  is  the  crime 
of  purchasing  goods  coming  to  market,  with 
a  view  to  sell  them  again,  and  so  to  raise 
the  price  on  the  consumer.  A  person  pur- 
chasing articles  on  the  way  to  market,  for 
his  own  use,  is  guilty  of  no  crime.  The 
essence  of  the  crime  seems  formerly  to  have 
been  thought  to  consist  in  interposing  between 
the  raiser  of  the  article  and  the  consumer. 
Thus,  the  Act  1692,  c.  148,  declares  it  crimi- 
nal for  a  person  to  get  into  his  possession  the 
growing  corn  on  the  field,  by  sale,  contract, 
or  promise.  Prosecutions  for  this  offence  are 
now  unknown.  Uume,\.  610 ;  Ersk.  B.  iv.tit. 
4,  §  38;  Bank.  vol.  i.  pp.  412,  414;  Tait's 
Justice  ofFeace,  h.  t. ;  Karnes'  Stat.  LawAbridg. 
h.  t.  See  also  the  English  stat.  7  aytd  8  Geo. 
/F.,  c.  38.    See  Engrosser.  Fairs  and  Markets. 

Forestarius;  a  forester  or  keeper  of 
woods,  to  whom,  by  reason  of  his  office,  per- 
tains the  bark  and  the  hewn  branches.  Fo- 
resta  is  a  large  wood,  without  dyke  or  closure, 
which  has  no  water,  wherein  are  included 
wild  beasts,  and  where  some  have  liberty  of 
hunting.     Skene,h.  t. 

ForMtry.  Lands  granted  by  the  Crown 
with  a  right  of  forestry  carried  all  the  pri- 
vileges of  a  royul  forest  which  were  very  op- 
pressive to  the  country,  and,  accordingly,  the 
practice  of  making  .such  grants  was  reproba- 
ted by  the  Conrt  of  Session  in  1680 ;  since 
which  time,  grants  of  forestry  have  fallen 
into  disuse.  Ersk.  B.  ii.  tit.  6,  §  14 ;  Stair, 
B.  ii.  tit  3,  §  67,  et  seq;  Bank.  vol.  i.  p.  673, 
100 ;  Bdl's  Frinc.  §§  670, 753 ;  lUust.  §  670 ; 
Brown's  Synop.  h.  t. ;  Watson's  Stat.  Law,  h.  t. 
See  Deer. 

Foretlioiiglit  Felony ;  is  murder  commit- 
ted in  consequence  of  a  previous  design,  which 
anciently   was  distinguished    from   murder 

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committed  on  a  sudden.  But  the  Act  1661, 
c.  22,  takes  away  all  distinction,  and  punishes 
both  equally ;  at  the  same  time  it  declares 
that  casual  homicide,  or  homicide  in  self-de- 
fence, shall  not  be  punished  capitally.  Ersk. 
B.  iv.  tit.  4,  §  40 ;  Hume,  ii.  239,  Nok  3, 241. 
See  Chaud  Melle. 

Forfeiture ;  is  the  loss  of  property  conse- 
quent either  upon  the  contravention  of  some 
condition  on  which  the  property  is  held,  or 
upon  the  commission  of  a  crime  to  which  for- 
feiture has  been  annexed  by  law  as  the  pe- 
nalty. Thus,  forfeiture  is  either  civil  or 
criminal. 

1.  Civil  foffeiture. — ^Forfeiture  may  arise 
in  civil  cases  either  from  statutory  regula- 
tion— from  the  rules  of  common  law — or  by 
private  agreement.  Thus,  the  Act  1597,  c. 
246,  provides,  that  all  feu-vassals  failing  to 
pay  their  feu-duties  for  two  years  "  haill  and 
together,"  shall  lose  their  right,  in  the  same 
manner  as  if  an  irritant  clause  had  been  in- 
serted in  the  right.  This  irritancy  must  be 
declared  by  an  action ;  and  in  that  action 
the  vassal,  by  paying  up  the  feu-duty,  will 
escape  the  forfeiture.  The  forfeitures  at 
common  law  arise  from  the  relation  of  supe- 
rior and  vassal.  A  vassal  who  disclaims  his 
superior  forfeits  his  feu,  though,  as  this  rule 
is  now  received,  a  very  slender  excuse  will 
save  the  vassal  from  the  penalty.  In  the 
same  way,  purpresture  is  another  feudal  de- 
linquency, which  draws  after  it  a  forfeiture 
of  the  feu.  The  offence  consists  in  encroach- 
ing on  the  streets,  highways,  or  other  com- 
monties  belonging  to  the  Sovereign  or  to  the 
superior.  But  this,  like  the  preceding  for- 
feiture, will  be  purged  on  very  slender 
grountte ;  and,  in  truth,  neither  of  them  is 
known  in  modem  practice.  The  conven- 
tional forfeitures  are,  for  example,  where  a 
vassal  becomes  bound  in  his  original  right  to 
certain  conditions,  as  that  he  shall  not  sell 
without  first  offering  the  feu  to  the  superior, 
under  the  condition  of  forfeiture.  If  this  be 
guarded  by  an  irritant  and  resolutive  clause, 
it  will  be  effectual  even  against  third  parties; 
or  a  forfeiture  may  arise  from  neglecting  the 
conditions  of  an  entail  guarded  by  irritant 
and  resolutive  clauses.  But  by  some  law- 
yers it  has  been  thought  that  the  condi- 
tions under  which  property  is  conveyed,  will 
not  affect  a  purchaser,  uuless  they  be  guarded 
in  the  original  right  by  irritant  and  resolu- 
tive clauses,  and  unless  the  condition  has  en- 
tered the  register  of  sasines.  See  Irritant 
and  Resolutive.  CondilioM.  Destination.  Clause 
of  Pre-emption.    Clause  de  non  alienando. 

In  the  case  of  Corporation  of  Tailors  of 
Aberdeen  v.  Coutts,  it  was  held  that  conditions 
in  a  feudal  grant,  if  they  entered  the  investi- 
ture of  the  vassal,  may  be  enforced  against 


a  singular  successor,  although  neithw  d^ 
clared  a  real  burden  nor  protected  by  an  ir- 
ritancy. In  the  opinion  returned  by  the 
Court  to  the  House  of  Lords  the  law  was 
thus  stated : — "  To  constitute  a  real  burden, 
or  condition,  either  in  feudal  or  burgage 
rights,  which  is  effectual  against  singalar 
successors,  words  must  be  used  in  the  convey- 
ance which  clearly  express,  or  plainly  im- 
ply, that  the  subject  itself  is  to  be  affected, 
and  not  the  grantor  and  his  heirs  alone; 
and  those  words  must  be  inserted  in  the  sa- 
sine  which  follows  on  the  conveyance,  and  of 
consequence  appears  upon  the  record.  In 
the  next  place,  the  burden  or  condition  most 
not  be  contrary  to  law,  or  inconsistent  with 
the  nature  of  this  species  of  property;  it 
must  not  be  useless  or  vexatious;  it  must  not 
be  contrary  to  public  policy,  for  example,  by 
tending  to  impede  the  commerce  of  huid,  or 
create  a  monopoly.  The  superior,  or  the 
party  in  whose  favour  it  is  concerned,  mast 
have  an  interest  to  enforce  it.  Lastly,  if  it 
consiste  in  the  payment  of  a  sum  of  money, 
the  amount  of  the  sum  must  be  distinctly 
specified.  If  these  requisites  concur,  it  is  not 
essential  that  any  voces  signatce  or  technical 
form  of  words  should  be  employed.  There 
is  no  need  of  a  declaration  Uiat  the  obliga- 
tion is  real,  that  it  is  d^twn  fundi,  that  it 
shall  be  inserted  in  all  the  future  infeftmenti, 
or  that  it  shall  attach  to  singular  successors. 
It  is  sufficient  if  the  intention  of  the  parties 
be  clear,  reference  being  had  to  the  nature 
of  the  grant,  which  is  often  of  great  import- 
ance in  ascertaining  its  import.  Neither  is 
it  necessary  that  the  obligation  should  be 
fenced  with  an  irritant  clause,  and  far  les 
with  irritant  and  resolutive  clauses,  which 
last  are  peculiar  to  a  strict  entail ;  a  settle- 
ment depending  upon  a  different  principle 
altogether.  On  strict  feudal  principles  obli- 
gations in  feudal  grants  are  effectual  as  con- 
ditions of  the  grant,  without  a  compliance 
with  which  the  superior  is  not  bound  to  give 
an  entry  to  the  vassal."  This  case  was  de- 
cided 20th  Dec.  1834, 13  5.226.  On  appeal 
it  was  remitted  23d  May  1837,  2  S.  and 
M'L.  609 ;  and  the  judgment  thereafter  af- 
firmed 13tk  Aug.  1840,  1  Rob.  296.  See 
also  3  Ross's  L.  C.  269. 

2.  Forfeiture  for  Crimes. — A  forfeiture  of 
moveables  follows  upon  the  sentence  of  death 
being  pronounced.  It  follows  also  on  convic- 
tion of  perjury,  of  bigamy,  of  deforcement, 
of  breach  of  arrestment,  and  of  usury.  For- 
merly, too,  a  forfeiture  of  moveables,  or  the 
falling  of  the  single  escheat,  as  it  was  called, 
took  place  where  a  debtor  was  denounced 
rebel,  on  letters  of  homing,  for  not  payment 
of  a  debt,  and  remained  unrelaxed  for  the 
period  of  a  year ;  but  this  last  species  of  for- 


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feiture  was  abrogated  by  the  act  abolishing 
wardholding.  The  forfeiture  of  heritage, 
foIloviDg  on  a  conviction  for  high  treason, 
according  to  the  laws  of  England,  now  takes 
place  in  Scotland  also,  in  consequence  of  the 
extension  of  the  Treason  Laws  of  England 
to  this  country.  See  Escheat.  Denunciation. 
By  the  law  of  England,  a  person  convicted 
of  treason  forfeits  to  the  Crown  his  whole 
property,  heritable  and  moveable,  as  well  as 
his  honours  and  dignities;  and  the  conse- 
quent corruption  of  blood  deprives  him  of  all 
right  of  succession,  and  prevents  his  descend- 
ants from  taking  any  succession  through  him. 
See  Comiption  of  Blood.  The  Court  will  not 
give  judgment  on  a  pleading  lodged  under  a 
forfeited  title  ;  Shand't  Prae.  i.  170.  This 
forfeiture  may  affect,— 1.  Claimants  under  a 
title,  preferable  to  that  of  the  attainted  per- 
son ;  2.  His  heirs-at-law ;  his  creditors  and 
lingolar  successors ;  and,  4.  Heirs  of  entail. 
1.  CZotmanU  u,nder  a  preferable  tide. — ^By  the 
act  1584,  c.  2,  it  was  enacted,  that  all  heri- 
tage, which  had  been  possessed  by  the  at- 
tunted  person  for  the  space  of  five  years  be- 
fore the  attainder,  should  be  held  to  be  the 
alMoInte  property  of  the  attainted  person ; 
but  the  severity  of  this  short  prescription  was 
mitigated  by  the  act  1690,  c.  33,  whereby  for- 
feited estates  were  subjected  to  all  real  actions 
and  claims,  though  not  raised  within  the  five 
years.  2.  The  heir-at-law  of  the  attainted  per- 
tM. — The  heirs-at-law  are  not  only  deprived, 
by  the  attainder,  of  all  that  their  ancestor 
poneased,  but  they  are  deprived  even  of  the 
privilege  of  taking  other  successions,  which 
they  can  claim  only  through  him.  There 
teems  to  be  an  exception  in  the  case  of  digni- 
ties and  honours.  See  the  case  of  the  Duke 
ofAMe,  noticed  by  Ertk.  B.  iv.  tit.  4,  §  26. 
3.  The  creditors  and  singtdar  successors  of  the 
attainted  person. — Creditors  originally  had  no 
ucnrity  in  Scotland ;  and,  on  the  attainder, 
the  whole  estate  fell  to  the  Crown.  This  was 
thought  so  unjust  as  to  require  the  interposi- 
tion of  the  Legislature ;  and,  by  the  act 
1690,  c.  33,  the  rights  of  creditors  were  pre- 
served entire  ;  but,  after  the  Union,  it  be- 
came a  question,  whether  this  statute,  or  the 
articles  of  Union,  by  which  the  law  of  Eng- 
land was  made  the  rule,  should  be  held  to 
Kgulate  those  rights;  when  it  was  at  last 
determined  that  the  natter  was  to  be  regu- 
lated by  the  law  of  England.  By  that  law, 
debts,  heritably  secured  on  the  estate,  are  not 
affected  by  the  attainder ;  but  personal  debts 
cannot  he  made  the  grounds  of  attaching  the 
estate ;  in  consequence  of  which,  special  sta- 
tutes were  passed  after  the  Rebellions  1715 
uid  1745,  extending  the  rule,  as  to  heritable 
debts,  to  all  the  lawful  creditors  of  the  for- 
feited person.    4.  Heks  of  Entail. — In  the 


case  of  an  heir  of  entail,  the  forfeiture,  on 
conviction  of  high  treason,  extends  to  the 
descendants  of  the  forfeited  person,  and  do- 
prives  them  of  the  right  of  succession,  so  as 
to  give  possession  to  the  substitute,  not  a  de- 
scendant of  the  body  of  the  forfeited  person ; 
Fac.  Coll.  vol.  i.  No.  3.  See  Hume,  i.  546, 
661 ;  ii.  482 ;  Stair,  B.  iii.  tit.  3,  §  28,  et 
seq.;  ifw«'aJVo<e«,p.cccxi.;  jBanJ;.vol.ii.p.249, 
§  1 ;  p.  261,  §  46 ;  Swint.  Ahridg.  h.  t. ;  Kames' 
Stat.  Law  Ahridg.  h.  t. ;  Ross's  Leet.  i.  208, 256, 
392  ;  Gibson,  Dow's  Appeal  Cases,  ii.  314. 

Forgery;  is  the  crime  of  imitating  the 
subscription  of  another,  adhibiting  it  to  a 
deed,  and  putting  that  deed  to  use,  by  acting 
under  it,  or  receiving  property  in  virtue  of  it, 
by  founding  on  it  in  judgment  as  a  title  to  sue, 
or  to  defend,  or  by  making  it  over  to  another. 
The  proof  of  forgery  is  either  direct  or  indi- 
rect. 1.  The  direct  proof  of  forgery  consists 
in  the  examination  of  the  writer  of  the  deed, 
and  of  the  instrumentary  witnesses — that  is, 
the  witnesses  who  sign  the  deed  and  attest 
the  subscription.  The  subscription  of  wit- 
nesses is  an  attestation  to  which  the  law  gives 
effect,  so  as  on  their  death  to  hold  their  sub- 
scriptions as  evidence  of  the  regularity  of 
the  deed.  Even  where  a  witness  does  not  re- 
collect, weight  is  given  to  his  subscription ; 
so  that,  to  cut  down  the  effect  of  a  deed  regu- 
larly attested,  the  instrumentary  witnesses 
must  be  brought  to  swear  to  circumstances 
sufiicient  to  invalidate  the  evidence  afforded 
by  their  subscriptions — a  proof  which  the  law 
does  not  reject.  2.  The  indirect  mode  of 
proof  is  by  an  investigation  of  all  those  cir- 
cumstances, which  may  infer  that  the  person, 
by  whom  a  deed  is  said  to  have  been  sub- 
scribed, actually  did  not  subscribe  it— e.^., 
an  error  in  the  date,  an  alibi,  the  stamp,  the 
contexture,  or  date  even  of  the  paper,  a  eom- 
paratio  literarum,  or  comparison  of  the  hand- 
writing. The  comparison  of  the  handwriting 
is  made  with  genuine  subscriptions  of  the 
same  date  with  the  one  alleged  to  be  a  for- 
gery ;  and,  where  the  real  subscriptions  differ 
from  the  one  founded  on,  the  forgery  may  be 
pronounced  upon  with  a  considerable  degree 
of  certainty.  See  Comparatio  Liieranim. 
Handwriting.  The  indirect  mode  of  proof  is 
not  resorted  to  where  the  direct  mode  is  prac- 
ticable. Formerly,  though  the  punishment 
was  not  expressly  laid  down  by  statute,  all 
gross  cases  of  forgery  were  capital  at  common 
law ;  and,  in  cases  of  less  moment,  an  arbi- 
trary punishment  was  inflicted.  But  the 
punishment  of  death  was  first  much  restricted 
by  1  Will.  IV.,  c.  66,  and  2  and  3  Will.  IV., 
c.  1 23 ;  and  at  length,  by  1  Vict,  c.  84,  totally 
abolished  in  cases  of  forgery, — transportation 
for  life,  or  for  a  term  of  years,  being  substi- 
tuted.   By  6  and  6  Will.  IV.,  c.  73,  it  is 


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enacted,  that  persons  committed  to  trial  for 
any  forgery,  the  panishment  of  which  was 
before  capital,  bat  had  been  changed  by  pre- 
eeding  statates  to  transportation  for  life, 
shall  not  be  entitled  to  bail,  unless  the  High 
Court,  or  Circuit  Court  of  Justiciary  shall, 
on  the  application  of  the  accused,  consider  it 
consistent  with  the  ends  of  justice  to  grant 
him  the  privilege  of  bail.  Forgery  is  one  of 
the  crimes  in  which  the  Court  of  Session  has 
a  criminal  jurisdiction.  Such  a  criminal  pro- 
secution for  forgery  may  originate  by  a  peti- 
tion and  complaint  at  a  private  party's  in- 
stance, with  concourse  of  the  Lord  Advocate, 
or  with  the  Lord  Advocate  alone.  The  com- 
plaint is  in  substance  an  indictment,  and  must 
nave  attached  to  it  a  list  of  witnesses,  and^be 
served  on  the  panel  like  an  indictment,  on 
an  inducias  of  fifteen  days.  As  the  party 
cannot  be  punished  unless  he  appear,  the 
Court,  on  the  pursuer's  application,  grants 
warrant  to  incarcerate  the  defender.  If,  how- 
ever, forgery  is  not  directly  charged,  but 
merely  facts  stated,  from  which  the  inference 
is  drawn,  warrant  is  given  to  bring  the  dO' 
fender  before  the  Court  for  examination. 
After  the  process  is  in  Court,  but  before  going 
to  proof,  the  defender  has  usnally  been  exa- 
mined in  presence  of  the  Court.  Parties  are 
then  heard,  and  judgment  prononnced  on  the 
relevancy  of  the  libel  and  defences,  and  the 
proof  is  taken.  The  Court  hears  any  rele- 
vant defence,  at  however  late  a  stage  it  be 
brought  forward.  If  the  panel  is  found 
guilty,  the  writs  are  reduced,  and  generally 
torn  in  the  presence  of  the  Court.  The 
offender  may  also  be  punished  to  any  extent 
short  of  death ;  but  formerly,  when  the  Court 
found  the  forgery  deserving  of  capital  pnnish- 
ment,  they  merely  reduced  the  deeds,  found 
the  panel  guilty,  and  remitted  him  to  the 
Court  of  Justiciary.  The  criminal  jurisdic- 
tion of  the  Court  of  Session  in  cases  of  for- 
gery is  now,  however,  more  a  matter  of  his- 
torical curiosity  than  of  practical  utility; 
since,  for  upwards  of  fifty  years,  the  trial  in  all 
cases  of  forgery,  whether  the  evidence  be  di- 
rect or  circumstantial,  has  taken  place  before 
the  Court  of  Justiciary.  Some  interesting  in- 
formation on  the  subject  will  be  found  in 
Alison's  Princ.  423,  «<  seq.  According  to  the 
same  authority,itrather  seems  to  be  competent 
to  the  sheriff  to  try  for  this  offence;  Ibid. 
415.  In  the  action  of  reduction-iroprobation 
in  the  Court  of  Session,  where  fraud,  forgery, 
and  falsehood  are  usually  libelled  on,  the 
concourse  of  the  Lord  Advocate  is  necessary, 
even  although  the  question  is  tried  merely  ad 
dvilem  efectum.  Aa  to  forgery  of  Bank  of 
England  notes,  see  16  Vict.,  c.  2.  See  Hume. 
i.  133,  et  seq.;  Bell's  Sup.  p.  49 ;  Ersk.  B.  iv. 
tit.  4,  §  67,  et  seq. ;  Bank.  vol.  i.  p.  296,  § 


213 ;  p.  415,  §  16,  et  seq. ;  Watson's  Stat.  Lav, 
voce  Bank-note  Bill ;  Thmnson  on  Bills ;  Stoint. 
Abridg.  h.  t. ;  Shand's  Prac.  34,  36, 218, 223, 
289,  497, 642, 1035;  Macfarlane's  Jury  Pne. 
225 ;  5.  db  D.  xiii.  1170.  See  Engnaing. 
Coining.    Abiding  by.     Concourse. 

Forgery  may  be  committed  by  the  adhibi- 
tion  of  a  mark  or  cross ;  MacmiUan,  Jan.  24, 
1859.  As  to  the  legal  effect  of  payment  m 
a  forged  document,  see  the  cases  of  Orr  and 
Barber,  H.  L.,  August  7, 1854;  BarlofOtd- 
lotoay,  WD.  865,  20  D.  230. 

Foris  Factun ;  an  unlaw,  otherwise  called 
an  amerciamentum.    Skene,  h.  t. 

Foris  Fandliari,  foris  familiat ;  put  forth 
of  his  father's  house,  or  made  free,  and  de- 
livered forth  of  the  fatherly  power.  The  son 
is  said  tb  \>e  foris  familiat  by  the  father,  when, 
with  his  own  consent  and  good  will,  he  re- 
ceives from  his  father  any  lands,  and  is  put 
in  possession  thereof  before  his  father's  de- 
cease, and  is  content  and  satisfied  therewith ; 
so  that  he  nor  his  heirs  may  not  claim  or  ereve 
any  more  of  his  father's  heritage.  Skent,  k.  i. 

Forisfiamiliation ;  is  the  separation  of  a 
child  from  the  family  of  his  father.  Where 
a  child  receives  a  separate  stock  from  the 
father,  the  profits  of  which  become  his  own, 
he  is  said  to  be  forisfamiliated,  even  althoagh 
he  should  remain  in  family  with  the  father. 
The  same  is  the  case  where  the  child  marries, 
or  lives  in  a  separate  family  with  the  con- 
sent of  the  father.  Forisfamiliation  is  also 
used  to  signify  either  an  onerous  or  gratuitous 
renunciation  of  the  Ugitim  by  a  child.  While 
children  remain  in  family  with  their  fiither, 
he  has  the  entire  management  of  them,  and 
is  entitled  to  all  the  profits  of  their  labonr  or 
industry.  Ersk.  B.  i.  tit.  6,  §  53 ;  and  B.  iii. 
tit.  9,  §  23 ;  Stair,  B.  i.  tit.  5,  §  13,  and  B.iiL 
tit.  8,  J  45 ;  Bant.  vol.  i.  p.  164,  8,  et  seq.; 
BeWs  Princ.  §§  1585,  1630  ;  Brown's  Sfup. 
h.  t.    Dunlop  on  the  Poor  Law.     See  Legitim. 

Forms  of  Court.    See  Process. 

Fomicatioii ;  is  the  act  of  iaeontineney  m 
unmarried  persons.  The  stat.  1567,  c.  13, 
provides  for  the  punishment  of  this  inde- 
cency ;  but  the  statute  is  in  desuetude.  Hume, 
i.  464;  Bank.  vol.  i.  p.  121, 54.  See  Discrderlf 
House. 

Fortalice.  A  fortalice,  as  a  phkce  of 
strength,  was  formerly  considered  as  belonj;- 
ing  to  the  King,  or,  in  other  words,  it  wm 
accounted  public  property,  from  its  connec- 
tion with  the  public  safety ;  and  therefore, 
anciently,  a  fortalice  was  not  carried  by  a 
charter,  without  an  express  grant  of  the  fort- 
alice; now  it  goes  as  part  and  pertinent  of 
the  ground.  Ersk.  B.  ii.  tit.  6,  f  17 ;  Stair, 
B.  ii.  tit.  3,  §  66  ;  Bank.  vol.  i.  p.  667,  91; 
Belt's  Princ.  |§  743,  752,  and  authorities  there 
cited;  Ross's  teat.  ii.  166, 196. 


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Fortalitiimi ;  a  fortaliee  or  castle  which 
has  a  battlement  or  barmekin,  or  a  fowsie 
about  it.    Skene,  h.  t. 

Forthcoming ;  is  the  action  by  which  an 
arrestment  is  made  available  to  the  arrester. 
The  arrestment  secures  the  goods  or  debts  in 
the  hands  of  the  creditor  or  holder:  the 
forthcoming  is  an  action  in  which  the  arrestee 
sad  common  debtor  are  called  before  the 
judge  to  hear  sentence  given,  ordering  the 
debt  to  be  paid,  or  effects  delivered  up  to  the 
arresting  creditor.  This  is  the  form  when 
the  arrester  proceeds  to  make  his  daim 
effectnal.  Where  the  arrestee  is  desirous  of 
ateertaining  to  whom  he  ought  to  pay,  or 
There  second  arresters  wish  to  ascertain  their 
rights,  this  is  accomplished  by  a  process  of 
mnltiplepoinding.  The  summons  in  an  action 
of  forthcoming  is  privileged,  and  (before  bills 
for  sommonses  were  abolished  by  13  and  14 
Yiei,  c  36,  §  18)  they  passed  on  a  bill,  the  in- 
itdce  being  in  that  ease  six  days,  against  de- 
fenders within  Scotland.  If  the  defenders  were 
in  Orkney,  Shetland,  or  forth  of  Scotland, 
no  bill  was  required ;  and  in  the  former  case, 
the  indveue  were  forty,  in  the  latter,  sixty 
days.  Even  where  the  defenders  were  within 
Scotland,  the  summons  might  pass  without  a 
bill,  the  inducia  being  then  the  ordinary 
iniiuuje  of  twenty-seven  days. 

In  the  action  of  forthcoming,  in  which 
the  arrestee  and  the  common  debtor  must 
be  called,  it  is  necessary  to  prove  both  the 
debt  arrested,  and  the  debt  on  which  the  ar- 
rettaent  proceeds:  the  former  is  a  qnes- 
tioD  between  the  arrester  and  the  arrestee. 
Where  the  debt  has  been  constituted  by 
writing,  the  written  obligation  may  be  re- 
covered from  the  common  debtor  by  a  dili- 
gence ;  or,  where  there  is  no  proof,  it  may 
be  referred  to  the  oath  of  the  arrestee.  The 
debt,  again,  due  by  the  common  debtor  to 
the  arrester  must  be  proved ;  but  that  is  a 
point  in  which  the  arrestee  has  no  interest, 
and  which  is  competent  to  the  common  debtor 
alone,  who  is  therefore  always  made  a  party 
to  the  action.  Where  the  arrestment  has 
been  loosed  on  caution,  the  cautioner,  as  well 
as  the  arrestee  and  common  debtor,  must  be 
made  parties  to  the  action.  Where  the 
fonds  have  been  paid  away  by  the  arrestee 
after  the  loosing,  it  is  sufficient  that  he  be 
called  for  his  interest,  without  directing  any 
petitory  conclusions  against  him.  A  forth- 
coming may  be  raised,  notwithstanding  the 
death  of  the  arrester,  arrestee,  or  common 
debtor.  The  representative  of  the  arrester 
must,  of  course,  make  up  a  proper  title  to 
the  debt ;  and  if  the  arrestee  also  be  dead, 
the  forthcoming  will  be  raised  against  his 
representative.  Where  the  arrestee  dies  dur- 
ing the  dependence  of  the  forthcoming,  the 


action  must  he  transferred  against  his  re- 
presentative before  decree  can  be  obtained. 
Where  the  common  debtor  dies  before  the 
claim  is  constituted  by  decree,  or  otherwise, 
it  must  be  constituted  against  his  repre- 
sentatives before  the  forthcoming  is  raised. 
But  if  decree  be  recovered  against  the  com- 
mon debtor  himself,  there  is  no  necessity 
for  transferring  against  his  representatives. 
Where  the  common  debtor  dies  during  the 
dependence  of  the  action  of  forthcoming, 
the  process  cannot  proceed  till  the  repre- 
sentative is  called  as  common  debtor ;  but,  in 
such  a  case,  it  is  not  necessary  to  charge  the 
apparent  heir  to  enter.  Another  creditor, 
obtaining  confirmation  as  executor-creditor 
before  decree  of  forthcoming  is  pronounced, 
will  be  preferred.  Even  after  decree  of 
forthcoming  has  been  obtained,  the  arrester 
may  proceed  with  other  diligence  for  the 
recovery  of  his  debt.  In  the  forthcoming 
may  be  recovered,  both  the  principal  sum 
arrested,  and  the  interest  due  from  the 
date  of  arrestment,  provided  arrestment 
was  used  both  for  principal  and  interest. 
Arrestment  on  a  depending  action  entitles 
the  arrester  in  the  forthcoming  to  claim  all 
expenses  laid  out  in  the  action,  on  the 
dependence  of  which  the  arrestment  was  used. 
The  expenses  of  the  process  of  forthcoming 
are  not  covered  by  the  arrestment.  But 
where  the  ground  of  debt  on  which  arrest- 
ment proceeded  contains  a  penalty,  the  sum 
recovered  under  the  forthcoming  will  only 
extinguish  as  much  of  the  principal  and 
annnalrents  as  comes  to  the  arrester,  after 
deduction  of  his  expense.  And  if  the  arrester 
have  a  separate  security  over  property  of  the 
common  debtor,  and  have  been  paid  his 
principal  and  interest,  in  virtue  of  his  arrest- 
ment, he  will  not  he  compelled  to  assign  that 
separate  security  to  another  creditor  of  the 
common  debtor  until  he  be  paid  his  expenses. 
The  cautioner  in  the  loosing  cannot  object  to 
the  expense  of  raising  and  executing  the 
arrestment  being  comprehended  in  the  forth- 
coming. The  decree  of  forthcoming  is  held 
to  be  a  legal  assignation  in  favour  of  the 
arrestee;  and  where  the  subject  arrested 
consists  in  goods  or  effects,  the  decree  order- 
ing them  to  be  sold  for  behoof  of  the  arrester 
gives  him  a  complete  legal  title,  which  can- 
not he  defeated  by  the  poinding  of  co- 
creditors.  See  Arrestment.  Multiplepoindinji. 
Death.  See  also  Ersk.  B.  iv.  tit.  6,  §  16,  et 
teq. ;  BeU's  Com,  ii.  pp.  66,  et  $eq.,  70,  301 ; 
Stair,  B.  iii.  tit.  1,  §  36,  et  teq.;  also  B. 
iv.  tit.  50,  §  26,  et  teq.;  Mor^s  Notes,  p. 
clxxxix. ;  Karnes'  Equity,  389 ;  Jwrid.  Stylet, 
2d  edit.  vol.  ii.  p.  407 ;  iii.  pp.  9,  48,  277, 
661 ;  Shand^s  Prae.  570,  230  ;  Brown't 
Synop.  :     Shan's    Digest  ;    BeU's    Princ.    § 

Digitized  byCjOOQlC 


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2367,  and  aufkoritiet  thara  cited;  Bank.  vol. 
i.  p.  218,  et  seq.;  rol.  ii.  p.  199,  et  seq.; 
M'Okuhan't  Shtriff-Cowrt,  Pr.  37,  382;  S.  d 
D.  687. 

Forfhoeht  Felony ;  felony  committed  wit- 
tingly and  willingly,  after  deliberation  and 
set  purpose.  Slune,  k.  i.  See  Forethought 
Felony. 

Fortune-Teller.  Vagabonds  may,  by  the 
act  1579,  c.  74,  be  imprisoned  and  brought 
to  trial ;  and  under  the  description  of  vaga- 
bonds in  this  act,  are  comprehended  all 
who  go  about  pretending  to  foretell  for- 
tunes.  The  statutory  punishment  is  scourg- 
ing and  burning  on  the  ear.  Ersk.  B.  ir. 
tit.  4,  §  39;  Hum,  i.  170  and  474;  9  Geo. 
II.,  a.  5. 

Fonun  Competeni ;  means  a  court,  to  the 
jurisdiction  of  which  a  party  is  amenable. 
Under  this  head,  in  digests  and  dictionaries, 
such  as  Morison's  and  Lord  Karnes',  are 
usually  classed  questions  as  to  the  competency 
of  a  Court's  jurisdiction  orer  parties  forth  of 
the  kingdom,  who  have  noTor  had  a  domi- 
cile in  this  conntry,  or  who  have  lost  it ;  ques- 
tions as  to  amstmeiit  juritdtctionii  fundandat 
«auM,-^the  jurisdiction  over  executors,  factors, 
&&,  appoiiUfld  by  the  Court, — the  district 
within  whiehV  testament  must  be  confirmed, 
— the  Court  competent  to  discuss  the  validity 
of  presentations,  dec  For  these  questions, 
reference  is  made  to  the  following  articles 
in  this  Dictionary : — Arretlment  jurisdictionis 
fundandce  cauta.  Domicile.  Conjirmation.  Ju- 
risdiction, Foreign,  Abroad.  Ahtent,  Citation. 
See  also  Kamet'  Diet.  h.  t. ;  Moriton't  Diet, 
h.  t. ;  Karnes'  Stat.  Late  Abridg.  h.  t. ;  Mor^t 
Notes  to  Stair,f.  xiL;  Taifs  Justice  of  Peace,  h.  t. 

Foua;  a  pit  or  fowsie,  as  f urea  is  a  gallows. 
King  Malcolm  gave  power  to  the  buvns  to 
have  a  pit  wherein  women  condemned  for 
theft  should  be  drowned,  and  a  gallows 
whereon  men  should  be  hanged.  Skme,  h.  t. 
See  Furea. 

Foxei ;  may  be  pursued  and  destroyed  as 
vermin  even  upon  the  property  of  others; 
with  no  other  liability  than  for  the  damage 
actually  done  in  the  pursuit.  But  fox-hunt- 
ing for  sport,  without  leave,  is  punishable  as 
a  trespass.  Blair's  Justice  Manual,  p.  87 ; 
Colquhoun  v.  Buchanan  and  others,  6th  August 
1785,  M.  4997 ;  Marquis  of  Tweedaie  v.  Dal- 
rytnple  and  others,  3d  March  1778,  M.  4992. 

Franchise;  in  English  law  is  used  as 
synonymous  with  liberty,  and  is  defined  to  be 
a  royal  privilege,  or  branch  of  the  prerogative 
of  the  Crown,  subsisting  in  the  hands  of  a 
subject.  It  must  be  held  by  a  grant  from 
the  Crown,  or  by  prescription,  which  presup- 
poses a  grant.  The  kinds  of  franchise  are 
almost  infinite.  It  may  mean  an  exemption 
*  from  ordinary  jurisdiction,  an  immunity  from 


tribute  or  toll,  the  privilege  of  being  incor- 
porated, and  subsisting  as  a  body-politic,  die 
elective  franchise,  and  the  like.  Tomiiiu^ 
DicLLt. 

Frank,  or  Imre;  a  French  coin,  worth 
lOjd.  English  money.    TomUn^  Diet,  h.  t. 

Franking;  the  privilege  of  dispatching 
and  receiving  letters  through  the  General 
Post-OfBce,  possessed  by  members  of  both 
Houses  of  Parliament,  and  by  certain  govern- 
ment functionaries;  but  this  privilege  is  now 
abolished. 

Fraud.  Where  fraud  enters  into  a  con- 
tract, it  destroys  that  consent  which  is  requi- 
site to  render  an  ag^reement  binding  in  Uv. 
Where,  through  the  fraud  of  the  one  pvty, 
there  is  an  error  «'»  essentialibus  of  the  con- 
tract, consent  cannot  be  said  to  have  been 
given,  and  the  contract  is  void  ab  initio,  even 
in  questions  with  the  fraudulent  party's  ima 
fide  onerous  singular  successors.  See  Emr 
in  essentialibus.  But,  even  where  such  error 
does  not  exist,  fraud  giving  rise  to  the  en- 
gagement— dolus  dans  causam  eontractui— 
may  be  pleaded  as  a  ground  of  reduction,  or 
as  a  personal  exception  to  an  action  for  im- 
plement ;  though  it  will  have  no  effect  in 
questions  with  bona  fide  onerous  assignees. 
Fraud  incident  to  a  contract — dolus  inddeu 
—only  gives  a  claim  for  damages.  Where 
the  fraud  is  not  that  of  the  party  contrset- 
ing,  but  of  a  third  party,  the  remedy  can 
only  be  sought  at  the  hands  of  that  third 
party.  Fraud  may  be  either  by  false  repre- 
sentation ;  concealment  of  material  drenm- 
stanees ;  underhand  dealing ;  or  by  taking 
advantage  of  intoxication  or  imbecility.  In 
mercantile  dealings  there  issomeallowaooefor 
those  petty  frauds,  or  rather  misrepresenta* 
tions,  which  the  parties  make  use  of  to  over- 
reach one  another  ;  and  there  has  been  a  dis- 
tinction taken  between  dolus  malus,  or  that 
gross  fraud  for  which  there  is  no  excuse,  and 
dolus  bonus,  or  those  artifices  which  it  is  veil 
understood  that  merchants  practise  in  order 
to  enhance  the  value  of  what  they  sell.  Nei- 
ther is  concealment  of  circumstances  known 
to  one  of  the  parties  necessarily  a  ground  for 
reduction,  or  even  for  an  action  of  damages. 
Merchants  are  often  at  great  expense  and 
trouble  in  acquiring  early  information,  and 
it  is  just  that  they  should  be  allowed  to  turn 
it  to  account.  But  if  the  obliger  relies  on 
the  obligee  for  his  information,  as  in  insa- 
rance  contracts,  there  is  no  excuse  for  con- 
cealment or  fraud,  however  trifling,  and  the 
contract  will  be  void  if  such  fraud  has  been 
practised. 

In  the  case  of  the  Earl  of  Chesterfield  v. 
Janssen,  2  Vesey  senior,  154,  Loks  Haid- 
wicKE  enumerated  four  species  of  fraud,  and 
observed, — "  This  Court  has  an  undoubted 


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jorisdietion  to  relieve  against  every  species  of 
fntnd.  1.  Fraud,  which  is  dolus  malus,  may 
be  actual,  arising  from  facts  and  circumstan- 
ces of  imposition,  which  is  the  plainest  case. 
2.  It  maj  be  apparent,  from  the  intrinsic 
Dstare  and  subject  of  the  bargain  itself,  such 
u  no  man  in  his  senses  and  not  under  delu- 
Non  would  make  on  the  one  hand,  and  as  no 
honest  and  fair  man  would  accept  on  the 
other,  which  are  unequitable  and  unconscien- 
tious bargains,  and  of  such  even  the  common 
lav  has  taken  notice.  3.  A  kind  of  fraud  is 
which  may  be  presumed  from  the  circura- 
Etance  and  condition  of  the  parties  contract- 
ing. This  goes  farther  than  the  rule  of 
law,  which  is,  that  it  must  be  pi-oved,  aotpre- 
tumed;  but  it  is  wisely  established  in  this 
Goart  to  prevent  taking  surreptitious  ad- 
raotage  of  the  weakness  or  necessity  of  ano- 
ther, which  knowingly  to  do,  is  equally 
against  conscience,  as  to  take  advantage  of 
hu  ignorance.  A  person  equally  unable  to 
judge  for  himself  in  one  as  the  other.  4.  A 
fourth  kind  of  fraud  may  be  collected  or  in- 
ferred in  the  consideration  of  this  Court,  from 
the  nature  and  circumstances  of  the  transac- 
tion as  being  an  imposition  and  deceit  on  the 
other  persons  not  parties  to  the  fraudulent 
agreement.  It  may  sound  odd,  that  an 
agreement  may  be  infected  by  being  a  deceit 
on  others  not  parties ;  but  such  there  are ; 
agaiust  such  there  has  been  relief.  Of  this 
kind  have  been  marriage-brockage  contracts. 
Neither  of  the  parties  herein  being  deceived, 
but  they  tend  necessarily  to  the  deceit  on 
one  party  to  the  marriage,  or  of  the  parent, 
or  of  the  friend.  So  in  a  clandestine  private 
agreement  to  return  part  of  the  portion  of 
the  wife,  or  provision  stipulated  for  the  hus- 
band, to  the  parent  or  guardian.  In  most  of 
these  cases  it  is  done  with  their  eyes  open, 
and  knowing  what  they  do,  bat  if  there  is 
fraud  therein,  the  Court  holds  it  infected 
thereby,  and  relieves." 

A  Court  of  Equity  will  give  relief  in  cases 
of  fraud  where  a  Court  of  Law  will  not. 
In  FuHagar  v.  Clarke,  18  Vtsa/,  481,  Lord 
Eu>oii  observed :  "This  Court  will,  as  it  ought 
in  many  cases,  order  an  instrument  to  be 
delivered  np,  as  nnduly  obtained,  that  a  jury 
wonld  not  be  justified  in  impeaching  by  the 
ordinary  rules  of  law,  which  require  fraud  to 
be  proved;  and  are  not  satisfied,  though  it 
may  be  sbrongly  presumed,  as  Lord  Hard- 
wicke  said  in  the  case  of  Lord  Chesterfield  v. 
hnum,  and  Lord  Kenyon  intimated  in  other 
uses.  This  jurisdiction  may  be  exercised 
npra  such  a  point  where  a  Court  of  Law  could 
not  enter  into  the  question,  as  a  Court  of 
Equi^  is  bound  to  do." 

It  is  not  every  concealment,  even  of  facts 
material  to  the  interest  of  a  party,  which  will 


entitle  him  to  redress.  In  Fox  v.  Maclreth, 
2  Bra.  Ch.  R.  420,  Lokd  Thumow,  C,  ob- 
served: "I  do  not  agree  with  those  who 
say  that  where  an  advantage  has  been  taken 
in  a  contract,  which  a  man  of  delicacy 
would  not  have  taken,  it  must  be  set  aside. 
Suppose,  for  instance,  that  A  knowing  there 
to  be  a  mine  on  the  estate  of  B,  of  which 
he  knew  6  was  ignorant,  should  enter  into  a 
contract  to  purchase  the  estate  of  B  for  the 
price  of  the  estate,  without  considering 
the  mine,  could  the  Court  set  it  aside  ?  Why 
not,  since  B  was  not  apprised  of  the  mine, 
and  A  was?  Because  A.,  as  the  buyer,  was 
not  obliged,  from  the  nature  of  the  contract, 
to  make  the  discovery.  It  is  therefore  essen- 
tially necessary,  in  order  to  set  aside  the 
transaction,  not  only  that  a  great  advantage 
should  be  taken,  but  it  must  arise  from  some 
obligation  in  the  party  to  work  the  discovery. 
The  Court  will  not  correct  a  contract  merely, 
because  a  man  of  nice  honour  would  not  have 
entered  into  it;  it  must  fall  within  soma 
definition  of  fraud.  The  rule  must  be  drawn 
so  as  not  to  affect  the  general  transactions 
of  mankind." 

A  general  rule  is,  that  he  who  bargains 
in  a  matter  of  advantage  with  a  person 
placing  confidence  in  him,  is  bound  to  show 
that  a  reasonable  use  has  been  made  of  that 
confidence ;  and  this  rule  applies  equally  to  all 
persons  standing  in  confidential  relations  to 
each  other.  If  no  such  proof  is  established, 
Courts  of  Equity  treat  the  case  as  one  of  con- 
structive fraud.  There  are  many  cases  of 
persons  standing  in  regard  to  each  other  in 
confidential  relations,  in  which  the  above 
rule  applies.  Among  these  maybe  enumerated 
the  cases  which  arise  from  the  relation  of 
landlord  and  tenant,  of  partner  and  partner, 
of  principal  and  surety,  and  various  others, 
where  mutual  agencies,  rights  and  duties,  are 
created  between  the  parties  by  their  own 
voluntary  acts,  or  by  operation  of  law.  The 
doctrine  may  be  generally  stated  to  be,  that 
wherever  confidence  is  reposed,  and  one  party 
has  it  in  his  power,  in  a  secret  manner,  for 
his  own  advantage,  to  sacrifice  those  interests 
which  he  is  bound  to  protect,  he  will  not  be 
permitted  to  hold  any  such  advantage.  In 
all  caseswhere  there  exists  some  peculiar  rela- 
tion of  a  fiduciary  character  between  parties, 
the  law,  in  order  to  prevent  undue  advantage 
from  the  confidence  which  the  relation  natu- 
rally creates,  requires  the  utmost  degree  of 
good  faith  {uberrima  fides)  in  all  ti-ansactions 
between  the  parties.  If  there  i^any  misrepre- 
sentation, or  any  concealment  of  a  material 
fact,  or  any  just  suspicion  of  artifice  or  undue 
influence,  Courts  of  Equity  will  interpose, 
and  pronounce  the  transaction  void,  and,  as 
I  far  as  possible,  restore  the  parties  to  their 


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original  rights.     Stori/'$  Equity  Jurisprudence, 
§§  218,  311,  and  323. 

This  principal  of  law  was  applied  to  the 
case  of  the  managing  partner  of  a  firm  in 
Maddeford  v.  Auitwi^,  1  Sim.  R.  89,  where 
an  agreement  was  set  aside  by  which  a  part- 
ner who  saperintended  exclusively  the  ac- 
counts of  the  concern,  agreed  to  purchase  his 
copartner's  share  of  the  business,  for  a  sum 
which  he  knew  from  accounts  in  bis  possession, 
but  which  he  concealed  from  his  copartner, 
was  an  inadequate  consideration.  Sis  John 
Lkach,  V.  C,  observed, — "  That  the  public 
books  of  account  belonging  to  the  company,  to 
which  all  parties  had  access,  were  of  an 
intricate  nature,  and  required  considerable 
experience  and  attention  to  understand  and 
make  them  out,  is  proved  by  the  book-keeper 
Cluue,  That  the  plaintiff  is  not  conversant 
with  accounts  is  proved  by  the  same  Mr 
Ghate,  and  also  by  Mr  Wrigkt.  The  precise 
nature  of  all  these  public  books  has  not 
been  explained  to  the  Court,  but  it  is  clear 
that  they  did  not  contain  any  statement  of 
an  account  between  the  plaintiff  and  the  de- 
fendant. At  the  time  the  agreement  was 
«ntered  into  between  the  plaintiff  and  the 
defendant,  the  defendant  had  in  his  posses- 
sion a  private  book,  which  did  contain  a 
statement  of  the  accounts  between  the  plain- 
tiff and  the  defendant,  made  out  by  the  de- 
fendant, whereby  it  appears  that  the  L.IOOO, 
which  the  defendant  agreed  to  pay  to  the 
plaintiff,  in  addition  to  the  monies  which  he 
had  drawn  from  the  concern,  would  have  been 
nearly,  but  not  quite,  a  fair  consideration,  if 
no  profits  bad  been  made  from  the  concern  of 
the  mint ;  but  that,  taking  the  mint  profits 
into  the  account,  which  the  defendant  was 
unquestionably  bound  to   divide   with    the 

Elaintiff,  it  would  be  many  hundred  pounds 
)ss  than  the  plaintiff  would  be  entitled  to 
receive.  The  defendant  being  the  partner, 
whose  business  it  was  to  keep  the  accounts  of 
the  concern,  could  not,  in  fairness,  deal  with 
the  plaintiff,  for  his  share  of  the  profits  of  the 
concern,  without  putting  him  into  possession 
of  all  the  information  which  he  himself  had 
with  respect  to  the  state  of  the  accounts 
between  them.  The  defendant  knew,  from 
the  account  in  his  possession,  that  the  L.IOOO 
was  not  an  adequate  consideration  for  the 
plaintiff's  share  of  the  profits,  and  be  cannot 
be  permitted  in  a  Court  of  Equity  to  main- 
tain advantage  which  he  has  gained  over  the 
plaintiff's  ignorance ;  and  the  plaintiff  for  that 
reason  appears  to  me  to  be  entitled  to  avoid 
the  agreement  of  1817.  The  supposed  account 
of  the  profits  of  the  concern  formed  the  basis  of 
the  plaintiff's  calculation  of  profits  for  the 
ensuing  three  years;  and  being  misled  in  that 
respect,  he  is  entitled  to  avoid  the  whole 


agreement,  and  to  have  an  account  of  the 
profits  of  the  concern  up  to  the  diasolntioa  in 
1821." 

Frand  is  proveable  by  evidence  jxvmt  dejure. 
As  to  the  circumstances  which  infer  fnod, 
see  the  following  cases : — Hamilton,  1842, 5 
D.  280,  H.  L.  1845 ;  4  BeU,  67 ;  Falcmer, 
1843,  6  D.  866 ;  M'LeUan,  1843,  5  D.  1032; 
RailUm,  1844,6  D.  536,  1348 ;  H.  L.  (Rev.); 
3  Bea,  56,  7  D.  748,  8  D.  747;  WaU, 
8  D.  629;  Kirlqpalrick,  7  BeWt  App.  186; 
Forth  Marine  Insurance  Co.  10  D.  689 ;  6  B^s 
App.  541 ;  Graham,  1850, 12  D.  907;  National 
Exchange  Co.,  12  D.  950 ;  Afd.  H.  L 18  D. 
6;  CoUint,  13  D.  349;  LeiWs  Reps.  14  D. 
213;  M'Cowan,  15  D.  494;  Clunie,  16  D. 
883 ;  National  Exchange  Co.  v.  Robertson,  16 
D.  1083;  PriestneU,  19  D.  495;  TuUod's 
Executors,  20  D.  1045.  As  to  the  specification 
with  which  fraud  must  be  averred , see  the  cases 
of  Smith,  16  Z).  372 ;  Shedden,  June  24th,  331 ; 
1  M'Queen  {H.  L.),  c  535  ;  Baird,  20  D.  1220. 

On  the  subject  of  this  article  generally, 
see  BeWs  Princ.  §  13,  and  a  numerous  list  <^ 
authorities  there  cited;  lUust.  ib. ;  Ersi.  B.  iii. 
tit.  1,  §  17 ;  B.  iv.  tit.  4,  §  79 ;  BelPs  Com.  i. 
240,  et  seq.,  277,  Ac;  ii.  244,  note  2 ;  Hume,  i. 
168 ;  Bell's  sup. ;  Stair,  B.  i.  tit.  9,  §  9,  «<  stq. 
B.  iv.  tit  40,  21,  etseq.;  More's  Notts,  p. 
lix.;  Brovm  on  Sale,  395,  et  seq.,  405,  et  seq.; 
Bank.  vol.  i.  p.  259,  et  seq.;  Thomson  on 
BiUs,  93, 310, 613,  672 ;  Dickson  on  Evident, 
p.  341 ;  Jurid.  Styles,  2d  edit.  vol.  iii.  p.  211 ; 
Karnes"  Equity  ;  Bayne,  Dovfs  Appeal  Cases,  t. 
151 ;  MacneU,  Bligh,  ii.  228.  See  Cireumves- 
tion.  Deceit,  Bankrupt.  Coi^nct  and  Co»- 
fident.  Collusion. 

Prand,  CriminaL  Fraud,  considered  as  a 
crime,  is  punishable  arbitrarily  at  commoo 
law.  It  is  usually,  but  not  always,  chargedss 
"  falsehood,  fraud,  and  wilful  impositioD," 
which,  in  popular  language,  is  termed  simi- 
ling.  See  Swindling,  and  case  of  Murrtu/,  2 
Feb.  1852 ;  /.  Shau),  552.  As  to  the  circum- 
stances which  infer  fraud,  and  the  necessity  of 
sufficient  specification,  see  Hume,  1. 173,  and 
Bdl's  Sup.;  Alison,  i.  362,  rf  seq.;  flafi,  July 
25,  1849,  Sh.  254 ;  where  it  was  held  not  to 
be  necessary  to  allege  the  assumption  of  any 
false  character ;  and  also  the  cases  of  WHsm, 
1853  and  1854,  1  Irv.  pp.  300  and  375; 
Hood,  1853, 1  Irv.  236 ;  Taylor,  1853, 1  In. 
230 ;  Smith,  1852,  1  Irv.  125 ;  Kronader, 
1852,  1  Irv.  65;  Duncan,  1850,  -Sa.  334; 
Chishohn,  1849,  Sh.  241 ;  Banna^ne,  1847, 
Ark.  361;  Macgregor,  1846,  Ark.  49;  Mil- 
lar, 1843,  1  Br.  529  ;  Maitland,  1842,  I  Br. 
57-  Attempt  to  commit  fraud  is  held  irre- 
levant.   Shepherd,  1842,  1  Br.  325. 

Fraudulent  Bankruptcy  ;  is  the  wilfal 
cheating  of  creditors  by. an  insolvent  person, 
or  one  who  ccmdncts  himself  as  such.   The 


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acts  1621«c.  18,  and  1696,  c.  5,  denounce  cer- 
tain panishmentB  against  fraudulent  bank- 
rupts ;  and  the  Sequestration  Act,  54  Geo. 
IIL,  c.  137,  §  33,  declared,  with  respect  to 
any  bankrupt  sequestered  under  it — "  That 
if  be  shall  wilfully  fail  to  exhibit  a  fair  state 
of  his  affairs,  or  to  make  oath,  as  appointed 
by  the  act,  to  the  fairness  or  fulness  of  his 
disclosure  of  his  means  and  funds,  or  to  make 
a  complete  surrender  of  his  effects  and  es- 
tate, or  if  he  shall  take  the  ilbove  oath  falsely, 
he  shall  be  considered  as  a  fraudulent  bank- 
rupt, and  punished  accordingly,  with  infamy 
and  other  pains."    This  act,  and  the  subse- 
quent act  2  and  3  Vict.,  c.  41,  are  now  re- 
pealed by  the  "  Bankruptcy  (Scotland)  Act, 
1856"  (19  and  20  Vict.,  c.  79,  §  2);  the 
provisions  of  which,  on  the  sulqect  of  fraudu- 
lent conduct  and  falsehood,  are  contained  in 
sections  97,  162,  and  178.    Under  the  first 
of  these  clauses,  "  If  it  shall  appear  to  a  ma- 
jority of  the  creditors  in  number  and  value 
assembled,  at  any  meeting  after  the  exami- 
nation of  the  bankrupt,  that  he  has  not  made 
a  fall  and  fair  surrender  of  his  estate,  or  that 
he  has  disposed  of  or  concealed  any  part  of 
his  fimds,  to  the  prejudice  of  his  creditors,  or 
that  his  bankruptcy  has  been  fraudulent, 
they  may  authorise  the  trustee  to  proceed 
against  him,  in  terms  of  law,  at  the  expense 
of  the  estate."    By  section  162,  the  account- 
ant in  bankruptcy  is  authorised  to  give  infor- 
mation to  the  Lord  Advocate  in  the  event  of 
his  having  grounds  to  suspect  fraudulent  con- 
duct by  the  bankrupt,  or  malversation  on  the 
puiof  the  trustee,  &c.;  and  the  Lord  Advocate 
is  directed,  on  such  information,  to  take  such 
proceedings  as  he  may  think  proper.    Section 
178  provides  for  falsehood  in  any  oath.    See 
Fake  Swearinff,    The  point  upon  which  the 
proof  of  fraudulent  bankruptcy  generally 
turns,  is,  that  the  accused  was  accessory  to  the 
diminution,  by  alienation,  abstraction,  orcon- 
ceahnent,  of  the  funds  divisible  among  his 
creditors,  with  a  fraudulent  intent,  and  in 
the  knowledge  that  the  legal  rights  of  the 
creditors  were  thereby  infringed.    The  em- 
bezzlement may  have  been  carried  into  effect, 
either  in  contemplation  of,  or  after  sequestra- 
tion ;  and,  in  either  case,  the  proof  of  fraud 
depends  upon  the  accompanying  circumstan- 
ces.   The  punishment  of  this  offence  is  ar- 
bitrary, varying  from  imprisonment  to  trans- 
portation.   Infamy  and  ineligibility  for  office 
are  always  added.     The  Court  of  Session  has 
a  criminal  jurisdiction  in  cases  of  fraudulent 
bankruptcy.    The  prosecution  in  that  Court 
commences  with  a  petition  and  complaint 
which  must  have  the   concurrence  of   the 
Lord  Advocate;  which  concurrence  cannot 
be  granted  after  the  case  comes  into  Court. 
As  in  forgery,  this  complaint  is  in  substance 


an  indictment,  and  must  contain  a  list  of 
witnesses.  The  complaint  prays  for  a  war- 
rant to  incarcerate  the  bankrupt,  or,  if  al- 
ready in  jail,  to  detain  him  there.  The  peti- 
tion and  complaint  is  presented  to  the  Court, 
who  pronounce  an  interlocutor  ordering  ser- 
vice thereof,  and,  where  necessary,  granting 
warrant  for  apprehending  the  accused.  If 
answers  are  put  in,  a  remit  is  made  to  the 
junior  Lord  Ordinary,  who  hears  the  parties, 
and  prepares  the  cause,  either  by  a  remit  to 
an  accountant,  or  by  ordering  condescendence 
and  answers,  or  by  directing  issues  to  be  ad- 
justed for  trial.  The  accountant's  report,  or 
the  condescendence  and  answers,  are  printed 
and  reported,  and  counsel  is  heard,  if  the 
parties  require  it ;  after  which  judgment  is 
pronounced  as  accords,  or  further  proof,  or  a 
jury  trial,  ordered.  The  Court  is  empowered, 
by  the  act  1696,  to  inflict  any  punishment 
short  of  death.  It  was  at  one  time  ques- 
tioned whether  the  Court  of  Justiciary  was 
competent  to  try  this  offence ;  but  all  doubt 
on  that  point  was  removed  by  7  and  8  Geo. 
IV.,  c.  20,  whereby  it  is  made  lawful  to  pro- 
secute persons  accused  of  fraudulent  bank- 
ruptcy before  the  High  Court,  or  any  of  the 
Circuit  Courts  of  Justiciary,  by  indictment 
or  criminal  letters;  the  pnnishment  being 
the  same  with  that  competent  to  be  awarded 
by  the  Court  of  Session.  By  the  same  sta- 
tute it  is  made  lawful  for  the  trustee,  under 
a  sequestration,  or  any  creditor  ranked,  with 
concourse  of  the  Lord  Advocate,  to  prosecute 
before  the  High  Court  of  Justiciary,  or  the 
Circuits ;  but  without  prejudice  to  the  right 
of  the  public  prosecutor  to  insist  in  all  such 
prosecutions.  In  the  Court  of  Justiciary  the 
prosecution  is  by  indictment ;  and  there  are 
recent  instances  of  prosecutions  for  fraudu- 
lent bankruptcy  both  in  the  Court  of  Session 
and  in  the  Court  of  Justiciary.  See  Macali- 
tter,  2l8t  Feb.  1822, 1  S.  and  2>.,  339 ;  Car- 
ter, 20th  July  1831,  Jvxtidary,  noted  Alison'* 
Prine.  669 ;  Sum,  i.  609 ;  BeU's  Sup.  128, 
147;  Aliion,567',  SteeU,  176;  Shand'$Prae. 
p.  1038;  Madaurin'i  Sherif-Court  Process, 
36.  In  Jurid.  Stt/les,  vol.  iii.,  at  p.  198,  wiU 
be  found  the  style  of  a  Summons  of  declarator 
of  fraudulent  bankruptcy;  and  at  p.  841,  the 
style  of  a  Petition  for  the  punishment  of  a 
fraudulent  hankrupt.  See  Bankrupt.  Criminal 
Prosecution. 

Fraudulent  Violation  or  Heglect  of  Duty 
by  a  teller  or  accountant  of  a  bank,  for  the 
purpose  of  concealing  or  facilitating  embez- 
zlement by  a  bank-agent  is  a  relevant  charge. 
Reid  and  Gentles  (Stirling),  23d  Sept.  1857, 
2  Irv.  704. 

Free  Bench.    See  Bench. 

Freehold ;  in  English  law,  is  a  land,  tene- 
ment, or  office  which  a  man  holds  in  fee- 


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simple,  fee-tail,  or  for  life.  Freehold  is 
either  in  deed  or  in  law ;  the  first  is  the  ac- 
tual posaessioD,  the  second  is  the  right  before 
entry.     Tomlins'  Diet.  h.  t. ;  Step.  Com. 

Freeholder :  is  a  person  holding  of  the 
Crown  or  Prince,  though  the  title  is,  in  mo- 
dern language,  applied  to  such  as,  before  the 
passing  of  the  Reform  Act,  were  entitled  tu 
elect  or  be  elected  members  of  Parliament, 
and  who  must  have  held  lands  extending  to  a 
forty  shilling  land  of  old  extent,  or  to  L.400 
Scots  of  valued  rent.  See  Election  Laws. 
Anciently  every  freeholder  was  bound  to  at- 
tend at  the  Michaelmas  head-court.  In  de- 
fault of  his  attendance  a  fine  was  imposed  by 
the  sheriff ;  but  that  penalty  was  taken  away 
by  the  act  abolishing  heritable  jurisdictions ; 
and  freeholders  are  now  bound  to  attendance 
only  when  summoned  to  attend  as  jurymen, 
or  for  some  other  lawful  purpose.  Ersk. 
B.  i.  tit  4,  §  6  ;  Stair,  B.  ii.  tit.  3,  §  63  ; 
Jfore's  Notes,  p.  xlii. ;  Belft  Com.  i.  23 ;  Bell's 
Princ.  §  2198 ;  Wesson's  Stat.  Law,  voce  Par- 
liament; Jwrid.  Styles,,  2d  edit.  vol.  i.  p.  153. 
See  ReJ'orm  Act. 

Freight  of  a  Ship.  The  freight  is  the 
price  paid  for  the  use  of  a  ship  to  transport 
goods  from  one  port  to  another.  It  is  gene- 
rally settled  in  writing  by  a  contract  of  char- 
ter-party, in  which  the  course  of  the  voyage 
and  the  number  of  days  the  ship  is  to  remain 
at  a  port  or  ports  on  her  voyage,  are  pre- 
scribed ;  and  where  the  vessel  is  detained  a 
greater  number  of  days  than  has  been  pro- 
vided for,  the  amount  of  the  charge  for  each 
extra  day  is  fixed.  The  fireight  is  not  due 
until  the  whole  voyage  is  finished,  by  un- 
loading the  cargo,  and  discharging  the  ship 
at  the  last  port.  The  goods  and  merchan- 
dize are  under  a  hypothec  for  the  freight ; 
as  the  freight  is  to  the  mariners  for  their 
wages.  See  Charter-Party.  Demurrage.  Be- 
sides the  freight,  the  shipowner  has  a  claim 
for  the  expense  of  pilots,  or  on  the  loss  of 
masts,  anchors,  &e.,  which  is  termed  average. 
See  Average.  Abbot  on  Shipping,  171,  307 ; 
Brodie's  Supp.  to  Stair,  918,  982,  et  seq.; 
Bdl's  Com.  i.  190,  638,  et  seq.;  ii.  99,  et  seq. ; 
BelPs  Princ.  §  407,  420,  et  seq.,  1399, 1423, 
and  authorities  tiiere  cited ;  Bell's  lUust.  405, 
et  seq.,  420,  et  seq. ;  Bank.  vol.  i.  p.  398,  21 ; 
Broum's  Synop.  pp.  1253,  2259  ;  furid.  Styles, 
ii.  533,  et  seq.,  App.  21 ;  Karnes'  Equity,  215. 
See  Affreightment.    Insurance. 

Frieborgh ;  a  cautioner.    Skene,  h.  t. 

Friendly  Societies ;  have  been  the  subject 
of  various  statutes,  which  were  last  consoli- 
dated and  amended  by  18  and  19  Vict.,  c.  63. 
By  that  act,  all  the  previous  statutes  relative 
to  friendly  societies,  as  set  forth  in  a  schedule, 
are  repealed,  subject  to  a  proviso  that  sub- 
sisting societies  established  under  any  of  the 


previous  statutes  are  to  continue  to  subsist, 
and  their  rules  to  remain  in  force,  but  the 
enrolment  of  such  rules  is  to  be  transferred 
from  the  rolls  of  the  sessions  of  the  peace  to 
the  registrar  appointed  under  the  act.  IThe 
coutracts  of  such  subsisting  societies  are  not 
to  be  affected  by  the  repeal ;  and  these  sub- 
sisting societies,  so  long  as  they  do  not  effect 
assurances  beyond  L.200,  or  annuities  beyond 
L.30  per  annum,  are  to  enjoy  all  the  exemp- 
tions and  privileges  conferred  on  societies 
established  under  the  new  act,  §§  1-5.  For 
the  purposes  of  the  act  registrars  are  to  be 
appointed;  the  registrar  for  Scotland  to  be 
an  advocate  of  seven  years  standing ;  §§  6-8. 

By  section  9,  it  is  declared  to  be  lawful  for 
any  number  of  persons  to  form  a  friendly  so- 
ciety, under  the  provisions  of  the  act,  for  the 
purpose  of  raising,  by  voluntary  subscription 
of  the  members  thereof,  a  fund  for  any  of  the 
following  objects : — 1.  For  insuring  a  sum  of 
money  to  be  paid  on  the  birth  of  a  member's 
child,  or  on  the  death  of  a  member,  or  for 
the  funeral  expenses  of  the  wife  or  child  of  a 
member ;  2.  For  the  relief  or  maintenance 
of  the  members,  their  husbands,  wives,  chil- 
dren, brothers  or  sisters,  nephews  or  nieces, 
in  old  age,  sickness,  or  widowhood,  or  tiie 
endowment  of  members,  or  nominees  of  mem- 
bers, at  any  age  ;  3.  For  any  purpose  whjeh 
shall  be  authorized  by  one  of  Her  Majes^'s 
principal  Secretaries  of  State,  or  in  ^Scotiaad 
by  the  Lord  Advocate,  as  a  purpose  to  which 
the  powers  and  facilities  of  the  act  ought  to 
be  extended :  Provided  that  no  member  shall 
subscribe  or  contract  for  an  annuity  exceed- 
ing L.30  per  annum,  or  a  sum  payable  on 
death,  or  any  other  contingency,  exceeding 
L.200. 

The  provisions  of  the  act  as  to  rules  are 
contained  in  §§  25-30,  and  are  to  the  follow- 
ing effect :— Persons  intending  to  establish 
a  Friendly  Society  are  to  make  rules  for  the 
regulation,  government,  and  management 
thereof,  setting  forth, — 1.  The  name  and 
place  of  meeting  of  the  society.  2.  The  ob- 
jects of  the  society,  the  purposes  to  which  its 
funds  are  to  be  applicable,  the  conditious  of 
membership,  and  the  fines  and  forfeitures  to 
be  imposed.  3.  The  manner  of  making,  alter- 
ing, amending,  and  rescinding  rules.  4.  A 
provision  for  the  appointment  and  removal  of 
a  committee  of  management,  trustees,  trea- 
surer, &c.  5.  A  provision  for  the  investment 
of  funds  and  audit  of  accounts.  6.  The  manner 
in  which  disputes  in  the  society  are  to  be  set- 
tled. Two  copies  of  the  rules  subscribed  by 
three  members  and  the  secretary  are  to  be 
transmitted  to  the  registrar,  who,  on  findug 
that  they  are  in  conformity  with  law,  and 
with  the  provisions  of  the  act,  is  to  give  » 
certificate,  in  terms  of  a  schedule,  and  is  to 


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return  one  of  the  copies  to  the  society,  and  to 
keep  the  other  as  directed  by  one  of  the 
Secretaries  of  State.  The  rales  may  be  al- 
tered and  added  to  in  terms  of  the  original 
regulation  to  that  effect,  but  the  alterations 
most  be  certified  in  like  manner  by  the  re- 
gistrar. By  §  10,  no  money  is  to  be  paid 
for  the  funeral  expenses  of  any  child  under 
ten  years  of  age,  except  on  production  of  a 
copy  of  the  entry  in  the  register  of  deaths, 
signed  by  the  registrar  for  the  district,  and 
either  containing  a  statement  that  the  cause 
of  death  has  been  certified  by  a  qualified 
medical  practitioner,  or  accompanied  by  a 
proper  certificate  of  the  probable  causq  of 
death ;  and  not  more  than  L.6  is  to  be  paid 
00  the  account  of  the  funeral  expenses  of  a 
child  under  fire,  nor  more  than  L.IO  in  the 
case  of  a  child  between  five  and  ten  years  of 
age.  Friendly  societies  may  be  dissolved  of 
consent  in  the  manner  provided  by  §  13 ;  and 
they  may  unite  or  be  amalgamated  with  other 
societies  under  §  14.  An  exemption  from 
■tamp-duties  is  conferred  on  societies  under  the 
•ct  by§37.  A  friendly  society  has  a  preference 
orerall  the  other  creditors  of  its  office-bearer, 
for  sums  due  by  them  (§  23),  and  is  entitled, 
in  actions  for  balances  due  by  the  treasurer, 
to  recover  full  costs,  taxed  as  between  agent 
sad  client  (§  22).  The  property  of  such  so- 
cieties is  vested  in  trustees  appointed  under 
the  act,  in  whose  names,  as  trustees,  all  suits 
bj  or  against  the  society  proceed  without  dis- 
continuance or  abatement  on  death  or  re- 
moral  of  individual  trustees  (§§  17-19).  For 
the  provisions  of  the  act  as  to  management  of 
nth  societies,  and  for  the  other  provisions  of 
the  act  generally,  reference  must  be  made  to 
the  statute  itself.  See,  as  to  previous  acts  and 
decisions  thereupon,  Barclay' $  Justice  of  Peact 
(1855),  h,  t.  See  also  Ivory' t  Ertk,  i.  7,  § 
64,  ani  Note*;  ShaiuPs  Prac.  pp.  185,  969  j 
&«l«r»  cf  Paidey,  6th  Dec.  1836,  16  S.  A  D. 
200;  Caitkriesi  Friendly  Soc.  6th  Dec.  1834, 

13  S.  it  D.  135 ;  Mamm,  5th  June  1840, 
2  D.  1015 ;  Boyes,  12th  Nov.  1834, 13  S.  <k 
-&•  p.  1 ;  Mason  Lodge  of  Dundee,  22d  May 
1830,  iS.dsD.  786;  Howie,  18th  May  1836, 

14  S.  <t  D.  752 ;  Robertton,  18th  Jan.  1842, 
4  D.  398.    See  Mason  Lodges. 

Frivdou  and  Vexations.  By  the  act 
ngnlating  the  trial  of  election  petitions 
(11  and  12  Vict.,  c  98,  §§  89,  90,  92),  it  is 
provided,  that  when  an  election  committee 
nports  to  the  House  that  a  petition,  or  that 
^l^ition  to  a  petition,  or  that  an  objec- 
tion to  a  voter,  has  been  frivolous  and  vexa- 
tioo^  the  party  presenting  such  petition,  or 
making  inch  opposition  or  objection,  shall  be 
liaUe  in  fall  coats  to  be  ascertained  under 
§94.    See  Chambers' Election  Law,  h.  t. 

I^netoa  Pendentes;  are  fruits  not  yet 
2  0 


separated  from  the  subject  which  produced 
tbem.  Natural  fruits  pass,  upun  the  death  of 
the  proprietor,  to  his  heir,  or  upon  a  sale  of 
landB  to  the  purchaser.  All  fructus  pendentes 
at  the  termination  of  bona  fides,  with  the  ex- 
ception of  corn  sown  by  the  bona  fide  posses- 
sor, go  to  the  proprietor.  Ersk.  B.  ii.  tit.  1, 
§§  14  and  26 ;  Earned  Equity,  370.  See 
Fruits. 

Fraotns  Percepti;  are  fruits  separated 
from  the  subject  which  produced  them.  They 
become  the  property  of  the  bona  fide  perceptor. 
Ersk.  B.  ii.  tit.  1,  §  26 ;  Karnes'  Equity,  370. 
See  Fruits.    Bona  Fides. 

Prnits ;  as  part  of  the  soil,  belong  to  the 
proprietor  of  the  soil.  This  is  the  general 
rule.  Hence,  on  the  death  of  a  proprietor, 
the  fruits  go  to  the  heir,  or  to  A  purchaser, 
along  with  the  lands ;  but  there  is  an  excep- 
tion of  such  fruits  as  are  raised  by  annual 
industry.  In  this  view,  trees  or  planting, 
even  natural  grass  or  fruit  not  yet  plucked 
from  the  tree,  belong  to  the  proprietor,  that 
is,  to  the  heir  or  to  the  purchaser;  but  wheat, 
barley,  &c.,  which  are  reared  by  annual  cul- 
ture, belong  to  the  person,  or  his  executors, 
by  whom  the  crop  f^as  sown,  so  as  to  exclude 
either  an  heir  or  a  purchaser.  With  regard 
to  a  purchaser,  however,  in  place  of  regulat- 
ing his  interest  by  abstract  rules  of  this  kind, 
the  payment  of  the  price,  the  period  of  the 
currency  of  the  interest,  or  the  views  of  the 
parties  in  the  sale,  will  affect  the  question  as 
to  the  property  of  the  fruit.  Stair,  B.  i.  tit.  7, 
§  12;  Enk.  B.  ii.  tit.  2,  §  4;  Bell's  Com.W. 
2, 27, 29;  BeU's  Princ.  §§  1044,  1473 ;  lUust. 
ib. ;  Bdl  on  Leases,  i.  421,  430  ;  Baiik.  vol.  i. 
pp.  213, 474,  §  78.    See  Bona  Fides.    Grass. 

Fuel.    See  Feal  and  Divot. 

Fngitation.  Where  a  person  accused  of 
a  crime  does  not  obey  the  citation  to  answer 
in  the  criminal  prosecution  brought  against 
him,  the  Court  pronounces  sentence  of  fugita- 
tion  against  him,  by  which  all  his  moveable 
property  falls  as  escheat  to  the  Crown.  It 
has  been  held  that  sentence  is  dejure  recalled 
by  the  public  prosecutor  arraigning  the  pan- 
el at  the  bar.  Miller,  1850;  J.  Shaw,  288. 
See  also  the  case  of  Ritchie  v.  Alcock,  1857, 
2  Irv.  616 ;  Hume,  ii.  257,etseg. ;  Bell's  Sup. 
228-230.  See  Criminal  Prosecution.  Diet. 
Denunciation.  Escheat. 
,    Funds,  Public.    See  Stock. 

Fungibles;  are  moveable  goods  and  ef- 
fects, which  perish  in  the  use,  and  which  may 
be  estimated  by  weight,  number,  or  measure, 
as  grain  or  coin.  In  this  sense,  jewels,  or 
paintings,  or  other  works  of  art  and  taste, 
are  not  fungibles,  their  value  differing  in 
each  individual  without  possessing  any  com- 
mon standard.  Ersk.  B.  iii.  tit.  1,  §  18; 
Belt's  Com.  i.  265,  note,  268 ;  Stair.  B.  i.  tit. 


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10,  §  12,  and  tit.  11,  §  1 ;  also  B.  ii.  tit.  1, 
§  33 ;  BelVs  Princ.  137,  and  noU. 

Funeral  Expeiuet.  The  funeral  expense 
is  a  privileged  debt,  which  mnst  be  paid, 
along  with  others  of  the  same  class,  preferably 
to  other  debts.  Under  these  expenses  are  in- 
cluded the  expense  necessary  for  the  snitable 
performance  of  the  funeral,  and  for  mournings 
for  the  widow,  and  for  such  of  the  children  of 
the  deceased  as  are  present  at  the  funeral. 
Ersk. B. iii.tit.  9,  §  43;  Stair, B. iii.tit. 8,  §  72; 
Mor^s  Notet,  pp.  ixv.  et  teq. ;  occlvi.  «<  Kq.  ; 
BeWs  Com.  ii.  166;  Brown't  Synop.  h.  t,  also 
pp.  624, 1771 ;  Karnes'  Stat.  Law  AMdg.  h.  t. ; 
Bell's  Princ.  1241, 1406, 1572,  and  autkoritiet 
Viere  cited ;  Illust.  §  1406, 1572.  See  Executor. 
Privileged  Debt. 

Fnro*  et  Fosaa ;  the  pit  and  gallows.  In 
ancient  privileges  granted  by  the  Crown,  it 
signified  a  jurisdiction  over  felons,  to  punish 
the  men  by  hanging  and  the  women  by  drown- 
ing.   Tomim^  Did.  h.  t.    See  Fossa. 

Fnrohe ;  a  fork.  Anciently,  when  any  per- 
son was  served  and  retonred  nearest  and  law- 
ful heir  to  any  of  his  predecessors,  the  King 
directed  precepts  to  the  superior  to  infeft 
hira.  If  the  first  and  second  were  disregarded, 
he  directed  a  third,  called  the  furche,  or 
forked,  because  alternative,  in  which  the 
King  commanded  the  superior  to  give  sasine, 
and  certified  that  if  he  did  not,  he  would  com- 
mand the  sheriff  to  give  the  same.  Similar 
to  this  was  the  third  precept  on  the  allow- 
ance of  an  apprising.  Ersk.  B.  ii.  tit.  12, 
§  26 ;  SkoM,  k.  t. 

Fnriodty;  or  madness,  by  which  the 
judgment  is  prevented  from  being  applied  to 
the  ordinary  purposes  of  life,  is  one  of  the 
grounds  on  which  a  curator  may  be  appointed 
to  manage  the  affairs  of  the  person  labouring 
under  that  infirmity.  The  condition  of  the 
party  mast  be  ascertained  by  the  verdict  of 
a  jury ;  and,  where  that  course  is  followed, 
the  legal  curator  is  the  next  male  agnate  of 
twenty-five  years  of  age.  Stair,  B.  i.  tit.  10, 
§  13,  and  B.  ir.  tit.  3.  §  7 ;  Ersk.  B.  i.  tit.  7,  § 
43 ;  Bank.  vol.  i.  p.  165,  et  seq. ;  BdPs  Princ. 
§  2106,  and  authorities  there  cited;  Jurid.  Sfyles, 
2d  edit.  vol.  iii.  p.  238 ;  Shand^s  Prac.  997 ; 
Pupils  Protection  Act,  12  and  13  Vict.,  c.  51. 
§§  25-6  ;  Lunacy  Act,  20  and  21  Vict.,  c.  71. 
See  Curatory.  Brieve,  Idiocy.  Insanity. 
LwMcy. 

Furlong ;  a  lineal  or  superficial  measure  ; 
the  eighth  part  of  a  mile  or  of  an  acre. 
Tondins'  Diet.  h.  t. 

Furlough.  Non-commissioned  ofiScersor 
privates  may,  on  the  plea  of  sickness  or  other 
necessary  cause,  apply  to  any  ofScer  within 
the  district  not  below  a  captain  in  rank,  or, 
in  the  absence  of  such,  to  a  justice  of  peace, 


who  may  grant  them  an  extension  of  their 
furlough,  certifying  the  same,  and  the  eagae 
of  it,  to  the  commanding-officer,  if  known,  or 
if  not,  to  the  agent  of  the  regiment  Such 
extension  never  to  exceed  a  month,  nnlea 
with  the  approval  of  the  commanding  officer 
of  the  district.  Hutch.  Justice  of  Peace,  iu,26; 
Taifs  Justice  of  Peace,  p.  367 ;  Blair's  Justice 
of  Peace,  f.  S22. 

Furniture.  Household  furniture  is  com- 
prehended under  the  itwecta  et  illata,  orer 
which  the  landlord's  hypothec  for  rent  ex- 
tends. Even  hired  furniture  is  included,  bat 
not  such  as  is  merely  deposited  in  the  house, 
or  lent  to  the  tenant  without  a  rent.  The 
question,  whether  or  not  the  household  furni- 
ture of  an  agricultural  tenant  is  under  the 
hypothec,  is  still  open,  but  the  inclination 
ratiier  seems  to  be  that  it  is.  A  sale  of  fdmi- 
tnre  retentapossessume,'K  not  available  against 
the  hypothec,  but,  by  19  and  20  Vict.,  c.  60,  is 
good  against  ordbiary  creditors.  Furniture 
may  be  liferented ;  and  it  is  often  provided  in 
marriage-contracts,  that  the  wife  shall  have 
the  furniture  in  liferent ;  but  as,  during  the 
subsistence  of  the  marriage,  her  claim  is  only 
personal,  it  cannot  be  preferable  to  that  of 
her  husband's  creditors.  The  liferent  of  furni- 
ture gives  the  full  use  of  it,  salva  substantia. 
Giving  the  liferent  of  the  fiimiture  of  a  house 
is  only  demonstrative,  and  the  fumitnre  may 
be  carried  thence.  Where,  however,  as  in 
Cochran  (Aug.  7,  1775,  M.  8280),  it  is  com- 
bined with  a  mansion-house,  it  is  held  only 
as  an  accessary  to  the  possession  of  the  house. 
In  Jurid.  Styles,  vol.  ii.,  at  p.  224,  will  be 
found  the  form  of  a  contract,  restricting  the 
provision  to  the  wife  for  household  fumitnre, 
in  case  of  children  of  a  second  marriage ;  and 
at  p.  465,  the  forms  of  a  proviaon  to  the 
widow  of  the  fee  of  the  household  furniture, 
and  of  the  liferent  of  the  furniture.  See 
also  Ersk.  B.  ii.  tit.  6,  (§  57  and  64 ;  B.  iiL 
tit.  6,  §  6,  cmdnotea  by  Mr  Ivory;  BdCs  Om. 
i.  130;  u.  30,  et  seq.;  BdPs  PrvK.  §  1043, 
1276, 1946 ;  Illust.  ib. ;  Bell  on  Leases,  i.  384, 
et  seq. ;  Hunter's  Landlord  and  Tenant,  ii.  352, 
358. 361.    See  Hypothec.    Liferent. 

Future  Debt:  is  a  debt  not  yet  doe. 
Neither  debts  depending  on  the  event  of  a 
law-suit,  nor  conditional  debts,  are  considered 
as  future  debts ;  for  the  decree  ascertaining 
the  debt  in  the  one  case,  and  the  purifying  <^ 
the  condition  in  the  other,  have  each  of  them 
a  retrospect,  and  render  the  debt  eSedatl 
from  the  first  Ersk.  B.  iii  tit  6,  §  9 ; 
BeWs  Com.  i.  315 ;  ii.  67,  144,  321,  409, 
427,  and  6th  Ed.  p.  1161,  et  seq.;  BdPs 
Princ.  §  45,  et  seq.  2413,  and  authorities  then 
cited ;  Thomson  on  BiUs,  743.  See  CoiUingent 
Dd>ts. 


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OarUe.  A  mntnal  gable,  although  partly 
bnilt  on  the  adjoining  subject,  is  the  property 
of  the  party  who  bnilds  it ;  and  he  is  entitled 
to  prevent  the  owner  of  the  adjoining  subject 
from  making  use  of  it,  until  he  has  paid  the 
half  of  the  expense  of  building  it.  The  right 
of  the  builder  is  a  real  right.  In  the  case  of 
Brown  v.  WaUace,  June  21,  1808,  Mor.  App. 
PtnonoU  a»d  Real,  No.  4,  it  was  observed  by 
tiie  Court: — "  The  ground  on  which  a  mutual 
gable  stands  is  common,  mutual,  and  indi- 
visible, and  therefore  there  is  no  room  for 
the  maxim  incedificatum  cedit  solo.  The  gable, 
ia  fact,  is  the  property  of  the  builder  till  paid 
for.  Until  then  he  has  a  right  to  prevent 
the  adjoining  proprietor  from  using  it,  or 
adjecting  to  it  any  building.  The  right  to  a 
mntnal  gable  being  a  real  right,  a  singular 
snecessor,  in  virtue  of  his  right  to  the  tene- 
ment, is  entitled  to  claim  a  share  of  the 
expense  of  erecting  the  mutual  gable  from 
the  adjoining  proprietor,  without  any  special 
mention  of  such  claim  in  the  conveyance  of 
the  tenement.  In  Hunter  v.  Luke,  June  2, 
1846,  8.  D.  787,  the  Lord  Pbesidbnt  ob- 
served : — "  The  right  to  claim  one  half  of  the 
mntnal  gable  was  a  right  which  attached 
heritably  to  the  subject  conveyed.  It  did 
not  require  to  be  specially  conveyed,  or  made 
the  subject  of  an  assignation.  He  who  builds 
the  wall  is  entitled  to  get  back  the  half  of 
the  expense  when  his  neighbour  comes  to 
baild;  but  if  he  conveys  away  the  house 
whh  the  wall,  this  right  passes  with  it." 
LoxD  Mackkkeik  observed. — "  It  is  the  com- 
mon understanding  in  all  houses,  that  where 
parties  get  a  portion  of  ground  for  building, 
and  are  bound  to  erect  a  mutual  gable,  and 
one  of  them  builds  it,  he  is  entitled  to  prevent 
the  other  from  touching  it,  till  he  has  been 
paid  his  half.  The  right  of  exclusion  is  real, 
it  has  nothing  to  do  with  personality.  This 
VIS  held  in  the  case  of  WaUace.  His  power 
of  exclusion  is  very  strong — for  he  can  exclude 
from  the  whole  of  the  other  house.  The 
right  is  somewhat  anomalous,  but  it  is  very 
sobttaotiaL"  Lobd  FcLLBBToir  observed  : — 
"The  right  to  a  gable  wall  is  indivisible. 
When  a  party  sells  it  what  separate  right 
on  he  retain  to  make  the  subject  a  separate 
diqtosal  ?  Supposing  no  adjoining  house 
built,  what  remains  in  the  seller  ?  Nothing. 
Then,  if  the  next  honse  is  built,  who  is 
entitled  to  claim  the  price  of  the  mutual 
gable  except  he  who  can  give  the  right  of 
it  f  LoED  Jbpfrbt  observed : — "  The  pro- 
prietor of  the  honse  is  the  sole  proprietor  of 
the  common  gable  until  the  party  to  divide 
it  with  him  comes  into  existence.   He  is  sole 


proprietor,  with  a  kind  of  conventional  servi* 
tude,  provided  in  favour  of  the  party  who 
comes  to  build  on  the  adjoining  stance,  to  have 
right  to  one  half,  on  paying  the  party  who 
built  it,  or  the  party  to  whom  he  may  have 
conveyed  it.  His  whole  right  to  the  gable 
was  necessarily  conveyed  by  a  conveyance  of 
the  tenement  as  it  stood.  The  case  of  Law 
V.  Monteith,  Nov.  30, 1855, 18  D.  125,  was  to 
the  same  effect.  In  that  case  it  was  also  held 
that  the  right  to  claim  half  of  the  expense  of 
building  a  mutual  gable  was  a  right  inherent 
in  the  subject,  and  existed  as  a  ground  of 
liability  against  the  adjoining  feuar  from  the 
time  the  mutual  gable  was  erected ;  but  that 
the  term  of  payment  did  not  arrive  till  the 
gable  was  appropriated.  Lord  FassiDEKT 
observed : — "  The  nature  of  the  property  in  a 
mutual  gable  imports  an  obligation  to  pay 
upon  the  party  who  uses  it.  The  presumption 
is,  that  no  payment  ha«  been  made  for  the  use, 
till  that  use  is  taken,  and  there  being  no 
contract  to  the  contrary  here,  the  liability 
follows.  The  understanding  of  law  is, — that 
if  a  party  takes  advantage  of  a  mutual  gable, 
he  takes  it  on  the  condition  of  paying  for  it." 
Lobd  Cubbiehill  observed : — "  I  think  it  is 
quite  a  legal  view,  established  by  the  decisions, 
that  although  the  owner  of  an  unbuilt  stance 
must  pay  for  a  mutual  gable,  the  term  of 
payment  does  not  arise  till  use  is  made  of  it 
by  building  on  tho  adjoining  ground." 

A  case  of  some  nicety,  however,  may  arise, 
where  an  adjoining  feuar  has  paid  one  half 
of  the  expense  of  a  mutual  gable  to  the 
party  who  built  it,  but  never  appropriated 
the  gable  by  building  against  it,  and  where 
the  party  who  built  the  gable  sells  the  honse, 
of  which  the  mutual  gable  is  a  part.  In  such 
a  case,  would  the  purchaser  be  entitled  to 
demand  from  the  adjoining  feuar  one  half  of 
the  expense  of  the  mutual  gable  when  he 
came  to  appropriate  it,  leaving  him  to  claim 
repetition  of  the  sum  formerly  paid  from  the 
original  builder  of  the  gable  ?  The  claim  of 
the  purchaser  would  be  founded  on  this — that 
he  bought  the  house  as  it  stood,  and  that  the 
house  being  his  property,  he  is  entitled  to 
prevent  the  adjoining  feuar  from  making  use 
of  the  gable,  which  is  part  of  his  house,  until 
he  is  paid  one  half  of  the  expense  of  erecting 
the  gable.  It  would  rather  appear  that  the 
purchaser's  claim  is  well  founded.  In  the  re- 
cent case  of  the  Earl  of  Moray  v.  At/toun,  Nov. 
30,  1858,  21  D.  33,  this  point  was  raised,  but 
not  determined,  the  case  having  been  decided 
by  a  majority  of  the  Court  on  a  separate 
ground.  Lobd  Cowak,  however,  observed  :— 
"  The  conveyance  of  the  house  carried  to  the 


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GAM 


disponee  right  to  the  gable  as  an  inherent 
part  of  the  erected  tenement,  qualified  by  the 
condition  that,  as  a  mutual  wall,  it  could  be 
possessed,  so  soon  as  the  adjoining  house  was 
erected,  only  as  pro  indiviso  property.  So 
long  as  the  adjoining  house  was  not  built,  the 
sole  real  right  in  and  to  the  wall  remained 
with  the  proprietor  of  the  erected  tenement. 
I  do  not  see  how  this  can  be  disputed.  From 
this  it  seems  to  me  a  corollary,  that  when 
the  adjoining  feu  was  built  on,  and  the  right 
in  the  wall  became  pro  indiviso,  the  party 
who  till  then  had  the  sole  and  undoubted 
right  was  the  party  entitled  to  receive  the 
payment  which  the  other  party  was  bound 
to  make.  But  it  is  urged  that  the  claim  of 
the  builder  of  the  mutual  gable  baring  been 
satisfied  by  the  payment  to  him  by  the  ad- 
joining feuar,  he  had  no  right  in  him  which 
he  could  convey  to  the  party  to  whom  he 
subsequently  sold  the  house.  In  my  mind 
the  conclusive  answer  is,  that  the  right  to 
payment  of  half  the  expense  of  the  mutual 
gable  was  inherent  in  the  right  to  the  ^ble 
itself,  and  emerged  whenever  the  adjoining 
feu  was  built  on,  and  the  wall  became  pro 
indtviso  property." 

Galtnes ;  a  kind  of  amends,  assythment,  or 
satisfaction  for  slaughter.    Skene,  h.  t. 

Game.  Under  this  title  are  comprehended 
wild  beasts  and  fowls,  which  are  the  object  of 
the  chase  or  of  hunting.  Rabbits,  however,  are 
not  game ;  and  a  tenant  may  kill  them  for 
the  protection  of  his  crop ;  Moncreiffy.  Amot, 
Feb.  13,  1828,  6  &530.  The  property  of 
game  is  acquired  by  occupation  alone;  for 
while  it  is  free,  and  in  a  state  of  nature,  it 
can  belong  to  none.  But  game  originaJly 
wild  may  be  deprived  of  their  natural  liberty, 
and  thus  become  the  property  of  the  person 
who  has  brought  them  under  his  power.  The 
right  of  bunting  or  of  killing  game  is  regu- 
lated by  various  laws  (see  Game  Laws); 
but,  independently  of  those  laws,  the  property 
of  game  belongs  to  the  person  who  shall  first 
kill  or  apprehend  it ;  and  those  laws,  even 
although  enforced  by  penalties,  do  not  deprive 
the  person  of  the  property  of  the  game,  unless 
where  such  deprivation  is  part  of  the  penalty 
annexed  to  the  offence.  Ersk.  B.  ii.  tit.  1,  § 
10,  and  B.  ii.  tit.  6,  §  6 ;  and  Taifs  Justice  of 
Peace,  p.  131 ;  Irvine  on  Game  Laws. 

Gamekeeper.  If  a  person  grants  deputa- 
tion as  gamekeeper  to  a  servant  of  his  own, 
or  of  another,  and  if  for  such  servant  he  has 
already  been  charged  with  the  duty  payable 
for  servants,  L.l,  78.  6d.  is  the  sum  exigible 
for  the  gamekeeper's  certificate ;  but  if  the 
master  is  not  charged  with  the  servant's 
duty,  on  account  of  such  servant,  L.4,  Os. 
lOd.  is  payable.  The  certificate  becomes  void 
on  recall  of  the  deputation ;  but  it  may  be 


transferred  by  the  master  making  a  second 
deputation ;  in  which  case  the  clerk  to  the 
commissioners  for  the  district  is  required  to 
renew  the  former  certificate  for  the  remainder 
of  the  year,  without  any  duty  or  fee,  by  in* 
dorsing  on  such  certificate  the  name  and  place 
of  abode  of  the  person  to  whom  the  new 
deputation  has  been  granted,  and  declorinf; 
the  same  to  be  a  renewed  certificate.  Inine 
on  Game  Laws. 

Game  Lawi.  The  game  laws  are  a  system 
of  positive  regulations  introduced  and  coo- 
finned  by  sereral  statutes,  the  provisions  of 
which  ascertain  and  establish  certain  quali- 
fications to  kill  game,  and  impose  penalties 
as  well  on  such  qualified  persons,  for  irregu- 
larities in  killing  game,  as  on  unqualified 
persons,  for  hunting  or  killing  game  at  all. 
In  PoUoek,  5th  June  1828,  S.  «tr  D.  vi.  913, 
the  Bench  recognised  it  as  the  law  of  Scot- 
land, that  the  right  of  killing  game,  con- 
sidered as  a  real  right,  is  an  incident  of 
landed  property.  A  proprietor  may,  and 
generally  does,  possess  it  on  his  own  e6tate,or 
he  may  possess  it  on  the  estate  of  another 
person  by  virtue  of  a  servitude,  his  own 
estate  being  the  dominant  tenement ;  but  it 
never  appears  disjoined  from  the  ownership 
of  land,  as  a  separate  tenement  constituted  by 
infeftment  or  tack.  It  is  often  exercised  by 
delegation,  but  in  that  ease  it  is  merely  a 
personal  privilege.  The  old  qualification 
was,  the  possession  of  a  ploughgat«  of  land 
within  Scotland;  and  this  still  subsists;  so 
that,  one  who  is  not  himself  qualified,  may 
not  kill  game  beyond  the  estate  of  a  qualified 
proprietor  who  gives  him  authority.  In  ad- 
dition to  this  qualification,  any  one  intending 
to  use  means  for  taking  or  killbg  game, 
must  previously  pay  a  certain  annual  tax  or 
licence  duty.  This  duty  is  L.4,  Os.  lOd.  The 
taking  out  the  licence  does  not  supersede  the 
necessity  for  the  above  qualification ;  and  the 
possessor  of  both  is  not  entitled  to  pnrsae  game 
upon  other  ground  than  his  own,  or  that  of  one 
who  gives  him  authority.  The  most  recent 
statutes  upon  the  subject  of  the  game  laws, 
are  13  Geo.  III.,  c.  54 ;  9  Geo.  IV.,  c.  69 ;  2 
and  3  Will.  IV.,  c.  68 ;  7  and  8  Vict,  c  29 ; 
11  and  12  Vict.,  c.  30.  By  the  first  of  these 
it  is  enacted,  that  aii  unqualified  person 
having  in  his  possession  at  any  season,  without 
leave  of  a  qualified  individual,  any  hsiea, 
heathfowl,  muirfowl,  partridges,  pheasaoti, 
quails,  snipes,  or  ptarmigan,  shall  forfeit  L.1 
for  a  first,  and  L.2  for  any  subsequent  offisnee. 
Whoever  takes,  kills,  uses,  or  has  in  his  pos- 
session, game-birds  during  close  time,  forfeits 
L.5  for  each  bird;  but  pheasants  taken  in 
lawful  time,  and  kept  i^terwards  in  a  mew 
or  breeding-place,  are  excepted.  For  muir- 
fowl or  ptarmigan,  the  cloee  time  is  from 

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Mlh  December  to  12(h  Auguet ;  for  heath- 
fowl,  from  10th  December  to  20th  August ; 
for  partridges,  from  let  February  to  Ist  Sep- 
tember ;  for  pheasants,  from  Ist  February  to 
1st  October.  The  buying  and  selling  of 
game  is  no«r  lawful,  to  the  extent,  that  a 
qualified  person  may  buy  and  sell,  and  an 
nnqoalified  may  buy  from,  and  sell  to  a  quali- 
fied person.  A  tenant  cannot  hinder  his 
landlord,  or  those  having  his  leave,  from 
shooting  or  hunting  over  his  farm,  at  least  If 
Uiey  do  not  go  through  standing  corn,  or 
there  injury  may  be  anticipated;  but  he  has 
a  daim  against  such  persons  for  actual 
damage  done.  Foxes  may  be  pursued  as 
Termin,  even  upon  the  grounds  of  others. 
See  Foxes.  By  1707,  c.  13,  which  appears 
to  be  still  unrepealed,  although  new  regular 
tions  have  beea  enacted,  poachers  forfeit,  for 
each  offence,  L.20  Scots,  besides  their  dogs, 
guns,  and  nets,  to  the  apprehenders ;  but 
th^e  cannot  be  seized  breoi  tnanu ;  they  must 
be  awarded  by  a  judge.  Trespasses  by  per- 
Mni  unlawfully  pursuing  game  by  day,  are 
the  subject  of  2  and  3  Will.  IV.,  c.  68.  By 
day  is  meant  the  period  from  the  beginning 
of  the  last  hour  before  sunrise  to  the  end  of 
the  first  hour  after  snnset.  The  trespasser 
is  liable  in  a  penalty  of  not  more  than 
hJ2  and  expenses.  There  is  no  distinction 
made  between  inclosed  and  uninclosed  ground. 
Blackening  the  face  for  the  purpose  of  poach- 
in(^  or  being  one  of  a  company  of  five,  so 
engaged,  subjects  the  offender  to  a  penalty  of 
not  above  L.5  and  expenses.  The  trespasser 
■nay  be  reqaired  to  quit  the  lands,  and  to  tell 
his  Christian  name,  surname,  and  place  of 
abode,  by  the  person  entitled  to  kill  game  on 
the  land,  or  the  occupier  of  the  land,  or  a 
^mekeeper  or  servant  of  either,  or  any  autho- 
nsed  person,  under  a  penalty  of  L.5  and  ex- 
penses. Any  of  the  above  parties  may,  on  the 
offender's  refusal  to  quit  the  laud,  or  tell  his 
name,apprehend  and  carry  him  before  a  justice 
of  peace.  An  offender  may  be  tried  summarily 
before  a  single  justice ;  and  the  owner  or  oc- 
cupier of  the  buids,  or  the  procurator-fiscal, 
■nay  prosecute.  These  ruleij  do  not  apply  to 
aay  person  pursuing  with  hounds  any  deer, 
hare,  or  fox  started  on  other  land  where  he 
*as  entitled  to  hunt  or  course.  If  the  tres- 
passer have  game  in  his  possession  upon  any 
land,  any  of  the  above  authorised  persons 
may  demand  the  game  from  the  trespasser, 
and  on  his  not  immediately  delivering  it  up, 
inay  seize  it  for  the  use  of  the  person  en- 
titled to  the  game  there.  The  trespasser 
committing  an  assault  on  any  one  acting  in 
compliance  with  this  statute,  subjects  himself 
to  an  additional  penalty  of  not  more  than 
li.5,  on  conviction  before  two  justices.  The 
Uatiny  Acts  contain  a  penalty  of  L.5  on  each 


officer,  and  20s.  to  be  paid  by  the  commanding 
officer  for  each  soldier,  who,  without  leave  of 
the  lord  of  the  manor,  shall  take  or  destroy 
any  hare,  coney,  pheasant,  partridge,  or 
pigeon,  or  any  other  sort  of  fowl,  poultry, 
or  fish,  or  game  within  the  kingdom  of  Great 
Britain.  These  fines  may  be  recovered  for 
the  use  of  the  poor  of  the  parish,  by  com- 
plaint before  the  justices  of  the  peace;  and 
the  officer  who  shall  not  pay  the  fines  found 
due,  within  two  days  from  the  time  a  demand 
is  made  by  the  constable,  shall  lose  his  com- 
mission. The  acts  9  Geo.  lY.,  c.  69,  and  7  and 
8  Vict,  c.  29,  relate  to  the  prevention  of  persons 
going  armed  by  night  for  the  destruction  of 
game.  For  the  punishment  of  trespasses  com- 
mitted during  the  night,  see  Night-Poaching. 
The  prosecutor  as  well  as  the  defender  may 
appeal  to  the  Court  of  Justiciary,  under  the 
Act  13  Geo.  III.,  c.  54 ;  Gray  v.  Bonnar,  Jan. 
23, 1816, 19  F.  C.  App.  1. 

The  act  11  and  12  Vict.,  c.  SO,  enables  all 
persons  having  at  present  a  right  to  kill 
hares  in  Scotland,  to  do  so  by  themselves,  or 
by  persons  having  written  authority  from 
them,  without  taking  out  a  game  certificate. 
Deer  were  considered  inter  regalia,  and  could 
be  hunted  only  by  the  king,  or  those  having 
a  grant  of  forestry ;  and  deer-stalkers,  who 
were  at  one  time  punishable  with  death  and 
the  confiscation  of  moveables,  are,  by  1587, 
0.  69,  ratified  by  1597,  c.  270,  declared  to 
incur  the  punishment  of  theft.  On  the  sub- 
ject of  this  article  generally,  see  Irvine  on  tht 
Gam  Lam;  6  and  7  Will.  IV.,  c.  65,  §  8 ; 
Craig,  B.  ii.  dieg.  8,  §  13 ;  Stair,  B.  ii.  tit.  3, 
§  68  and  76 ;  JErtk.  B.  ii.  tit.  6,  §  6,  and  note* 
by  Ivory ;  Bank.  i.  593 ;  ii.  571 ;  JSeWs  Princ. 
§  948  ;  lUust.  ib.;  Bell  on  Leases,  i.  434;  ii. 
395 ;  Hunter's  Landlord  and  Tenant,  i.  324 ; 
ii,  185,  208,  319,  370;  HuUh.  Just,  of  Peace, 
ii.  546;  Taift  Just,  of  Peace,  h.  t.;  Blair's 
Just,  of  Peace,  h.  t. ;  Tomlin^  Diet.  h.  t. ;  Wat- 
son^ t  Stat.  Law,  h.  t. ;  Kelly  (Court  of  Justi- 
ciary), June  27, 1780  ;  Marquis  of  Tweeddale, 
March  3, 1778,  M.  4992  ;  Lord  Breadalbane, 
June  16,  1790,  M.  4999;  Ronaldson,  Nov, 
1804,  M.  15,270 ;  Col^juhoun,  Aug.  6,  1785, 
if.  4997  ;  Brown's  Synop.  h.  t. ;  SJmw's  Digest, 
h.  t.  and  p.  282 ;  S.  <t  D.  xi,  147,  See 
Muirbum, 

Gaming  and  Betting,  By  1621,  c,  14, 
playing  in  taverns  is  prohibited  under  a  pecu- 
niary penalty  for  the  first  offence,  and  a  loss 
of  licence  for  the  second.  Playing  in  private 
houses  is  also  forbidden  if  the  master  do  not 
play ;  and  if  any  one,  in  the  course  of  twenty- 
four  hours,  win  more  than  100  merks,  the 
surplus  goes  to  the  poor  of  the  parish,  a  pro- 
vision which,  in  17/5,  was  held  not  to  be  in 
desuetude.  By  9  Anne,  c,  14,  all  notes, 
bonds,  and  other  securities  for  the  payment  of 

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a  gaming  debt  (including  money  lent  at  the 
time  to  play  withal),  were  void,  and  mort- 
gages of  land  made  upon  the  same  considera- 
tion, reverted  to  the  heir  of  the  mortgager. 
This  nullity  was,  by  the  English  law,  con- 
sidered a  vitium  reale,  and  was  effectual,  not 
only  against  the  winner,  but  even  against  a 
bona  fidt  onerous  indorsee  or  assignee ;  and 
in  Scotland,  after  some  fluctuation,  the  same 
rule  was  adopted.  But  an  indorser  discount- 
ing the  bill  and  obtaining  money  for  it,  could 
not  plead  such  a  defence.  In  England,  an 
injunction  might  be  obtained  in  Chancery  to 
prevent  bills  for  gaming  debts  being  indorsed 
to  third  parties.  Now,  however,  by  5  and  6 
Will.  IV.,  c.  41,  all  statutes  which  declare 
bills,  notes,  and  other  securities  made,  drawn, 
given,  or  executed  for  gaming  or  usurious 
debts,  null  and  void,  are  so  far  repealed,  and 
it  is  provided  that  such  documents  shall  be 
deemed  and  taken  to  have  been  made,  drawn, 
&c.,  for  an  illegal  consideration.  The  previous 
statutes  are  to  be  read  as  if  they  had  so  pro- 
vided; and  if  any  person  who  has  made, 
drawn,  or  given  sucn  a  note,  bill,  or  other 
document,  shall  pay  the  contents,  or  any  part 
thereof,  to  an  indorsee,  holder,  or  assignee, 
such  money  is  to  be  deemed  to  have  been 
paid  to  the  person  to  whom  the  document 
was  originally  granted,  and  is  to  be  deemed 
and  taken  to  be  a  debt  due  by  such  last- 
named  person  to  the  person  who  shall  have 
80  paid  the  money,  and  is  to  be  recoverable 
by  action  at  law.  The  effect  of  this  statute 
is  to  render  such  documents  effectual  to  a  bona 
fide  onerous  indorsee  or  holder.  See  the  case 
of  Don  V.  Richardson,  June  16, 1858,  20  D. 
1138,  ando  pinion  of  English  counsel  there- 
in. 

By  9  Anne,  c.  14,  any  one  who  has  lost 
L.IO  at  a  sitting  may,  within  three  months, 
sue  for  it  and  costs  from  the  winner.  The 
punishment  of  cheating  at  cards  is  forfeiture 
of  five  times  the  value  of  what  was  won,  to 
any  who  shall  sue  for  it;  infamy,  and  the 
corporal  punishment  inflicted  on  wilful  per- 
jury. It  has  l)een  matter  of  question,  whether 
or  not  this,  and  several  other  English  statutes 
regarding  gaming,  extend  to  Scotland.  In 
England,  bets  or  wagers  were  once,  by  com- 
mon law,  legal  contracts ;  and  they  may  still 
be  recovered  in  a  court  of  justice,  unless 
made  on  unlawful  games.  But  all  wagers 
having  a  dangerous  or  immoral  tendency,  as 
wagers  between  two  electors,  on  the  result  of 
an  election,  or  wagers  on  the  duration  of  a 
man's  life,  are  pacta  iUicita.  In  Scotland, 
bets  are  considered  spontiones  ludicrw;  and 
no  action  can  be  maintained  for  the  recovery 
of  sums  won  in  that  way;  but  injuries  result- 
ing from  such  transactions  may  be  the  foun- 
dation of  an  action  of  damages.    A  person 


suspected,  on  good  grounds,  of  gaining  his 
livelihood  by  gaming,  may  be  apprehended 
and  brought  Mon  any  two  justices  of  the 
peace,  when,  unless  he  can  show  that  gam- 
bling is  not  the  principal  means  of  his  sub- 
sistence, he  may  be  ordained  to  find  security 
for  his  good  behaviour  for  twelve  months, 
and  his  ^nd  of  caution  will  be  forfeited  if  he 
is  found,  during  the  twelve  months,  to  hare 
played  for  more  than  L.l  at  a  sitting.  The 
General  Police  Act,  13  and  14  Vict.,  c.  33, 
§  209,  provides,  with  respect  to  the  punish- 
ment of  chain-droppers  and  swindlers,  that  aU 
persons  of  that  or  any  similar  discription, 
"  who  shall  be  found  in  possession  of  imple- 
ments or  articles  for  practising  games  of 
hazard,  or  who  shall  exhibit  such  implements 
or  articles,  in  order  to  induce  or  entice,  or 
who  shall  induce  or  entice  any  person  to  play 
at  any  game  of  hazard,  or  who,  by  fraudulent 
act  and  device,  shall  cozen  and  cheat,  or 
attempt  to  cozen  and  cheat,  any  person," 
may  be  convicted  before  the  sheriff  or  magis- 
trate, and  punished  with  imprisonment  not 
exceeding  thirty  days ;  and  also  shall,  at  the 
same  time,  be  sentenced  to  restore  the  money 
or  property  obtained,  and  foiling  restcration, 
to  further  imprisonment  not  exceeding  thirty 
days.  9  Anne,  c.  14 ;  18  0«o.  II.,  c  34;  58 
Geo.  III.,  c.  70 ;  3  Geo.  IV.,  c.  114;  Bdfi 
Com.  i.  299,  et  seq.;  BdPs  Pnnc.  §  36  and 
§  329,  and  authorities  there  died;  Bets  lUtft. 
ib. ;  Stair,  B.  i.  tit.  10,  §  S,  and  tuU  hf 
Bridie;  Taifs  Justice  of  Peace,  h.  t;  Blair's 
do.  h.  t.;  Bank,  i.  p.  204,  et  teq. ;  Ghristim't 
note  to  Blackstone,  vol.  iv.  p.  173;  IhaUi^'t 
Parochial  Law,  p.  222,  et  seq. ;  Kamet'  Eqm^ 
364 ;  Thomson  on  Bills,  130, 141. 

See  also,  on  the  subject  of  this  article,  the 
case  of  Foulds  v.  Thomson,  10th  June  1857,19 
D.  803,  where  it  was  decided  that  speeak- 
tive  transactions  in  stocks  did  not  amount  to 
gaming  or  wagering,  either  at  common  la* 
or  in  the  sense  of  the  act  7  and  8  Viet.,  e. 
109,  §  18 ;  and  the  case  of  Peilode,  5th  Feb. 
1848,  10  D.  646,  where  a  multiplepoindiog 
was  held  competent,  at  the  instance  of  the 
stake-holder  at  a  courung  meeting,  to  try 
which  of  two  parties,  the  one  being  the  owner 
and  the  other  the  namer  of  a  dog  which  had 
won,  was  entitled  to  the  prize.  The  act 
16  and  17  Vict.,  c.  119,  for  the  suppres- 
sion of  betting-houses,  does  not  extend  to  Seotr 
land.   See  Pactum  iUicitum.    Lottenf,    Wager. 

Garba  Sagittaxnm:  a  sheaf  of  arrovE, 
containing  twenty-four.    Skene,  A.  t, 

darbaks  DeouuB.  Garba  signifies  a  sheaf 
or  handfiil  of  com;  and  the  term  deeim<e 
^arJaie*  means  the  tithes  of  com.  They  were 
also  termed  decimw  rectoriw,  from  rector,  a 
parson ;  or  parsonage  tithes.  These  tithes 
extend,  by  the  practice  of  this  country,  to  the 

Digitized  byLjOOQlC 


GAR 


GIF 


407 


tithes  of  wheat,  bai-ley,  oats,  pease,  &c.,  and 
are  exigible  from  all  the  lands  in  Scotland. 
la  this  respect  they  differ  from  the  lesser  or 
vicarage  tithes,  which  are  dae  only  where 
they  have  been  in  use  to  be  paid.  Ertk.  B. 
ii.  tit.  10,  §  13.    See  Teinds. 

Oardfier:  gar^;  from  the  French,  a 
mill-servant, — a  mill-knave.    Skene,  h.  t 

Gargiatores;  in  ancient  law  language, 
those  who  marked  with  the  mark  of  their 
office  the  cloth,  bread,  or  barrels  before  they 
were  sold,  or  who  tried  and  examined  aU 
weights  and  measures.    Skene,  h.  t. 

(nTeUdnd.  In  Kent,  and  certain  other 
eonnties  in  England,  lands  and  tenements 
are,  by  immemorial  custom,  held  in  gavel- 
kind ;  that  is  to  say,  all  the  male  issue  inherit 
eqoallT.  Tomlim,  A.  t. ;  Bank,  vol.  ii.  p.  317 ; 
Skmr,  B.  ili.  tit.  4,  §  22. 

Guette,  Royal  proclamations,  and  the 
like,  printed  in  the  Gazette,  are  probative, 
without  production  of  the  proclamations. 
But  gazettes  are  not  evidence  of  private 
titles  or  interests,  such  as  presentations  or 
grants  to  individuals.  As  to  the  question, 
whether  publication  in  the  Gazette  is  a  suffi- 
cient notice  of  dissolution  of  partnership,  to 
free  the  partners  from  debts  i^terwards  con- 
tracted in  name  of  the  company,  it  has  been 
decided  that  it  is  not  alone  sufficient  against 
Bich  as  were  formerly  in  the  habit  of  dealing 
vidi  the  house.  With  regard  to  parties 
dealing  with  the  company  for  the  first  time, 
there  is  a  difference  between  the  English  and 
Scotch  law.  In  the  former,  it  is  doubted 
vhether  notice  in  the  Gazette  is  sufficient,  in 
all  eases,  even  against  strangers.  While,  in 
the  latter,  it  is  held  that  persons  contracting 
for  the  first  time  with  a  company  are  bound 
to  inquire  into  its  existing  condition,  and 
notice,  even  in  a  provincial  newspaper,  is 
sufficient.  But  all  reasonable  means  ought 
to  be  taken  to  pnblish  the  dissolution.  Bdl's 
Princ.  §  383 ;  Tait  on  Evidence,  p.  50 ;  2%om- 
tom  <m  BUls,  249.  Under  the  bankrupt  act 
and  some  other  statutes,  certain  notices  re- 
quired by  the  statutes  are  directed  to  be 
given  by  publication  in  the  Gazette.  See 
St^eiiration.     Trustee.     See  also  Evidence. 

General  Assembly.  The  General  Assem- 
bly of  the  Church  of  Scotland  is  the  highest 
ecclesiastical  court.  For  an  account  of  its 
constitution  and  powers,  see  Church  Judica- 
Uniet.    Commissioner.     Overture. 

General  Charge.  See  Charge  to  etiter 
Heir. 

General  Special  Chaise.    See  Charge. 

Genfflral  Dischai^.    See  Discharge. 

General  Disposition  and  Settlement  See 
DimtsUion  and  Settlement  and  Titles  to  Land. 

General  Jnry  Book;  a  book  kept  by  the 
sheriff,  containing  the  names  of  all  persons 


within  the  county  liable  to  serve  as  jurors. 
On  a  notice  or  requisition  from  the  clerk  of 
the  court  where  the  trial  is  to  take  place,  the 
sheriff  makes  up  a  list  of  jurors  from  the 
general  jury  book,  taken  in  the  order  in 
which  they  stand,  containing,  as  nearly  as 
possible,  a  third  of  special  jurors,  and  if  not, 
the  deficiency  is  supplied  from  the  SpeeialJwry 
Book.  6  Geo.  IV.,  c.  22,  §§  3, 7,  8  and  9 ; 
Steele,  4.    See  Special  Jury  Book.    See  also 

General  Letters  of  Homing.  These  were 
letters  formerly  in  use,  running  in  the  King's 
name,  directed  at  the  instance  of  the  bishop, 
and  charging  all  concerned  with  the  executry 
of  a  deceased  person  to  confirm ;  and  in  case 
of  their  failing  to  confirm,  the  bishop  ap- 
pointed his  own  fiscal  to  be  executor,  who,  as 
such,  had  right  to  the  whole  of  the  dead's 
part ;  but  this  was  put  an  end  to  by  the  act 
1690,  c.  26,  which  prohibited  those  general 
letters.  Ersk.  B.  iii.  tit.  9,  §  33;  Stair, 
B.  iii.  tit.  3,  §  11,  also  B.  iv.  tit.  3,  §25, 
and  tit.  47,  §  4 ;  Mor^s  Notes,  p.  cccxi. ;  BdPs 
Com.  ii.  169 ;  Bank.  vol.  iii.  pp.  4, 10 ;  Brown's 
Synop.  h.  t.    See  Executor.    Confirmation. 

General  Service.  This  form  of  service  is 
intended  to  vest  the  heir  with  such  heritable 
rights  belonging  to  the  ancestor  as  do  not 
require  sasine,  or  to  which  the  ancestor  had 
merely  personal  rights  («.  g.,  unexecuted  pro- 
curatories  of  resignation  or  precepts  of  sasine). 
Ertk.  B.  iii.  tit.  8,  §  63 ;  £««•«  Prine.  §  781, 
1848;  Jurid.  Styles,  4th  edit.  vol.  i.  See 
Services.    Entry. 

General  Verdict ;  an  announcement  of  the 
general  result  at  which  the  jury  have  arrived, 
expressed  by  the  word  "guilty,"  or  "not 
guilty,"  or  "  not  proven,"  without  disclosure  of 
the  grounds  of  their  conclusion.  A  general 
verdict  is  final  as  to  the  prisoner's  guilt  or 
innocence.  Hume,  ii.  439 ;  Alison's  Prae. 
644 ;  Steele,  211.  In  civil  causes,  where  the 
verdict  is  in  general  terms  for  the  pursuer  or 
for  the  defender,  it  has  been  termed  a  general 
verdict,  in  contradistinction  to  a  special  ver- 
dict, where  special  facts  are  found  by  the 
jury,  leaving  their  legal  effect  for  the  future 
determination  of  the  Court.  See  Verdict. 
Special  Verdict. 

German.  Those  born  or  descended  of  the 
same  father  or  mother,  are  said  to  be  con- 
nected in  full  blood,  or  german.  Bell's  Prine. 
§  1651 ;  Jllust.  ib.     Succession.    Hay- Blood. 

Oestio  pro  Haerede.   See  Behaviour  as  Heir. 

Gift ;  is  synonymous  with  donation  ;  see 
Donation;  but  the  term,  in  Scotch  law,  is 
sometimes  applied  in  particular  to  royal 
gifts — e.g.,  gifts  of  non-entry,  escheat,  bas- 
tardy, forfeiture,  ultimus  hosres,  all  of  which 
are  royal  grants  proceeding  on  signatures, 
and  passing  the  Privy  Seal,  Quarter  Seal,  or 


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GIL 


GLB 


Great  Seal,  according  as  they  convey  rights 
of  greater  or  less  consequence.  Thus,  all 
gifts  of  casualties  of  superiority  pass  under 
the  Privy  Seal ;  gifts  of  bastardy,  of  forfei- 
ture, or  of  uUimus  h(eres,  pass  the  Quarter 
Seal,  where  the  lands  hold  of  a  subject  supe- 
rior ;  but  where  they  hold  of  the  Crown,  the 
gift  passes  the  Great  Seal.  According  to  the 
present  practice,  the  first  step  taken  by  a 
party  soliciting  such  a  gift  is  to  present  an 
application  to  the  Lords  of  the  Treasury, 
stating  the  circumstances  under  which  he 
applies.  A  remit  is  then  made  by  the  Lords 
of  the  Treasury  to  the  Officers  of  Exchequer 
in  Scotland ;  and  the  applicant  must  give 
notice  of  his  application  in  certain  news- 
papers appointed  by  those  officers.  At  the 
end  of  a  twelvemonth  the  application  is  taken 
into  consideration,  and  a  gift  made  or  refused 
according  to  the  report  of  the  Exchequer  of- 
ficers. If  the  gift  be  made,  it  is  chargeable 
with  a  stamp-duty  of  L.30  (55  Geo.  HI., 
c.  184,  schedule,  voce  Grant) ;  in  addition  to 
which,  there  are  certain  fees  exigible  by  the 
officers  of  Exchequer.  Brown't  Synop.  h.  t. 
See  Donatary.  Escheat,  Exchequer.    Bastardy. 

Oilda;  a  society  and  company  of  mer- 
chants. In  the  old  British  laws,  "gilder 
signifies  the  order  of  society  of  religious  men, 
or  of  craftsmen."     Skene,  h.  t. 

Girth  and  Sanctuary;  was  an  asylum 
given  to  murderers,  where  the  murder  was 
committed  without  any  previous  design,  and 
in  chaud  melle,  or  heat  of  passion.  At  the 
Reformation,  the  privilege  of  sanctuary  in 
criminal  matters  was  abolished,  and  the  pro- 
tection of  girth  and  sanctuary  could,  of  course, 
be  no  longer  claimed.  Hume,  i.  235 ;  Ersk. 
B.  iv.  tit.  4,  §  40 ;  Bank.  vol.  iii.  p.  14, 1 ; 
Ross's  Led.  i.  831.    See  also  Chaud  Melle. 

Oirtholl ;  girth,  sanctuary,  asylum.  Skene, 
h.t. 

Oleaoing.  It  is  said  that,  by  the  law  of 
England,  the  poor  may  enter  and  glean  upon 
another's  ground  after  harvest ;  but  in  Scot- 
land, it  has  been  established  by  repeated  de- 
cisions, that  the  poor  possess  no  such  right, 
at  least  while  the  sheaves  remain  on  the 
ground,  and  that  the  farmer  may  exclude 
them.  Hutch.  JusU  of  Peace,  u.  47 ;  Dunlop's 
Parish  Law,  223. 

Gleba ;  a  glebe  given  and  granted  to  kirk- 
men,  ministers  of  the  Evangel.    Skene,  h.  t. 

Glebe ;  the  portion  of  land  to  which,  gene- 
rally speaking,  every  parish  minister  in  Scot- 
land is  entitled,  in  addition  to  his  stipend. 
From  this  rule  are  excepted  the  ministers  in 
royal  burghs  proper,  who  cannot  claim  a 
glebe,  unless  there  be  a  landward  district 
annexed  ;  and,  even  in  that  case,  where  there 
are  two  ministers,  it  is  only  the  first  who  has 
the  claim.     In  the  case  of  disjunction  of  a 


parish  also,  the  decree  sometimes  provides 
that  the  minister  of  the  portion  disjoined  and 
erected  into  a  new  parish,  shall  not  be  en- 
titled to  a  manse  or  glebe.  By  5  Geo.  lY., 
c.  72,  provision  is  made  for  payment  out  of 
the  public  revenue  of  an  allowance  or  addi- 
tional stipend,  in  lieu  of  manse  aad  glebe,  to 
such  ministers,  whose  stipends  do  not  exceed 
L.200,  as  may  not  be  entitled  thereto.  Where 
there  are  arable  lands,  the  glebe  mast  consist 
of  four  acres ;  where  there  is  no  arable  land, 
the  minister  is  entitled  to  sixteen  soums  of 
grass  next  adjacent  to  the  church, — a  soum 
of  land  being  as  much  as  will  pasture  ten 
sheep  or  one  cow.  But  this  matter  may  be 
affected  by  local  custom.  It  was  formerly 
the  rule,  that  the  glebe  should  be  designed 
out  of  church-lands ;  but  the  act  1644,  e.  31, 
authorized  the  designation  of  temporal  lands, 
where  there  were  no  church-lands ;  and  by 
1649,  c.  45,  it  was  enacted,  that  where  gleba 
were  inconveniently  distant  from  the  manses, 
they  might  be  changed,  and  new  glebes  de- 
signed within  a  quarter  of  a  mile  of  the 
manse,  "  villages  and  incorporate  aiken" 
being  the  only  lands  excepted.  These  acts 
having  been  passed  during  the  Usurpation, 
were  afterwards  rescinded  ;  but  the  act  1663, 
c.  21,  though  it  does  not  specially  renew  their 
provisions,  has  been  held  in  a  general  way  to 
revive  them ;  and  it  has  always  been  assumed, 
that  where  there  are  no  church-lands,  tem- 
poral lands  should  be  designed.  The  ques- 
tion, however,  whether  temporal  lands  can 
be  designed  even  in  a  parish  where  there  are 
church-lands,  is  not  settled  by  any  recent  de- 
cision ;  but  Sir  John  Connell  {Parishes,  370) 
states,  that,  in  the  designation  of  arable 
glebes,  the  distinction  between  temporal  mstA 
church-lands  has  of  late  been  wholly  disre- 
garded. See  Kingshams,  ut  infra,  uid  nlao 
10th  June  1794,  BdVs  Cases,  and  Mor.  5140 ; 
Laidlaw,  2d  Dec.  1800,  Mor.  App.  voce  GU>e, 
No.  III.  The  reviving  statute,  1663,  con- 
tinues to  exempt  "  incorporate  acres  in  village 
or  town,  where  the  heritor  hath  houses  and 
gardens,  he  always  giving  other  lands  nearest 
the  kirk."  It  has  been  held  that  lands  are 
liable  to  be  designed  for  a  glebe  as  charcb- 
lands,  although  the  superiority  of  them  only 
had  belonged  to  the  church  for  a  long  period 
before  the  Keformation ;  and  when,  at  the 
time  of  designing  a  glebe,  there  are  lands  in 
a  parish  held  of  the  Crown  in  right  of  a 
priory,  others  held  by  the  Crown  in  right  of 
a  bishop,  and  others  held  by  a  university  in 
right  of  a  priory,  the  first  are  primarily 
liable,  the  bishop's  lands  in  the  second  place, 
and  the  others  only  ultimo  loco,  whatever  may 
have  been  the  description  of  the  lands  at  the 
Reformation,  or  at  the  date  of  the  act  1593; 
Minister  of  Kingshams,  11th  June  1799,  Mor. 


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App.  voce  Glebe,  No.  11.  In  this  question, 
temple  lands — «.e.,  lands  which  formerly  be- 
longed to  the  knights-templars — are  not  held 
to  be  church  lands ;  Bank.  E.  ii.  tit.  8,  §  22. 
The  glebe  most  be  taken  as  near  the  manse, 
and  as  commodious  for  the  minister  as  pos- 
sible,— a  provision  intended  for  the  benefit 
of  the  heritors  as  well  as  of  the  minister,  so 
that  the  latter  is  not  entitled  to  pick  and 
choose  remote  lands  merely  on  account  of  the 
laperiority  of  the  soil.  Where  there  is  no 
manse,  vicinity  to  the  church  is  taken  as  the 
criterion.  Where  a  glebe  has  once  been  de- 
signed, and  possessed  as  such,  a  new  designa- 
tion will  not  be  allowed  on  the  ground  of 
inconvenience  of  situation,  inferior  quality  of 
toil,  or  deficiency  in  extent.  In  this  last 
case,  however,  as  much  may  be  designed  as 
will  make  up  the  deficiency.  By  the  rescinded 
statute,  1644,  c.  31,  it  was  provided,  that 
where  a  glebe  has  become  unprofitable  by 
inundation  or  other  extraordinary  accident, 
a  new  one  might  be  designed.  This  provi- 
sion has  not  been  specially  revived,  but  it  is 
believed  that  such  a  course  would  be  adopted 
were  the  destruction  complete.  The  heritor 
whose  lands  are  designed  as  a  glebe,  has  re- 
course against  the  other  heritors  of  the  parish. 
Bat  his  claim  does  not  form  a  debitum  fundi; 
it  lies  against  the  heritors  for  the  time  only, 
and  their  heirs.  The  presbytery  possess  the 
power  of  designing  a  glebe,  and  giving  war- 
rant for  letters  charging  the  heritor  from 
whose  property  the  glebe  is  designed,  to  carry 
the  designation  of  the  presbytery  into  execu- 
tion. After  designation  by  the  presbytery, 
if  the  possessors  of  the  lands,  designed  for 
manse  or  glebe,  do  not  yield  possession  to 
the  minister,  be  may,  on  producing  the  de- 
signation at  the  Bill-Chamber,  obtain  war- 
rant for  letters  of  horning  to  charge  the 
possessors  to  remove  ;  and  disobedience  to 
this  charge  may  be  followed  by  caption ; 
1572,  c  48 ;  Bank.  B.  ii.  tit.  8,  §  120.  By 
1572,  c.  48,  it  is  enacted,  that  a  glebe  can- 
not be  alienated  by  the  incumbent.  But  as 
the  act  limits  the  prohibition  to  such  aliena- 
tions as  may  be  detrimental  to  the  incumbent's 
saccetsor,  it  has  been  doubted  whether  the 
inemnbent  might  not  feu.  Cases  have  oc- 
enrred,  however,  in  which  the  Court  have 
refused  to  sanction  feus,  even  where  the  feu- 
daty  offered  was  quadruple  of  the  rent  in 
tillage.  Upon  the  transportation  of  a  church 
to  a  new  site,  the  Court  have  authorized  a 
sale  or  escambion  of  the  glebe.  Excambions 
of  glebes  must  be  sanctioned  by  the  presby- 
tery. The  minerals  of  a  glebe  are  worked 
at  light  of  the  heritors  and  presbytery,  and 
the  proceeds  are  placed  under  their  manage- 
ment for  behoof  of  the  incumbent  for  the 
time.    Trees  growing  on  the  glebe  have  been 


thought  to  belong  to  the  minister ;  Heritort 
of  Keith  and  Btmbie,  Feb.  16,  1791.  See, 
on  the  subject  of  this  article,  Ersk.  B.  ii.  tit. 
10,  §  59,  et  seq. ;  Stair,  B.  ii.  tit.  3,  §  4  and  § 
40 ;  tit.  8,  §  7  ;  Mor^s  Notee,  pp.  clxxii.  and 
cxcii. ;  Bank.  vol.  ii.  pp.  46, 119,  et  seq. ;  pp. 
78,  217,  et  seq. ;  Bell's  Prine.  §  1172,  et  seq. ; 
lUust.  ib. ;  Bill's  Chwch  Prac.  141 ;  Connell 
on  Parishes,  337  ;  Broum's  Synop.  h.  t. ;  also, 
pp.  1626,  1544,  2078,  2339 ;  Uuich.  Justice 
of  Peace,  vol.  ii.  p.  410,  et  seq,,  2d  edit. ; 
Shaw's  Digest,  p.  122,  §  53 ;  Dunlcp's  Paro- 
chial Law,  pp.  75,  281 ;  Hunter's  Landlord 
and  Tenant,  i.  116,  d  seq.;  Connell  on  Pa- 
rishes, p.  166,  et  seq. ;  Jurid.  Stt/les,  2d  edit, 
vol.  iii.  pp.  611, 698,  933;  Watson's  Stat.  Law, 
h,  t. ;  Anderson,  Low's  App.  Cases,  ii.  433  ; 
Kames'  Equity,  112  ;  S.  <t  D.  xiii.  787,  978. 
See  Dilapidation  of  Benefices.  Grass  of  Minister. 

Qoi,  Offence  Ag^auut  Although  every 
crime  is  an  offence  against  God,  the  offence 
to  which  this  expression  is  speciaily  applied 
in  criminal  law,  is  that  of  blasphemy.  This 
crime  is  described  in  the  act  1661,  c.  21, 
which  distinguishes  between  railing  at  and 
cursing  God,  and  denying  God,  or  any  of  the 
persons  of  the  blessed  Trinity.  The  former 
of  those  offences,  or  that  of  railing  at  and 
cursing  God,  is  declared  punishable  with 
death.  The  latter,,  or  the  denying  of  God, 
is  punishable  with  death,  only  where  the  cri- 
minal obstinately  continues  therein ;  and  his 
obstinacy  is,  by  the  act  1695,  c.  11,  explained 
to  be  his  being  for  the  third  time  convicted 
of  this  crime.  Ersk.  B.  iv.  tit.  4,  §  16;  Sums, 
i.  669.     See  Blasphemy.    Cursing. 

Gold  Mines.  By  an  unprinted  act  (1692), 
gold  mines  may  be  demanded  in  feu  from  the 
Crown,  by  the  proprietor  of  the  ground  in 
which  the  mines  are,  on  payment  of  one-tenth 
part  of  the  produce,  not  deducting  charges. 
And  should  mines  be  found  and  not  wrought 
by  the  proprietor  of  the  ground,  the  Sovereign 
is  then  at  liberty  to  work  them  or  set  them 
in  feu  to  others.  ErsL  B.  ii.  tit  6,  §  16 ; 
Stair,  B.  ii.  tit.  3,  §  60,  Bank.  vol.  i.  pp.  673, 
109 ;  BelPs  Princ.  1 1669. 

Gold  Plate.    See  Silver  Plate. 

Good  Friday ;  the  Friday  in  holy  or  pas- 
sion week,  observed  by  the  Christian  Church 
(with  certain  exceptions,  including  Presbyte- 
rians) as  a  fast.  On  that  day  an  election  can- 
not proceed,  nor  a  poll  be  held,  nor  a  return 
be  declared,  in  England,  Scotland,  or  Ireland. 
Chambers'  Election  Law,  h.  t. ;  Rogers'  Law  of 
EL,  262. 

Goods  in  Commnoion ;  are  the  moveable 
subjects  belonging  in  common  to  husband  and 
wife.  They  comprehend  all  the  moveable 
property  belonging  to  either  of  the  parties, 
except  such  efl'ects  as  have  been  given  to  the 
wife,  expressly  excluding  the  jus  mariti,  and 


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the  wife's  paraphernalis,  as  to  which  there 
is  an  implied  exclusion  of  the  jui  mariti.  A 
personal  bond,  bearing  interest,  does  not  fall 
under  this  description  of  goods ;  1661,  c  32. 
The  husband,  during  the  subsistence  of  the 
marriage,  has  the  uncontrolled  adminstra- 
tion  of  the  goods  in  commonion.  Formerly 
if  the  marriage  was  dissolved  within  year 
and  day  without  a  liring  child,  the  common 
stock  returned  to  the  husband  and  wife,  or 
their  representativee,  in  the  proportions  in 
which  it  was  contributed.  This  is  now  altered 
by  the  Act  18  and  19  Vict.,  c  23,  §  7  (1855), 
and  the  rights  of  the  spouses  are  the  same  as 
if  the  marriage  had  subsisted  for  year  and  day. 

On  the  dissolution  of  the  marriage  by  the 
death  of  the  wife,  the  goods  in  communion 
where  there  was  no  child,  formerly  suffered  di- 
vision into  two  equal  parts,  one  of  which  was  at 
the  wife's  disposal*  or  failing  her  disposal  of 
it,  it  went  to  her  next  of  kin,  and  the  other 
half  belonged  to  the  husband.  In  the  case 
where  there  were  children,  and  the  mar- 
riage was  dissolved  by  the  predecease  of  the 
wite,  one-third  part  of  the  goods  in  commu- 
nion went  to  her  children,  by  the  last  or  any 
preceding  marriage,  as  her  next  of  kin,  and 
the  other  two-thirds  remained  with  the  father, 
UgiUM  being  a  claim  which  does  not  arise 
until  his  death.  The  children,  if  not  under 
age,  were  entitled  to  their  mother's  share 
immediately  on  the  dissolution  of  the  mar- 
riage, but  as  to  such  of  the  children  of  the 
last  marriage  as  were  minors,  their  father,  as 
their  administrator,  had  the  management  of 
their  proportion  of  their  mother's  share  of 
the  goods  in  communion.  The  law,  however, 
is  now  altered  by  the  Act  18  and  19  Vict.,  c. 
23,  §  6,  which  enacts  that  the  representatives 
of  a  wife  who  predeceases  her  husband,  shall 
have  no  right  to  any  share  of  the  goods  in 
communion,  md  that  no  bequest  by  her  shall 
affect  these  goods. 

When  the  marriage  is  dissolved  by  the  pre- 
decease of  the  husband,  and  there  are  no  chil- 
dren, the  goods  in  communion  suffer  a  bipartite 
division  ;  one  division,  termed  the  jxt*  rdictai, 
going  to  the  wife ;  and  the  other,  called  the 
dead's  part,  going  to  the  legatees  or  the  exe- 
cutors of  the  husband.  When  there  are  chil- 
dren, and  the  husband  predeceases,  a  tripar- 
tite division  takes  place.  One  division  goes 
to  the  wife,  another  to  the  children,  and  the 
third  also  to  the  children  as  their  father's 
executors,  or  to  his  legatees,  in  the  event  of  his 
leaving  a  settlement.  See  the  Act  18  and  19 
Vict.,  c.  23  (1855).  See  Legitim.  Jus^  Re- 
lietcB.    Marriage.     Confirmation,    Executor. 

Goodwill ;  the  custom  of  any  trade  or  busi- 
ness. It  may  be  the  subject  of  contract.  In 
England  the  specific  performance  of  an  agree- 
ment to  sell  the  goodwill  of  a  trade  has  been 


decreed ;  but  it  haa  been  doubted  whether, 
when  a  goodwill  forms  the  principal  part  of 
a  contract,  performance  will  be  decreed.  Btfft 
Princ.  §  91  ;  Tomlin^  Did.  h.  t. 

GoTemment.  By  this  term  is  meant  the 
constitution  of  the  country,  as  vested  in  the 
Sovereign  and  Parliament.  Its  great  powers 
are  the  legislative  and  the  executive — the 
former  making  the  laws  which  the  people  are 
to  obey,  and  by  which  their  rights  and  pri- 
vileges are  to  be  regulated — the  latter  en- 
forcing those  laws,  m^ing  peace,  or  declaring 
war,  and  performing  the  other  great  exeea- 
tive  functions  of  the  state.  The  legislative 
power  of  the  British  Government  is  placed 
in  the  Sovereign  and  the  three  estates  of  Par- 
liament— viz.,  the  lords  spiritual,  the  lords 
temporal,  and  the  representatives  of  the  peo- 
ple in  the  Commons  House  of  Parliament. 
See  Parliament.    Election  Law.    Reform  Act. 

Gorenunant  Stoek.    See  Stode. 

Chrtoe,  Act  oL    See  Act  of  Grace.   AUtmL 

Graoe,  Days  o£  See  Dayt  of  Oraee.  Bili 
of  Exchange. 

Gruid&thsr.  Is  the  second  in  the  line  of 
ascendants ;  and,  where  the  father  fails,  he  is 
bound  to  support  his  indigent  grandchildren ; 
but  he  is  not  bound  to  support  his  grandchil- 
dren by  his  daughter,  unless  the  father  and 
paternal  grandfather  of  such  children  be  un- 
able ;  in  which  case  the  burden  will  fall  on 
the  maternal  grandfather.  Ersk.  6.  i.  tit  6, 
§  56 ;  Mor^t  Notes  to  Stair,  p.  xxix.  See  also 
Ascmdantt,    Executort.  AUment.   Snecestion. 

Grandehildran ;  have  a  claim  for  aliment 
while  they  are  unable  to  maintain  themselves, 
and  where  their  father  is  unable  to  aliment 
them,  against  their  paternal  grandfather; 
and,  where  he  also  is  unable,  against  their 
maternal  grandfather,  in  the  manner  ex- 
plained in  the  preceding  article.    Ertk,  ibid. 

Grand  Jury;  in  England,  the  jury  of 
twenty-four  good  and  lawful  men,  which  finds 
bills  of  indictment  before  justices  of  peace, 
and  gaol-delivery,  or  of  Oyer  and  Terminer, 
&c.  Their  duty  is  only  to  hear  wihiesses  for 
the  Crown ;  and  to  find  a  bill  on  probable 
evidence ;  Tomlins'  Diet.  k.  t.  There  is  no 
such  institution  in  Scotland,  the  duties  of  the 
grand  jury  being  there  discharged  by  the 
Lord  Advocate,  except  in  cases  of  treason, 
when,  the  English  and  Scotch  treason  laws 
being  the  same,  a  true  bill  must  be  found 
precisely  as  in  the  English  practice.  See 
Oyer  and  Terminer.  Treason.  Advocate,  Lord, 
Mminal  Prosecution.  Ignoramus.  4  Si^- 
Com.  422. 

Grant  Technically  speaking,  the  term 
grant  is  not  applied  to  a  deed  by  which  either 
lands  or  moveables  are  conveyed.  Oar  deeds 
of  conveyance  are  charters,  by  which  lands 
are  originally  conveyed — or  charters  by  pro- 


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gnes,  by  which  the  superior  continues  the 
right  to  the  heirs  or  creators  of  the  vassal,  or 
the  purchasers  from  him — or  dispositions,  by 
which  the  Tassal  himself  transfers  his  pro- 
perty to  those  to  whom  he  has  occasion  to  con- 
Tey  it.  The  term  disposition  is  used  even  in 
tiie  conveyance  of  moveables,  where  writing 
is  required.  But  the  t^rm  grant,  though  not 
employed  to  denote  the  deed  of  conveyance,  is 
nted  in  original  rights  of  land,  and  in  gratui- 
tous conveyances,  as  a  term  of  conveyance. 
Thus,  in  granting  a  feu-right,  the  superior 
uses  the  expressions,  I  &itb,  orant,  aitd  dis- 
POHB.  In  a  settlement,  the  granter  employs 
the  same  words;  whereas,  in  a  sale,  the  ex- 
pressions are,  I  skix,  alienate,  and  sis- 
poke.  These  are  words  of  style ;  and  the 
distinction  between  give,  grant,  and  dispone, 
and  sell,  alienate,  and  dispone,  has  been 
thought  to  mark  the  difference  between  oner- 
ous and  gratuitous  deeds.  Ertk.  B.  ii.  tit.  3, 
§  22 ;  Stair,  B.  ii.  tit.  7,  §  6 ;  Bank.  vol.  ii. 
pp.  259, 39 ;  BeU't  Com.  i.  22,  et  teq.,  also  Ad- 
denda, No.  ii.  V. ;  Jurid.  Styles,  4th  edit.  voL 
L  p.  1.    See  Tities  to  Land. 

fltant:  in  English  law,  a  conveyance  in 
writing  of  incorporeal  things  which  cannot 
pass  by  word  only,  as  of  reversions,  advowsons 
in  gross,  tithes,  rents,  services,  common  in 
gross,  &o.  The  term  is,  in  a  wider  accepta- 
tion, used  for  a  gift  of  whatever  kind.  Tota- 
ling Diet.  h.  t.     See  Deed  PolL 

6xaM.  Grass,  whether  natural  or  indus- 
trial, is  considered  a  pertinent  of  the  soil,  and 
passes  to  purchasers.  In  questions  between 
heir  and  executor,  natural  grass  is  held  to  be 
heritable,  and  even  when  it  has  been  sown 
down  with  com,  the  executor  is  not  entitled 
to  the  crop  of  hay  produced  in  the  succeeding 
year,  but  merely  to  the  first  year's  pasturage 
after  cutting  down  the  white  crop.  But,  it 
would  appear  that,  in  questions  as  to  a  way- 
going crop,  hay  sown  in  a  penult  year  of  the 
lease,  and  yielding  the  first  crop  in  the  year 
of  removal,  is  to  be  classed  along  with  the 
erope  of  arable  land ;  Keith,  3d  Dec.  1825,  4 
5.  d;  D.  267.  In  grass  farms,  the  landlord's 
hypothec  extends  over  the  grass-mail,  if  the 
fields  are  let  out  to  pasture,  but  not  over  the 
cattle  of  others  grazing  there ;  nor  over  grass 
cut  for  sale.  The  doctrine  of  tacit  relocation 
has  no  application  to  grass  fields  let  from  year 
to  year,  and  the  tenant  is  not  entitled,  with- 
out a  new  bargain,  to  possess  for  a  day  after 
the  stipulated  term  of  removal  has  arrived. 
Befft  Com.  ii.  pp.  29,  104;  Mi's  Princ.  § 
1233;  /»««(.§  1262;  S<U  on  Leases,  4th  edit. 
voL  i.  p.  398. 

Onus,  of  Miiiisten.  By  the  act  1663,  c. 
21,  the  minister  of  a  paridi  has  right  (over 
and  above  his  glebe),  to  grass  for  a  horse  and 
two  eovrs.     This  grass  should  be  taken  out  of 


the  nearest  church  lands ;  and,  where  there 
are  no  church-lands  in  the  parish,  it  has  been 
made  a  question  whether  the  grass  can  be  de- 
manded. But  where  the  church-lands  are 
either  at  a  distance,  or  not  grass-lands,  the 
minister  is  entitled  to  L.20  Scots  as  an  equi- 
valent ;  and  this  equivalent  is  paid  to  him  by 
the  heritor  of  the  nearest  church-lands,  who 
has  his  recourse  for  proportional  relief  against 
the  heritors  of  the  otner  church-lands  in  the 
parish.  Grass  may  be  designed,  although  the 
glebe  contains  more  than  four  arable  acres 
or  sixteen  soums  of  pasture.  Ersk,  B.  ii.  tit. 
10,  §  62 ;  Mor^s  Notes  to  Stair,  p.  clxxiii. ; 
BeU's  Princ.  §  1172 ;  lUust.  ib. ;  EilPs  Ckurch 
Prae.  143 ;  Dunlop's  Parish  Law,  pp.  109,  89. 
See  Oy>e. 

Grassnm;  an  anticipation  ofrent  in  a  gross 
or  slump  sum,  or  a  fine  pud  in  consideration 
of  a  lease  for  a  term  of  years.  In  questions 
with  singular  successors  there  is  no  limitation 
of  the  power  to  take  grassums,  only  the  rent 
must  not  be  thereby  diminished  so  as  to  be  al- 
together elusory.  The  same  rule  applies  in 
the  case  of  lands  under  entail,  when  there  is 
no  prohibition  to  alienate,  or  against  dimi- 
nution of  the  rental.  When,  however,  there 
is  a  prohibition  to  alienate,  the  general  rule 
seems  to  be,  that  the  heir  in  possession  must 
administer  the  estate  secundum  bonum  et  ce- 
qtium,  taking  no  more  of  the  annually  accru- 
ing rents  and  profits  than  he  leaves  to  de- 
scend to  his  successors.  Hence,  grassums,  as 
being,  in  effect,  anticipations  of  the  future 
rente,  to  the  prejudice  of  succeeding  heirs,  are 
held  to  be  struck  at  by  a  prohibition  against 
alienation.  If  there  be  a  prohibition  to  alie- 
nate, but  with  an  express  power  to  grant 
leases  on  condition  of  not  diminishing  the 
rental,  the  rental  under  the  last  lease  is  im- 
plied, and  it  has  been  thought  that  a  gras- 
snm may  be  taken.  But  a  prohibition  to  let 
leases  below  the  just  rent  for  the  time  consti- 
tutes a  bar  to  the  taking  of  grassums.  Stair, 
B.  iv.  tit.  9,  §  20 ;  More's  Notes,  clxxxv. ; 
Ersk.  B.  iii.  tit.  8,  §  29,  note  6y  Ivory; 
BdFs  Princ.  §  1228, 1752  ;  BelCs  Com.  i.  72  ; 
Bank.  vol.  ii.  p.  104 ;  Huntei's  Landlord  and 
Tenant, 

It  may  be  doubted,  if  in  any  case  the 
heir  in  possession  is  entitled  to  take  a  gras- 
snm. It  is  rather  thought  that  the  heir  in 
possession  is  bound  to  act  fairly  in  regard  to 
the  substitute  heir,  and  not  to  let  at  the  mini- 
mum rent  allowed  by  the  entail,  where  that 
rent  is  far  below  the  true  value  of  the  land, 
and  where  the  difference  between  the  real 
value  and  the  rent  stipulated  is  paid  in  the 
form  of  a  grassum.  The  case  of  Elgin  v. 
WeUioood,  13th  June  1821,  2  Shaw,  App.  44, 
is  thought  to  be  an  authority  for  an  opposite 
view,  but  it  may  be  questioned  whether  the 

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point  was  properly  adjadicated  upon  in  that 
case  as  both  parties  to  that  action  were  in 
terested  in  having  the  lease  sustained.  Bell 
on  LtMM,  i.  126, 141,  229,  290 ;  Ro$s't  Lect. 
ii.  494  ;  Queentberry  Leases,  Bligh  App.  Cases, 
i.  447.     See  Taihie.    Diminution  a^  Rental. 

Gratoitoiu  Cause.  Where  a  deed  is 
granted  from  favour,  or  as  a  gift  or  donation 
to  the  receiver,  it  is  said  to  be  granted  gra- 
tuitously.   See  CmsideriUum.    Donation. 

Qratoitoiu  Deed.  A  gratuitous  deed  is 
one  which  has  been  granted  without  any 
value  being  given  for  it;  and  although  a 
person  may  dispose  of  his  own  property  as 
he  pleases,  yet  the  law  does  not  permit  a  per- 
son to  dispose  of  his  property  to  the  prejudice 
of  his  creditors,  or  of  those  to  whom  he  is  un- 
der legal  obligations,  or,  in  certain  eases,  even 
to  the  prejudice  of  his  own  rights.  In  re- 
gard to  donations,  by  which  the  rights  of  cre- 
ditors may  be  affected,  the  statute  1621,  c. 
IS,  has  provided,  that  all  alienations  granted 
after  the  contracting  of  lawful  debts,  in  fa- 
vour of  conjunct  or  confident  persons,  without 
true,  just,  and  necessary  causes,  shall  be  void 
and  null.  But  whatever  may  be  inferred  from 
the  words  of  the  statute,  practice  has  so 
explained  them,  that  a  donation,  even  to  the 
nearest  relation,  is  not  voidable  at  the  in- 
stance of  a  prior  creditor,  provided  the  gran- 
ter  was  solvent  at  the  time  of  making  the  do- 
nation, though  he  should  afterwards  have 
failed,  and  been  unable  to  pay  his  debts.  In 
like  manner,  where  a  gratuitous  right  in  fa- 
vour of  a  conjunct  and  confident  person,  has 
been  transferred  by  him,  for  value,  to  a  third 
party,  who  is  ignorant  of  the  fraud,  it  will 
not  be  challengeable  in  the  person  of  the 
bona  fide  onerous  holder.  See  Conjunct  and 
Confident.     Collusion.    Bankrupt. 

Where  the  deed  is  gratuitous,  and  consti- 
tutes an  obligation  to  be  afterwards  imple- 
mented, if  the  grantor  shall,  before  implement, 
fall  into  poverty,  he  may,  at  least  where  the 
deed  is  in  favour  of  children  or  grandchildren, 
retain  sufBcient  for  his  own  subsistence.  But 
our  law  does  not  seem  in  this  particular  to 
follow  the  Roman  law,  by  extending  the  rule 
to  cases  where  the  donation  is  made  to  stran- 
gers. See  Beneficium  Competentice.  Donation. 
The  warrandice  of  gratuitous  deeds  extends 
only  to  future  donations;  and  merely  war- 
rants the  right  as  it  stands  to  the  donee,  to 
be  free  of  farther  or  greater  burdens  than 
those  with  which  it  is  charged  at  the  time  of 
making  the  donation.  Ersk.  B.  ii.  tit.  3,  §  25 ; 
BeU's  Com.  i.  92,  314 ;  ii.  182,  185,  191, 
197 ;  BeWs  Princ.  §§  64  and  2410;  Illust.  § 
64 ;  Skate's  Digest,  p.  314,  §  71 ;  Ros^s  Lect. 
ii.  494 ;  Jurid.  Styles,4th edit.  vol.  i.  p.  109. 
A  simple  substitution  of  an  heir  was  al- 
ways defeasible  by  a  gratuitous  deed ;  but 


formerly  where  a  person  held  an  estate  under 
a  deed  which  prohibited  him  from  alienating 
the  lands,  or  burdening  them  with  debt,  or 
altering  the  order  of  succession,  although 
such  deed  did  not  amount  to  a  strict  entail 
under  the  Act  1685,  yet  he  could  not  by  a 
gratuitous  deed  affect  the  rights  of  the  hein 
who  were  entitled  to  reduce  such  gratuitous 
deed.  This,  however,  is  not  now  the  law,  for, 
by  the  act  11  and  12  Vict,  c.  36,  §  43  (1848), 
no  entail  is  effectual  which  does  not  contain  the 
three  cardinal  prohibitions  against  altering 
the  order  of  succession,  contracting  debts  sod 
sales,  duly  fenced  with  irritant  and  rraolutiTe 
clauses.  By  the  same  act,  §  39,  irritant  and 
resolutive  clauses  are  implied  in  the  warrant 
to  record  the  entail  in  the  register  of  entails; 
and,  by  the  Titles  to  Land  Act,  §  18  (1858), 
the  three  cardinal  prohibitions  against  alie- 
nation, contracting  debt,  and  altering  the 
order  of  succession,  are  implied  in  such  war- 
rant of  registration. 
Orave-Digger.  See  CHuriA  Queers. 
Orav»4tcnMS.  The  heritors  have  the 
right  to  grant  or  refuse  permission  to  place 
tombstones  over  the  graves  in  the  larish 
church-yard,  and  to  determine  the  manner  in 
which  they  shall  be  placed,  as  upright  or  flat; 
and  it  is  thought,  that  if  necessary,  the  heri- 
tors may  cause  such  grave-stones  to  be  re- 
moved. Dwdop's  Parochial  Law,  p.  2.  See 
ChurA-Tards.  Buiying-Place.  As  to  the  ad- 
missibility of  tombstones  in  evidence  in  ques- 
tions of  pedigree,  see  Dickson  on  Evid.  591,  2. 
Great  ATiiandom.  In  the  judicial  pro- 
cedure of  the  Court  of  Session  great  atis- 
andum  is  avisandum  from  a  Judge  in  the 
Outer-House  to  the  Judges  in  the  Inner- 
House.    See  Avisaiidwn. 

Great  Seal  Upon  the  Union  of  Scotland 
and  England,  a  Great  Seal  for  the  United 
Kingdom  became  necessary  for  public  acts 
and  instruments.  But  this  Great  Seal  not 
being  appropriate  for  those  private  grants 
which  had  formerly  passed  the  Great  Seal  of 
Scotland,  by  Article  24  of  the  treaty  of 
Union,  a  Great  Seal,  for  the  purpose  of  seal- 
ing private  grants  in  Scotland,  was  ordered 
to  be  made,  and  declared  to  have  the  same 
effect  with  the  ancient  Great  Seal  of  Scotland. 
Ersk.  B.  ii.  tit.  6,  §  86 ;  Tomlin's  Diet.  k.  t.; 
Stair, ^.  iv.  tit.  35,§  11;  Jurid.  Styles,  itii 
edit.  vol.  i.  p.  343.    See  Seals. 

Oronnd-Aiuroal ;  a  kind  of  estate,  inter- 
mediate between  that  of  the  superior  and  that 
of  the  vassal,  of  the  nature  of  a  perpetual 
annuity.  It  is  of  two  kinds ;  the  one  arising 
out  of  church  property,  as  affected  by  the 
Reformation ;  the  other  originating  in  the 
great  demand  in  modem  times  for  building- 
ground  in  towns.  At  the  Reformation,  the 
church  property  was  parcelled  out  in  lord- 


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ships  ereeted  °by  the  Crown ;  and  to  restrain 
such  erections  for  the  future,  several  acts  of 
annexation  were  passed.  See  Annexation. 
In  the  beginning  of  the  seventeenth  century, 
the  Lords  of  Erection  resigned  their  supe- 
riorities to  the  Grown,  with  the  exception  of 
the  feu-duties,  which  the  Crown  had  power 
to  redeem  on  payment  of  a  certain  considera- 
tion. The  consideration  never  having  been 
paid,  the  power  of  redemption  was  renounced, 
and  the  feu-duty  thus  perpetually  payable  to 
the  successor  of  a  Lord  of  Erection  is  called 
a  ground-annual.  It  has  been  usually  con- 
veyed by  resignation  and  infeftment  only. 
The  other  kind  of  ground-annual  has  origin- 
ated thus:  Where  sub-feus  are  prohibited, 
tboee  who  speculate  in  bnilding-ground,  by 
taking  land  in  feu,  with  the  intention  of 
again  disposing  of  small  portions  to  builders, 
stipulate  for  an  annualrent  from  the  builder, 
rather  than  a  price  payable  at  once.  This  is 
accomplished  by  the  creation  of  a  gp'ound- 
aDDual.  The  disposition  is  granted  to  be 
held  public,  in  compliance  with  the  condition 
of  the  feu-charter ;  but  the  subject  is  charged 
with  an  annual  payment  to  the  disponer,  and 
hit  heirs  and  assignees ;  and  either  a  burden 
or  annuity  is  reserved,  which  is  declared  a 
real  burden ;  or  a  bond  and  disposition,  in 
security  of  the  annuity,  is  granted  by  the 
porchaser,  on  which  infeftment  is  taken. 
Enk.  B.  ii,  tit.  3,  §  62;  BdPs  Com.  i.  30, 
Addenda  III. ;  BelVs  Prine.  §  884 ;  lUusi.  ib.; 
Rotit  Leet.  ii.  326, 392 ;  Shaw's  Digest,  530 ; 
Skene,  voce  Annual.  See  AnmuU.  Top-an- 
Mial. 

When  the  original  disponee  to  the  lands 
over  which  a  ground-annual  is  constituted, 
conveys  the  lands  to  another,  he  is  not  re- 
leased from  payment  of  the  ground-annual, 
bat  continues  liable  to  the  creditor  in  the 
ground-annual.  Small  v.  Miller,  Feb.  3, 1849, 
11  D.  495 ;  as  reversed  in  tke  House  of  Lords, 
17th  March,  1853,  1  Maequeen,  345. 

Ghronnds  and  Warrants.  In  an  action  of 
reduction,  the  grounds  of  debt  on  which  a 
decree  proceeds  may  be  called  for,  even  after 
the  lapse  of  the  long  prescription.  The  war- 
rants of  a  decree,  whether  extant  or  not,  can- 
not be  called  for  after  twenty  years;  but 
within  that  time,  it  has  been  held  that  the 
defender  must  produce  them,  although  in 
fMca  custodia.  Among  warrants  are  included 
the  various  steps  of  process  which  remain  in 
the  clerk's  hands,  and  also  letters  of  general 
Md  special  charge.  Stair,  B.  iv.  tit.  20,  §  21 ; 
Xore,  i.  t ;  Brown's  Synop.  h.  t. ;  Shand's  Prac. 
636,719. 

fliowing:  Corn;  is  poindable,  bnt  the 
poinding  is  not  completed  till  the  com  is  cut 
down  and  measured.  The  landlord,  in  virtue 
of  his  hypothec,ha8  a  preference  over  creditors 


poinding  growing  corn.  A  symbolical  deli* 
very  of  growing  corn  has  been  held  good  to 
exclude  creditors.  B(Xl's  Com.  i.  176 ;  Hun- 
ter's Landlord  and  Tenant,  p.  816 ;  Ersk.  B. 
iii.  tit.  6,  §  22 ;  i2o»'<Z/ec(.  1.441, 481.  See 
Grana  crescentia. 

Onarantee,  Mercantile.  A  guarantee  is 
an  obligation,  formerly  in  writing,  but  which 
might  be  proved  by  parole,  with  rei  inter- 
ventus,  by  which  one  engages  himself  for 
another  in  some  particular  transaction,  or 
prospectively  in  a  course  of  dealing.  It  is 
either  continuous  or  limited.  A  guarantee 
is  continuous  if  one  engages  for  another  to  a 
certain  amount  in  any  dealing.  It  is  limited 
when  restricted  to  a  particular  transaction, 
person,  or  time.  Such  engagements  and  their 
limitations  are  strietissimi  juris.  There  is 
some  difficulty  in  distinguishing  between  a 
guai-antee  and  a  mere  letter  of  recommenda- 
tion. When  a  recommendation  is  not  spon- 
taneous, but  given  in  reply  to  inquiries,  the 
presumption  is  against  its  being  a  guarantee, 
unless  the  giver  is  aware  that  the  person  so 
recommended  is  unworthy  of  credit,  in  which 
case  he  is  liable  for  the  loss  which  he  has 
fraudulently  occasioned  by  his  recommenda- 
tion. A  recommendation,  even  when  spon- 
taneously given,  is  not  held  to  be  a  guarantee, 
unless  it  refers  to  a  particular  transaction, 
and  contains  assurance  of  safety  in  entering 
into  it.  Brodie's  Supp.  to  Stair,  921,  et  seq. ; 
Ersk.  B.  iii.  tit.  3,  §  61,  note  by  Ivory; 
Belts  Prine.  §  282,  et  seq.  340 ;  lUust.  ib. ; 
BeWs  Con.  i.  370,  et  seq. ;  Grant,  Dow's  App. 
Cases,  vi.  252 ;  Thomson  on  BiUs,  278, 429, 606. 

By  the  "  Mercantile  Law  Amendment  Act. 
1856,"  19  and  20  Vict.,  c.  60,  §  6,  it  is 
enacted,  that  from  the  passing  of  the  act, 
"  all  guarantees,  securities,  or  cautionary  ob- 
ligations made  or  granted  by  any  person  for 
any  other  person,  and  all  representations 
and  assurances  as  to  the  character,  conduct, 
credit,  ability,  trade,  or  dealings,  of  any 
person  made  or  granted  to  the  effect,  or 
for  the  purpose  of  enabling  such  person  to 
obtain  credit,  &c.,  "  shall  be  in  writing,  and 
shall  be  subscribed  by  the  person  undertaking 
such  guarantee,"  &c.;  "  or  by  some  person  duly 
authorized  by  him  or  them,  otherwise  the 
same  shall  have  no  effect."  By  §  7,  guarantees 
to  or  for  a  company  or  firm,  are  to  cease 
with  a  change  in  the  partners  or  firm.  By 
§  5,  sellers  of  goods,  if  ignorant  of  any  defect 
at  the  time  of  the  sale,  are  not  to  be  held  to 
have  warranted  their  quality  or  sufficiency 
unless  they  shall  have  given  an  express  war- 
ranty, or  unless  the  goods  shall  have  been 
sold  for  a  specified  and  particular  purpose. 
The  term  "  goods,"  is  held  to  apply  to  ani- 
mals ;  Young  v.  Giffen,  4th  Dec.  1868,  21  D. 
I  87.    See  Cauiionary. 


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Chuurdiaa;  one  who  has  the  charge  or 
CDstody  of  any  person  or  thing ;  but,  generally, 
one  who  has  the  custody  and  education  of 
such  persons  as  are  not  of  sufBcient  discretion 
to  guide  themselves  and  their  own  affairs,  as 
children  and  idiots.  Tomlina'  Dict^  also 
Wharton's  Diet.,  h.  t.  See  Tutor.  Curator. 
Minor.    Judicial  Factor. 

Guild ;  a  fraternity  or  company,  so  called ; 


because  each  member  was  bound  gUdan—i. «., 
to  pay  something  towards  the  charge  and 
support  of  the  company.  TonUintf  DtcL  k.  t 
See  Oilda.    Dean  of  Guild. 

Oypoat.    See  Egyptians. 

Oytarum;  in  old  law  language,  a  hand- 
axe.  By  the  Leg.  Forest,  all  possessing  forty 
shilling  land  were  eiyoined  to  provide  them- 
selves with  a  pysarwn.    Skene,  h.  L 


H 


Habeas  Corpw  Act  In  England,  the  act 
31  Car.  II.,  c.  2,  which  generally  goes  under 
the  name  of  the  Habeas  Corptu  Act,  and  which 
provides  a  remedy  for  illegal  imprisonment, 
has  been  considered,  politically,  of  snch  im- 
portance as  to  be  reckoned  a  second  Magna 
Charta.  There  are  various  write  of  habeas 
corpus.  Thus,  the  habeas  corpus  ad  responden- 
dum, is  issued  when  a  man  has  a  cause  of 
action  against  one  who  is  confined  by  the 
process  of  some  inferior  court,  in  order  to 
remove  the  prisoner,  and  charge  him  with 
this  new  action  in  the  court  above  ;  the  writ 
ad  satisfaciendum,  when  the  plaintiff  is  desir- 
ous to  bring  up  a  prisoner  who  has  had 
judgment  pronounced  against  him,  to  some 
superior  court,  to  charge  him  with  the  pro- 
cess of  execution ;  the  writs  ad  prosequendum, 
testijicandutn,  deliberandum,  when  it  is  neces- 
sary to  remove  a  prisoner  in  order  to  prose- 
cute or  bear  testimony  in  any  court,  or  to  be 
tried  in  the  proper  jurisdiction  in  which  the 
fact  was  committed ;  the  writ  ad  faciendum  et 
recipiendum,  when  a  person  is  sued  in  some 
inferior  jurisdiction,  and  is  desirous  to  remove 
the  action  int«  the  superior  court.  But  the 
writ  which  proves  the  efBcacious  safeguard  of 
the  liberty  of  the  subject,  is  that  of  habeas 
ixrpus  ad  subjiciendum,  directed  to  the  person 
iletaining  another,  and  commanding  him  to 
produce  the  body  of  the  prisoner,  with  a 
specification  of  the  day  and  cause  of  his 
caption  and  detention,  ad  faciendum,  subji- 
<iendum,  et  recipiendum;  to  do,  submit  to, 
and  receive,  whatever  the  judge  or  court 
awarding  such  writs  shall  adjudge.  By  the 
common  law,  this,  which  is  a  high  preroga- 
tive writ,  issues  out  of  the  Court  of  Queen's 
Bench,  both  in  term  time  and  during  the 
vacation,  by  &Jiat  from  the  Chief-Justice  or 
any  other  of  the  judges,  and  runs  into  all 
parts  of  the  British  dominions  except  Scot- 
land. Tomlins'  Diet.  h.  t.  The  Scotch  act 
corresponding  to  the  English  habeas  corpus 
act,  is  1701,  c.  6.  See  Wrongous  Imprison- 
ment. 

Habit  and  Bapata.  This  expression  is 
applied,  in  the  law  of  Scotland,  to  whatever 


is  held  and  reputed,  or  generally  received  as 
matter  of  fact.  The  legal  effect  of  habit  and 
repute  is  sometimes  very  serious.  Thus,  mar- 
riage may  be  constituted  by  habit  and  rept^; 
where  the  parties  cohabit,  and  are  at  the 
same  time  held  and  reputed  as  man  and  wife ; 
1503,  c.  77 ;  Ersk.  B.  i.  tit.  6,  §  6.  So  also, 
habit  and  repute  is  an  aggravation  of  a 
special  act  of  theft,  which,  by  the  law  of 
Scotland,  may  hare  the  effect  of  renderin;; 
the  offence  a  capital  felony,  if  the  person 
committing  it  be  habit  and  repute  a  thief— 
t. «.,  one  who  notoriously  makes  or  helps  his 
livelihood  by  thieving.  It  would  appear, 
that  in  order  to  constitute  habit  and  repute, 
in  criminal  law,  the  panel  must  have  borne 
the  character  for  at  least  six  months.  The 
coarse  of  time  necessary  to  establish  the 
character  of  habit  and  repute  a  thief,  is 
not  interrupted  by  imprisonment,  where  the 
party  has  previously  acquired  that  character. 
Waainshaui,lBU,  2  Br.  190;  Alison' sPrtnc 
296 ;  Steele,  123 ;  Hume,  I  90 ;  Stair,  B.  iii. 
tit  3,  §  35 ;  B.  ir.  tit  45,  §  4 ;  Bank.  vol.  i. 
p.  661 ;  vol.  ii.  p.  502,  327,  629;  Mt 
Princ.  ^  1519.    See  also  Execution,  Meaeitget. 

Habitation ;  in  the  Roman  law,  was  s 
personal  servitude,  or  usufruct  of  a  house, 
limited  to  the  extent,  that  it  could  be  used  in 
no  other  way  than  as  a  dwelling-house.  This 
right  could  be  conveyed  by  sale,  and  the 
house  might  be  let.  Stair,  B.  ii.  tit  6,  §  1; 
Bank.  i.  657. 

Hackney  Coachmen :  are  not  responsible 
under  the  edict  Nautae,  caupones,  unless  vhen 
employed  as  carriers  and  paid  for  carriage. 
Hackney  coachmen,  in  Edinburgh,  cannot 
ply  without  a  licence  from  the  magistrates, 
who  are  likewise  empowered  to  pass  snch 
regulations  as  they  think  fit  for  ascertaining 
their  fares,  Sic. ;  and  they  are  amenable  to 
the  magistrates  in  case  of  overcharges  or 
other  misconduct.  BelFs  Princ.  §  236 ;  lUiut. 
ib. ;  BeWs  Com.  i.  468  ;  Thomson's  PoUceActs, 
p.  109  ;  11  and  12  Vict.,  c.  113,  §  232,  << 
seq. ;  13  and  14  Vict,  c.  33,  §  105,  et  ttq. 

Hssreditas  Jaeens.  An  estate  is  said  to 
be  in  hcereditate  jacente,  when,  after  the  an- 

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cestor's  death,  no  title  to  it  has  been  made 
up  in  the  person  of  his  heir.  When  a 
creditor  of  the  ancestor  desired  to  attach  such 
an  estate,  in  payment  or  in  security  of  his 
debt,  he,  formerly,  charged  the  heir  to  enter 
fiist  in  general,  and  then  in  special,  in  the 
manner  explained  under  the  article  Charge. 
If  the  heir  entered,  of  course  he  lay  under 
the  same  obligation  to  pay  the  debt  that  his 
ancestor  did.  If  he  failed  to  appear  and  to 
renounce  in  answer  to  the  charge,  or  in  the 
relative  action,  the  creditor  was  entitled  to 
decree  and  execution  against  his  person  and 
estate,  as  if  he  had  been  actually  served  and 
entered  heir.  But,  if  the  heir  answered  the 
general  charge  to  enter,  by  renouncing  the 
saeeession,  he  could  not  properly  be  charged 
to  enter  in  special  to  the  estate  which  he 
renounced  ;  neither  could  his  person  nor  his 
own  estate  be  taken  in  execution  for  the  debt 
of  the  ancestor  whose  succession  he  had  so 
renonnced.  The  creditor,  however,  was  al- 
lowed to  summon  the  heir  pro  forma  in  an 
action  for  proving  the  debt  due  by  the 
defunct,  in  which  action  decree  was  obtained, 
not  against  the  heir,  who  was  assoilzied  in 
respect  of  his  renunciation,  but  against  the 
hareditas  jacens  of  the  deceased,  which  was 
thereby  subjected  to  the  creditors'  diligence. 
The  decree  in  this  action  was  called  a  decree 
o^fftonu  eansa,  ErA.  B.  ii.  tit  12,  §  12,  et 
teq.,  and  §  47,  «<  teq.;  Befft  Com.  i.  713,  el 
teq.  See  also  Charge.  Adjudication.  Cogni- 
tionis  Causa.     Beneficium  Inventarii. 

By  10  and  11  Vict.,  c.  48,  §  16  (1847), 
general  and  special,  and  general  special 
charges  are  abolished,  and  the  citation  on, 
and  execution  of,  a  summons  of  constitution 
is  made  equivalent  to  a  general  charge  ;  and 
a  citation  on,  and  execution  of,  an  action  of 
abdication,  following  on  a  decree  of  consti- 
tution, is  made  equivalent  to  a  special  or 
a  general  special  charge,  as  the  circumstances 
of  the  case  may  require.  By  the  Titles  to 
Land  Act,  21  and  22  Vict,  c.  76,  §  27 
(1858),  it  is  not  necessary  to  raise  a  separate 
summons  of  constitution,  and  a  separate  sum- 
mons of  adjudication,  against  an  apparent 
heir,  on  acoonnt  of  his  ancestor's  debt  or 
obligation,  for  the  purpose  of  attaching  the 
ancestor's  heritable  estate,  but  both  actions 
may  he  combined  in  one  summons,  and  the 
decree  of  adjudication  has  the  legal  operation 
and  effect  of  a  conveyance  from  the  ancestor 
of  tiie  lands  adjudgisd  in  favour  of  the 
a^jndger.     See  Titiet  to  Land. 

Eaimhaldare ;  in  old  law  language,  to  re- 
peat and  seek  restitution  of  proper  goods  and 
g«ar,  and  bring  the  same  home  again.  SkeM, 
k.  i. 

Eaimmken;  "  is  when  any  person  violent- 
ly, without  licence,  and  contrair  the  King's 


peace,  enters  within  a  man's  house,  or  seeks  him 
at  the  same,  or  assails  his  house."    <Sik«n«,  h.  t. 

Half-Blood.  The  connexion  by  half-blood 
is  of  tw.o  kinds,  consanguinean  and  uterine. 
Consanguinean  relations  are  such  as  are 
descended  from  the  same  father,  but  not  from 
the  same  mother.  Uterine  relations  are  such 
as  are  descended  from  the  same  mother,  but 
not  from  the  same  father.  In  collateral  suc- 
cession, the  half-blood  consanguinean  succeeds 
after  the  full  blood — e.  g.,  if  a  man  die,  leaving 
a  son  and  daughter  by  his  first  marriage,  and 
a  son  by  a  second  marriage ;  and  if  the  son 
of  the  first  marriage  take  up  the  succession 
and  die  without  issue,  being  survived  by  his 
full  sister  and  half-brother  consanguinean, 
his  sister  by  the  full-blood  will  succeed  as  her 
brother's  heir-at-law.  Observe,  however,  that 
if  the  eldest  son  of  the  first  marriage  had  pre- 
deceased his  father,  the  son  of  the  second 
marriage  would  have  succeeded  as  his  father's 
heir-at-law,  to  the  exclusion  of  the  daughter 
of  the  first  marriage.  The  half-blood  uterine 
was,formerly,excluded;  neither  was  there  any 
relationship  recognised  between  the  consan- 
guinean and  the  uterine,  or  succession  ab 
intestate  of  the  one  to  the  other.  In  English 
law,  half-blood  is  no  impediment  to  descents 
of  fee-simple  lands  of  the  Crown,  or  to  digni- 
ties, or  to  descent  of  estates-tail ;  but  in  other 
cases  it  is  an'  impediment.  Administration, 
in  England,  is  grantable  to  the  half-blood  of 
the  deceased,  as  well  as  to  the  whole  blood ; 
and  half-blood  comes  in  for  a  share  of  an 
intestate's  personal  estate,  equally  with  the 
whole  blood,  being  next  of  kin,  in  equal 
degree.  Ersk.  B.  iii.  tit.  8,  §  8 ;  Bdfs  Prine. 
§  1652, 1665,  and  authorities  there  cited;  lUust. 
§1664;  TonUins'Dict.h.t.  See  Heir.  Sue- 
cession.    Uterine. 

By  the  Act  18  and  19  Vict,  c.  23,  1865, 
brothers  and  sisters  uterine  succeed  to  one- 
half  of  an  intestate  moveable  estate  on  the 
failure  of  the  father  and  mother,  and  the- 
brothers  tmd  sisters  german,  and  their  issue. 

Half-Pay.  As  a  condition  of  obtaining' 
the  benefit  of  the  process  of  cessio  bonorumr 
half-pay  officers  who  have  an  income  more 
than  sufficient  for  their  bare  subsistence^ 
must  assign  part  of  their  half-pay  to  their 
creditors.  ShawFs  Prae.  p.  819.  See  Cessio" 
Bonorum. 

Hamefuoken ;  is  the  offence  of  felonionslj 
beating  or  assaulting  a  person  in  his  own 
house  or  dwelling-place.  In  this  sense,  the- 
honse  must  be  the  place  where  the  person  re- 
sides.  A  shop,  whether  adjoining  to  the 
house  or  not,  is  not  reckoned  a  man's  house.- 
Hamesucken  is  not  committed  anywhere  but 
within  the  dwelling-house ;  an  assault,  there- 
fore, made  in  the  precincts,  or  in  the  court- 
yard or  offices,  is  not  hamesucken.    A  hired 

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apartment  in  a  lodging-bouse  will  be  beld, 
quoad  hce,  to  constitute  a  man's  house,  even 
although  the  assault  be  committed  by  the 
owner  of  the  house ;  but  an  inn,  or  a  friend's 
house,  at  which  a  person  occasionally  resides, 
is  not  in  this  sense  a  man's  house.  Neither 
is  a  playhouse,  to  this  effect,  accounted  the 
dwelling-place  of  an  actor.  See  Comedian. 
A  ship,  which  is  the  proper  residence  of  the 
master  or  crew,  is  considered  as  a  dwelling- 
place.  Aiming  a  blow,  or  offering  to  strike, 
though  no  blow  be  actually  given,  has  been 
held  to  infer  the  crime  of  hamesucken.  The 
premeditated  design  of  committiug  personal 
violence  in  the  house,  is  essential  to  the 
crime ;  and  no  outrage  will  amount  to  it 
which  a  person  suffers  in  his  own  house,  in 
consequence  of  a  quarrel  taken  up  at  the 
moment.  In  cases  of  inferior  atrocity,  hame- 
sucken is  punished  arbitrarily;  but  when 
the  injury  is  of  an  aggravated  nature,  the 
punishment  is  death.  Hume,  i.  312 ;  Aliton's 
Frine.  199 ;  SUde,  108. 

Hautper  Office ;  an  oflSce  in  the  Court  of 
Chancery  of  England.  Writs  relating  to 
the  subject  were  formerly  kept  in  a  hamper, 
those  relating  to  the  Crown  in  a  little  bag, 
and  hence  the  respective  offices  still  continue 
to  b«  called  the  Hanaptr  and  the  Petty-bag 
office.    Tondins'  Did.  h.  t. 

Handwriting.  The  strongest  direct  proof 
of  a  certain  individual  having  executed  a 
writing,  is  his  own  acknowledgment,  where 
he  is  a  competent  witness ;  or,  where  he  is 
disqualified,  the  evidence  of  others  who  saw 
the  writing  executed.  The  best  indirect  evi- 
dence is  that  of  persons  who  are  acquainted 
with  the  handwriting  of  the  individual,  and 
declare  their  belief  that  the  writing  is  his. 
Froof  of  this  kind,  when  the  knowledge  of 
the  party's  handwriting  is  acquired  by  cor- 
respondence only,  though  it  may  in  certain 
cases  be  more  satisfactory  than  when  the 
knowledge  is  acquired  by  having  seen  him 
write,  is  not  per  te  sufficient,  in  criminal 
cases.  The  weakest  proof  of  all  is  the  com- 
parison of  the  writing  with  the  acknowledged 
genuine  writing  of  the  party.  For  this  pur- 
pose, the  writings  are  sometimes  submitted 
to  those  who  are  to  judge  of  the  evidence ; 
sometimes  to  engravers  and  others  skilled  in 
writing  ;  but  this  latter  mode  is  now  rather 
discountenanced, though  still  competent.  Com- 
paratio  literarvm  is  not  of  itself  sufficient  even 
in  criminal  cases.  Dickson  on  Evidence,  pp. 
399,  473 ;  Maefarlane^s  Jury  Practice,  p.  225. 
See  Evidence.  Comparatio  Literarwn.  Solo- 
gra^  Writings. 

Hara  Poroonim;  a  "swine's  cntife." 
Skens,  h,  t. 

Earbovn.    See  Portt  and  Harbours. 

Hares.    By  1707,  c.  13,  the  shooting  of 


hares  was  prohibited  under  a  penalty  of  L.20 
Scots,  totie*  quoties;  but  this  penalty  seems 
never  to  have  been  exacted  of  any  bat  un- 
qualified persons,  although  the  act  is  equally 
levelled  at  qualified  persons.  The  act  was 
repealed  by  Geo.  III.,  c.  94,  and  there  is  now 
no  distinction  between  hares  and  other  game 
as  to  the  right  of  shooting.  The  act  11  and 
12  Vict.,  c.  31,  enables  all  persons  having  a 
right  to  kill  hares  in  Scotland  to  do  so  either 
themselves  or  by  persons  authorized  by  them, 
without  taking  out  a  game  certificate.  /rrta« 
on  the  Game  Laws;  Ness's  Ckme  Lavs,  18, 
96 ;  Hutch.  Justice  of  Peace,  ii.  663.  See  Game 
Laws. 

Hasp  and  Staple ;  is  the  form  of  entering  an 
heir  in  a  burgage  subject.  The  same  practice 
prevails  in  some  burghs  of  regality,  and  ap- 
pears to  be  connected  with  very  ancient  forms. 
The  bailie,  the  town-clerk,  and  the  claimant, 
appear  on  the  premises,  when  the  claimant 
alleges  his  title,  and  proves  it  by  witnesses ; 
on  which  the  bailie  declares  him  to  be  heir, 
and  makes  him  take  hold  of  the  hasp  and 
staple  of  the  door  as  a  symbol  of  possession, 
and  then  enter  the  house  and  bolt  himself  in. 
On  his  coming  out,  the  transaction  is  noted 
and  registered.  Stair,  6.  ii.  tit.  3,  §  19,  and 
B.  iii.  tit.  5,  §  27;  Bank.  vol.  ii.  p.  354; 
BeWs  Prine.  S  845;  Sand/ord  on  UeritaUe 
Succession,  vol.  ii.  p.  7.  See  Cognttion  a»i 
Sasine.    Burgage-Holding. 

A  bill  is  now  in  parliament  to  simplify  the 
forms  of  titles  to  lands  held  under  bni^gsge 
tenure,  similar  to  the  one  passed  in  regard  ' 
to  titles  to  other  lands.     See  Tides  to  Land. 

Hat-Money ;  or  primage  ;  is  a  small  Bom 
of  money  paid  along  with  the  freight,  to  the 
master  of  a  ship  for  his  care.  It  is  entirely 
regulated  by  usage.  BeWs  Com.  i.  567 ;  Bdts 
Princ.  §  420 ;  Brodie's  Supp.  to  Stair,  1001. 

Haver ;  the  holder  of  a  deed  or  writing, 
called  on  to  produce  it  judicially,  in  noitm 
probationis,  or  for  inspection,  in  the  course  of 
a  process.  The  form  of  process  in  use  for  the 
purpose  of  compelling  production  is  an  appli- 
cation for  letters  of  incident  diligence.  See 
Incident  DUigenu.  The  person  cited  as  a 
haver,  must  either  exhibit,  upon  oath,  the 
writing  called  for,  or  depone  that  he  has  it 
not,  and  has  not  had  it  since  he  was  cited  sa 
a  haver,  and  that  he  has  not  fraudulently  pat 
it  away,  and  has  no  knowledge  or  snspieion 
where  it  is.  The  user  of  the  diligence,  if 
dissatisfied  with  the  haver's  deposition  in  gene- 
ral terms,  may,  under  the  act  of  Sedenmt, 
22d  Feb.  1688,  put  special  and  pertinent 
interrogatories,  which  the  haver  is  boand  to 
answer.  If  the  writing  be  in  the  haver's 
possession,  he  is  bound  to  produce  it,  whether, 
in  his  opinion,  it  be  pertinent  to  the  came  or 
not;  but,  if  he  have  it  not,  no  questions  csa 


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competently  be  put  ia  modvm  probationu,  under 
an  incident  diligence,  as  to  the  haver's  recol- 
lection of  the  contents  or  import  of  the  writ- 
ing ;  far  less  is  it  competent  to  put  any  ques- 
tion which  may  bring  out  an  answer  connected 
with  the  merits  of  the  cause.  The  production 
of  the  writing  called  for,  and,  failing  that, 
the  means  of  recovering  it,  or  tracing  it  into 
the  hands  of  others,  are  the  only  legitimate 
purposes  of  an  incident  diligence  against 
haTers.  A  diligence  of  this  kind  may  be 
used  not  only  against  third  parties,  but  also 
against  the  principal  defender  in  the  cause, 
who  may  be  thus  compelled  to  exhibit  such 
writings  as  may  verify  the  pursuer's  plea — 
the  pursuer  being  under  a  reciprocal  obliga- 
tion, when  required,  to  produce  all  writings 
in  his  hands  called  for  by  the  defender  in  sup- 
port of  his  defence.  In  either  case,  however, 
the  writing  which  the  party  requires  from  his 
adversary  must  be  particularly  specified  and 
described ;  for  no  party  is  bound  to  make  an 
nnreserred  production  of  all  the  writings  in 
his  possession,  on  a  general  requisition  by  the 
opposite  party.  The  maxim,  Nemo  tmetur 
Mere  instrumenta  contra  se,  applies  to  such  a 
ease,  and  is  at  the  same  time  qualified  by  the 
general  doctrine  above  stated.  Ersk.  B.  iv. 
tit.  1,  §  52 ;  Stair,  B.  iv.  tit.  33,  §  2,  and  tit. 
41,  §  5,  <<  *eq.;  Mortis  Notes,  p.  cccxv. ;  Bank. 
B.  iv.  tit.  24,  §  59 ;  Tait  on  Ev.,  p.  175, 178- 
181.  Shand's  Prae.  370,  et  seq. ;  Dickson  on 
Ev.  671, 680, 943 ;  13  and  14  Vict.,  c.  36,  §  25. 
Documents  may  also  be  recovered  by  parties 
having  right  thereto  by  an  action  of  exhibition 
and  delivery  against  the  haver.  See  Exhibi- 
tion and  Exhibition  ad  probandum.  See  also 
Diligence.     Commission.    Incident  Diligence. 

Por  compelling  the  attendance  of  havers 
and  witnesses  in  England  and  Ireland,  see 
the  acts  6  and  7  Vict.,  c.  82  (1843),  and  17 
and  18  Viet.,  c.  34  (1854). 

Hawbert ;  a  term,  in  old  law  language, 
for  the  tenure  of  ward  and  relief,  so  called, 
quasi  "feodum  hauberticwn,"  or  "feodum  lori- 
eatum,"  because  it  was  given  upon  condition 
that  the  vassal,  possessor  thereof,  should  come 
to  the  host  and  army  with  jack  and  arms. 
Skene,  h.  t. 

Hawka.  In  England,  the  stealing  of  a 
hawk,  or  concealing  it  after  proclamation 
made  by  the  sherifiT,  was,  by  certain  ancient 
statutes,  declared  to  be  felony  with  clergy. 
An  action  of  trover  and  conversion  lay  for  a 
hawk  reclaimed.     Tomlins'  Diet.  h.  t. 

Head-BorongL  Each  shire  has  a  head- 
boroagb,  where  the  sheriff-court  is  held,  and 
jurisdiction  exercised,  and  letters  of  inhibition, 
interdiction,  &c.,  published  and  registered. 
Where  the  shire  is  divided  into  lesser  dis- 
tricts or  wards,  each  district  has  a  head- 
borough  of  its  own.  Ersk.  B.  i.  tit.  4,  §  5. 
2d 


Head-Courts.  There  were  formerly  three 
head-courts  in  the  year,  at  which  all  the 
freeholders,  who  owed  suit  and  presence,  in 
default  of  attendance  were  fined.  Where  the 
freeholder  owed  suit  only,  his  personal  pre- 
sence was  dispensed  with,  provided  he  sent  a 
proxy.  Those  head-courts  were  afterwards 
reduced  to  one,  called  the  Michaelmas  head- 
court  ;  and,  at  last,  by  the  act  20  Geo.  II.,  c. 
43,  abolishing  heritable  jurisdictions,  the 
fines  on  account  of  non-attendance  at  head- 
courts  were  abolished.  Ersk.  B.  i.  tit.  4,  §  5. 
See  Election  Laws. 

Health,  Bill  of:    See  BiU  of  Health. 

Hearing  in  Presence.  In  the  judicial  pro- 
cedure of  the  Court  of  Session,  a  hearing  in 
presence  is  a  formal  hearing  of  counsel,  before 
the  whole  thirteen  Judges.  This  course  is 
followed  only  in  cases  of  great  difficulty  and 
importance.  See  6  ffeo. /F.,  c.  120,^20,  23; 
Shand's  Prae.  966.  Where  the  Judges  of  either 
Division  are  equally  divided  in  opinion  in 
any  cause,  a  hearing  may  take  place  before 
the  Judges  of  the  Division  before  which  the 
cause  depends,  with  the  addition  of  throe  of 
the  Judges  of  the  other  Division,  and  the 
judgment  is  pronounced  according  to  the 
opinion  of  the  majority  of  the  Judges  pre- 
sent. See  13  and  14  Ficf.,  c.  36.  See  also 
Consultation  of  Judges. 

Hearsay  £vidence ;  evidence  repeated  at 
second-hand,  by  one  who  heard  the  actual 
witness  relate,  or  admit,  what  he  knew  of 
the  transaction  or  fact  in  question.  Such 
evidence  is,  in  the  ordinary  case,  inadmissible, 
but  may  be  received  in  the  following  cases : 
1.  When  the  person  from  whom  the  account 
was  received,  and  who  would  himself  have 
been  a  competent  witness,  is  dead.  In  cases 
of  assault,  even  when  the  assaulted  person 
has  not  died,  the  account  given  by  him  to  a 
third  party,  of  the  injury,  if  given  shortly 
after  receiving  it,  may  be  adduced  to  confirm 
what  he  has  previously  sworn  to  before  the 
jury.  2.  When  what  the  witness  heard  was 
substantially  part  of  the  fact  or  transaction, 
or  of  the  res  gestw  which  the  witness  himself 
heard  and  saw ;  but  this,  obviously,  is  not 
properly  hearsay  evidence,  but  evidence  in 
chief.  3.  It  is  sometimes  competent  to  corro- 
borate the  testimony  of  a  witness,  by  proving 
what  he  said,  de  recenti,  in  regard  to  a  fact  as 
to  which  he  is  called  to  give  evidence.  Thus, 
in  cases  of  rape,  it  seems  competent  to  invali- 
date the  injured  female's  testimony  in  this 
way ;  but  in  ordinary  cases  the  rule  is  dif- 
ferent, although  a  witness  may  himself  be 
questioned,  as  to  previous  contradictory  ac- 
counts which  he  has  given.  There  are  several 
other  cases  in  which  hearsay  is  received :  these 
will  be  found  enumerated  in  Alison's  Prae. 
111.    In  all  cases  of  deponing  to  conversa- 

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tions,  tbe  witnea  must  give  the  whole  words, 
if  he  can  recollect  them ;  if  not,  the  substance. 
He  is  not  allowed  to  give  his  own  impressions 
of  the  result,  unconnected  with  either  the 
words  or  substance.  Hume,  ii.  406,  e(.  ttq. ; 
Bwmetl,  600 ;  Alison's  Prine.  225 ;  Prac.  610 ; 
Syme,  121 ;  Shaw,  237  ;  Trials  for  Treason  in 
SeotUmd,  a.  7 1,226, 518;  SteeU,30;  Dickson 
on  Ev.  57,  et  seq.    See  Evidence. 

Heath.  In  England,  by  7  and  8  Geo.IV., 
c.  SO,  §  17,  the  malicious  burning  of  heath  is 
made  felonv.  TonUini^  Diet.  h.  t.  For  the 
period  during  which  the  burning  of  heath  is 
forbidden  in  Scotland,  see  Muirbum. 

Heir.  The  term  heir  does  not  mean  merely 
the  heir-at-law;  it  means  also  tbe  heir  by 
destination ;  neither  does  it  mean  the  heir  in 
heritage  only ;  it  is  likewise  applied  to  the 
person  who  sncceeds  to  the  moveable  estate. 
In  short,  it  is  a  flexible  term,  which  is  to  be 
understood  according;  to  the  circumstances  in 
which  it  is  used.  By  the  law  of  Scotland, 
however,  it  is  not  competent,  merely  by  no- 
minating a  party  to  be  the  testator's  heir,  to 
confer  on  him  any  right  of  succession.  In 
order  to  displace  the  legal  heir  in  any  parti- 
cular subject  or  estate,  the  testator  must  con- 
vey that  estate  or  subject  to  the  party,  other 
than  the  heir  therein,  whom  he  wishes  to 
favour ;  and  he  may  also  call  to  the  succes- 
sion a  series  of  strangers.  But,  in  all  such 
cases,  it  is  with  reference  to  tbe  conveyance 
of  the  property  that  parties  other  than  the 
heirs-at-law  succeed,  and  not  as  being  named 
heirs,  the  brocard  of  the  Scotch  law  being, 
that  "  it  belongs  to  God  and  not  to  man  to 
make  an  heir."  See  Destination.  Disposition. 
SetUement.     Testament.    Executors. 

The  subject  will  be  considered  under  the 
following  arrangements : — 

1.  (^the  heir-at-law. 

2.  Wthe  heir  6y  destination. 

3.  Of  th»  titled  the  heir. 
^•Qfihe  rights  of  an  heir. 

5.  (^  the  burdens  affecting  the  heir. 

1.  df  theheir-at-law. — The  heir-at-law  is  the 
person  who  succeeds  to  the  property  of  a  per- 
son deceased,  including  moveables  as  well  as 
heritage.  The  succession  of  heritage  and  of 
moveables  is  regulated  by  different  rules. 
Heritage,  which  includes  land,  and  all  pro- 
perty connected  with  land,  goes  to  males  in 
preference  to  females ;  and,  where  there  are 
more  than  one  male  in  the  same  deg^ree  of  re- 
lationship to  the  deceased,  the  succession  goes 
to  the  eldest  male;  the  others  receive  the 
moveables  equally  amongst  them,  and  are 
termed  the  nearest  of  kin,  or  executors  of  the 
deceased.  Where  there  are  more  than  one 
female  in  the  same  degree  of  relationship 
to  tbe  deceased,  or  the  descendants  of  such 


female,  according  to  the  jus  reprasentalieni$, 
the  heritage  does  not  go  to  the  eldest  female, 
as  happens  in  the  case  of  males,  but  it  goes 
to  all  Uie  females  in  the  same  degree  of  rela- 
tionship, and  their  issue,  equally,  who  are 
termed  heirs-portioners.     But  there  is  a  cer- 
tain order  in  which  the  heirs  succeed.    The 
succession  opens  first  in  favour  of  descendants, 
that  is,  of  sons  and  daughters  in  the  abore- 
mentioned  order;  failing  them,  it  goes  to  col- 
laterals, that  is,  to  brothers  and  sisters;  whom 
failing,  it  goes  to  ascendants,  that  is,  to  the 
father ;  then  collaterally  to  his  brothers  and 
sisters;  then  to  the  grandfather,  and  so  on  as 
far  as  relationship  can  be  traced ;  but  no  soe- 
cession  passes  thtx>ugb  the  mother.    In  these 
questions,  full-blood  is  always  preferred  to 
half-blood;  and  there  is  a  right  of  repre- 
sentation in  heritable  succession  by  which  the 
son  succeeds  to  that  heritable  property  to 
which  his  father  or  mother  would  have  had 
right  had  either  been  alive.    Thus,  the  son 
of  an  eldest  son,  in  competition  with  his 
uncles,  the  younger  brothers  of  his  father, 
will  be  preferred  to  them  on  the  estate  which 
would  have  fallen  to  his  father,  the  eldest  son, 
had  he  been  alive.  See  Succession.  Esecuttn. 
Collation.  Half-blood.  Theheirabovedeeeribed 
is  termed  heir-at-law,  because  he  succeeds 
according  to  the  disposition  of  the  law ;  he  is 
also  termed  heir-of-Iine,  beeanse  he  sncceeds 
according  to  certain  recognised  lines  of  pro- 
pinquity; he  is  called  heir-general,  beeanse 
he  represents  the  deceased  generally ;  and  he 
is  called  heir-whomsoever  ;  and  whichever  of 
those  expressions  is  used,  the  person  so  suc- 
ceeding IS  the  person  who  would,  by  the  dis- 
position of  the  law  itself,  have  succeeded. 
What  has  been  stated  above  relates  to  the 
succession  of  heritage  which  has  come  to  the 
predecessor,  by  descent  from  his  predecessor ; 
for  where  heritable  property  has  been  pur- 
chased by  the  immediate  predecessor,  it  is 
termed  conquest,  and  goes  to  the  heir  of 
conquest,  who,  in  all  competitions  amongst 
brothers  or  uncles,  or  their  descendants,  is 
not  the  next  immediate  younger  brother  or 
uncle,  but  the  immediate  elder  brother  or 
uncle.    See  Conquest.    The  moveable  succes- 
sion goes  to  the  relation  nearest  in  degree  of 
blood  to  the  defunct ;  and,  where  there  are 
more  than  one  eqnidly  near,  the  succession 
goes  to  all  those  relations  equally,  whether 
male  or  female. 

Formerly  there  was  no  right  of  representa- 
tion in  moveable  succession ;  but  this  is  now 
altered  by  the  act  18  and  19  Vict.,  c.  23 
(1855).  Those  succeeding  are  termed  next 
of  kin,  or  heirs  in  moveables.     See  Executtm. 

%  Of  the  heir  by  destination. — The  heir  by 
destination  is  the  person  who  is  called  to  suc- 
ceed, failing  the  person  to  whom  an  estate  is 

Digitized  byLjOOQlC 


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disponed.  Id  calling  a  series  of  beirs,  some- 
times general  terms  are  used,  as  to  A.  £., 
and  the  heirs-male  of  his  body;  at  other 
times,  the  heirs-male  or  sons  of  A.  £.  are 
called  noninatim,  and  in  their  order.  The 
former  method  is  more  concise ;  and,  if  the 
conveyancer  be  fully  acquabted  with  the 
legal  import  of  the  terms  he  makes  use  of,  it 
is  the  best  manner  of  expressing  the  destina- 
tion ;  but  the  other  tUI  probably  give  more 
satisfaction  to  the  grantor,  if  he  be  unac- 
qnainted  with  the  meaning  of  the  general 
terms  employed.  See  the  different  forms  of 
expressing  destinations  explained  under  the 
article  Destination. 

3.  0/  the  title  of  the  A«tV.— This  has  refer- 
ence to  the  form  by  which  an  heir  completes 
a  title  in  his  own  person  to  the  estate  which 
has  previously  been  vested  in  the  person  of 
his  ancestor.  This  form  varies  according  to 
circumstances.  Thus,  where  the  ancestor  has 
been  infeft,  a  special  service  is  required ;  and 
that  service  must  be  followed  by  infeftment 
in  favour  of  the  heir.  Where,  again,  the 
ancestor  was  not  infeft,  a  general  service  is 
sufficient ;  and  this  service,  without  any  farther 
step,  carries  to  the  heir  all  that  was  in  the 
person  of  the  ancestor.  In  the  case  of  lands 
held  of  a  subject-superior,  the  heir  may  be 
entered  without  a  service,  on  a  precept  of 
tlare  congtat,  which  is  a  warrant  for  infefting 
the  heir  in  the  lands  as  heir  to  the  ancestor. 
In  the  same  way,  burgage  subjects  may  be 
carried  to  an  heir  by  the  form  of  hasp  and 
staple ;  and  there  is  still  another  method 
equivalent  to  a  service,  by  which  the  heir 
may  complete  a  title ;  he  may  grant  a  trust- 
bond  to  a  confidential  friend,  and  that  friend 
may  charge  the  heir  to  enter  and  adjudge  the 
lands.  (See  Adjudicatimi  on  Trust-bond.)  On 
this  subject  see  Services.  Clare  constat.  Hasp 
and  Staple.  Entry  of  an  Heir.  Titles  to  Land. 
An  heir,  when  he  is  uncertain  of  the  situa- 
tion of  his  ancestor's  affairs,  may,  within  a 
jear,  enter  cwn  henefido  inventarii.  See  Ser- 
vice.   Beneficiam  Inventarii. 

By  10  and  11  Vict,  c  47,  §  23  (1847), 
a  decree  of  special  service  infers  only  a  limited 
passive  representation  of  the  deceased,  and 
the  person  obtaining  the  decree  is  liable  for 
the  deceased's  debts  and  deeds  only  to  the 
extent  or  value  of  the  lands  and  other  heri- 
tages comprehended  by  the  decree,  and  no 
farther.  By  the  same  act,  §  25,  a  general 
serTice  may  be  obtained  by  the  heir  stating 
in  his  petition  that  he  desires  the  effect  of  the 
decree  of  service  to  be  limited  to  the  lands  or 
other  heritages  belonging  to  the  deceased, 
vhich  are  contained  in  a  specification  an- 
nexed to  the  petition.  A  copy  of  the  specifi- 
cation is  embodied  in  the  extract  of  the  decree, 
smd  the  heir  so   served  is  liable  for  the 


deceased's  debts  and  deeds  only  to  the  extent 
or  value  of  the  lands  or  other  heritages  con- 
tained in  the  specification. 

4.  Of  the  rights  of  an  heir. — After  an  heir 
has  completed  his  title,  every  right  possessed 
by  his  predecessor  is  vested  in  him.  But, 
even  before  completing  his  title,  an  apparent 
heir  (as  he  is  called  in  the  law  of  Scotland) 
can  pursue  for,  receive  and  discharge  the  renis 
due  from  the  estate  of  his  ancestor ;  and  those 
rents,  on  his  death,  descend  to  his  executor. 
He  can  defend  the  tenant  in  his  possession ; 
but  he  cannot  remove  him,  by  prosecuting  an 
action  of  removing  against  him,  before  he  has 
completed  his  title.  The  heir-apparent  has 
a  right  to  reduce  aU  death-bed  deeds  done  by 
the  ancestor  to  his  prejudice.  He  may  pur- 
sue a  liferenter  for  an  aliment ;  he  may  insti- 
tute an  action  of  sale  for  behoof  of  creditors. 
The  apparent  heir  has,  farther,  a  right  of 
deliberating  as  to  the  propriety  of  taking  up 
the  snccession  which  has  opened  to  him ;  and,  for 
this  purpose,  a  year  and  day  after  the  death  of 
the  ancestor  was  formerly  allowed  him.  Dur- 
ingthat period hecould  not  be  compelled  to  en- 
ter; and,  the  betterto  enable  himto  deliberate, 
he  might  judicially  enforce  exhibition  of  his 
ancestor's  title-deeds.  See  Apparent  Heir. 
Annus  deliberandi.  Aliment.  Death-bed.  Ex- 
hibition.   Executor. 

By  the  Titles  to  Land  Act  21  and  22  Yict., 
c.  76,  §  27  (1858),  diligence  against  an  appa- 
rent heir  may  now  be  insisted  in  at  any  time 
after  the  lapse  of  six  months  from  the  date  of 
his  becoming  apparent  heir. 

The  onerous  debts  and  deeds  of  an  appa- 
rent  heir,  who  has  been  three  years  in  posses- 
sion on  his  right  of  apparency,  but  who  has 
not  completed  titles  to  his  predecessor's  lands, 
may  be  made  effectual  against  the  lands  and 
estate  so  possessed  on  apparency,  in  the  per- 
son of  a  succeeding  heir  who  has  made  up 
titles  to  the  apparent  heir's  predecessor,  pass- 
ing by  the  apparent  heir ;  1695,  c.  24.  See 
Apparent  Heir. 

5.  Of  the  burdens  affecting  the  heir. — Heirs 
are  all  liable  for  the  debts  of  their  ancestor ; 
but  they  are  liable  in  a  certain  order.  Thus, 
the  heir  of  line  is  primarily  liable  in  the 
debts  of  the  ancestor — next  to  him  is  the  heir 
of  conquest — then  follows  the  heir-male — 
next  to  these  is  the  heir  by  destination — and, 
last  of  all,  the  heir  under  a  marriage-con- 
tract. It  Is  in  this  order  that  those  heirs  must 
be  discussed.  See  Discussion.  Where  a  dis- 
poner  burdens  a  disposition  with  the  payment 
of  his  debts  generally,  this  is  held  to  be  a 
provision  in  favour  of  his  creditors,  which 
does  not  prevent  the  disponee  from  claiming 
relief  from  the  heir  of  the  disponer.  In  order 
to  render  the  disponee  liable,  a  declaration 
to  that  effect,  in  very  precise  terms,  is  re- 
Digitized  byLjOOQlC 


420 


HEI 


HEI 


quired.  Stair,  B.  iii.  tit.  5;  More't  Notes 
p.  eccxix.  et  teq. ;  Bttnk.  vol.  ii.  p.  322,  etseq., 
Erdc.  B.  iii.  tit.  8,  §  47  ;  Befft  Prme.  §  1637, 
et  tiq.  lUutt.  1695  ;  BeU's  Com.  i.  83,  et  seq., 
143,  669,  et  seq.,  709,  et  seq. ;  HmUer's  Land- 
lord and  Tenant ;  Shand't  Prac  ;  Sandford  on 
Heritable  Succession,  vol.  ii.  p.  68,  et  seq.;  Jwrid. 
S^Us;  Karnes^  Equity;  Ross's  Led.  i.  56,  73, 
497 ;  ii.  507 ;  Crawfurd,  Bligh's  Appeal  Cases, 
ii.  667. 

Hdr  and  Ezeontor.  The  heir  is  entitled  to 
all  the  heritage,  and  the  executor  to  all  the 
moveables  of  the  deceased,  with  the  exception  of 
heirship  moveables.  But,  where  the  heir  and 
executors  are  equally  near  in  kin  to  the  ances- 
tor, it  is  competent  to  the  heir  to  insist  that  the 
whole  estate,  heritable  and  moveable,  shall  be 
massed  in  ewnulo,  and  distributed  share  and 
sharealikeamongst  the  wholenextof kia.  (See 
OoUation.)  In  the  division  of  the  rents  of  land 
between  an  heir  and  executor,  the  execntor 
has  right  to  the  rents  due  at  the  death  of  the 
ancestor,  the  heir  to  what  was  not  at  that 
time  due ;  and  a  rule  has  been  received  in 
practice  for  regulating  what  part  of  the  rents 
are,  and  what  part  are  not  held  to  be  due. 
Thus,  the  terms  of  Whitsunday  and  Martin- 
mas are  held  as  the  legal  terms  by  which  these 
interests  are  regulated,  whatever  the  conven- 
tional terms  of  payment  may  be.  If,  there- 
fore, the  landlord  has  survived  Whitsunday, 
his  executor  has  right  to  one-half  of  that 
year's  rent ;  if,  again,  he  survive  Martinmas, 
he  hag  right  to  the  whole  of  that  year's  rent. 
But  a  different  rule  is  adopted  where  the 
lands  have  been  in  the  natural  possession  of 
the  proprietor ;  for  there,  whatever  has  been 
sown  by  the  proprietor  must  be  reaped  by  the 
executor;  and  where  the  ground  has  been 
prepared  but  not  sown,  the  expense  of  labour 
is  a  claim  competent  to  the  execntor.  In  the 
case  of  a  tenant,  the  rights  of  his  heir  and 
executor  are  regulated  by  the  same  rules : 
bnt  the  executor  pays  a  proportion  of  the  rent 
corresponding  to  the  part  of  the  farm  under 
crop.  The  heirs  and  executors  of  liferenters 
have  their  rights  ascertained  by  the  same 
rules.  The  interest  of  heritable  bonds  is,  in 
like  manner,  divided  between  the  heir  and  exe- 
cutors of  the  creditor,  according  to  the  rules 
observed  in  regard  to  the  rents  of  lands.  But 
the  interest  arising  on  a  personal  bond  is  due 
de  die  in  diem.  Hence,  the  executors  of  the  life- 
renter  of  a  personal  bond  draw  the  interest 
down  to  the  day  of  the  death  of  the  lifereuter. 
Ersh.  B.  ii.  tit.  9,  §  64,  et  seq.,  and  BeU  on  Leases, 
vol.  i.  p.  475,  et  seq. ;  Bank.  vol.  i.  p.  218  ;  BelPs 
Com.  i.  752  ;  ii.  8  ;  Sandford  on  Merit.  Success. 
vol  ii.  p.  240 ;  Broim's  Synop.  h.  t.;  Shaw's  Di- 
gest, pp.536, 588,  et  seq.;  Hunter's  Landlord  and 
Tenant.  See  Hao  Discussion.  Executory.  Terms 
Legal  and  Conventional. 


In  the  ease  of  Bridges  r.  Fordyu,  MarA 
7, 1844, 6  D.  968,  and  affirmed  in  the  Honi» 
of  Lords,  23d  February  1847,  6  £^p.l; 
the  Apportionment  Act,  4  and  5  Will.  IV., 
c.  22,  was  held  to  apply  to  Scotland.  The 
second  branch  of  this  statute  proceeds  on  the 
following  preamble : — "  And  whereas  by  law, 
rents,  annuities,  and  other  payments  doe  at 
fixed  or  stated  periods,  are  not  s^portionaUe, 
unless  express  provision  be  made  for  the  fm- 
poee,  from  which  it  often  happens  that  persons 
and  their  representatives  whose  income  it 
wholly  or  principally  derived  from  these 
sources,  by  the  determination  thereof  before 
the  period  of  payment  arrives,  are  deprived 
of  means  to  satisfy  just  demands ;  and  other 
evils  arise  from  such  rents,  annuities,  and 
other  payments  not  being  apportiooable, 
which  evils  require  remedy."  The  remedy 
introduced  is  expressed  as  follows: — ^"Beit 
enacted  that  from  and  after  the  passing  of 
this  act,  all  rents,  service  reserved  on  any 
lease  by  a  tenant  in  fee,  or  for  any  life  in- 
terest, or  by  any  lease  granted  under  any 
power,and  which  lease  shall  have  been  granted 
after  the  passing  of  this  Act ;  and  all  rents, 
charge,  and  other  rents,  annuities,  &o.,  and 
all  other  payments  of  every  description,  &&, 
made  payable  or  coming  due  at  fix^  periods, 
under  any  instrument  that  shall  be  executed 
after  the  passing  of  this  Act,  or  being  a  will 
or  testamentary  instrument  that  shall  come 
into  operation  after  the  passing  of  this  Act, 
shall  be  apportioned  so,  and  in  such  manner, 
that  on  the  death  of  any  person  interested  m 
such  rents,  annuities,  &c.,  or  other  payments 
as  aforesaid,  or  in  the  estate,  fund,  office,  at 
benefice,  from  or  in  respect  of  which  the  same 
shall  be  issuing  or  derived,  or  on  the  deter- 
mination, by  any  other  means  whatsoever,  of 
the  interest  of  any  such  term,  he  or  she,  and 
his  or  her  executors,  administrators,  or  assig- 
nees, shall  be  entitled  to  a  proportion  of  snch 
rents,  annuities,  dec,  and  other  payments,  so- 
cording  to  the  time  which  shall  have  elapsed 
from  the  commencement  or  last  period  of  pay- 
ment thereof  respectively,  as  the  case  may  be, 
including  the  day  of  the  death  of  such  person, 
or  of  the  determination  of  his  or  her  interest, 
all  charges  on  such  rents  being  deducted." 

The  statute  farther  declares  that  the  entire 
rents  shall  be  received  and  recovered  by  the 
person  or  persons  who,  if  this  Act  had  not 
passed,  would  have  been  entitled  to  such  en- 
tire rents,  and  such  portion  shall  be  recovered 
from  such  person  or  persons  by  the  parties 
entitled  to  the  same  under  this  Act,  iu  any 
action  or  suit  at  law,  or  in  equity. 

The  case  of  Campbell  v.  Campbell,  July  18, 
1849,  11  D.  1426,  was  the  case  of  a  grass 
farm,  the  entry  to  which  was  at  Whitsunday 
old  style,  26th  May,  and  the  first  rent  payable 

Digitized  byCjOOQlC 


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«t  the  term  of  Martinmas  after  entry,  and 
the  second  at  Whitsanday  following,  and  so 
on  half  yearly.    It  was  held  that  notwith- 
standing the  specialty  that  the  entry  was  at 
Whitsanday  old  style,  the  rent  was  due  at 
the  legal  terms  of  Whitsunday  and  Martinmas, 
15th  May  and  11th  NoTember,  and  that  the 
first  rent,  payable  conventionally  at  Martinmas 
after  entry,  was  legally  due  at  the  preceding 
Whitsunday,  and  that  the  second  rent,  conven- 
tionally payable  at  Whitsunday  next  after 
entry,  was  legally  due  at  the  preceding  term 
of  Martinmas,  and  so  with  regard  to  the  sub- 
sequent rents.    In  this  case  the  proprietor 
had  died  on  18th  of  May  1846,  being  three 
days  posterior  to  the  legal  term,  and  eight 
days  prior  to  the  term  of  Whitsunday  old 
style.     In  a  competition  between  his  heir  and 
executor,  it  was  held,  first,  that  the  executor 
waa  at  common  law  entitled  to  the  rent  legally 
due  at  Whitsunday  1846,  but  conventionally 
payable  at  Martinmas  thereafter,  and  to  aU 
the   antecedent  rents.     It  was  held,  second, 
(hat  under  the  provisions  of  the  Apportion- 
ment Act,  he  was  entitled  to  a  proportion  of 
the  rent  legally  due  at  Martinmas  1846,  but 
conventionally  payable  at  Whitsunday  1847, 
corresponding  to  the  ancestor's  three  days' 
survivance  of  the  legal  term  of  Whitsunday 
1846. 

The  case  of  Blaikie  v.  Farquharson,  July  18, 
1849,  11  D.  1456,  was  the  case  of  an  arable 
farm,  the  entry  to  which  was  at  the  term  of 
Martinmas  1838,  the  rentpayable  half  yearly; 
the  first  half  year's  rent  at  Martinmas  1839, 
and  the  second  at  Whitsunday  following,  both 
payments  being  for  crop  1839,  and  so  on 
(hereafter.  The  landlord  died  on  14th  May 
1841.  In  a  competition  between  his  heir  and 
executor,  it  was  held,  first,  that  the  executor 
was  at  common  law  entitled  to  the  rent  pay- 
able at  Whitsunday  1841,  being  the  last  h^f 
of  the  rent  for  crop  1840.  It  was  held,  second, 
that  under  the  Apportionment  Act  he  was 
entitled  to  the  half  year's  rent  payable  at 
Martinmas  1841,  minus  the  proportion  of  it 
effeiring  to  one  day  being  the  rent  applicable 
to  the  period  from  Martinmas  1840  to  14th 
May  1841,  when  the  landlord  died.  The  estate 
in  this  case  was  held  under  a  strict  entail. 

In  both  these  cases  the  estates  were  en- 
tailed. In  the  English  case  of  Browne  v. 
Amyci,  3  Hare,  173,  it  was  decided  that  the 
apportionment  statute  applies  only  to  cases  in 
which  the  interest  of  the  person  interested  in 
the  rents,  dtc,  is  terminated  by  his  death,  or 
by  (he  death  of  another  person ;  but  did  not 
apply  to  the  case  of  a  tenant  in  fee,  or  pro- 
vide for  the  apportionment  of  rent  between 
the  real  and  personal  representative  of  such, 
whose  interest  is  not  terminated  at  his  death. 
The  case  BaiUie  v.  Macdmald  Lockhart  {unre- 


ported), was  not  argued  in  the  Court  below 
in  consequence  of  the  judgments  in  the  pre- 
ceding cases  of  Campbell  and  Blaikie,  but  was 
appealed  to  the  House  of  Lords  for  the  pur- 
pose of  having  it  determined  whether  the 
statute  was  applicable  to  entailed  estates;  and 
it  was  determined  that  it  did  apply.  Lobo 
CBAirwoKTH.C.,  observed: — "I  have  no  doubt 
that  the  statute  applies  to  a  tenant  in  tail. 
The  evil  prior  to  the  statute  was  that  if 
the  tenant  in  tail  died  indebted,  and  the 
rents  were  nearly  accruing  due,  all  these  ac- 
cruing rents  would  go  to  the  successor.  To 
remedy  that  evil  the  statute  was  passed.  I 
cannot  doubt,  upon  the  construction  of  the 
statute,  that  the  question  here  is  really  not  a 
question  of  feudal  law,  bnt  a  question  of  the 
meaning  of  the  Legislature.  There  is  not- 
thing  determined  in  this  case  but  the  ap- 
plicability of  the  statute."  2  Macqueen,  258, 
27  Jur.  367.  See  also  the  cases  of  Beer  v. 
Beer,  1852,  12  Scotfs  New  Rep.  60  ;  Locke  v. 
De  Burgh,  20  L.  J.  GImuc.  384;  Knight  v. 
Boughton,  12  Bev.  312  ;  Markby,  1839, 4  Mylnt 
and  Craig,  Chan.  ca.  484. 

Heir-Female.    See  Destination. 

Heirs  and  Bainu.  The  expression  "  heirs 
and  bairns,"  or  "heirs  and  children,"  of  a  mar- 
riage, in  the  destination  of  an  heritable  estate 
in  a  contract  of  marriage,  carries  the  estate 
to  the  heir-at-law,  and  not  to  all  the  children 
of  the  marriage,  share  and  share  alike;  where- 
as, the  expression  "bairns  of  the  marriage,"  or 
"  children  of  ^  marriage,"  omitting  the  word 
"  hein,"  carries  the  property  to  all  the  child- 
ren of  the  marriage  equally.  BelPs  Prine, 
§  1963,  et  seq.  See  DestinatioH.  Bairns  of  a 
Marriage. 

Heirship  Moveables ;  are  the  moveables  to 
which  the  heir  in  heritage  is  entitled,  in 
order  that  he  may  not  succeed  t«  a  bouse 
and  land  completely -dismantled.  They  con- 
sist of  the  best  of  certain  kinds  of  moveable 
goods  belonging  to  the  heir's  predecessor, 
such  as,  furniture,  horses,  fows,  oxen,  fai-ming 
utensils,  &o.,  but  not  including  fungibles. 
Where  artides  go  in  pairs  or  dozens,  it  is 
the  best  pair  or  dozen,  or  best  yoke.  Under 
this  are  comprehended  the  family  seal  of 
arms,  the  ornaments  of  the  seat  in  church. 
See  a  full  list  of  heirship  moveables  given  in 
dope's  Minor  Prac.  p.  638,  edit.  1734.  Heir- 
ship moteables  are  due  only  to  the  heir  of  a 
baron  or  of  a  burgess.  In  this  sense,  a  person 
infeft  in  lands,  or  even  in  an  annualrent  of 
lands,  is  held  to  be  a  baron ;  but  he  must 
have  been  infeft,  and  the  burgess  must  be  an 
actual  trading  burgess  in  a  royal  burgh,  not 
merely  an  honorary  one.  It  is  the  heir  of 
line  only  who  has  a  right  to  claim  heirship 
moveables,  and  of  this  right  he  cannot  be  de- 
prived by  any  testamentary  or  death-bed  deed 

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of  the  ancestor's.  When  there  are  heirs- 
portioners,  it  is  the  eldest  heir-portioner  only 
who  is  entitled  to  heirship  moveables ;  Erti. 
B.  iii.  tit.  8,  §§  13, 17,  «<  teq.  The  tide  to 
heirship  moveables  requires  no  service  to  com- 
plete it;  possession  issuflScient.  But,  if  the 
heir  die  without  attaining  possession,  heir- 
ship moveables,  on  his  death,  do  not  descend 
to  bis  executors,  but  to  the  heir  of  the  first 
deceased.  Ertk.  ib.  §  77 ;  Stair,  B.  iii.  tit.  5, 
§  7,  «(  teq.;  More'*  Notes,  p.  occxxx.;  Bank. 
vol.  ii.  pp.  292,  328;  BdPt  Princ.  §  1903; 
Brown's  Synop.  h.  t.  and  pp.  1177,  2053; 
Sandford  on  Merit.  Swxest.  i.  17,  36,  et  teq. ; 
Sunter't  Landlord  and  Tenant. 

Hein-Portionen.  Failing  the  male  issue 
and  their  issue,  the  succession  opens  in  favour 
of  the  female  issue.  The  heritage  does  not 
go  to  the  eldest  female  alone,  but  to  all  the 
females  in  the  same  degree  of  relationship, 
who  inherit  equally  and  pro  indiviso  as  heirs- 
portioners.  In  this  succession  the  jut  r^<B- 
teniationit  prevails.  Thus,  if  the  deceased  be 
survived  by  two  daughters,  and  by  a  g^randson 
or  granddaughters  by  a  deceased  daughter, 
the  grandson,  as  lii&  mother's  heir-at-law, 
will  succeed  to  her  share  of  the  ancestor's 
heritage,  to  the  exclusion  of  his  sisters ;  or  if 
the  deceased  daughter  has  been  survived  by 
daughters  only,  they  will  succeed  as  heiresses- 
portioners  to  their  mother's  share  of  their 
grandfather's  succession.  The  eldest  heir- 
portioner  by  legal  succession,  but  not  by  pro- 
vision, has  right  to  the  mansion-house  of  an 
estate  in  the  country,  as  a  prcedpuum,  with- 
out compensation  to  her  sisters.  She  is  also 
entitled  to  such  peerages,  dignities,  and  titles 
of  honour,  as  are  not  otherwise  limited.  The 
eldest  has  also  right  to  subjects  indivisible, 
such  as  superiorities,  a  house  in  town,  or  a 
small  villa  in  the  country ;  but  for  such  sub- 
jects she  must  give  compensation  to  her 
sisters.  On  the  death  of  the  second  of  three 
sisters,  the  succession  of  conquest  does  not  go 
as  on  the  death  of  a  middle  brother,  but  to 
the  heirs  of  both  sisters,  as  heirs-portioners. 
Stair,  B.  iii.  tit  6,  §  11 ;  Jfor***  Notes,  oxx. 
cecxxix. ;  Ersk.  B.  iii.  tit.  8,  §  13 ;  Sandford 
on  Herit.  Sucees.  i.  3  to  33;  BdPt  Prine.  § 
1659;  JM«»<.  ib.  and  §1670.  Sw  Brieve  of 
Divition.    CoUation.    Exeeutort. 

Herald;  u  an  officer  serving  under  the 
lyon  king  at  arms.  The  king  at  arms,  with 
the  heralds  and  pursuivants  in  their  robes, 
proclaim  peace  and  war,  or  make  other  royal 
proclamations.  Ersk.  B.  i.  tit.  4,  §  32.  See 
Lyon  Kinq  at  Arms. 

Hereditament;  in  English  law,  all  such 
immoveable  things,  whether  corporeal  or  in- 
corporeal, as  a  man  may  have  to  him  and  his 
heirs  by  way  of  inheritance,  and  which,  if 
they  are  not  otherwise  devised,  descend  to  the 


next  heir,  and  not  to  the  executor,  as  ehatteb 
do.    Tomlintf  Dict.h.t. 

Hereiy ;  among  Protestants,  a  false  opinion 
repugnant  to  some  point  of  Scriptural  doc- 
trine, and  either  absolutely  essential  to  the 
Christian  faith,  or  at  least  of  high  impor- 
tance.   Tondiwf  Diet.  h.  t. 

Hereuld ;  was  the  best  horse,  ox,  or  cow, 
belonging  to  a  tenant,  which,  on  his  death, 
was  due  to  the  landlord.  See  Skene,  h.  t, 
This  exaction  has  been  long  unknown  in  prac- 
tice, although,  in  charters  by  progress  from 
superiors,  the  word  is  occasionally  met  with ; 
and  sometimes,  in  striking  a  composition,  the 
value  of  the  herezeld  is  stated  against  the 
vassal  in  money  at  a  low  conversion.  <S<air, 
B.  ii.  tit.  3,  § 80 ;  Bank.yoh i.  p.  596 ;  vol.ii. 
p.  116 ;  Brown's  Synop.  h,  t. ;  Ros^s  Led.  ii. 
175 ;  Hunter's  Landlord  and  Tenant. 

Heriot;  the  English  law  term  correspond- 
ing to  the  Scotch  word  herezeld.  It  signified 
originally  a  tribute  given  to  the  lord  of  a 
manor,  for  his  better  preparation  for  war; 
and  is  now  taken  for  the  best  beast,  whether 
it  be  horse,  ox,  or  cow,  which  the  teuant  dies 
possessed  of,  due  and  payable  to  the  lord  of 
the  manor.  In  some  manors,  it  is  the  best 
goods,  piece  of  plate,  &c.     Tomlinti'  Diet.  k.  (. 

Heritable  and  Moveable.  In  the  Roman 
law,  things  were  divided  into  corporeal  and 
incorporeal ;  and  the  former  class  was  sabdi- 
vided  into  moveable  and  immoveable.  But 
this  classification  has,  in  the  law  of  Scotland, 
given  place  to  the  distinction  between  heri- 
table and  moveable  rights,  a  distinction  rest- 
ing more  on  the  legal  rights  of  the  heir  and 
of  the  executor,  than  on  the  nature  of  the 
subjects  themselves.  Qenerally  all  ri^ts 
in,  or  connected  with,  land,  are  heritable. 
Whatever  moves  itself,  or  can  be  moved,  with- 
out injury  to  itself,  or  the  subject  with  which 
it  is  connected;  and  whatever  is  not  united 
to  land,  is  moveable.  But  these  general  rules 
are  subject  to  exceptions  and  modifications. 
Things,  in  themselves  moveable,  may  become 
heritable  by  succession.  Whatever  has  been 
by  art  annexed  to  land,  or  other  heritable 
subject)  BO  that  it  cannot  be  removed  without 
injury  or  change  of  nature,  is  heritable,  by 
accession.  See  Fixtures.  Mills.  Jfac&iitojf. 
Whatever  is  by  growth  connected  with  the 
soil  is  heritable,  under  certain  exceptions.  See 
Grass.  Hay.  Things,  intheirnatureheritable, 
may  become  moveable  by  being  made  part 
of  a  moveable  universitas.  Thus,  a  share  of 
heritable  subjects  forming  part  of  the  stock 
of  a  trading  company  is  moveable.  Things 
become  heritable  by  destination,  by  being 
madetodesceudtotheheir.or  otherwise.  Thus 
materials  prepared  for  completing  any  part  of 
a  house  are  heritable.  Books  and  furniture 
may  be  made  heritable  in  succession.  Bet- 
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ttnation,  althoagh  it  rules  succession,  operates 
no  change  on  subjects,  in  respect  to  diligence. 
Debte  secured  npon  land  are  heritable.  But 
simple  personal  debts  and  engagements,  shares 
of  companies,  public  or  private,  bank  stock, 
and  goTemment  stock,  are  moveable.  Arrears 
of  heritable  debts,  of  rents  and  fen-duties,  of 
the  interest  of  heritable  bonds,  &c.,  are  move- 
able. Personal  bonds  were  formerly  herita- 
ble afler  the  term  of  payment  was  past ;  they 
were  made  moveable  by  1661,  c.  32,  but  con- 
tinae  heritable  as  to  the  fisk,  and  jus  rdicke, 
and  the  other  rights  of  husband  and  wife. 
Rights  in  their  nature  moveable,  but  having 
a  tract  of  future  time,  are  heritable.  Titles 
of  honour  and  offices  continuing  after  the 
holder's  death  are  heritable.  Securities,  whe- 
ther by  heritable  bond  or  disposition  in  secu- 
rity, or  by  real  burden,  or  by  adjudication, 
are  heritable,  though  infeftment  has  not  been 
taken.  Bonds  having  a  clause  of  infeftment, 
though  not  completed  by  sasine,  are  heri- 
table ;  bnt  if  the  infeftment  be  suspended  till 
the  arrival  of  a  day,  or  the  purification  of  a 
condition,  the  debt  is  moveable.  Securities 
taken  by  a  tutor,  or  by  a  factor  loco  tutorit, 
are  never  heritable.  The  nature  of  moveable 
rights  is  changed  by  a  supervening  heritable 
seenrity ;  but  heritable  rights  do  not  become 
moveable  by  supervening  moveable  securi- 
ties ;  on  the  contrary,  they  communicate  to 
those  supervening  securities  the  nature  of  the 
original  or  heritable  right.  Where  lands  or 
heritable  securities  are  conveyed  in  security 
of  personal  debts,  those  debts  become  heri- 
table. A  distinction  is  taken  between  those 
cases  in  which  a  trust  is  granted  for  the  secu- 
rity of  creditors,  and  the  trustee  is  infert,and 
those  in  which  the  trust  has  been  granted  for 
the  sole  and  immediate  purpose  of  paying  the 
debts  by  a  sale.  In  the  former  case  the  snc- 
eession  of  the  creditors  is  rendered  heritable, 
in  the  latter  it  remains  unchanged.  Exclu- 
ding executors  in  a  personal  bond  makes  the 
b<md  heritable.  Sums  directed  to  be  laid  out 
by  trnsteee  on  heritable  subjects,  are  heri- 
table. A  trust  and  instrnction  to  sell  heri- 
table subjects,  and  convert  them  into  money, 
makes  an  heritable  debt  moveable ;  and  hence 
tiie  claim  against  the  trustees,  at  the  instance 
of  the  parties  beneficially  interested  in  the 
proceeds  of  the  trust-estate,  is  moveable,  and 
may  be  arrested.  A  charge  of  homing  on  an 
heritable  debt  makes  it  moveable ;  but  regis- 
tration, in  order  to  a  charge,  has  not  that 
eflfoct.  Stair,  6.  ii.  tit.  3,  et  teq.,  and  B.  iii. 
tit.  1,§25;  Mor^tNota,  p.  cxxxviii. ;  Erik. 
B.  ii.  tit.  2,  §  2 ;  BelVt  Com.  \l  I,  et  teq.; 
BatJc.  vol.  i.p.  514 ;  vol.  ii.  198,  et  $eq.;  BeWs 
Pritu.  §  1470  ;  lUttst.  ib.  Sandford  on  Her- 
itable Sutcettion,  vol.  ii.  p.  206,  et  teq. ;  Shaw't 
Digettff.  227,  et  teq.;  Brown' t  Synop.  h.  t.; 


Rots's  Lect.  i.  41,  76.    See  also  Bond.    Ar- 
restment. 

Heritable  Bond ;  is  a  bond  for  a  sum  of 
money,  to  which  is  joined,  for  the  creditor's 
farther  security,  a  conveyance  of  land  or  of 
heritage,  to  be  held  by  the  creditor  in  secu- 
rity of  the  debt.  Ross's  Lect.  i.  76 ;  ii.  324 ; 
BeWsPrinc.^  910;  Illutt.  ib.  See  the  title 
Bond.    See  also  Burdens. 

Heritable  Securities.  There  are  various 
ways  in  which  heritable  estates  may  be  made 
the  means  of  security  to  creditors.  The  cre- 
ditor may  either  lead  an  adjudication  against 
the  land,  or  it  may  be  secured  exclusively  for 
his  benefit  by  inhibition,  or  a  burden  may  be 
created  entitling  the  creditor  to  appropriate 
the  rents  and  uses  of  the  land  until  the  debts 
shall  be  paid.  Real  securities  may  be  crea- 
ted or  dissolved  without  touching  the  radical 
right  to  the  estate  or  the  progress  of  titles; 
and  they  are  discharged  by  the  extinction  of 
the  debt,  without  any  feudal  form  of  recon- 
veyance. Heritable  securities  are  either  con- 
stituted by  infeftment  in  favour  of  the  credi- 
tors, or  they  depend  on  the  force  of  a  condi- 
tion qualifying  the  right  of  property.  Of  the 
first  class  are  wadset ;  infeftment  of  annual- 
rent  ;  heritable  bond ;  disposition  in  security, 
and  absolute  disposition  with  back-bond.  Of 
the  second  class  are  reserved  burdens  and  fa- 
culties to  burden.  Elckies^  Notes  on  Stair,  p. 
136 ;  Stair,  B.  iii.  tit.  4,  §  33 ;  tit.  5,  §§  6  and 
25.  See  also  Ersi.  B.  ii.  tit.  8 ;  Stair,  B.  iv. 
tit.  26,  §  24 ;  More's  Notes,  cex. ;  Bell's  Com. 
i.  674;  ii.  205;  Befft  Princ.  §896;  lUust. 
§  901.    See  Burdens. 

Although  heritable  securities  may  still  be 
constituted  under  the  old  forms,  bonds  and 
dispositions  in  security  may  now  be  granted 
in  the  form  of  schedule  A,  annexed  to  the 
act  10  and  11  Vict.,  o.  50, 1847;  and  the  re- 
cording of  securities  granted  in  that  form  in 
the  Register  of  Sasines  is  as  effectual  as  if  they 
had  contained  all  the  usual  clauses,  and  as  if 
sasine  had  been  taken  thereon  and  the  in- 
strument of  sasine  duly  recorded.  Such 
bonds  and  dispositions  in  security  may  bo  re- 
gistered at  any  time  during  the  lifetime  of 
the  grantee,but  if  not  so  registered,  these  shall 
be  a  sufficient  warrant  of  sasine  in  favour  of 
the  partyhaving  right  to  them  byservice,adjn- 
dication,  or  otherwise;  infeftment  being  passed 
upon  them  according'to  the  form  prescribed  by 
the  act  8  and  9  Vict.,  c.  35,  1845.  See  In- 
feftment. A  sale  carried  through  in  terms  of 
the  act  is  as  valid  and  effectual  to  the  pur- 
chaser as  if  it  had  been  made  by  the  granter 
of  the  security  himself,  and  that  whether  the 
granter  shall  hare  died  before  or  after  the 
sale,  and  without  the  necessity  of  confirmation 
by  him  or  his  heirs,  and  notwithstanding  that 
the  party  who  is  thu  debtor  in  the  security 

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and  in  right  of  the  lands,  may  at  the  time  of 
the  ule  be  in  pnpillarity  or  minority,  or  sub- 
ject to  any  legal  incapacity.  The  creditor 
or  purchaser,  however,  is  also  entitled  to  de- 
mand from  the  granter  of  the  security,  and 
his  heirs,  any  deeds  which  may  at  common 
law  be  necessary  for  rendering  the  same  effec- 
tual, or  otherwise  completingin  due  form  the 
Snrchaser's  title.  A  creditor  selling  nnder 
is  security  is  bound  to  count  and  reclcon  for 
the  surplus  of  the  price  which  may  remain, 
after  deducting  the  debt  secured,  with  the 
interest  due  thereon  and  penalties  incurred, 
and  the  whole  expenses  attending  the  sale  ; 
and  after  paying  all  previous  incumbrances, 
and  the  expenses  of  discharging  them,  he 
must  consign  such  surplus  in  one  or  other  of 
the  chartered  banks,  or  in  a  branch  of  any 
such  bank,  in  the  joint  names  of  the  seller 
and  purchaser,  for  behoof  of  the  party  or 
parties  having  the  best  right  to  it,  and  the 
particular  hcmk  into  which  the  consignation 
is  to  be  made  must  be  specified  in  the 
articles  of  roup.  Upon  a  sale  being  carried 
through  in  terms  of  the  act,  and  upon  con- 
signation of  the  surplus  of  the  price,  the  dis- 
position by  the  creditor  to  the  purchaser  has 
the  effect  of  completely  disencumbering  the 
lands  sold  of  all  securities  and  diligences  pos- 
terior to  the  security  of  the  creditor  selling, 
as  well  as  of  the  security  and  diligence  of 
that  creditor  himself. 

Heritable  securities  may  be  transferred  by 
an  assignation  or  other  deed  of  conveyance, 
according  to  the  form  in  the  schedule  No.  I., 
annexed  to  the  Act  8  and  9  Vict.,  o.  31, 1845 ; 
and  on  such  assignation  or  conveyance  being 
recorded  in  the  rroper  Register  of  Sasines, 
the  security  will  be  transferred  to  the  assig- 
nee as  effectually  as  if  it  had  been  disponed 
and  assigned,  and  infeftment  passed  upon  it 
according  to  the  old  form.  Where  the  aasig- 
natiou  or  conveyance  of  the  security  is  con- 
tained in  a  deed  of  conveyance,  granted  for 
farther  purposes  and  objecte,  or  conveying 
other  properties,  such  as  a  marriage  contract, 
deed  of  trust  or  settlement,  it  is  not  necessary 
to  record  the  whole  of  the  deed,  but  it  is 
sufficient  to  expede  and  record  a  notarial 
instrument,  setting  forth  generally  the  nature 
of  the  deed  of  conveyance,  and  containing  at 
length  the  part  of  the  deed  which  relates  to 
security  conveyed.  Upon  the  death  of  any 
creditor  fully  vested  in  right  of  an  heritable 
security,  the  heir  may  complete  his  title  to  it 
by  writ  of  acknowledgment,  to  be  granted  in 
his  favour  by  the  person  duly  infeft  of  whom 
the  security  is  held,  according  to  the  form  set 
forth  in  the  schedule  No.  II.,  annexed  to  the 
said  act;  and  on  such  writ  being  duly  re- 
gistered, the  heir  becomes  vested  with  the  full 
right  of  the  creditor  in  the  security.    Credi- 


tors adjudging  an  heritable  security  from  the 
creditor  in  the  security,  or  his  heir,  may  com- 
plete their  title  to  it  by  duly  recording  the 
abbreviate  of  the  adjudication  in  the  Proper 
Register  of  Sasines,  such  recording  having 
the  same  effect  as  if  the  adjudger  had  been 
entered  and  infeft  on  a  charter  of  adjudica- 
tion. The  heir  duly  served  of  any  creditor, 
also  was  duly  vested  in  an  heritable  security; 
or  the  general  disponee  of  such  creditor  may 
complete  his  title  to  the  security  without  the 
intervention  of  the  superior,  by  expeding  sod 
recording  an  instrument  under  the  hands  of 
a  notary  public,  according  to  the  form  set 
forth  in  the  schedule  No.  III.,  annexed  to  tiie 
said  act ;  and  on  such  instrument  being  re- 
corded in  the  Proper  Register  of  Sasines,  such 
heir  or  disponee  becomes  vested  in  the  fidl 
right  of  the  creditor  in  the  security,  in  the 
same  manner  and  to  the  same  effect  as  the 
creditor  himself  was.  Assig^tions  or  con- 
veyances of  heritable  securities  may  be  re- 
corded at  any  time,  and  in  competition,  are 
preferable  according  to  the  date  of  regis- 
tration. An  heritable  security  may  be  effee- 
toally  renounced  and  discharged  in  whole  or 
in  part,  by  a  discharge  executed  according 
to  the  form  set  forth  in  the  schedule  No.  lY., 
annexed  to  the  said  act,  and  recorded  in  the 
Proper  Register  of  Sasines.  The  act  farther 
declares,  that  nothing  declared  in  it  shall 
prevent  the  transmission  or  extinction  of  se- 
curities in  the  forms  in  use  at  the  passing  of 
the  act ;  and  the  subsequent  statute,  10  and 
11  Vict.,  c.  50,  1847,  declares  that  nothbg 
declared  in  it  shall  prevent  the  constitution 
of  heritable  securities  in  the  forms  in  use,  or 
which  might  be  competently  used  at  the  pass- 
ing of  that  act.  The  same  act  farther  de* 
clares,  that  all  the  provisions  and  enactments 
contained  in  the  previous  act  8  and  9  Viei, 
c  31,  shall  apply  to  the  transmission  and  ex- 
tinction of  heritable  securities  constituted  in 
terms  of  the  subsequent  act,  with  this  proviso, 
that  where  reference  is  directed  by  the  prior 
act  to  be  made  to  the  instrument  of  sasine  on 
any  bond  and  disposition  in  security,  it  shall 
be  sufficient,  in  the  case  of  a  bond  and  diapo- 
sition  in  security  granted  under  authority  of 
the  subsequent  act,  to  make  reference  to  the 
date  of  recording  such  bond  and  diraositioo 
in  security  itself  in  the  Register  of  Sasines. 
The  constitution  and  transmission  of  heritable 
securities  is  also  affected  by  the  Titles  to  Land 
Act.    See  Titlet  to  Land. 

HeritaUe  Jvriadictiona;  were  grants  of 
criminal  jurisdiction  bestowed  on  great  h- 
milies,  with  a  view  to  the  more  easy  and  ex- 
peditious administration  of  justice.  These 
jurisdictions,  with  other  powers  possessed  bj 
landed  proprietors,  were  abolished  after  tlie 
Rebellion  1746,  by  the  act  20  Geo.  II.,  c43, 


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and  compensations  given  to  those  who  suffered 
patrimonially  by  the  operation  of  that  stat- 
ute.   Ersk.  B.  i.  tit.  2,  §  11,  et  seq. 

Heritor ;  in  its  original  acceptation,  signi- 
fied the  proprietor  of  an  heritable  subject; 
but,  in  connection  with  parochial  law,  the 
term  is  confined  to  such  proprietors  of  lands 
or  booses  as  are  liable  in  payment  of  public 
burdens.  In  the  case,  Earl  of  StraOnnore, 
Feb.  26,  1762,  M.  13,128,  in  a  question  as 
to  the  right  to  vote  as  an  heritor  in  the  elec- 
tion of  a  schoolmaster,  it  was  found,  that 
those  fenars  only  are  entitled  to  vote  who  pay 
cess,  whether  separately  or  in  a  eumulo  valu- 
ation. It  has  likewise  been  found  that  heri- 
tors, who,  by  their  title-deeds,  are  liable  in 
payment  of  cess  and  parish  burdens,  have  a 
title  to  vote,  whether  their  luids  stand  sepa- 
rately valued  on  the  cess-roU  or  not,  and  al- 
though they  be  neither  entered  in  the  cess- 
roU,  nor  in  the  books  of  the  collector  of  cess, 
as  paying  cess.  The  liferenter  has  the  right 
of  voting  in  preference  to  the  fiar.  Heritors 
may  vote  by  proxy.  The  management  of 
the  poor  is  now  regulated  by  the  Poor  Law 
Amendment  Act,  8  and  9  Vict.,  c.  83  (1845). 
See  Poor.  Brtk.  B.  ii.  tit.  10,  §  67;  BelPs 
Prine,  §  11^6 ;  Dunlep's  Parochial  Lam. 

Hermaphrodite.  In  the  English  law,  a 
person  partaking  of  both  sexes  may  give, 
grant,  or  inherit  as  either  man  or  woman ; 
Tmlins'  Diet.  h.  t.  Forbes,  in  his  Institute, 
divides  the  sexes  into  male,  female,  and  "her- 
maphrodite— t.e.,  both  male  and  female,  which 
is^teemed  to  be  of  that  sex  which  is  most  pre- 
vsilbg  in  the  person,"  Forbes,  Intt.  B.  i.  c.  1. 

Hmhip ;  the  crime  (formerly  prevalent  in 
this  country)  of  carrying  off  cattle  by  force. 
It  is  described  as  "  the  masterful  driving  off 
of  cattle  from  a  proprietor's  grounds."  Hume, 
i.l07. 

Hide ;  an  old  English  land  measure,  the 
extent  of  which  is  not  quite  certain,  being, 
according  to  some,  100,  according  to  others, 
120  acres.  Coke  says  that  it  contains  no  de- 
terminate nnmber  of  acres.  Eight  hides 
made  a  knight's  fee.     Tomlins'  Diet.  h.  t. 

Eighvays ;  are  inter  regalia,  being  vested 
in  the  Crown  for  the  benefit  of  the  people. 
The  arrangement  and  police  of  turnpike  roads 
hare  been  the  subject  of  a  number  of  statutes, 
local  and  general.  At  first  they  were,  by 
various  statutes  (1669,  c.  16;  1670,  o.  9; 
1686,  c.  8;  and  11  Geo.  III.,  c.  53),  placed 
nnder  the  direction  of  the  commissioners  of 
supply,  and  justices  of  the  peace  of  the  county. 
But  afterwards,  in  almost  every  county,  acts 
of  Parliament  were  passed  for  regulating  the 
roads,  and  giving  power  to  trustees  to  arrange 
ihi  statute  labour,  to  levy  tolls,  and  to  borrow 
money  on  the  produce  of  them.  To  remedy 
the  abuses  which  prevailed  in  the  obtaining 


and  administering  of  these  local  acts,  the 
General  Road  Acts,  4  Geo.  IV.,  c.  49,  and  1 
and  2  Will.  IV.,  c.  43  (1831),  were  passed. 
Their  object  is  to  reduce  to  an  uniform  system 
the  management  of  all  the  highways,  with  a 
reservation  of  whatever  may  be  peculiarly 
necessary  in  certain  localities.  There  are 
therefore  still  local  acts  relative  to  almost 
every  county  in  Scotland,  adapted  to  the  pe- 
culiar circumstances  of  the  district.  But  the 
general  act  repeals  all  the  old  acts  of  the 
seventeenth  century,  and  such  recent  acts  as 
are  of  the  nature  of  general  laws ;  and  the 
rules  now  established  are  declared  to  ex- 
tend to  all  local  acts  now  in  force,  or  to  be 
enacted,  relative  to  roads  in  Scotland.  The 
subjects  which  the  act  embraces,  are  the 
qualifications  and  powers  of  trustees ;  regula- 
tions for  driving  of  vehicles ;  the  exaction  of 
tolls;  the  erection  of  toll-bars,  &c.;  the  penal- 
ties for  evasion  of  tolls ;  the  cutting  of  ditches 
and  drains ;  encroachments  upon,  or  obstrucr- 
tion  of  the  highway ;  compensation  to  pro- 
prietors ;  the  making  of  footpaths ;  the  prun- 
ing of  hedges,  and  the  like.  A  highway 
must  be  at  least  twenty  feet  broad,  without 
including  the  ditch  on  either  side;  and  powers 
are  conferred  on  the  trustees  for  widening  all 
turnpike  roads  to  that  extent,  and  for  taking 
ground  for  that  purpose  without  paying  for 
it,  but  reserving  the  owner's  claim  of  damages 
for  fences  removed  or  injured.  They  are  also 
empowered  to  widen  roads  to  forty  feet,  on 
giving  compensation  for  the  ground  taken 
above  twenty  feet.  Each  local  act  is  to  be 
read  as  if  the  general  act  were  incorporated 
in  it.  This  does  not  apply  to  pontage  acts. 
All  regulations  in  local  acts,  not  inconsistent 
with  the  rules  of  the  general  act,  are  effeo- 
tual.  The  trustees  are  not  entitled  to  compel 
the  public  to  use  the  road,  by  shutting  up  a 
parish  road ;  and  where  any  unwarranted  ob- 
struction has  been  occasioned  de  reeenti  by 
trustees  or  others,  it  may  be  removed  brevi 
nanu.  The  statutory  jurisdiction  under  the 
general  road  act  is  vested  in  the  justices  of 
peace  and  quarter  sessions,  exclusive  of  the 
review  of  the  Court  of  Session.  An  excellent 
digest  of  the  law  of  the  road  will  be  found  in 
Sheriff  Barclay's  work  on  that  subject  (1836). 
See  also  Ersk.  B.  ii.  tit.  6,  §  17;  B.  i.  tit.  4, 
§  14 ;  Stair,  B.  ii,  tit.  1,  §  7,  and  tit.  7,  §  10 ; 
Bank.  vol.  i.  p.  679,  and  vol.  ii.  p.  160;  Bell's 
Prine.  6  659;  lUtist.  ib.;  Blait's  Justice  of 
Peace,  h.  t. ;  Karnes'  Stat.  Law  Abridg.  h.  t. ; 
Barclay's  Law  of  Highways.  See  Statute  La- 
bour.   Parish  Roads.     Church  Road. 

Hilda  Terrs;  hida  terra;  a  "pleuch  of 
land."     Skene,  h.  t. 

Hinc  Inde ;  a  technical  expression  used  in 
Scotch  legal  phraseology,  to  signify  on  cither 
side,  or  on  this  side  and  the  other,  as  con- 
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Dected  with  a  particular  process,  account,  or 
transaction.  Thos,  the  claims  of  parties  hine 
inde,  signifies  their  reciprocal  claims  against 
each  other,  as  at  a  particular  time,  or  in  a 
particular  process  or  suit. 

HiftOlies ;  how  far  evidence.  See  Evidence. 
Dicktm  on  Evid.  590. 

Holdings.  The  holding  is  a  term  used  in 
feudal  law  to  signify  the  tenure  or,nature  of 
the  right  given  by  the  superior  to  the  vassal. 
It  expresses  the  services  due  to  the  superior, 
and  ascertains,  by  a  single  word,  as  by  the 
word  feu,  or  hUnch,  the  state  of  the  connection 
between  the  superior  and  vassal.  When  it 
is  said  that  a  person  holds  feu,  it  is  equivalent 
to  saying  that  he  holds  his  lands  for  payment 
of  a  sum  of  money  yearly,  or  for  a  yearly  pay- 
ment in  grain;  and  blench  means  a  mere 
elusory  duty,  as  a  penny  Scots.  There  are, 
besides,  certain  rights  incident  to  all  holdings, 
which  are  explained  under  other  articles. 
Two  species  of  holdings  formerly  known  are 
now  extinct — viz.,  wardholding  and  mortifica- 
tion. Wardholding  was  the  military  tenure 
of  this  country.  The  ward  and  marriage  of 
the  heir,  which  were  two  of  its  casualties,  were 
of  the  most  oppressive  nature.  See  Ward. 
Marriage.  Avail.  And  recognition,  by  which 
the  feu  fell  back  to  the  superior  on  the  vassal's 
giving  out  more  than  one-half  of  the  feu,  was 
an  impediment  in  the  transmission  of  land 
holding  ward,  which,  previous  to  the  aboli- 
tion of  wardholding,  occasioned  the  most 
serious  inconvenience.  Wardholding  was  abo- 
lished by  the  20  Geo.  II.,  c.  50.  And  where 
the  lands  held  in  ward  of  the  Crown  or  of  the 
Prince,  they  were  converted  into  blench-hold- 
ings ;  when  they  held  of  a  subject-superior, 
they  were  converted  into  feu-holding,  and  rules 
were  laid  down  ifor  fixing  the  fen-duties  to 
be  paid.  This  statute  was  one  of  the  results 
of  the  Rebellion  of  1745,  and  was  meant  to 
lessen  the  influence  of  superiors  with  their 
vassals.  Mortification,  which  is  the  other 
species  of  holding  that  has  fallen  into  disuse, 
was  the  tenure  by  which  churches  or  religious 
societies  held  land  for  charitable  purposes,  or 
for  prayers  and  masses  for  the  souls  of  the 
dead.  This  tenure  fell  at  the  Reformation ; 
and  where  lands  are  now  destined  for  a  chari- 
table purpose,  they  are  given  oat  to  be  held 
either  in  feu  or  in  blench,  according  to  cir- 
cumstances. The  modern  holdings  therefore 
are  either  feu  or  blench.  The  feu-holdings 
are  those  which  hold  of  the  Crown  or  of  a 
subject-superior,  in  consequence  of  original 
feu-rights ;  or  they  are  rights  which  formerly 
held  ward  of  a  subject,  and  are  now  converted 
into  feu,  under  the  Act  20  Geo.  II.,  r.  50. 
The  blench-holdings,  again,  are  either  origi- 
nally blench,  and  are  held  either  of  the  Crown 
or  of  a  subject-superior;  or  they  were  formerly 


wardholdiogs  held  of  the  Crown  or  Prince, 
and  converted  into  blench-holdings  under  the 
statute.     It  is  obvious  that  original  bleucii- 
holdings  will  now  seldom  be  created  by  a  sub- 
ject-superior ;  because,  in  such  a  transaction, 
the  grantor  of  the  right  can  have  no  objeet  in 
interposing  himself  between  the  va^  and 
his  own  superior ;  and  thus  rendering  it  neces- 
sary for  his  heirs  and  disponees  to  complete  a 
title  without  deriving  any  emolument  from 
the  sub-vassalage.     The  feu-holding  has  a 
reddendo,  as  it  is  called,  or  rent  in  money  or 
in  grain,  payable  yearly,  at  terms  specified; 
and,  besides  this  fixed  duty,  there  are  certain 
casualties,  as  non-entry,  relief,  escheat,  dis- 
clamation and  purpresture.    See  GatuaiUes. 
The  blench-holding  has  the  same  casualties, 
and  its  fixed  duties  (as  already  observed)  are 
an  elusory  annual  duty,  as  a  penny  money,  a 
hawk,  a  rose,  nomine  Mas firmce.     When  the 
words  ti  petatur  taniutn,  are  added,  it  is  held 
to  be  discharged,  if  not  demanded  within  the 
year ;  and  where  those  words  are  not  added, 
still,  if  the  duty  be  of  yearly  growth,  it  ought 
to  be  demanded  within  the  year ;  Ertk.  B.  ii. 
tit.  4,  §  1,  et  teq.    The  only  other  holding  is 
burgage,vhich  relates  to  pro^rty  within  borgb. 
See  Burgage.    Bank.  vol.  i.  p.  529,  ei  teq.; 
BdFs  Com.  i.  680,  et  teq.;  BdFs  Princ.  §  680; 
lUiut.  ib. ;  Bell  on  the  Purchaser's  Tide,  p.  36, 
et  seq.;  Ross's  Leet.  ii.  106,«<  seq.;  Memiet'  Leei 
p.  531.  As  to  the  distinction  between  base  and 
public  holdings  or  rights,  see  Base  Ri^Us.  C<m- 
Jirmation.    Consolidaiion.   Disposition.  (Sorter. 
Superiority.     Tenure,  and  authorities  tkereeiUd. 
Holiday.    See  Sundc^,    Arrest. 
Holograph  Deed.    A  holograph  deed  is  a 
deed  written  with  the  granter's  own  hand, 
which,  on  account  of  the  difficulty  with  which 
the  forgery  of  such  a  document  can  be  accom- 
plished, is  held  to  be  valid  in  law  withont 
witnesses.     Where  it  is  mentioned  in  the  deed 
to  have  been  written  by  the  grantor,  the  pre- 
sumption is,  that  the  deed  is  truly  hologr^h, 
though   the  contrary  may  be   proved;  bat 
where  the  deed  does  not  bear  to  have  been 
written  by  the  granter,  still  it  may  be  proved 
to  have  been  of  his  handwriting,  either  by  a 
comparison  of  the  handwriting,  or  by  the 
evidence  of  those  who  saw  it  written.   A 
holograph  deed  without  witnesses  does  not 
prove  the  date  that  may  be  given  to  it ;  where 
witnesses  attest  the  deed,  it  will  prove  its 
date,  because  the  evidence  of  witnesses  may 
be  resorted  to,  to  check  any  error  in  the  date. 
Holograph  missive  letters,   and  holograph 
bonds  and  subscriptions  in  connt  books,  if  not 
sued  on  within  twenty  years,  prescribe,  onlets 
the  pursuer  offer  to  prove,  by  the  defender's 
oath,  the  verity  of  such  writings ;  1669,  e.  9. 
Ersk.  B.  iii.  tit.  2,  §  22 ;  Stair,  B.  ii.  tit.  12, 
§  35,  and  B.  iv.  tit.  42,  §  6 ;  More's  Neks,  p. 

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cclxz.;  Ba)ik.  vol.  i.  p.  333;  vol.  ii.  p.  172; 
BdTi  Com.  i.  324,  329 ;  BeWt  Prine.  §§  20, 
590,  et  teq. ;  JlhsU  ib, ;  Dickson  on  Ev.  397, 
d  teq.;  Menzies'  Led.  p.  132  ;  Taifs  Law  of 
Evidence.     See  Deed,    Evidence. 

Holyroodhonse.    See  Sanctuary.    Abbey. 

Homi^nm ;  a  band  of  maDrent,  when  any 
penon  promises  to  serve  another  in  sik  sort, 
that  he  shall  be  friend  to  all  his  friends,  and 
he  to  all  his  faes,  against  all  deadly.  The 
following  eurious  style  may  be  quoted  from 
Skene,  de  Significatione  Verborum: — "  I  become 
zour  man,  my  liege  King,  in  land,  litb,  life, 
sod  limb,  wardlie  honour,  homage,  fealtie  and 
Uwzie,  against  all  that  live  and  die ;  zour 
counsel  1  conceilaud  that  ze  schaw  me;  the 
best  eonnsell  schawand,  gif  ye  charge  me ; 
zourskaith  and  dishonour  not  to  hear  and  see, 
bot  I  sail  let  it  all  my  gudlie  pover  and  warn 
zuo  theirof ;  swa  help  me  God."     Skene,  k.  t. 

Homicide ;  is  the  killing  of  any  human 
creature.  It  may  hejiutiJMle,  as  committed 
under  some  unavoidable  necessity;  or  excus- 
able, as  where  a  person  engaged  in  a  lawful 
set  is,  without  intention,  the  occasion  of  an- 
other's death  ;  or  It  may  be  culpable;  and  of 
this  there  are  several  kinds;  as  where,  al- 
though accidental,  it  has  proceeded  from  care- 
lessness, or  where  it  proceeds  from  an  unlawful 
set,  or  where  it  is  done  with  an  intention  to 
do  harm,  though  the  intention  does  not  amount 
to  that  of  killing  the  person  ;  or  where  the 
perion  intends  to  kill,  but  commits  the  act  on 
t  sudden,  from  resentment  excited  by  real 
ud  great  injuries,  but  without  any  previous 
malice  or  hatred  to  the  deceased ;  and,  last  of 
all,  where  the  homicide  is  committed  from 
maliee  and  forethought,  which  amounts  to  the 
crime  of  mnrder.  Hume,  vol.  i.  p.  189,  et 
uq.;  BdPt  Sup.;  Alison's  Prime.  146;  Steele, 
70.    See  Jft(r«{«r.    Chaud  Mdle. 

Homiiie  Befl^iaado;  in  English  law,  a 
writ  to  bail  a  man  out  of  prison.  Tomlint^ 
DicLh.  t. 

HomologatiOB;  is  a  technical  expression, 
signifying  an  act  by  which  a  person  approves 
of  a  deed ;  the  effect  of  such  approbatory  act 
being  to  render  that  deed,  though  itself  de- 
fective, binding  npon  the  person  by  whom  it 
is  homologated.  All  deeds,  informal  or  de- 
fective, may  be  homologated ;  that  is,  all  deeds 
expoaed  to  the  statutory  nullities  arising  from 
the  regulations  established  for  the  regular 
execution  of  deeds,  or  deeds  granted  by  a 
person  capable  of  consent,  though  the  deed  be 
defective  at  the  time  from  the  want  of  the 
consent  of  those  whose  concurrence  the  law 
reqnirer,  in  order  to  give  validity  to  the  deed ; 
as,  for  example,  a  deed  by  a  married  woman 
nithont  the  consent  of  her  husband,  or  by  a 
minor  without  the  consent  of  his  curators. 
And  in  general  any  irregular  or  informal  deed 


may  be  homologated  by  the  parties  after  they 
are  capable  by  themselves  of  executing  a 
deed ;  that  is,  by  the  woman  after  the  death 
of  her  husband,  or  by  the  minor  after  attain- 
ing majority,  or  by  the  party  entitled,  but 
for  the  homologation,  to  found  on  the  irregu- 
larity. Homologation  is  to  be  inferred  only 
from  an  act  which  clearly  and  expressly  im- 
plies a  knowledge  and  approbation  of  the  deed. 
Thus,  the  paying  of  interest,  or  the  perform- 
ing of  any  obligation  come  under  in  the  deed, 
will  be  accounted  homologation ;  but  an  act 
which  does  not  infer  a  knowledge  of  the  con- 
tents of  the  deed,  even  the  subscribing  as  a 
witness,  if  there  be  no  other  proof  of  the  per- 
son's knowledge  of  the  contents,  will  not  infer 
homologation ;  unless  the  person  so  signing 
as  witness  is  connected  in  such  a  way  with 
the  principal  parties  to  the  deed,  that  his 
approval  must  be  presumed.  Thus,  a  brother 
was,  by  signing  as  witness,  found  to  have 
homologated  his  sister's  marriage-contract,  to 
the  effect  of  preventing  him  from  reducing  a 
bond  therein  assigned.  The  effect  of  homolo- 
gation on  the  person  homologating  is  to  render 
the  deed  as  effectual  against  him  and  his  heirs 
as  if  it  had  been  a  formal  and  regular  deed 
from  the  first ;  but  against  third  parties,  who 
do  not  represent  the  person  homologating,  the 
deed  is  exposed  to  all  the  objections  originally 
competent  against  it.  EriJc.  B.  iii.  tit.  3,  § 
47,  et  sea.;  Stair,  B.  i.  tit.  10,  §  11 ;  B.  iv. 
tit.  40,  §  29;  More,  p.  Ixvii.;  Sandford  on 
Heritable  Succession,  i.  160 ;  TaiPs  Law  of  Evi- 
dence, p.  131,  et  seq.;  Didcson  on  Evid.,  441, 
et  seq.;  BeWs  Com.  i.  98,  144,  et  seq.;  li.  499, 
d  seq. ;  BelFs  Princ.  §  27  ;  Illust.  ib. ;  Bank.  i. 
p.  341 ;  Hamilton,  Bligh's  Appeal  Cases,  ii. 
197  ;  Thomson  on  Bills,  62, 199,  204. 

Honorarivin.  The  word  honorary,  in  the 
Roman  law,  was  applied  to  a  fee  not  paid  as 
a  remuneration  for  labour,  for  which  the 
labourer  could  exact  a  recompense;  but  rather 
as  a  species  of  present,  made  as  an  acknowledg- 
ment for  trouble  gratuitously  taken ;  and,  in 
an  acceptation  nearly  similar,  the  word  has 
been  adopted  in  our  law.  In  this  sense,  the 
fee  paid  to  a  law-agent,  a  physician,  or  a  sur- 
geon, is  not  an  honorary,  sbce  any  of  them 
may  maintain  action  for  its  recovery.  But 
the  fee  of  a  counsel  or  barrister  is  properly 
an  honorary,  because  he  cannot  sue  his  client 
for  payment.  It  is  true  that  it  has  been  de- 
cided, that  where  a  law-agent  has  received 
money  from  the  client  to  fee  counsel,  and  has 
not  paid  the  fees,  the  counsel  may  sue  the 
agent  for  the  money.  The  same  rule,  how- 
ever, would  apply  to  the  case  of  any  mere 
donation  transmitted  by  the  hands  of  a  third 
party,  and  not  duly  delivered  to  the  donee. 
According  to  one  authority,  the  word  honorary 
signifies  a  fee  paid  in  return  for  the  exercise 


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HON 


HOR 


of  the  mental  faculties,  in  contradistinction 
to  hire  in  contract  of  locatio  opens.  But  this 
distinction  is  not  well  grounded.  In  the 
special  case,  where  a  Scotch  advocate  agrees, 
for  a  certain  sum  to  go  to  London  to  attend 
an  appeal  to  the  Hoase  of  Lords,  he  becomes 
a  proper  locator  operis,  and  might  maintain 
an  action  for  the  stipulated  sum.  As  a  general 
rule,  the  fees  of  physicians  (except  during  the 
deathbed  sickness),  and  of  lawyers  are  pre- 
sumed to  have  been  paid.  More's  Notes  on 
Stair,  cxxiv. ;  BeWs  Com.  ii.  157  ;  Bell's  Princ. 
§  668 ;  niust.  ib. ;  Keay  v.  A.  B.,  7th  March 
1837, 15  S.  <t  D.  748.  See  also  Jurist,  ix.  353. 

Honour ;  Acceptance  for.    See  Acceptance. 

Honour ;  in  English  law,  a  noble  sort  of 
soignorie,  on  which  other  inferior  honours  or 
lordships  depend.     Totrdins'  Diet.  h.  t. 

Honours.  Honours,  or  titles  of  dignity, 
descend  to  the  series  of  heirs  pointed  out  by 
the  grant.  They  require  no  service,  but  vest 
jure  sanguinis,  and  by  the  mere  force  of  the 
grant.     See  Dignities. 

Homing,  Letters  of ;  are  letters  running 
in  the  Sovereign's  name,  and  passing  the 
Signet.  They  are  directed  to  messengers-at- 
arms,  as  sheriffs  in  that  part,  who  are  ordered 
to  charge  the  person  against  whom  the  letters 
are  directed,  to  pay  or  to  perform  in  terms  of 
the  will  of  the  letters,  which  must  be  con- 
sistent with  the  warrant  on  which  the  letters 
proceed.  The  warrant  on  which  letters  of 
horning  proceed  is  either  a  decree  of  the 
Court  of  Session,  or  the  decree  of  the  magis- 
trates of  burghs,  sheriffs,  stewards,  admirals, 
commissaries,  or  the  commission  of  tithes,  and, 
in  some  cases,  on  the  decrees  of  justices  of  the 
peace.  Decrees  of  registration  also  may  be 
the  warrant  of  letters  of  homing.  See  De- 
cree of  Registration.  But  where  the  decree, 
which  is  the  warrant  of  the  letters,  is  the  de- 
cree of  an  inferior  court,  a  bill  must  be  pre- 
sented to  the  BiU-Chamber  of  the  Court  of 
Session,  stating  the  nature  of  the  decree,  and 
the  terms  of  the  decemiture,  and  praying 
warrant  for  letters  of  homing  and -poinding. 
This  warrant  is  obtained  of  course ;  so  that, 
properly  speaking,  letters  of  horning  and 
poinding  pass  on  the  warrants  of  the  Court 
of  Session  only.  By  special  statute,  letters 
of  homing  are  authorised  to  pass  on  bills  of 
exchange,  the  protest  on  which  has  been  re- 
corded in  any  competent  court.  See  the 
nature  of  the  warrants  for  letters  of  homing 
more  fully  explained  under  the  articles,  Bilh 
of  Signet  Letters.  Bill-Chamber.  Diligence. 
See  also  Ex<Aequer  Homing.  Decree  conform. 
The  letters  of  horning  narrate  the  ground  of 
debt,  and  the  terms  of  the  decree  by  which 
the  judge  orders  payment  or  perfoimance  ; 
and  in  the  Will,  the  officers  are  ordered  to 
command  and  charge  the  debtor  to  pay  or 


perform  in  terms  of  the  warrant  stated  in  the 
recital,  within  a  certain  number  «f  dsja. 
Homings  on  decrees  proceed  on  a  ebarg«  of 
fifteen  days,  excepting  when  the  debtors  reside 
in  Orkney  or  Zetland,  in  which  case  the  daji 
of  charge  are  forty.  On  obligations,  whew 
the  clause  of  registration  specifies  the  nomber 
of  days,  the  number  specified  will  regulate 
this  matter ;  or,  should  no  number  be  meA- 
tioned,  the  days  of  charge  must  be  fifteen ; 
and  the  days  of  charge  on  letters  of  homing 
on  registered  protests  on  bills  of  exchange  »n 
six ;  1681,  c.  20,  and  1696,  c.  36.  See  M 
<^  Exchange,  Charge  on  Letters  of  Sorwn/}. 
In  virtue  of  the  will  of  the  letters,  the  debton 
are  charged  to  pay  or  perform,  under  the 
pain  of  rebellion,  and  m  being  put  to  the 
horn.  The  letters  also  contain  a  warrant  for 
poinding  the  effects  of  the  debtor,  and  apply- 
ing them  in  payment  of  the  debt,  and  for 
arresting  his  funds  and  effects.  These  letters 
must  be  expede  by  a  writer  to  the  Signet ; 
and  before  a  charge  can  be  given  on  them, 
they  must  be  impressed  with  the  Signet  For 
the  further  procedure  in  enforcing  obedience 
to  the  letters,  see  Poinding.  Dennnciatim. 
Caption.  Imprisonment.  Stair,  B.  ii.  tit.  3, 
§22,  and  tit.  4,  §  60 ;  B.  iv.  tit.  47,  §  7; 
Ersk.  B.  iv.  tit  3,  §  9;  BeO^s  Com.  i.  7;  ii. 
169,  et  seq.,  643,  et  seq.;  BdPt  Prine.  §  2396, 
et  seq. ;  Bank.  vol.  ii.  p.  643 ;  vol.  iii.  p.2,et 
seq.;  Thomson  on  Bills,  p.  676,  et  seq.;  Jurid. 
Styles,  2d  edit.  vol.  iii.  pp.  567,  et  seq.,  600, 
note,  et  seq.,  to  734, 985,  et  seq.;  Kames'  SqvUy, 
398;  Ross's  Led.  i.  237,  etseq.;  Alexmidei'i 
Abridg.  of  A.  S.  23, 146-8. 

Letters  of  homing  and  caption  were  until 
recently  the  only  form  of  enforcing  civil  de- 
crees by  imprisonment,  except  in  the  ease  of 
small  debt  decrees.  Although  they  may  still 
be  used,  they  are  now  superseded  by  ihe 
forms  of  enforcing  decrees  provided  by  1  and 
2  Vict.,  c.  114.  See  Execution  of  Decries. 
M'Glashan's  Sheriff-Court  Prac.,  152. 

Horses.  By  the  law  of  England  the  wv- 
ranty  requires  to  be  express;  but  in  Scotland, 
where  a  horse  was  sold  at  a  full  value,  there 
was  formerly  implied  warrandice  that  he  wis 
sound.  This  difi'erence  in  the  laws  of  the 
two  countries  has  been  removed  by  the  Her^ 
cantile  Amendment  Act,  19  and  20  Viet.,  c. 
60  (1866),  which  enacts  that  a  seller  sh&Il 
not  be  held  to  warrant  goods,  unless  he  shall 
have  given  an -express  warranty  of  the  qua- 
lity or  sufficiency  of  the  goods  sold,  or  onlas 
the  goods  have  been  expressly  sold  for  a 
special  and  particular  purpose,  in  which  ease 
the  seller  is  considered  without  an  express 
warranty  to  wan-ant  that  the  goods  are  fit  for 
the  purpose  for  which  they  were  sold.  Under 
the  term  "  goods"  animals  are  comprehend- 
ed ;  Young  v.  Giffen,  Dec.  4,  1858,  21  D.  87. 

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It  is  often  a  question  of  difficulty  what 
constitutes  unsonndness.  A  warranty  seems, 
however,  to  comprehend  all  constitutional 
diseases,  and  all  accidental  injuries  affecting 
the  life  of  the  horse ;  all  diseases  and  accidents 
indaeing  lameness  or  throwing  the  horse  pre- 
matarely  oat  of  work ;  all  defects  or  bad 
habits,  indicating  a  disease  amounting  to  un- 
sonndness. There  is  much  difference  of  opi- 
nion whether  the  warranty  is  contravened  by 
ianlts  of  a  slighter  nature,  or  temporary  in 
their  continuance.  Bad  corns  have  been  held 
nnsonndness ;  also  running  thrush ;  roaring, 
when  it  proceeds  from  organic  defect,  but  not 
when  it  has  been  occasioned  by  neglect  in  the 
bringing  up.  Under  a  warranty  that  a  horse 
was  free  from  fault,  the  Court  found  the  buyer 
entitled  to  repetition  of  the  price,  it  being 
proved  that  the  horse  was  a  crib-biter  and 
wind-sucker;  but,  in  an  English  court,  it 
was  held  that  crib-biting  is  not  included  in 
a  general  warranty.  It  has  been  held  in 
England,  that  a  seller's  general  warranty  was 
Bot  contravened,  on  its  turning  out  that  the 
horse's  age  was  greater  than  that  sot  down 
in  the  pedigree,  it  being  shown  that  the  seller 
received  that  pedigree  when  he  bought  the 
horse,  and  that  he  had  no  other  means  of 
aseertainingits  age.  Faults  in  temper,  steadi- 
ness, courage,  utility,  &c.,  which,  however 
important,  do  not  amount  to  unsoundness, 
most  be  guarded  against  by  express  stipula- 
tion ;  and  it  is  a  question  of  evidence,  whether 
soeh  engagement  has  been  undertaken,  and 
how  far  it  has  been  complied  with.  The  ex- 
press stipulation  rules  the  decision.  A  horse, 
in  which  a  defect,  struck  at  by  the  seller's 
engagement,  has  been  discovered,  must  be 
returned  immediately,  or  as  soon  as  the  fault 
is  discovered ;  but  effect  wUl  be  given  to  a 
stipulation  limiting  the  time  within  which, 
if  objected  to,  the  horse  must  be  returned. 
Snum  on  Sale,  286-90 ;  Bell's  Prine.  §  129 ; 
lUutt.  ib.  The  duty  on  horses  is  regulated 
by  the  act  16  and  17  Vict.,  c.  90,  1863.  See 
Warrandice. 

Horse-Baoiag.  See  13  Geo.  II.,  c.  19 ;  18 
Geo.  II.,  c.  34,  §  2 ;  3  and  4  Viet.,  c.  6;  8 
and  9  Vict.,  e.  109. 

Houghing  of  Cattle.  This  offence  is,  by 
1606,  e.  5,  punishable  as  theft,  and  with 
death;  Hume,i.  121. 

Houndfl.    See  Dogs. 

House  oi  CommonB.    See  Gommons,  House 

Homes.  The  act  1663,  c.  6,  provides,  that 
ruinous  houses  within  burgh,  which  have 
been  uninhabited  for  the  space  of  three  years, 
maybe  rebuilt;  and,  with  this  view,  the  ma- 
gistrates are  directed  to  warn  the  proprie- 
tors to  rebuild,  within  a  year;  and  if  the 
proprietors  fail  to  comply,  the  houses  are  to 


be  valued  and  to  be  put  up  to  sale,  and  the 
price  which  they  bring,  after  deducting  ex- 
penses, is  directed  to  be  given  to  the  proprie- 
tors. If  no  purchasers  appear,  the  magis- 
trates may  rebuild  them,  on  consigning  the 
appraised  value  for  the  use  of  the  proprie- 
tors. The  case  of  liferenters  of  lands  within 
burgh,  who  decline  to  repair  the  houses  life- 
rented  by  them,  is  provided  for  by  the  act 
1594,  c.  226,  which  dedares,  that  the  magis- 
trates "  sail,  at  the  instance  of  the  heritoures 
of  the  landes  within  the  samin,  upon  citation 
of  the  partie,  take  summar  cognition  of  the 
estaite  of  the  landes,  houses,  or  tenen!ient8 
within  the  burgh,  be  ane  condigne  inquest  of 
the  nichtboures  thereof;  and  gif  the  samin 
be  found  aulde,  decayed  and  ruinous  in  ruife, 
sclaites,  dures,  windowes,  fluiring,  loftis,  tim- 
mer-work  and  walles,  or  onie  of  them,  and 
ane  land  biggit  of  aulde,  and  throw  longtime 
decayed,  in  sik  sort  that  it  be  already  unha- 
bitable, or  that  within  short  time  may  be- 
come unhabitable,  in  that  case  to  deceiiie 
that  the  conjunct  fiar  or  liferenter  sail  re- 
pair the  said  landes  and  tenements  in  the 
partes  thereof  decayed,  as  sail  be  found  be  the 
said  inquest,  within  the  space  of  zeire  and 
day  nixt  after  they  be  required  thereto  be  the 
heritours ;  and  failzing  thereof,  declaires  that 
it  sail  be  frie  to  the  said  heritour  to  enter  to 
the  possession  of  the  same,  to  have  the  set- 
ting, raising,  using,  and  disponing  thereupou 
in  all  time  cumming,  as  gif  there  war  no  life- 
rent or  conjunct  fee  standing  thairof :  Pro- 
viding alwaies,  that  sufBcient  security  in  the 
burgh  quhair  the  landes  or  tenementes  lyes, 
be  tane  for  termlie  payment  to  the  conjunct 
fiars  or  liferenters  theirof,  enduring  their 
lifetime,  of  sic  mail  and  dewtie  as  the  samine 
presentlie  gives  the  time  of  the  said  cognition, 
or  might  reasonably  give  on  that  estaite,  iu 
case  it  be  not  presentlie  set,  deducand  alwaies 
the  annuales  and  uther  burding  lyand  their- 
upon,  and  this  to  be  extended  to  all  burnt 
and  waist  lands,  and  against  all  conjunct 
fiars  present  and  to  cum  within  buvgh." 
BdPs  Com.  i.  750  ;  Ross's  Led.  ii.  497,  505. 
See  Jedge  and  Warrant.  Edinburgh.  For  the 
law  as  to  agricultural  houses,  see  Fences. 
Fixtures.  Meliorations.  Also  Bat/ne,  Don's 
App.  Cases,  iii.  233. 

Eonsebreakiiig ;  is  the  worst  aggravation 
of  theft.  It  is  committed,  if  the  natural  se- 
curity of  the  house  has  been  overcome,  al- 
though it  may  not  have  been  broken  or  for- 
ced open  ;  but  it  is  not  committed  when  the 
thief  enters  in  consequence  of  some  of  the  se- 
curities being  removed ;  as,  if  he  should  en- 
ter by  an  open  window,  so  close  to  the  ground 
that  he  did  not  require  to  climb  or  to  receive 
external  assistance,  or  by  a  door  standing  on 
the  latch,    ^here  the  entry  is  effected  by 

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HUS 


concert  or  connivance  with  a  servant  or  other 
person  within,  the  crime  is  housebreaking  in 
all  concerned.  Every  dwelling-house,  how- 
ever mean  and  fragile,  and  every  shut  and 
fast  building,  though  not  a  dwelling-house,  as 
a  counting-house,  a  dairy,  a  stable,  a  school- 
house,  &e.,  is  protected  by  the  law  against 
housebreaking.  Housebreaking,  with  intent 
to  steal,  is  an  indictable  offence.  Theft  by 
housebreaking  is  capital;  but  the  punish- 
ment is  now  often  mitigated.  Uunfe,  i.  98, 
et  teq.;  Alison's  Princ.  282;  Burnett,  136; 
Steele,  120.     See  Theft. 

Housebreaking,  with  intent  to  break  into 
and  steal  from  an  adjoining  house,  is  a  rele- 
vant charge,  apart  from  actual  theft.  ITtom- 
son,  1845,  2  Br,  389 ;  See  also  Forbes,  1845, 
2  Br.  461.  Raising  the  sash  of  a  window, 
left  partially  open  for  air,  and  thereby  effect- 
ing a  sufficient  entrance  to  enable  the  party 
with  a  stick  to  move  articles  of  dress  within^ 
has  been  held  to  amount  to  theft,  aggravated 
by  housebreaking ;  (yNeil,  1846,  2  Br.  394. 
Entrance  by  false  keys,  or  even  by  the  true 
key  entrusted  to  the  party  for  a  special  and 
different  purpose,  amounts  to  hoasebreaking. 
Duncan,  1849 ;  /.  Shaw,  225  ;  Farquharson, 
1854,  Irv.  512.  See  also  the  following  re- 
cent cases  as  to  housebreaking.  Ross,  1842, 
1  Br.  294 ;  Rose,  1842 ;  1  Br.  437  ;  Mackeun 
tie,  1845,  2  Br.  669. 

HoiiM-B«nti;  suffer  a  triennial  prescrip- 
tion by  the  act  1579,  c.  83.  Under  this  act, 
house-rents,  after  three  years,  prescribe,  and 
each  year's  rent  runs  a  separate  coarse  of 
prescription.  A  demand,  therefore,  for  house- 
rents  is  restricted  to  the  three  years  immedi- 
ately preceding  the  citation.  Ersk.  B.  iii. 
tit.  7,  §  17 ;  Stair,  B.  ii.  tit.  12,  §  30  ;  More's 
Notes,  p.  cclxxiv..  Bank.  vol.  ii.  p.  103.  See 
Prescription. 

Hue  and  Cry ;  in  English  law,  is  the  pro- 
cedure taken  by  a  person  robbed  or  other- 
wise injured,  to  pursue  and  get  possession  of 
the  culprit's  person.  At  common  law,  a  pri- 
vate person  who  has  been  robbed,  or  who 
knows  that  a  felony  has  been  committed,  is 
bound  to  raise  hue  and  cry  under  pain  of  fine 
and  imprisonment.  The  regular  mode  of 
raising  hue  and  cry  is,  for  the  party  to  go  to 
the  constable  of  the  next  town  and  declare 
the  fact,  and  describe  the  offender  and  the 
way  he  is  gone,  on  which  the  constable  raises 
the  town  and  searches  for  the  offender.  If  he 
does  not  find  him,  he  sends  the  like  notice  to 
the  constables  of  the  neighbouring  towns. 
Tomlin^  Diet.  h.  t. 

Haennm ;  Hoyestum ;  from  the  French,  a 
cry  formerly  used  in  proclamations,  inviting 
the  attention  of  the  people.  Skene,  h.  t.  See 
Oi/ess. 

Hundred ;  in  England,  a  part  or  division 


of  a  shire.  Anciently  the  hundred  was  lia- 
ble to  make  compensation  in  cases  of  robbery, 
maiming  cattle,  burning  stacks,  destroying 
trees,  &o. ;  but  this  responsibility  is  now,  by 
7  and  8  Geo.  lY.,  c  31,  restricted  to  damage 
occasioned  to  certain  kinds  of  property  by 
riotous  and  tumultuous  assemblages.  7«m- 
limi'  Diet.,  h.  t. 

Himting^.    See  Game  Laws. 

Hnaband.  The  relationship  formed  by 
marriage  gives  to  the  husband  certain  rights. 
The  property  which  forms  the  goods  in  com- 
munion, and  which  consists  of  moveables  only, 
is  under  the  administration  of  the  husband. 
A  personal  bond  bearing  interest,  is  not  in- 
cluded under  the  goods  in  communion.  Bnt 
the  yearly  interest  of  personal  bonds,  or  even 
the  interest  of  heritable  bonds,  or  rents  of 
land,  form  part  of  the  goods  in  communion ; 
and  in  virtue  of  this  right,  the  husband  is 
entitled  not  only  to  sell  and  dispose  of  the 
goods  in  communion,  but  they  are  subject  to 
attachment  for  his  debts;  and  should  those 
goods  not  be  recovered,  or  even  known  to  have 
existed  during  the  marriage,  yet  they  may 
be  recovered  by  the  husband  or  by  his  heirs. 
This  right  of  administration  is  called  tbe^ 
mariti ;  bnt  it  may  be  renounced,  as  to  a  spe- 
cial subject,  by  the  husband  in  an  antenuptial 
contract  of  marriage  ;  or  it  may  be  excluded 
by  a  stranger,  in  regard  to  an  estate  con- 
veyed by  him  to  the  wife.  See  Cim/roct  ^ 
Marriage.  Jus  Mariti.  From  this  right  of  ad- 
ministration are  excluded  paraphernal  goods, 
nnder  which  are  included  the  wife's  body 
clothes  and  ornaments,  and  presents  made 
before  or  on  the  marriage-day ;  but  dona- 
tions daring  the  subsistence  of  the  marriage 
may  be  resumed  by  the  husband,  and  there- 
fore are  not  excluded  from  his  control.  See 
Donatio  inter  virvm  et  uxorem.  It  is  a  neces- 
sary consequence  of  this  right  in  the  estate 
and  effects  of  the  wife,  that  the  husband  should 
be  liable  for  the  debts  of  the  wife ;  for  all 
those  at  least  which,  had  they  been  dne  to, 
instead  of  by,  her,  would  have  fallen  to  him 
under  hisjM  mariti.  But  he  is  liable  only 
as  her  administrator ;  and  if  the  marriage  be 
dissolved  by  her  death,  it  is  against  her  estate 
and  her  representatives  that  her  creditors 
must  proceed  to  recover  their  debt«,  except- 
ing in  so  far  as  the  estate  and  effects  of  the 
husband  have  been  completely  attached  by 
legal  diligence  for  the  wife's  debts  dnring  the 
existence  of  the  marriage.  The  imprison- 
ment of  the  husband  for  the  proper  debt  of 
the  wife  will  not  be  continued  after  her  death. 
There  is  only  one  circumstance,  besides  tiiat 
of  an  effectual  legal  attachment  of  the  hiu- 
band's  estate,  which  can  continue  the  obliga- 
tion against  him,  and  that  is  his  being  I*- 
cratus,  or  a  gainer  by  the  marriage;  bnt  a 

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reatooable  tocher  is  not,  in  tbis  case,  held  to 
U  %  gain  sufficient  to  subject  him  to  this  bur- 
den. Tke  whole  moreable  property  of  the 
wife  during  the  marriage  is  nnder  the  ma- 
Bigement  and  at  the  disposal  of  the  husband, 
not  only  her  moveable  estate,  as  already  ex- 
plained, but  the  interest  of  bonds  dne  to  her 
sod  the  rents  of  her  heritable  estate ;  and  he 
bas  farther  a  control  over  her  person ;  she 
sets  by  his  consent ;  he  becomes  her  curator ; 
and  no  suit  can  be  carried  on  at  her  in- 
stance, nor  can  she  be  sued  without  his  being 
made  a  party  to  the  action.  But  this  cura- 
tory differs  from  common  curatory  in  this, 
tiiat  the  husband  may  receive  donations  from 
the  wife ;  and  a  deed  by  a  husband  and  wife 
is  not  reducible  on  the  head  of  lesion,  as  a 
deed  by  a  minor  and  his  curator  is.  See  Gura- 
ioty.  Unsbands  are,  by  the  Reform  Act, 
as  they  were  by  the  old  law,  entitled  to  rote 
in  the  dection  of  a  member  of  Parliament, 
in  respect  of  property  belonging  to  their 
vires,  or  poesessed  after  the  death  of  their 
wires,  by  the  right  of  courtesy ;  2  Will.  IV., 
e.65,  5§  6  and  11 ;  Chambers'  Election  Law, 
i.  I ;  Cmndl  m  Election  Lam,  152, 187.  See 
R^om  Act.  The  hnsband  may  recover  the 
penon  of  his  wife  from  all  that  pretend  to 
withhold  her  from  him.  She  is  not  liable  to 
personal  diligence,  unless  for  enforcing  the 
performance  of  acts  within  her  power,  and 
which  she  is  personally  bound  to  perform. 
See  Enk.  B.  i.  tit.  6,  §  13,  et  teq.;  Stair,  B.  i. 
tit  4;  Mor«^B  Notet,  p.  xiii.  et  $eq.;  Bank. 
ToL  L  p.  124,  ei  uq.,  127,  261 ;  Thornton  on 
Ml,  206 ;  Kama'  Stat  Lam  Ahridg.  h.  t. ; 
Bdft  Con.  i.  56,  et  teq.,  632,  et  teq. ;  Befft 
Prmc  3d  edit.  §§  948,  1224,  et  teq.  For  a 
ftrther  explanation  of  the  rights  created  by 
narriage,  see  the  articles.  Wife.  Marriage. 
Goeit  tn  Conmunion.  Jus  Mariti.  Jus  Re- 
Udce.  Teree.  Courtety.  Contract  of  Marriage. 
LtfUim;  also  Fratti's  Rd. 

Euhandland ;  contains  commonly  six  acres 
of  sok  and  syith  land — i.e.,  of  such  land  as  may 
be  tilled  with  a  plough  or  may  be  mowed  with 
a  icrthe.     Sifcene,  h.  L 

Hypothec ;  is  a  security  established  by  law 
in  &ronr  of  a  creditor  over  a  subject  belong- 
ing to  his  debtor,  while  the  subject  continues 
in  the  debtor's  possession.  The  Roman  law 
recognised  many  hypothecs  orer  moveables; 
but  the  law  of  Scotland,  having  regard  to  the 
inexpediency  of  such  liens  in  a  commercial  and 
tnMiing  country,  admits  of  but  few  hypothecs. 
Hypothec  may  be  considered  as  either  Bypo- 
mifvr  Rents,  or  Maritime  Hypothec. 

Bypotheefor  rents. — The  landlord's  hypo- 
thec over  the  crop  and  stocking  of  his  tenant 
is  a  tacit  legal  hypothec,  existing  indepen- 
dently of  any  special  agreement  or  stipulation 
between  the  landlord  and  tenant.    It  gives  a 


security  to  the  landlord  over  the  crop  of  each 
year  for  the  rent  of  that  year,  and  over  the 
cattle  and  stocking  on  the  farm  for  the  cur- 
rent year's  rent;  which  last  may  be  made 
effectual  at  any  time  within  three  months 
after  the  last  conrentional  term  of  payment 
of  the  rent.  1.  Hypothec  over  the  crop. — The 
rule  in  regard  to  the  crop  is,  that  each  crop, 
BO  long  as  extant,  and  the  property  of  the 
tenant,  is  hypothecated  to  the  landlord  for 
the  rent  of  that  year  of  which  it  is  the  crop, 
although  the  landlord  should  delay  to  exer- 
cise his  right  for  years.  But  the  crop  of  the 
current  year  cannot  be  hypothecated  for  the 
rent  of  the  preceding  year ;  although  all  the 
com  on  the  farm  at  that  time  may  be  retained 
as  a  security  to  the  landlord  for  the  rent  of 
the  current  crop.  This  right  of  hypothec  is 
necessarily  attended  with  a  right  of  retention, 
since,  without  this  right,  it  would  be  of  little 
value.  Previous  to  the  term  of  payment  of 
the  rent,  the  landlord  is  entitled  to  demand 
from  a  poinding  creditor  either  consignation 
of  the  rent,  or  caution  that  it  shall  be  paid. 
After  the  term  of  payment,  he  can  insist  for 
no  moi'e  than  that  enough  of  the  crop  be  left 
to  answer  his  right  of  hypothec.  He  is  en- 
titled de  recenti  to  vindicate  the  com  grown 
on  the  farm,  even  against  bona  fide  purchasers, 
unless  sold  in  bulk  in  public  market.  See 
the  case  of  the  Earl  of  Dalhoutie  v.  Dunlop  A 
Co.,  Feb.  27,,  1828,  6  S.  626 ;  Affirmed  in 
the  House  of  Lords,  Dec.  7,  1830,  4W<t  S, 
420.  There  is  no  such  right  of  vindication 
against  the  purchasers  of  stocking.  2.  The 
cattle  and  ttocking  on  the  farm. — The  cattle  dif- 
fer from  the  crop  in  this  respect,  that  they 
stand  hypothecated  for  the  current  year's  rent 
only ;  and  as  some  time  after  the  term  of  the 
payment  of  the  rent  must  be  allowed  for  ren- 
dering this  right  effectual,  practice  has  al- 
lowed three  months  after  the  last  conventional 
term  of  payment  for  that  purpose.  Where 
the  cattle  have  been  carried  off  within  that 
period,  the  landlord  must  bring  his  action 
against  the  poinder  before  the  expiration  of 
the  three  months,  in  order  to  preserve  his 
right  of  hypothec.  It  is  proper  to  observe, 
however,  that  this  right  of  hypothec  over 
cattle  is  general  over  the  whole,  and  does  not 
prevent  the  sale  of  one  or  more  of  a  stock  for 
a  fair  price,  unless  the  landlord  has  attached 
the  cattle  by  a  sequestration,  which  has  the 
effect  of  giving  the  landlord  a  lien  over  each 
of  them.  But  although  the  sale  of  the  cattle 
is  not  prohibited  prior  to  a  sequestration  of 
the  stocking,  the  landlord's  right  of  hypothec 
over  the  cattle  is  sufficient,  without  sequestra- 
tion, to  prevent  a  creditor  from  poinding  them 
during  the  currency  of  the  period  for  which 
the  hypothec  remains,  that  is,  until  the  expi- 
ration of  the  three  months  after  the  last  con- 


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ventional  term  of  payment.  Wbere  lands 
are  Bubaot,  the  right  of  hypothec  will  be  af- 
fected by  the  situation  of  the  subtenant.  If 
there  has  been  a  power  giren  to  subset,  or  if 
the  landlord  has  known  of  the  subset,  a  pay- 
ment by  the  subtenant,  at  the  proper  term  of 
payment,  to  the  principal  tenant,  will  free  the 
crop  from  the  claim  of  the  landlord,  provided 
the  subtenant  has  not  been  legally  Interpelled 
by  the  landlord  from  making  payment.  Un- 
less, however,  the  subtenant  stand  in  this 
favourable  situation,  there  is  a  great  chance 
that  he  may  be  forced  to  pay  over  again  ;  that 
is,  that  his  crop  may  stand  hypothecated  for 
the  rent  due  by  the  principal  tenant ;  Ersk. 
B.  ii.  tit.  6,  §  56,  et  seq.  See  also  Bell  on 
Leates,  vol.  i.  p.  360,  et  teq.  3.  Hypothec  on 
the  invecta  et  iU*ta. — This  is  an  hypothec  com- 
petent over  furniture,  for  house-rents,  and 
over  the  goods  in  shops,  and  the  instruments 
of  manufacture  necessary  for  the  different 
branches  of  business  carried  on  in  mills,  ware- 
houses, &c.  This  hypothec  is  necessarily  gene- 
ral, and  must  be  made  special  by  a  sequestra- 
tion. All  purchases  in  a  shop  may  be  safely 
paid  for  by  the  purchaser,  without  any  risk 
of  a  claim  of  restitution,  or  of  the  purchaser's 
being  made  liable  to  pay  the  price  a  second 
time ;  Mnk.  ib.  §  64;  Bell  on  Leases,  vol.  i. 
p.  387,  in  note.  It  is  still  an  open  question, 
whether  the  landlord's  hypothec  extends  over 
an  agricultural  tenant's  furniture.  A  cau- 
tioner for  rent  may,  on  paying  the  rent  to  the 
landlord,  insist  for  an  assignation  to  the  hy- 
pothec But  the  landlord  will  not  lose  his 
recourse  on  the  cautioner  by  neglecting  to 
enforce  his  hypothec.  The  landlord  is  not 
entitled  to  a  preference  over  the  superior 
claiming  his  feu-duties,  nor  over  farm-ser- 
vants' wages,  nor  over  funeral  expenses,  nor 
over  the  Crown.  See  Crown  Debt*.  Privileged 
DAU. 

2.  Maritime  hypothec. — The  seamen  have  a 
tacit  hypothec,  in  security  of  their  wages,  over 
the  freight  due  to  the  owners  of  the  ship. 
They  have  also  a  hypothec  over  the  ship  itself, 
or  rather  a  lien  or  jus  retinendi  et  insistendi 
in  relation  to  it,  in  virtue  of  which,  although 
the  seaman  may  lose  his  personal  action  if 
the  owners  earn  no  freight,  he  will  have  his 
claim  against  the  ship  to  her  last  plank.  The 
shipowner  has  a  tacit  hypothec  over  the  cargo 
for  the  freight  of  that  cargo.  And  there  is 
likewise  a  hypothec  to  freighters,  which  gives 
security  over  the  ship  to  the  owners  of  the 
goods,  for  loss  by  improper  interruption  of  the 
voyage;  or  for  damage  done  by  improper 
stowage,  &e.  There  is  no  hypothec  for  the 
price  of  a  ship  ;  but  the  repairers  of  a  ship 
have  an  hypothec  over  the  ship  for  the  repairs. 
This,  however,  has  latterly  been  confined  to 
such  repairs  as  have  been  made  in  a  foreign 


port;  July  29, 1788,  Hamiiton;  Affirmi,  m 
Appeal;  Enk.  B.  iii.  tit.  1,  §  34.  See  a)«> 
Bond  of  Bottomry.    Bond  cf  Respoftideiii^ 

3.  AgenXt  Hypothec. — The  right  which  a 
law-agent  has  to  retain  his  employer's  writs 
and  title-deeds,  in  security  of  his  profeadoiul 
account,  is  sometimes,  although  incorrectly, 
called  a  right  of  hypothec  It  is  more  pro- 
perly a  mere  right  of  retention,  or  general 
lien,  depending  upon  the  possession  of  the 
writs  retained.  This  right  does  not  entitle 
the  agent  to  retain,  in  security  of  advances 
unconnected  with  the  particular  employment 
in  which  he  has  been  engaged.  But,  even  as 
so  limited,  the  right  has  been  carried  so  far  ae, 
in  the  opinion  of  some  lawyers,  nnduly  to  en- 
croach on  real  rights  constituted  in  favour  of 
parties  who  have  trusted  to  the  records.  A 
country  agent's  right  of  hypothec  on  his  em- 
ployer's title-deeds,  covers  the  account  of  the 
Edinburgh  agent  employed  by  him  for  his 
client ;  WaUcer  v.  PWn,  8th  June  1831,  9  & 
A  D.  691.  In  another  case,  the  creditors  of 
an  ancestor,  holding  heritable  bonds  with 
powers  of  sale,  and  a  law-agent  holding  the 
title-deeds  hypothecated,  having  offered  to  the 
trustee  on  the  bankrupt  estate  of  the  heir 
(who  had  made  up  no  title),  to  give  him  either 
full  inspection  of  the  title-deeds,  or  actual  de- 
livery of  them,  on  payment  or  caution  for 
their  debts,  were  found  not  bound  to  deliver 
them  up  on  any  other  condition ;  Ddbie  v. 
Scales,  May  19, 1831,  9  S.  <t  D.  609.  This 
right  of  retention  does  not  stop  prescription 
of  the  debt  in  security  of  which  it  is  exercised. 
See,  on  this  subject,  BeWs  Com.  ii.  35,  «( teq. 
A  right  more  properly  of  the  nature  of  hypo- 
thec, is  the  preference  which  a  law-agent  en- 
joys for  the  costs  of  suit,  over  the  costs  re- 
covered by  his  client  from  the  adverse  party. 
This  is  a  right  which  does  not  depend  on  the 
agent's  possession  of  the  document  of  debt,  or 
of  the  decree.  This  preference  does  not  ex- 
tend over  the  principal  debt  decerned  for  in  a 
decree  in  favour  of  the  client,  as  to  which 
the  agent  is  in  no  better  situation  than  aa 
ordinary  creditor.  See,  on  hypothec  gene- 
rally, Stair,  B.  i.  tit.  13,  and  B.  iv.  tit  25 ; 
Move's  Notes,  p.  Ixxx.  et  seq.;  Brodu^s  Supp. 
963 ;  BoMtk.  vol.  i.  p.  386,  et  teq.;  BeWt  Com. 
ii.  25,  et  seq. ;  39,  et  seq. ;  i.  513,  525,  «l  seq. ; 
BeWs  Priiic.  §  1233,  et  teq. ;  701, 1385,  et  seq. ; 
lUust.  §  1388,  et  seq.;  698,  1233, 1275;  Bdl 
on  Leases,  i.  360,  et  seq. ;  Hunter's  Landlord 
and  Tenant,  An  unsuccessful  party  cannot 
plead  compensation  against  a  decree  for  ex- 
penses to  the  prejudice  of  the  agent  of  the 
successful  party,  Millar  v.  Glass,  June  22, 
1848,  10  D.  1384;  Bain  v.  Wothtrspoon, 
Dec.  12,  1850,  13  D.  305 ;  Ross's  Lett.  i. 
460 ;  ii.  420.  See  Expenses.  Lien.  Rttw- 
tion.    Pledge. 

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An  agent  is  not  entitled  to  an  hypothec  over 
titles  of  an  heritable  property  belonging  to 
his  client,  for  basiness  accounts  as  against  a 
prior  creditor  holding  a  bond  over  the  pro- 
perty, if  the  titles  did  not  come  into  his  pos- 
session nntU  after  the  agency  had  closed,  and 
not  in  the  coarse  of  his  employment  as  agent, 
Rmny  v.  Myles,  Feb.  8, 1847, 9  D.  619.  Lord 
Maoxenzie  olierTed  :  "A  right  of  hypothec 
is  against  the  general  principles  of  our  law. 
It  is  a  special  rale  of  law  against  the  general 
rale  of  law.  I  sustain  the  right  as  far  as  it 
has  gone  in  practice.  It  has  gone  a  great 
way  already,  and  I  am  nnable  to  go  farther. 
I  ioiow  of  no  case  where  delivery  was  made 
after  the  business  was  ended.  It  would  come 
to  a  violation  of  another  principle,  If  we  were 
bat  to  allow  this.  No  man  can  be  allowed  to 
give  a  preference  to  one  creditor  over  another, 
at  his  own  will  and  pleasure.  Retaining  his 
tides,  his  agent  comes  and  says,  '  You  have  it 


in  year  power  to  give  me  a  preference,  I  have 
it  not  at  present,  bat  you  may  give  it  me,  and 
I  pray  you  to  do  it.'  Does  our  law  admit  a 
proceeding  of  that  sort,  by  which  a  debtor 
can  pick  and  choose  among  his  creditors  at 
his  pleasure.  I  cannot  sanction  anything  so 
unusual,  without  seeing  it  supported  by  clear 
practice  indeed."  Lokd  FuiiLBBTon, — "  It 
has  been  found  that  the  lien  or  pledge  is  avail- 
able in  favour  of  agents,  even  against  herit- 
able creditors.  That  was  going  far,  but  it 
is  fixed  by  repeated  decisions.  It  is  also  fixed, 
that  the  lien  is  available  even  in  regard  to 
parts  of  the  accounts  due  before  the  title-deeds 
were  put  into  the  agent's  hands.  But  then, 
there  was  no  question  about  the  fact  of  the 
agent  being  agent  at  the  time  when  the  de- 
posit was  made."  See  also  the  case  of  Mwr- 
dock  v.  Mentia,  15th  Dec.  1841,  4  D.  257. 
and  the  case  of  Qrcuf  v.  Warirop't  TrutUu, 
May  21, 1851, 13  D.  963. 


Idiots.  An  idiot,  or  fatuous  person,  is  one 
"  entirely  deprived  of  the  faculty  of  reason, 
having  an  uniform  stupidity  and  inattention  in 
bis  mumer,  and  a  childishness  in  his  speech, 
which  distinguishes  him  from  other  men." 
This  state  is  to  be  ascertained  by  the  verdict 
of  an  inquest,  on  a  brieve  directed  to  the  judge- 
ordmary  of  the  bounds  within  which  the  per- 
son resides.  There  are  two  heads  in  this 
brieve ;  the  first  relates  to  the  state  of  the 
person — the  second  to  the  nearest  male  agnate. 
On  the  first  head,  it  is  not  only  necessary  to 
inquire  into  the  state  of  the  person  at  the  time 
of  the  inquest,  but  how  long  he  has  been  in 
that  state ;  for  the  act  1475,  &  66,  provides 
that  no  alienation  made  by  the  person  after 
the  time  fixed  on  by  the  inquest  as  the  com- 
mencement of  the  distemper  shall  be  valid. 
In  this  inquest  it  is  necessary  to  produce  the 
person  to  the  jury,  that  they  may  judge  of  his 
condition ;  the  date  of  the  commencement,  as 
well  as  the  endurance  of  the  disease,  will  be 
proved  by  the  evidence  of  witnesses  examined 
before  the  jury.  Under  the  second  head  of 
the  brieve,  the  jury  is  required  to  ascertain 
who  is  the  nearest  male  agnate,  of  twenty-five 
years  of  age.  The  powers  of  the  curator  to 
an  idiot  are  the  same  as  those  of  tutors  to 
popils;  and  the  curatory  expires  either  by  the 
death  of  the  person  cognosced,  or  by  his  re- 
covering ;  the  latter  event  being  ascertained 
by  a  declaratory  judgment  of  the  Court.  The 
Meves  for  cognosciDg  an  idiot  or  a  furious 
person  are  nearly  similar.  They  differ  in  the 
description  of  the  circumstances  into  which 
the  jury  are  to  inquire.  The  question  for  the 
2b 


inquest  in  the  brieve  of  idiotry  is  thus  expressed. 
Si  lit  incompos  mentis,  fatuug  et  naturaliter 
idiota.  The  brieve  of  furiosity  is  expressed  in 
these  terms  :  Si  tit  incompos  mmtis,  prodigus, 
etfuriosue,  viz.  qui  nee  t«mpus,  nee  modum  im- 
pensarum  h«het,  sed  bona  dilaeerando  profundit. 
Where  there  is  any  doubt  as  to  the  proper  cha- 
racter of  the  infirmity,  brieves  of  both  kinds 
may  be  taken  out,  and  claims  given  in  to  the 
jury  on  both,  so  as  to  enable  the  jury  to  adapt 
their  verdict  to  the  one  or  to  the  other,  ac- 
cording to  circumstances ;  and  the  brieve  to 
which  the  verdict  applies  will  be  the  only 
one  retonred  to  Chancery.  See  Ktlkerran, 
Idiotiy  and  Furiosity,  No.  1,  and^rsik.  B.  1,  tit. 
7,  §  48,  et  seq.  See  also  Mr  Ludovic  Colqu- 
houn's  report  of  the  case  of  Toolow,  28th  Jan. 
1837,  for  an  exceedingly  interesting  disquisi- 
tion on  the  different  degrees  of  mental  infir- 
mity, in  reference  to  that  case ;  the  report  of 
which  also  illustrates  the  mode  in  which  the 
judicial  inquiry  is  conducted,  according  to  the 
present  practice  of  the  law  of  Scotland.  See 
Brieve.  Curatory.  As  a  state  of  idiotry  un-, 
fits  the  person  for  entering  into  transactions, 
a  proof,  even  after  his  death,  that  the  grantor 
of  a  deed  was  an  idiot  at  the  time  of  granting 
it,  will  be  sufficient  for  reducing  that  deed ; 
and,  according  to  Bankton,  restitution,  on  the 
ground  of  idiocy,  is  competent  to  idiots  against 
their  curators  within  four  years  after  their 
convalescence,  in  the  same  way  that  it  is  to 
minors ;  Bank.  B.  i.  tit.  7,  §  106.  Idiots  and 
furious  persons,  who  have  no  lucid  intervals, 
are  inadmissible  as  witnesses  in  criminal  cases. 
But  the  evidence  of  a  person  who  has  perio- 

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dieal  fits  of  insanity,  with  long  lucid  inteiralg, 
may  be  received  cwn  nota,  as  to  any  matter 
which  occurred  when  he  was  in  health ;  pro- 
vided no  fit  of  derangement  have  intervened ; 
Hwne,  ii.  840.  Insane  persons  are  not  liable 
to  criminal  prosecution,  if  their  insanity 
amount  to  a  total  alienation  of  reason.  It  is 
also  a  sufiicient  excuse  that  the  panel  labours 
nnder  an  illusion  which  misleads  his  judgment 
in  the  particular  case,  though  he  may  be  aware 
of  the  distinction  between  right  and  wrong  in 
general.  Where  there  is  a  mixture  of  guilt 
and  derangement  in  the  commission  of  the 
crime,  the  course  which  Hume  recommends 
is,  that  the  jury  should  convict,  with  a  recom- 
mendation to  mercy.  The  plea  of  insanity  is 
more  readily  received  in  crimes  of  a  violent 
nature,  than  in  such  as  require  art  and  per- 
severance. The  OHM  probandi  lies  upon  the 
panel ;  and  the  insanity  must  have  existed 
at  the  time,  but  need  not  be  proved  to  have 
existed  either  before  or  after.  If,  however, 
there  is  no  direct  evidence  applicable  to  the 
period,  the  situation  of  the  panel,  before  and 
after  committing  the  act,  and  the  general  na- 
ture of  his  malady,  will  form  the  grounds  of 
determination.  Where  insanity  is  found 
proven  by  the  jury,  the  prisoner,  except  in 
cases  of  delirium  or  other  temporary  bodily 
disease,  is  ordered  to  be  confined  until  his 
friends  find  caution  to  keep  him  safely  during 
the  remainder  of  his  life.  If  the  prisoner  is 
insane  when  brought  to  trial,  the  trial  may 
be  delayed  till  he  is  so  far  restored  to  reason 
as  to  be  able  to  give  information  for  his  de- 
fence ;  Hume,  \.37,et  seq. ;  Steele,  67 ;  AU$on't 
Prine.  645.  In  England,  an  idiot  is  one  who 
has  had  no  understanding  from  his  nativity, 
and  is  by  the  law  presumed  likely  never  to 
attain  any.  A  lunatic  is  one  who  has  had 
nnderstanding,  bnt  by  disease,  grief  or  acci- 
dent, has  lost  the  use  of  his  reason.  Indeed, 
a  lunatic  is  properly  one  who  has  lucid  inter- 
vals. But  the  general  term,  non  compos  mentit, 
as  contradistinguished  from  i<iiot,  comprises 
Innatics,  persons  under  phrenzies,  those  who 
loM  their  intellects  by  disease,  and  those  who 
become  deaf,  dumb,  and  blind.  The  Sovereign 
is  guardian  both  of  idiots  and  of  persons  non 
tompot;  standing,  however,  with  regard  to  the 
latter,  in  the  relation  of  a  mere  trastee,  since 
their  recovery  is  never  despaired  of.  By  the 
common  law,  there  is  a  writ  de  idiota  inqui- 
rendo,  to  inquire  whether  a  man  be  an  idiot 
or  not,  which  mnst  be  tried  by  a  jury  of  twelve 
men.  If  he  is  found  novut  idiota,  the  profits 
of  his  lands  and  the  custody  of  his  person  may 
be  granted  by  the  Crown  to  a  subject.  A 
person  is  proved  non  compos  mentis,  in  a  similar 
manner.  The  Lord  Chancellor,  upon  petition 
or  information,  grants  a  commission  to  inquire 
into  his  state  of  mind ;  and  if  he  be  found 


mm  compos,  commits  the  care  of  his  penoo, 
with  asuitable  allowance  for  his  maintenance, 
to  one  who  is  called  his  committee ;  Tomlini 
Diet.  k. «.;  Stair,  B.  i.  tit.  10,  §  15;  Mor<ft 
Notes,  pp.  xiv.,  clxxxviii.,  cexv. ;  Bank.  vol.  i. 
pp.  166, 205,  352 ;  ii.  248;  iii.47 ;  BeWs  Com. 
i.  132-6-7  ;  ii.  166,  174,  667  ;  BdTi  Princ 
§2107,  et  teq. ;  Kames'  Stat.  Law  Ahridg.  h.  t. ; 
Brown  on  Sale,  p.  161  ;  Thomson  on  BiUt,  p. 
198  ;  Taifs  Justice  of  Peace,  h.  t. ;  Dwdop't 
Parish  Law,  pp.  184-5,  198,  203,  218,  349 ; 
M'Adam,  Dow's  Appeal  Cases,  i.  148 ;  Toteart, 
Dow.  V.  231.  See  Brieve  of  Idiotry  and  Furi- 
osity.   Curatory.    Imbecility.    Insanity. 

Id  Taatam  FoMumiu  qnod  de  Jure  Poc- 
snimu ;  a  maxim  applied  by  Stair  to  condi- 
tions in  contracts  impossible,  because  illegal. 
Stair,  B.  i.  tit.  3,  §  7 ;  Bank.  i.  63.  See  CW- 
dition. 

Ignonmiu.  In  the  criminal  law  of  Eng- 
land, ignoramus  was  the  word  formerly  writ- 
ten on  a  bUl  of  indictment,  by  the  grand  jnry 
impanelled  on  the  inquisition  of  criminal 
causes,  when  they  rejected  the  evidence  for 
the  prosecution  as  too  weak  or  defective  to 
make  good  the  presentment  against  a  person, 
so  as  to  put  him  on  his  trial.  The  words  novr 
are,  Not  a  true  bill,  or  Not  found,  and  such  s 
deliverance  stays  proceedings,  and  the  pri- 
soner is  liberated  without  further  answer. 
Ersk.  B.  iv.  tit  4,  §  84 ;  TomUns'  Diet.  h.  t. 

Ignoraatia  Jam.  No  person  is  entitled 
to  plead  ignorance  of  the  law,  though  he  may 
plead  ignorance  of  the  fact.  Thus,  by  law  a 
mandate  falls  on  the  death  of  the  mandant; 
but  should  the  mandatory,  ignorant  of  the 
mandant's  death,  continue  to  act  under  the 
mandate,  his  acts  will  be  effectual.  On  the 
other  hand,  should  he  continue  to  act  after 
coming  to  the  knowledge  of  his  constituent's 
death,  his  acts  would  be  invalid,  though,  nn- 
der an  error  in  law,  he  should  bona  fide  be- 
lieve that  he  was  still  legally  entitled  to  set 
under  the  mandate.  In  this  sense,  a  person 
may  plead  ignorance  of  the  fact,  but  he  will 
not  be  permitted  to  plead  ignorance  of  the 
law.  The  distinction  between  ignorance  of 
fact  and  of  law  is  of  mnch  importance  in 
questions  as  to  condictio  indebiti.  See  Erd. 
B.  iii.  tit.  3,  §  41 ;  Stair,  B.  ii.  tit  1,  §  24; 
B.  iv.  tit.  1,  §  50 ;  tit.  45,  §  17 ;  Mor^t 
Notes,  p.  xlix. ;  Bank.  vol.  i.  pp.  215,  469; 
Brown's  Synop.  p.  950.  See  Condictio  m- 
debiti. 

Illegal  Contracts.    See  Pactum  iUieiiam. 

Illegibility ;  in  a  material  part  of  a  deed 
has  often  proved  fatal  to  it.  Thus  a  bond, 
in  a  material  part  of  which  half  a  line  vss 
obliterated  and  unintelligible,  was  annnlled; 
and  another  was  found  not  to  be  probstiTe, 
the  condition  of  which  was  partly  scored  and 
partly  illegible.     Ross's  Leet.  i.  146. 

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Ol^timate  Children.    See  Bastard. 

hnbaxgo.    See  Embargo. 

Imbecility.    Under  this  title  in  the  Dic- 
tionary of  Decitions  are  classed  questions  as 
to  the  validity  of  deeds  granted  by  persons  of 
vealL  intellect,  or  in  such  a  state  of  ihind  or 
body,  from  the  occarrence  of  some  accident 
or  overwhelming  event,  that  they  cannot  be 
considered cofl»po^m«n^».  Natural  imbecility 
approaches  to  fatuity,  but  has  not  necessarily 
the  same  effect,  a  distinction  being  taken  be- 
tween an  absolute  idiot  and  a  person  who  has 
some  sparks  of  reason.    The  latter,  it  is  said, 
uay,  without  the  consent  of  curators,  execute 
deeds  of  lesser  moment.     lo  some  cases  the 
Court  have,  on  the  application  of  the  friends 
of  the  party,  for  the  appointment  of  a  cura- 
tor, remitted  to  the  Lord  Ordinary,  to  ascer- 
tain the  state  of  the  fact ;  and  have  granted 
or  refused  the  application  accordingly.    This 
was  done  in  one  instance  where  there  appeared 
in  the  party  a  singularity  of  behaviour,  and 
a  total  neglect  of  his  affairs ;  and  in  another, 
where  the  interposition  was  craved  in  behalf 
of  a  gentleman  who,  from  great  age  and 
severe  indisposition,  had  been  reduced  to  a 
state  of  nearly  total  imbecility.     In  a  subse- 
quent case  the  appointment  of  a  curator  was 
resisted,  in  the  name  of  the  party  said  to  be 
imbecile ;  and  it  was  argued  that  he  could 
not  be  deprived  of  his  right  to  conduct  his 
own  affairs,  unless  regularly  cognosced  by  a 
jury.    The  Goort,  however,  having  remitted 
to  the  sheriff  to  receive  evidence,  and  being 
satisfied  on  bis  report,  and  after  hearing  in 
presence,  of  the  necessity  of  a  curator,  sus- 
tained their  appointment.     And  it  is  now 
settled,  that  in  cases  of  imbecility  and  par- 
tial incapacity,  which  require 'protection,  but 
in  which  no  remedy  by  cognition  and  cura- 
iarj  can  be  obtained,  the  power  of  interposing, 
by  appointing  a  judicial   factor  or  curator 
iomt,  is  vested  in  the  Supreme  Court.     See, 
however,  the  ease  of  Lockkart,  17th  July  1857, 
19  Z).  1075,  where  contrary  medical  certificates 
were  produced.    Where  the  imbecility  of  one 
who  grants  a  deed  amounts  to  little  more  than 
awetJc  and  facile  disposition,  coincident  fraud 
in  the  grantee  is  necessary  to  annul  the  deed. 
(See  Facility.)    But  where  the  imbecility  ap- 
proaches more  nearly  to  fatuity,  the  obliga- 
tion, if  of  great  importance,  may  be  dissolved 
without  the  necessity  of  proving  fraud.    A 
man  has  been  found  to  have  sufficient  under- 
standing to  make  a  testament,  because  that 
is  revocable  at  pleasure  ;  but  he  was  judged 
iaeapable  of  signing  a  deed,  disabling  him- 
aelf  from  making  a  second  testament,  as  such 
a  deed  would  strip  him  of  all  power  over  his 
effects.    And  the  marriage  of  a  person,  not 
altogether  void  of  reason,  was  reduced  on /he 
head  of  imbecility,  the  tie  made  by  marrrage 


being  indissoluble.  The  Court,  however,  has 
gone  a  great  length  in  supporting  the  obliga- 
tion except  where  there  was  some  suspicion  of 
fraud,  and  where  the  contract  was  obviously 
such  a  one  as  a  person  of  sound  judgment 
would  not  have  entered  into.  With  regard 
to  imbecility,  induced  by  accident  or  other- 
wise, very  severe  disease,  or  lectus  cegritudinis, 
has  been  held  a  ground  of  reduction ;  it  hav- 
ing been  repeatedly  found  relevant  to  reduce 
a  deed  or  discharge  subscribed  by  a  woman, 
that  it  was  offered  to  be  proved  to  have  been 
presented  to  her  in  childbirth  pains.  ^$tus 
amorit  in  a  bridegroom  may  be  "pretended" 
as  a  ground  to  reduce  grants  in  favour  of  a 
wife  or  her  friends,  but  not  iu  favour  of 
parties  unconcerned  in  the  treaty  of  marriage. 
Luctm  or  grief  is  no  defence.  Imbecility  is 
not  necessarily  an  objection  proponable  to  a 
witness's  testimony,  except  where  it  would  be 
plainly  indecent  and  unreasonable  to  expose 
such  an  unfortunate  person  to  the  useless  test 
of  an  examination.  The  degree  of  intelli- 
gence necessary  to  make  such  a  person  a  cre- 
dible witness,  depends  in  a  great  measure 
on  the  nature  and  circumstances  respecting 
which  he  is  tendered  to  give  evidence.  Ersk, 
B.  i.tit.  7,  §  48,  notes,  and  240  i^Ivon/) ;  BdVs 
Princ.  §  14, 2113 ;  Kames"  Equity,  66 ;  Tait  on 
Evidence,  343.  See  Idiots.  Itaanity.  Fad- 
lity.     Interdiction. 

Immemorial;  beyond  the  memory  of  ex- 
isting men.  When  a  custom  has  been  proved 
as  far  back  as  the  memory  of  man,  the  same 
custom  is  presumed  beyond  memory.  Thus, 
where  the  rate  of  the  multure  is  not  specilied 
in  the  deed  of  thirlage,  the  quantity  due  may 
be  established  by  mere  possession  for  forty 
years.  According  to  Stair, — "  forty  years  is 
equivalent  and  alw^s  equiparate  to  imme- 
morial possession."  But  possession  for  a  much 
shorter  period  may  be  considered  immemorial. 
Thus,  in  a  constitution  of  thirlage,  possession 
being  proved  for  twenty-eight  years  backward, 
and  nobody  being  found  of  age  to  prove  fur- 
ther back,  anterior  possession  was  presumed, 
to  complete  prescription.  Immemorial  prac- 
tice in  a  burgh,  of  levying  particular  duties, 
upon  a  preceding  title  in  writing,  to  tolls  and 
customs  in  general,  was  found  relevant  to 
support  the  exaction.  So  also,  where  there 
was  doubt  as  to  the  comprehensiveness  of  the 
words  of  the  grant,  immemorial  possession 
and  practice  were  found  relevant  to  support 
the  exaction,  as  well  as  the  mode  of  levying 
the  duties.  Stair,  B.  ii.  tit.  7,  §  2 ;  B.  iv. 
tit.  27,  §  9 ;  Ersk.  B.  ii.  tit.  9,  §  30  ;  Brown's 
Synop.  pp.  308, 1594-5. 

Immoral  Contracts,  See  Pactum  iUi- 
citum. 

Impeachment ;  an  accusation  and  prosecu- 
tion for  treason  and  other  high  crimes  and 

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misdemeanonn.  The  House  of  Lords  hai  an 
original  jurisdiction  in  criminal  matters,  ex- 
ercised oTor  either  Peers  or  Commoners,  upon 
impeachment  by  a  member  of  the  Lower 
House.  Articles  are  exhibited  on  behalf  of 
the  Commons,  who  appoint  managers  to  make 
good  their  charge.  These  articles  are  car- 
ried to  the  Lords ;  and  if  they  find  the  ac- 
cused guilty,  no  pardon  under  the  Great  Seal 
can  be  pleaded  to  such  an  impeachment 
Ersk.  B.  1.  tit.  3,  §  8 ;  12  WiU.  III.,  c.  2. 

Lnpiinoration.    See  Fledge. 

Lnphed  Condition.    See  Condition.    L»- 
gacy. 

Implied  JMaelurga  and  Sennnoiation. 
The  granting  of  a  receipt  for  a  single  year's 
rent  or  fen-duty,  without  any  reservation  of 
arrears,  raises  a  presumption  that  no'arrear 
is  due.  But  the  presumption  rises  much 
higher  when  the  creditor  has,  for  three  suc- 
cessive years  or  terms,  granted  receipts  for 
rents  or  feu-duties,  without  reservation  of 
arrears;  these  discharges,  when  written,  ap- 
plying each  te  a  whole  term's  or  year's  rent, 
and  granted  all  by  the  same  person,  being 
held  equivalent  to  a  discharge  of  arrears. 
Provided  they  have  been  granted  hy  the  same 
person,  it  is  of  no  consequence  although  they 
have  been  granted  to  different  persons.  The 
prwnmption  may  be  elided  by  reference  to 
the  debtor's  oath,  or  stronger  presumptions 
that  the  arrears  are  due.  With  regard  to 
the  discharge  of  a  cautioner  implied  by  the 
creditor's  negligence,  or  his  granting  a  dis- 
charge to  the  debtor  or  a  co-cautioner,  see 
Gauiumer.  See  also  Belts  (km.  i.  359.  The 
accepting  of  or  acquiescence  in  a  tack,  or 
other  inferior  right,  has  been  found  to  imply 
a  renunciation  of  any  claim  to  a  higher  right. 
Taking  a  right  to  a  second  tack  from  a  third 
party,aoe8  not  implyapassingfrom  the  former, 
unless  the  posterior  tack  had  a  greater  duty 
or  shorter  endurance ;  and  the  tacksman  paid 
the  greater  duty,  or  declared  expressly  that 
he  stood  by  the  latter  tack.  But  accepting  a 
second  tack  from  the  granter  of  the  first, 
bearing  a  different  commencement  and  duty, 
was  found  to  import  a  passing  from  the  for- 
mer. An  irritent  clause  is,  in  the  general 
ease,  held  to  be  purged  by  him  who  seeks 
declarator  of  irritancy,  having  acted  subse- 
quently to  the  contravention,  as  if  the  irri- 
tancy had  not  been  incarred.  The  granting 
of  a  bond  for  a  sum  of  money,  in  satisfaction 
of  all  which  the  grantee  could  ask  or  name, 
was  found  to  annul  a  previous  bond  for  a 
smaller  sum.  The  question,  whether  con- 
ventional provisions  imply  a  discharge  of  legal 
provisions,  must  depend  much  upon  the  cir- 
cumstances of  the  case,  and  frequently  on  the 
presumed  intention  of  the  grantor  to  super- 
sede or  only  te  increase  the  legal  provision. 


Mor^iNoUt  on  iStotr,p.cxxiii. ;  Broum^t  Spop. 
h.  t;  Dickson  on  Evid.  2S9,3S2.  SeeDisdar^ 
Apocha  trium  annorum. 

Implied  Warrandice.  Formerly  under  Ae 
implied  warrandice  of  the  contract  of  sale,  the 
buyer,  on  discovering  that  the  commodity 
purchased  had  a  latent  defect  of  such  a  nature 
that  had  he  been  made  acquainted  with  it, 
he  would  not  have  become  a  purchaser,  might 
have  returned  the  article,  and  brought  an 
action  against  the  seller  for  repetition  of  the 
price.  This  action  required  to  be  raised  de 
recenti,  as  otherwise  the  presumption  was  that 
the  purchaser  was  satisfied  with  his  barguo. 
By  the  law  of  England  the  purchaser  had  not 
this  remedy  unless  the  seller  had  given  ex- 

fress  warrandice.  And  by  the  Mercantile 
/aw  Amendment  Act  (19  &  20  Yict.,  e.  60, 
§  5)  the  law  of  Scotland  has  been  assimilated 
to  that  of  England  in  this  respect.  Brown  on 
Sale,  p.  285 ;  Ersk.  B.  ii.  tit.  3,  §§  25,  28; 
B.  iii.  tit.  3,  §  9 ;  BdPs  Corn.  i.  438 ;  BdTt 
Princ.  §  1469 ;  Ilhut.  ib. ;  Hunter's  Landlord 
and  Tenant,  ii.  259;  Ross's  Led.  i.  218;  ii. 
235.     See  Actio  redhibitoria.   Warrandiee. 

Impontion.     See  Swindling.    Fraud, 

Impost    See  Customs. 

Impotenoy ;  is  a  ground  on  which  a  msr- 
riage  may  be  declared  void,  as  having  heen 
in  truth  no  marriage  at  all.  Ersk.  B.  i.  tit 
6,  §  7 ;  Stair,  B.  i.  tit.  4,  §  6.  See  Marriage. 
Divorce. 

Impreiament.  The  Crown  is,  in  compli- 
ance with  long-established  custom,  empower- 
ed, by  the  annual  Mutiny  Act,  to  grant  com- 
mission for  the  impressment  of  men  for  the 
sea  service.  Blair's  Justice  of  Peace,  voce  Sea- 
men. See  also  Taifs  and  Hutdi.  Justice  of 
Peace;  Tomlins'  Diet.  h.  t    See  <SiMm«». 

ImpriionowBt.  Imprisonment  or  inesr- 
ceration  may  proceed  either  in  virtue  of  a 
criminal  or  of  a  civil  warrant.  Criminal 
warrants  are  issued  for  the  purpose  of  arrest- 
ing the  supposed  offender,  when  a  crime  has 
been  committed ;  and  where  imprisonment  is 
part  of  the  punishment,  the  sentence  of  the 
criminal  court  is  the  warrant  for  the  convict's 
detention.  Any  sheriff^  justice  of  peace,  or 
other  magistrate,  may  grant  warrants  for 
apprehension,  although  he  has  himself  no 
jurisdiction  in  the  trial  of  the  crime  com- 
mitted. (See  Criminal  Prosecution.)  Civil 
warrants  are  granted  for  the  apprehension  of  a 
debtor.  There  are  various  civil  warrants  on 
which  imprisonment  may  proceed,  such  as  the 
act  of  warding,  the  meditatio  fuga  warrant, 
letters  of  caption,  and  the  warrant  now  in- 
serted in  decrees  in  terms  of  the  Permoal 
Diligence  Act,  1  and  2  Vict.,  c.  114.  The 
htst  mentioned  is  now  the  principal  civil  war- 
rant, as  to  which,  see  Execution  of  Deere*. 
W.th  regard  to  letters  of  caption,  which  were 

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formerly  the  only  form  of  enforcing  the  civil 
decrees  by  imprisonment,  excepting  acts  of 
warding,  see  Ct^tion.  The  imprisonment 
for  a  civil  debt  consists  in  different  acts,  to 
which  it  is  necessary  to  pay  attention,  since 
the  Bankrupt  Acts  attach  very  important 
effects  to  imprisonment,  by  making  it  one  of 
the  equivalents  of  legal  bankruptcy.  See 
Bankmpt.  The  first  step  regularly  is,  for  the 
messenger,  with  his  blazon  displayed,  to  touch 
the  shoulder  of  the  debtor  with  his  wand, 
and  to  tell  him  that  he  is  his  prisoner.  It 
is  not  absolutely  essential,  however,  to  the 
eoottitation  of  imprisonment,  in  the  sense 
of  the  act  1696,  c.  5,  that  the  ofSoer  should 
Bake  use  of  his  wand  of  peace.  See  the 
esse  of  Scott,  18th  January  185$,  17  D.  292, 
where  much  information  on  this  subject  will 
be  found.  After  this,  should  the  debtor  at- 
tempt to  escape,  or  even  take  refuge  in  the 
sanctuary  of  Holyroodhouse,  the  messenger 
may  follow  him  there,  and  take  liim  out  of 
sanctuary,  and  convey  him  to  prison.  The 
set  of  incarceration  is  the  next  step  to  that 
of  the  debtor's  apprehension ;  and  this  con- 
sists in  the  messenger's  actually  lodging  the 
debtor  in  prison.  On  tliis  occasion,  the  mes- 
senger either  leaves  the  caption  in  the  hands 
of  the  jailor,  or  makes  a  copy  of  it,  and  cer- 
tifies it ;  at  the  same  time  he  enters  the  pri- 
soner's name  in  the  books  of  the  jail,  either 
for  the  whole  or  a  certain  portion  of  the  debt, 
for  which  a  fee  is  paid  to  the  jailor.  It  is  for 
the  sum  entered  in  the  books  that  the  magis- 
trates are  liable,  should  the  prisoner  make 
bis  esci^ ;  and  if  the  debtor  pays  the  sum 
entered  against  him  in  the  books,  he  is  free. 
See  Booking  a  Prisoner.  Escape.  It  commonly 
happens,  however,  that  neither  of  those  steps 
is  tdien.  In  the  ordinary  case,  the  diligence 
is  put  into  the  hands  of  the  messenger,  with 
directions  as  to  the  terms  of  settlement 
which  will  be  accepted :  and,  in  consequence 
of  this  power,  he  takes  the  debtor  to  a 
tavern  or  coffee-honse,  or  to  the  messenger's. 
chambers,  in  order,  if  possible,  to  obtain  a 
settlement  according  to  his  instructions.  Those 
are  the  transactions  which  are  so  apt  to  raise 
doubts  as  to  what  constitutes  legal  imprison- 
ment ;  and,  nntil  some  more  precise  legisla- 
tive provision  has  been  made,  it  is  the  duty 
of  persons  acting  for  creditors  to  have  those 
difficulties  in  view  when  instructing  the  mes- 
senger to  execute  personal  diligence.  See 
Apprtiending  of  a  Debtor.  The  messenger, 
without  a  special  mandate,  has  no  right 
to  receive  payment ;  his  duty,  qua  messen- 
ger, is  merely  to  execute  the  diligence ;  there- 
fore, if  the  debtor  make  payment  to  a  mes- 
senger, he  does  it  at  his  own  risk,  and  may 
be  called  on  by  the  creditor  to  pay  a  se- 
eoad  time,  should  the  messenger  retain  the 


money.  On  the  other  hand,  if  the  express 
instructions  of  the  messenger's  employer  au- 
thorise the  messenger  to  receive  payment  of 
the  debt,  the  messenger's  receipt  will  be  an 
effectual  discharge  to  the  debtor ;  and  the 
cautioner  for  the  messenger,  in  case  of  the 
misapplication  of  the  money,  will  not  be  liable 
for  what  may  have  thus  come  into  the  hands 
of  the  messenger.  /Stair,  B.  iv.  tit  47,  §  16 ; 
Morels  Notes,  p.  ccccxxx. ;  Ersk.  B.  iv.  tit.  3, 
§  12,  et  seq. ;  Bank.  vol.  i.  p.  64 ;  BeWs  Com. 
ii.  536,  et  seq. ;  Bells  Prine.  §  2395,  et  seq. ; 
Hutch.  Justice  of  Peace,  voL  i.  pp.  219-22, 
282,  485  ;  Taifs  Justice  of  Peace,  h.  t.;  Blair's 
Justice  of  Peace,  h.  t. ;  Jwrid.  Styles,  2d  edit, 
vol.  iii.  pp.  667,  816 ;  See  Caption.  Prison. 
Magistrates.  Bankrupt.  Apprehending  a  Debtor. 
Factum  prcestandum.  Meditationefugce.  Act 
of  Warding. 

ImprobatioB;  is  the  disproving  and  setting 
aside  of  writs  ex  facie  probative  on  the 
grounds  of  falsehood  or  forgery.  The  form 
of  process  by  which  this  is  generally  done  is 
an  action  of  reduction-improbation  ;  but  im- 
probation  may  also  be  proponed  by  way  of 
exception.  The  action  of  reduction-impro- 
bation requires  the  concurrence  of  the  Lord 
Advocate,  whether  the  falsehood  and  for- 
gery alleged  be  real  or  only  constructive ;  but 
the  Lord  Advocate  cannot  withhold  his  con- 
currence. See,  on  the  subject  of  Imprdbaiion, 
Ersk.  B.  iv.  tit.  1,  §§  18, 19 ;  Stair,  B.  iv.  tit. 
20 ;  tit.  40,  §  39 ;  Bank.  vol.  ii.  p.  637 ; 
Karnes'  Stat.  Law  Abridg.  h.  t. ;  Jtadaurtris 
Sheriff  Process;  IPGlashan's  Sheriff  Court  Prac. 
p.  19 ;  Tait  on  Evidence ;  Dickson  on  Evidence, 
468,  et  seq. ;  Shand's  Prac.  612, 639, 257, 289 ; 
Alexander's  Abridg.  of  A.  S.l,  34,  58.  See 
Certification,    Redmction. 

Improbatory  Articles.  See  Arttdet  impro- 
batory. 

LnproTementa.  See  MeUorationt.  And  as 
to  improvements  on  entailed  estates  under  the 
stat.  10  Geo.  III.,  c  51,  see  Tailzie. 

Lnproying  Lease.  When,  irom  the  dila- 
pidated state  of  a  farm,  and  the  exhaustion 
of  the  soil,  it  would  require  much  labour  and 
outlay  to  prepare  it  for  successful  cultivation, 
it  is  usual,  for  the  sake  of  encouraging  the 
tenant  to  improvements,  by  the  hope  of  reap- 
ing the  benefit  of  them,  to  grant  him  a  lease 
of  more  than  ordinary  duration.  Such  a 
lease  is  called  an  improving  lease,  and  is  gene- 
rally double  the  length  of  an  ordinary  lease. 
A  lease  of  ordinary  endurance  is  a  lease  for 
nineteen  or  twenty-one  years;  and  an  im- 
proving  lease  is  usually  for  thirty-eight  or 
furty-two  years.  In  improving  leases,,  the 
doctrine  of  the  laailwrd' a  ddectus  persona  u 
excluded ;  and  in  the  absence  of  stipulation 
to  the  contrary,  the  tenant's  assignee,,  or 
heirs,  or  creditors,  are  entitled  to  possess  uu- 

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der  tbe  lease,  or  to  demand  a  compensation 
for  being  deprived  of  it.  For  the  form  of  an 
improring  lease,  see  Bdl  on  Leates,  ii.  186. 
As  the  power  of  granting  leases  of  more  than 
ordinary  duration  is  strictly  limited  in  many 
deeds  of  entail,  the  act  10  Geo.  III.,  c.  61, 
empowers  the  heir  in  possession  to  grant 
leases  of  thirty-one  years,  or  fourteen  years 
and  a  life,  or  two  existing  lives ;  the  tenant 
being  bound,  in  leases  for  two  lives,  to  inclose 
one-third  of  the  lands  in  ten,  two-thirds  in 
twenty,  and  the  whole  in  thirty  years.  In 
leases  of  more  than  nineteen  years,  the  tenant 
must  be  bound  to  inclose  one-third  of  tbe 
lands  before  the  expiration  of  one-third  of 
the  lease,  two-thirds  before  the  expiration  of 
two-thirds,  and  the  whole  before  the  expira- 
tion of  the  lease.  No  one  inclosed  arable 
field  shall  exceed  forty  Scotch  acres,  and  all 
the  fences  must  be  kept  and  left  in  good  re- 
pair. By  §  5  of  the  same  act,  what  are  called 
onilding  leases  may  be  granted,  not  exceeding 
ninety-nine  years,  under  the  following  pro- 
visions:— 1.  That  the  lease  be  of  five  acres, 
and  no  more,  to  one  person,  not  being  within 
800  yards  of  the  mansion-house.  2.  That  it 
be  void  if  a  house  to  the  value  of  L.IO  shall 
not  be  built  on  each  half  acre  within  ten 
years.  S.  That  the  houses  be  kept  tenant- 
able  and  in  repair.  4.  That  the  rent  be  not 
under  the  former  rent,  and  without  grassnm. 
Btirs  Princ.  §  1214,  1764 ;  Bell  on  Leases,  i. 
73, 129 ;  ii.  186, 368 ;  Hunter's  Landlordand 
Tenant,  i.  71,  114.     See  Lease,     Taihis. 

By  20  and  21  Vict.,  c.  26,  leases  for  thirty- 
one  years  and  upwards  may  be  registered, 
and  such  recorded  leases  are  effectual  under 
certain  regulations  against  singular  successors 
without  possession. 

Inea^ity.  See  Idiocy.  ImbeeiUty.  Fa- 
cilit;/.     Insanity.     Evidence. 

lacest ;  is  defined  by  Erskine  to  be  "  an 
unnatural  commixtion  of  the  bodies  of  man 
and  woman,  contrary  to  the  reverence  dne 
to  blood."  It  applies  to  all  who  stand  within 
the  degrees  of  consanguinity  or  affinity  within 
which  marriage  is  by  law  prohibited.  But 
it  is  not  committed  by  connection  with  bas- 
tard relations  how  near  soever.  It  is  essen- 
tial to  the  crime  that  the  accused  knew  of 
the  relationship ;  but  tbe  onus  of  proving  ig- 
norance lies  upon  him.  Incest  is  a  capital 
offence,  and  the  attempt  to  commit  it  is  pun- 
ishable arbitrarily.  The  punishment  of  in- 
cest in  recent  cases  has  been  transportation 
for  life.  NeOson,  1855,  2  Irv.  236 ;  Ersk. 
B.  iv.  tit.  4,  §  66  ;  Hume,  vol.  i.  p.  441,  et 
seq. ;  Steele,  181 ;  Alison's  Princ.  662 ;  Bank. 
i.  146  ;  Kameif  Stat.  Lata,  k.  t. ;  Tait's  Justice 
cf  Peace,  h.  t. 

Inddent  Dilige&oe.  Letters  of  incident 
diligence  in  the  Court  of  Session,  are  signet 


letters  snthorised  by  the  Court,  to  be  issned 
incidentally  in  the  course  of  a  proceo,  for  the 
purpose  of  compelling  the  attendance  of  wit- 
nesses or  havers,  to  bear  evidence,  or  to  exhi- 
bit and  produce  writings.  By  13  and  14  Viet, 
c.  36,  §  25,  it  is  unnecessary  to  obtain  a  for- 
mal extract  o(  diligences;  and  a  certified 
copy  of  the  interlocutor  granting  the  diligence 
is  declared  to  have  the  same  force  and  effect 
as  an  extract.  Such  diligences  seem  also, 
at  one  time,  to  have  been  used  for  the  pur- 
pose of  bringing  new  parties  into  the  field ; 
but  the  only  example  of  this  in  modem 
practice,  is  in  the  process  of  ranking  sod 
sale,  where,  in  the  event  of  the  death  of 
the  debtor,  or  of  any  of  the  creditors  who 
have  appeared,  their  heirs  may  be  cited  on 
a  diligence,  without  waiting  the  expiration 
of  the  tempus  ddiberandi,  or  transferring  the 
process  passive  against  them.  In  the  ease  of 
parties  interested,  as  being  liable  in  relief  w 
otherwise,  it  was  also  customary,  by  the  older 
practice,  to  intimate  the  dependence  of  tbe 
action  by  incidental  diligence.  This,  bov- 
ever,  is  now  done  by  an  interlocutor  ordering 
the  cause  to  be  intimated,  without  a  dili- 
gence or  extract ;  a  mere  certificate  of  inti- 
mation being  sufficient  evidence  of  the  notice. 
And  when  the  interest  of  the  party  is  more 
important,  a  supplementary  summons  is  re- 
quired ;  for,  according  to  the  old  rule,  no  de- 
cree could  issue  against  a  party  called  by  an 
incident  diligence.  Neither  (with  the  above 
exception)  is  this  a  competent  mode  of  trans- 
ferring an  action  against  the  representative  of 
one  of  several  defenders,  or  against  the  hus- 
band of  a  party  who  has  married  during  the 
dependence  of  the  action.  In  the  inferior 
courts,  incidental  diligences  are  issued  under 
the  warrant  of  the  inferior  judge :  and  if  the 
witness  or  haver  live  beyond  the  jurisdiction 
of  the  court,  letters  of  supplement  will  be 
obtained  in  tbe  usual  manner.  See  Suppis- 
ment.  On  the  subject  of  this  article,  see  Ersk. 
B.  iv.  tit.  1,  §  62,  and  Note  ly  Mr  Iwry; 
Bank.  vol.  ii.  p.  626  ;  Stair,  B.  iv.  tit.  20,  § 
9  ;  tit.  33,  §  2  ;  tit.  41,  §  4 ;  A.  S.  23d.lim. 
1711;  Skand^s  Prae.  492, 643,  851, 870, 36« ; 
Bell's  Com.  ii.  479 ;  Madaurin's  Sheriff  Prac.; 
Brown's  Synop.  365.  See  ^ati«r.  Prtx^. 
Evidence.     Commission. 

iBCidentalJnriadiotion.  Where,  in  order 
to  enable  him  to  pronounce  a  definitive  judg- 
ment in  an  action  brought  before  him,  a 
judge  finds  it  necessary  to  decide  qnestimis 
which  do  not  fall  under  his  original  cogni- 
zance, he  may  determine  them  incidentally ; 
his  sentence  having  no  further  effect  in  that 
incidental  question,  than  to  support  his  judg- 
ment or  explicate  his  jurisdiction  in  the  ori- 
ginal cause  carried  on  before  him.  Thns,  a 
sheriff  need  not  stay  process  for  want  of  juris- 

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diction,  because  forgery  is  alleged  in  an  action 
to  which  he  ia  confessedly  competent,  but  may 
judge  in  the  forgery  incidmt«r.  See  Ertk.  £. 
i.  tit.  2,  §  8. 

IndosiirM.  The  act  1661,  o.  41,  enables 
a  proprietor  to  force  a  conterminous  proprie- 
tor  to  concur  with  him  in  mutually  inclosing 
their  property.  And,  accordingly,  the  con- 
terminous heritors  must,  under  this  statute, 
mutually  bear  the  expense  of  making  a 
march-dike  or  proper  fence.  But  there  is  an 
exception  in  the  case  of  a  feuar  or  small  pro- 
prietor, whose  lands  do  not  exceed  five  or  six 
acre*.  Where  the  march  is  crooked,  applica- 
tion may  be  made  to  the  judge-ordinary  to 
straight  it,  and  determine  the  compensation 
to  which  either  may  be  entitled,  by  the  ope- 
rations necessary  in  straighting  the  march. 
Stotr,  B.  ii.  tit.  3,  §  76  ;  B.  iv.  tit.  27  ;  Er^ 
B.  ii.  tit  6,  §  4 ;  B.  ir.  tit.  4,  j  39 ;  Bank. 
Tol.  i.  p.  679 ;  Hutch^  Juttiee  of  Peace,  vol.  ii. 
p.  516 ;  Taift  Jiutice  of  Peace,  voce  Planting ; 
Blaii't  do.  voce  Planting.  See  Marehet.  Plomt- 
hg  and  Indoting. 

Inoompetenoy ;  was  formerly  one  of  the 
grounds  on  which  a  canse  might  be  brought 
from  am  inferior  court,  by  advocation,  to  the 
Court  of  Session.  Under  incompetency  was 
included  not  only  want  of  jurisdiction,  but 
every  ground  of  declining  a  jurisdiction, 
arising  either  from  privilege  in  the  party  or 
suspicion  of  the  judge.  Stair,  B.  iv.  tit.  37, 
§  12.  The  act  16  and  17  Vict.,  c.  80,  § 
24, 1853,  limits  the  power  to  advocate  to  in- 
terlocutors sisting  process,  giving  interim 
decree  for  payment  of  money,  or  disposing  of 
the  whole  merits  of  the  cause.  See  Advoca- 
tion.   Declinature. 

Ineorporatioii;  is  an  association  for  the 
purpose  of  trade  or  manufactures,  established 
by  grant  from  the  Crown.  Incorporations 
are  perpetual,  if  their  duration  be  not  li- 
mited by  the  grant  or  charter.  The  migority 
of  the  members  of  the  incorporation  may 
make  bye-laws.  The  share  of  the  individual 
partner  transmits  to  his  representative  on  his 
death,  and  may  be  transferred  during  his 
life,  to  the  effect  of  rendering  the  disponee 
one  of  the  incorporation.  See  Community. 
Exdutive  Privilege. 

IncononaL  See  CorporecU  and  hicorpo- 
red.    Heritable  and  Moveable. 

Inenlpata  Tntela.  See  Moderamm  incul- 
fotce  tutdae. 

Ineiunbranoe*.  However  unexceptionable 
the  titles  to  land  may  be,  the  land  may  be 
burdened  with  incumbrances,  and  these  the 
seller  is  bound  to  discharge,  the  purchaser 
being  entitled  to  retain  the  price  until  this  is 
done.  The  burdens  by  real  security  remain 
as  incumbrances  on  the  land,  although  ex- 
tending beyond  the  price  which  the  purchaser 


has  agreed  to  pay ;  and  a  receipt  from  the 
creditors  whose  debts  are  paid  off,  with  a 
discharge  of  the  price  by  the  seller,  will  not 
free  the  land.  But,  in  judicial  sales,  and  in 
sales  under  the  Sequestration  Act,  the  burden 
is  limited  to  the  amount  of  the  price.  Pay- 
ment of  the  price  to  creditors  as  ranked  in 
the  judicial  sale  disburdens  the  land ;  and, 
in  sequestration,  payment  of  real  securities 
to  the  amount  of  the  price,  with  a  discharge 
by  the  trustee,  completely  disencumbers  the 
land.  The  real  burdens  which  are  to  be  dis- 
charged from  the  price  before  the  trustee 
draws  any  part  of  it,  are  such  only  as  are 
preferable  to  the  disposition  or  decree  vesting 
the  estate  in  the  trustee.  Inhibition  does  not 
fall  under  this  description,  the  Bankrupt  Act 
declaring  that  the  a(^udication  or  convey- 
ance to  the  trustee  shall  not  be  struck  at  by 
any  prior  inhibition;  and  hence  the  pur- 
chaser is  not  entitled,  before  paying  the  price, 
to  insist  for  a  discharge  of  the  inhibition. 
The  purchaser's  right  of  retention  until  in- 
cumbrances be  purged,  may  be,  by  stipula- 
tion, limited  to  a  certain  number  of  years  ; 
or,  if  the  years  of  prescription  have  expired, 
and  warrandice  be  given,  with  caution  to  re- 
lieve, the  Court  will  in  equity  interpose  to 
order  payment  of  the  price.  In  the  case  of  a 
voluntary  sale  by  trust«es,  in  terms  of  which 
the  purchaser  was  not  bound  to  pay  the  price 
till  incumbrances  were  purged,  the  Court, 
when  the  purchaser  had  been  in  possession 
for  six  years,  ordered  that  the  annual  rents 
of  the  price  should  be  paid  to  the  trustees,  to 
be  by  them  laid  out  at  interest  till  the  in- 
cumbrances were  purged.  In  another  case, 
L.  Ulunie,  20th  July  1626,  Mor.  543,  the 
Court  found  that  the  purchaser  possessing  the 
land  and  retaining  the  price  was  liable  in 
payment  not  only  of  the  interest,  but  of  the 
excess  of  the  profits  of  the  subject  above  the 
interest.  BeWs  Com.  IL  417-8 ;  Bell't  Princ. 
§892 ;  lUutt.  ib. ;  Brown  en  Sale,  200.  See 
Burden*.  It  is  of  importance  for  a  lender  on 
heritable  security,  or  a  purchaser,  to  discover 
the  incumbrances  which  affect  the  borrower's 
or  the  seller's  estate.  This  is  effected  by  a 
search  for  incumbrances,  some  practical  direc- 
tions as  to  which  will  be  found  under  the 
article,  Search  of  Incumbrances. 

A  sale  by  an  heritable  creditor  in  virtue 
of  a  power  of  sale  in  his  bond  and  dis- 
position, and  carried  through  under  the  pro- 
visions of  the  act  10  and  11  Vict,  c.  50 
(1847),  has  the  effect  of  completely  disencum- 
bering the  lands  of  all  securities  and  dili- 
gences posterior  to  the  security  of  the  creditor 
who  sells,  as  well  as  of  the  security  and  dili- 
gence of  such  creditor  himself.  See  Heritable 
Secwrities. 

Indebiti  Solntio.    The  payment  of  what 

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is  not  dne,  when  made  from  ignorance  or 
mistake,  may  be  recalled.  See  Condietio  In- 
dtbiti,  and  authorities  th*r»  cited. 

Indeoent  Exhibition.  A  ny  gross  lewdness 
publicly  practised,  or  indecent  exhibition,  is 
an  indictable  offence.  Hutch.  Just,  of  Peace, 
ii.  381 ;  Shaw's  Digest. 

Indeoent  Fiactioet ;  by  which  the  morals 
of  female  pupils  are  corrupted,  have  been  re- 
peatedly punished  with  scourging  or  tran»> 
portation  for  seven  years.  Hume,  i.  S09 ; 
Steele,  114;  Alison's  Princ.  225.     See  Lewd. 

Indefinite  Payment ;  is  where  a  debtor  is 
dne  several  debts  to  one  creditor,  and  he 
makes  a  payment  to  the  creditor,  without 
specifying  to  which  of  the  debts  he  means  the 
payment  to  be  ascribed.  The  rules  which 
are  adopted  in  this  case  hare  in  view  the  in- 
terest of  the  creditor  more  than  that  of  the 
debtor.  Thus,  if  there  be  one  debt  secured 
by  inhibition,  and  the  other  not,  the  payment 
ii  ascribed  to  the  debt  unsecured.  But  this 
does  not  happen  where  the  security  is  an 
adjudication,  because  the  rigorous  nature  of 
that  diligence  may  carry  off  the  estate  of  the 
debtor ;  and,  therefore,  the  payment  will  be 
imputed  to  account  of  the  debt  covered  by 
the  adjudication.  Again,  where  one  debt 
bears  interest,  and  another  does  not,  the  in- 
definite payment  is  applied  in  extinction  of 
the  debt  which  does  not  bear  interest ;  and 
indefinite  payments  must  always  be  applied 
in  extinction  of  interest  before  being  applied 
to  principal  sums.  Where  a  cautioner  is 
bound  for  one  debt,  and  another  debt  is  un- 
■ecured,  although  the  interest  of  the  creditor 
might  lead  to  the  application  of  the  payment 
in  extinction  of  the  debt  unsecured,  yet  the 
interest  of  the  cautioner  counterbalances  that 
consideration,  and  equity  divides  the  payment 
between  the  cautioner's  debt  and  the  others. 
It  has  also  been  decided  that  a  creditor  can- 
not apply  the  payment  in  such  a  manner  as 
to  leave  the  debtor  exposed  to  penal  conse- 
quences. The  payment  cannot  be  ascribed 
to  a  disputed  debt,  nor,  on  emerging  circum- 
stances, can  it  be  applied  differently  from 
what  was  understood  at  first.  A  dividend 
from  a  sequestrated  estate  cannot  be  applied 
otherwise  than  to  the  whole  debt.  Ersk.  B. 
iii.  tit.  4,  §  2 ;  Stair,  B,  i.  tit.  18,  §  3 ;  Mor^s 
Notes,  pp.  cxxvii.  cclxxv. ;  Brodie's  Sup.  p. 
940 ;  BeWs  Com.  ii.  635 ;  Bell's  Prine.  §  662 ; 
lUust.  ib. ;  Tait's  Just.  ofPeaee,  voce  Payment; 
Kames'  Equity,  265. 

Indemnity.  Acts  of  indemnity,  after  re- 
bellions, have  been  passed  for  quieting  the 
minds  of  the  people,  and  throwing  former 
offences  into  oblivion  ;  but  it  has  been  made 
a  question  whether  those  acts  were  meant 
only  to  protect  against  criminal  prosecutions, 
or  also  against  civil  actions  for  reparation  of 


damages  suffered  by  individuals.  Acts  of  in- 
demnity are  passed  every  session  of  Parliv 
ment  for  the  relief  of  those  who  have  neglected 
to  take  the  necessary  oaths,  &c.,  required  to 
qualify  them  for  their  respective  offices.  Erdc 
ti.  iv.  tit.  4,  §  106 ;  Kames'  Stat.  Lam,  LU; 
Hutch.  Just,  of  Peace,  i.  48. 

Indentore ;  in  the  law  of  England,  is  a 
writing  containing  some  contract,  agreement, 
or  conveyance  between  two  or  more  persons, 
indented  in  the  top  (according  to  the  older 
definition)  to  eorreqpond  with  another  part 
having  the  same  contents.  As  eontradii. 
tinguished  from  a  Deed  poll,  an  indenture  is  a 
bilateral  or  other  deed  of  the  nature  of  a 
contract,  whereby  the  parties  undertake  re- 
ciprocal obligations,  whereas  a  deed  poll  ii 
unilateral     Tomlins,  ^  (.    See  Deed  EM. 

•  Indentures.  This  term  is  in  our  practice 
commonly  ^>plied  to  the  mutual  contract 
between  master  and  apprentice,  by  which  the 
master  becMnes  bound  to  teach  the  apprentice 
his  trade  or  profession,  and  the  apprentice  to 
give  his  time  and  services,  and  to  pay  an  ap- 
prentice fee.  Where  the  apprentice  is  a 
pupil,  his  father,  tutor,  or  some  kinsman,  be- 
comes bound  for  him ;  but  where  the  appren- 
tice is  a  minor  puiies,  he  will  be  bound  by  bis 
indentures  entered  into  with  the  consent  of 
his  curators^  if  he  has  curators,  or,  if  he  hsi 
no  curators,  by  himself  alone.  At  the  same 
time,  indentures  may  be  set  aside  on  the  besd 
of  minority  and  lesion.  Ersk,  B.  i.  tit.  7,  { 
62 ;  Bank.  vol.  i.  p.  68 ;  Kames'  Stat.  Law 
Ahridg.  voce  Writ.;  Hutch.  Just,  of  Peace;  Taigs 
Just,  of  Peace,  voeibus  Apprentice,  SMier; 
Jurid.  Styles,  2d  edit,  vol.  ii.  pp.  174-80, 
400-1,  661 ;  vol.  iii.  pp.  630,  761.  See  Ap- 
prentice. 

India.  The  act  transferring  the  govern- 
ment of  India  to  the  Grown  is  21  and  22  Tict., 
c.  106. 

Indiotment;  is  the  form  of  process  by 
which  a  criminal  is  brought  to  trial  at  the 
instance  of  the  Lord  Advocate.  It  runs  in 
the  name  of  the  Lord  Advocate ;  and  address- 
ing the  panel  directly  by  name,  charges  him 
with  being  guilty  of  the  crime  for  which  b« 
is  to  be  brought  to  trial.  Although  this  be 
the  form  peculiar  to  those  criminal  prosecn- 
tions  raised  by  the  Lord  Advocate  alone,  yet, 
where  a  private  party  joins  in  the  proeecation, 
his  name  may  be  added  to  that  of  the  Lord 
Advocate.  But  where  the  private  party  is 
the  principal  prosecutor,  although  he  has  the 
concurrence  of  the  Lord  Advocate,  it  is  not 
in  the  form  of  an  indictment  that  he  briags 
his  action,  but  in  the  form  of  criminal  letters, 
which  are  letters  running  in  the  name  of  tbe 
Sovereign,  passing  under  the  signet  of  the 
Court  of  Justiciary,  and  addressed  to  nessen- 
gers-at-arms,  stating  the  crime,  and  contsiu- 


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ing  ft  command  to  the  officers  to  whom  the  i 
letters  are  directed,  to  summon  the  person 
Mcosed,  to  appear  and  underlie  the  law,  and 
also  for  summoning  witnesses  and  a  jury. 
These  letters  are  sometimes  used  even  in  pro- 
secutions at  the  instance  of  the  Lord  Advocate, 
where  the  accused  party  is  not  in  custody. 
See  Crinmil  Letters.  Grminai  Prosecution. 
Coneourse.  The  indictment  is  prepared  in  a 
syllogistic  form,  in  which  the  major  proposi- 
Uen  states  the  nature  of  the  crime  that  is 
meant  to  be  charged  against  the  offender, 
and,  in  general,  that  it  is  severely  punishable; 
ih«  minor  proposition  states  the  offence  actu- 
ally committed,  and  avers  that  it  constitutes 
the  crime  stated  in  the  major  proposition ;  the 
eonehuion  is,  that  on  the  panel's  conviction 
by  the  jury,  he  ought  to  suffer  the  punish- 
ment inflicted  by  law  on  the  crime.  See  Major. 
The  indictment  is  executed  by  messengers-at- 
arms,  by  macers  of  Justiciary,  or  even  by 
sheriff-officers,  where  the  indictment  is  con- 
tained in  what  is  termed  the  Forteous  Roll, 
or  presentment  by  the  county;  but,  in  this  last 
case,  there  must  be  a  precept  from  the  sheriff. 
The  execution  is  made  by  serving  the  accused 
with  a  fall  copy  of  the  libel,  with  a  notice  at- 
tached, requiring  him  to  appear  and  underlie 
the  law  for  the  crime  set  forth  in  the  libel, 
and  that  within  fifteen  days.  This  notice 
most  be  subscribed  by  the  officer  who  serves 
it,  and  by  one  person  who  shall  witness  the 
service ;  and  it  is  not  necessary  for  the  officer 
to  subscribe  any  other  part  of  the  copy  of  the 
libel ;  9  Geo.  IV.,  o.  29, 6  6.  There  must  also 
be  served  on  the  accused  a  copy  of  the  list  of 
names  and  designations  of  the  witnesses  who 
are  to  be  examined  against  him,  and  of  the 
names  of  the  assize  who  are  to  pass  on  his 
trial ;  and  no  witness  or  juror  whose  name  is 
omitted,  can  competently  be  examined  as  a 
witness,  or  can  act  as  a  juror  on  that  libel.  The 
style  of  an  indictment  will  be  found  in  Alison's 
Prae.  212.  See  also  Ersk.  B.  iv.  tit.  4,  §  87, 
et  seq. ;  Hume,  ii.  148,  et  seq.;  Bell's  Notes,  p. 
169 ;  Bank.  ii.  524.  By  the  statute  11  and 
12Vict.,  C.79,  the  record  copies  of  indictments, 
instead  of  being  in  writing,  according  to  the 
previous  practice,  may  be  printed,  or  partly 
printed  and  partly  written,  provided  they  are 
authenticated  by  the  subscription  of  the  Lord 
Advocate  or  of  one  of  his  deputes ;  and  in  the 
ease  of  criminal  letters,  by  the  subscription  of 
one  of  the  clerks  of  court,  according  to  the 
existing  practice  ;  §  1.  Letters  of  diligence  for 
the  citation  of  parties,  witnesses,  and  assizers, 
instead  of  requiring  a  bill  and  a  deliverance 
thereon  by  one  of  the  judges,  are  issued  by  the 
clerk  of  court,  on  exhibition  of  the  indictment 
signed  by  the  crown  agent,  and  need  not  pass 
the  signet ;  §  2.  Indictments  and  other  writs 
•nay  be  served  and  executed  either  by  a  macer 


or  by  a  messenger-at-arms, "  or  by  any  sheriff- 
officer  or  steward's  officer  of  the  county  or 
stewartry  within  which  such  service  or  exe-, 
oution  shall  be  made  ;  §  6."  Objections  to  the 
relevancy  of  indictments  must  be  stated  and 
disposed  of  before  the  panel  is  called  upon  to 
plead ;  if  it  is  found  relevant,  the  panel  is 
called  upon  to  plead  to  the  libel.  In  case  he 
shall  plead  Guilty,  the  court  is  to  proceed  to 
pass  sentence ;  and  in  case  he  shall  plead  Not 
Guilty,  is  to  remit  him,  with  the  libel  as  found 
relevant,  to  the  knowledge  of  an  assize,  and 
the  case  is  to  be  otherwise  proceeded  with  in 
ordinary  form  ;  §  9.  See  Criminal  Prosecution. 
Execution.  Diet.  Circuit  Court.  Alibi.  Lovus 
Delictu  Production. 

IndiviBible.  It  is  an  exception  to  the 
action  of  removing,  that  the  defender  possesses 
the  lands  in  question  pro  indiviso  with  other 
lands.  But  this  is  not  relevant  against  re- 
moving from  any  subject  of  which  there  are 
daily  profits  divisible,  as  a  coal-heugh  or  fish- 
ing. Neither  is  it  relevant  for  a  llferenter 
on  her  terce  against  the  fiar  of  an  indivisible 
tenement,  for  the  heir  may  remove  the  relict 
and  pay  her  a  third  part  of  the  rent.  So,  if 
a  tenement  be  possessed  by  several  tenants 
pro  indiviso,  and  having  different  houses,  any 
of  these  tenants  may  be  removed,  and  another 
put  in  his  place,  or  the  landlord  may  possess 
it.  Indivisible  rights  fall  to  the  eldest  of 
heirs-portioners.  See  Heirs-Portioners.  Brieve 
of  Division.  The  stock  of  a  company  is  held 
pro  indiviso  by  all  the  partners  in  trust.  Under 
the  head  "  Indivisible"  in  the  Dictionary  of  De- 
cisions, are  digested  questions  arising  as  to 
subjects  legally  indivisible,  and  part  of  which 
it  is  therefore  incompetent  to  adopt  without 
the  whole.  Thus,  a  decree-arbitral  is  indi- 
visible, and  when  ultra  vires  compromissi,  can- 
not be  registered,  even  with  respect  to  those 
parts  of  it  which  are  within  the  submission. 
But  this  rule  may  be  modified  by  circum- 
stances. When  an  obligation  to  pay  money 
would  otherwise  be  null  on  account  of  infor- 
malities in  the  deed,  such  as  being  a  deed 
notarially  executed,  but  subscribed  by  only  one 
notary  or  only  three  witnesses,  the  claim  may 
be  restricted  to  L.lOO  Scots,  which  is  prove- 
able  by  parole  evidence.  So  also,  a  verbal 
legacy  exceeding  L.lOO  may  be  restricted  to 
that  sum.  Other  questions  of  a  similar  nature 
will  be  found  in  the  Dictionary  (f  Decisions  and 
Broton's  Synop.  h.  t.  See  also  Stair,  B.  iv.  tit. 
26,  §  8  ;  Bank.  ii.  115 ;  BelFs  Ptinc.  §  353. 

Indorsement,  or  Indorsation.  This  term 
was  formerly  used  to  signify  the  executions  of 
messengers,  which,  being  usually  written  on 
the  back  of  the  letters,  were  hence  termed  in- 
dorsements ;  but  the  term  is  now  more  gene- 
rally applied  to  the  transference  of  a  bill,  by 
the  drawer  or  indorser  putting  his  name  on 

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the  back  of  the  bill.  See  Execution.  A  bill, 
although  it  be  not  taken  payable  to  the 
drawer  "  or  order,"  is  transferable  by  indor- 
sation. The  indorsation  may  be  made  by  the 
creditor  putting  his  name  merely  on  the  back 
of  the  bill,  and  this  carries  a  right  which  is 
transferable  by  delivery  alone,  or  by  the 
creditor's  filling  up  the  indorsation,  by  put- 
ting above  his  subscription,  "  Fay  the  con- 
tents to  A.  B.,"  in  which  case  it  can  be  fur- 
ther indorsed  by  A.  B.  only.  When  there  is 
no  sach  order  to  pay  to  another,  it  is  called  a 
blank  indorsement.  Although  a  bill  may 
hare  been  stolen  or  fraudulently  obtained  by 
a  previous  holder,  yet,  if  it  has  come  oner- 
ously and  fairly  into  the  hands  of  the  present 
holder,  it  will  be  effectual  to  him  against  the 
drawer,  acceptor,  and  previous  indorsees. 
Under  the  recent  Mercantile  Law  Amend- 
ment Act,  however  (19  and  20  Vict,  o.  60, 
§  1'5),  the  holder  of  such  a  bill  or  note  suing 
or  doing  diligence  thereon  is  bound  to  prove 
that  be  gave  value  for  it,  such  proof  being 
competent  by  parole  evidence.  By  §  16  of 
tlie  same  statute,  when  any  bill  or  note  is 
indorsed  after  the  date  of  payment,  the  in- 
dorsee is  deemed  to  have  taken  it  subject  to 
all  objections  or  exceptions  to  which  it  was 
subject  in  the  bands  of  the  indorser.  It  is 
held  in  England,  that  the  creditor  in  a  bill 
cannot  indorse  it  in  part,  one  reason  for  which 
seems  to  be,  that  it  would  subject  the  debtor 
to  a  double  action  for  recovery  of  the  debt. 
In  Scotlalid,  the  precise  question  does  not  ap- 
pear to  hare  occurred.  The  indorser  of  a 
bill  thereby  gives  the  holder  the  same  sum- 
mary diligence  and  execution  against  himself 
for  repetition  of  the  amount,  should  the  ac- 
ceptor fail  to  retire  it,  as  if  he  had  accepted 
a  new  bill  to  the  indorsee.  But  where  a  per- 
son has  a  bill  vested  in  him  for  the  mere  pur- 
pose of  recovering  payment,  and  has  occasion 
to  indorse  it,  he  may  do  so  without  rendering 
himself  liable,  by  expressing  the  indorsement 
in  this  way:  "Pay  the  contents  to  A.  B. 
without  recourse  against  me."  A  bill  may 
also  be  indorsed  "  for  my  use,"  in  which  case, 
any  one  who  discounts  the  bill  must  hold  the 
contents  as  the  money  of  the  person  interpos- 
ing the  restriction.  A  condition  annexed  to 
an  indorsation  is  available  against  the  accep- 
tor, if  the  bill  be  accepted  with  such  condition 
in  the  indorsement.  Indorsation  does  not 
transfer  to  the  indorsee  prior  diligence  raised 
on  the  bill.  Such  diligence  must  be  trans- 
ferred by  special  assignation.  The  scoring  of 
an  indorsation  reinstates  the  indorser,  if  in- 
tended to  do  so.  The  indorsation  to  a  deposit 
receipt  may  be  signed  by  a  mark.  Forbet's 
Exec.  v.  Weitem  Bank,  1853, 16  D.  243, 807. 

By  the  statute  18  and  19  Vict.,  c.  Ill, 
which  proceeds  on  a  preamble  that, "  Where- 


as, by  the  custom  of  merchants,  a  bill  of  lad- 
ing of  goods  being  transferable  by  indorse- 
ment, the  property  in  the  goods  may  thereby 
pass  to  the  endorsee ;  but,  neverthelen,  aU 
rights  in  respect  of  the  contract  contained  in 
the  bill  of  lading  continue  in  the  original 
shipper  or  owner,  and  it  is  expedient  that  such 
rights  should  pass  with  the  property:  and 
whereas  it  frequently  happens  that  the  goods 
in  respect  of  which  bills  of  lading  purport  to 
be  sigrned  have  not  been  laden  on  board,  and 
it  is  proper  that  such  bills  of  lading  in  the 
hands  of  a  bona  fide  h<4der  for  rafaie  sfaonld 
not  be  questioned  by  the  master  or  other  per- 
son signing  the  same  on  the  ground  of  the 
goods  not  having  been  laden,"  it  is  enacted 
(1),  that  every  consignee  and  every  endonee 
of  such  bills  to  whom  the  property  shall  pass 
by  reason  of  such  consignment  or  endorse- 
ment, shall  have  transferred  to  and  rested  io 
him  all  rights  of  suit,  and  be  subject  to  the 
same  liabilities  in  respect  of  such  goods,  as  if 
the  contract  in  the  bill  al  lading  had  been 
made  with  himself;  (2),  that  no  right  of 
stoppage  in  trantitu,  or  to  claim  freight  against 
the  original  shipper  or  owner,  and  no  liability 
of  the  consignee  or  endorsee,  by  reason  of  hv 
being  consignee  or  endorsee,  or  of  his  receipt 
of  the  goods,  by  reason  of  such  consignment 
or  endorsement,  is  to  be  affected  by  the  act ; 
and  (3),  that  every  bill  of  lading  in  the  hands 
of  a  consignee  or  endorsee  for  valuable  con- 
sideration representing  goods  to  have  been 
shipped,  shall  be  conclusive  evidence  of  tneh 
shipment,  as  against  the  master  or  other  per^ 
son  signing  the  same,  notwithstanding  that 
the  goods,  or  part  thereof,  may  not  hare  beea 
so  shipped,  unless  the  holder  shall  have  had 
actual  notice  at  receiving  the  bill,  that  the 
goods  had  not  been  laden  on  board ;  provided 
that  the  master  or  other  person  signing  may 
exonerate  himself  from  such  misrepresenta- 
tion, by  showing  that  it  was  caused  withoat 
default  on  his  part,  and  wholly  by  the  fraud 
of  the  shipper  or  holder,  or  some  penon 
under  whom  the  holder  claims.  Erik.  B.  iii. 
tit.  2,  §  27 ;  Jfr  Bndie's  Sup.  to  Stair,  861 ; 
Bank.  vol.  i.  p.  363 ;  BeWs  Com.  L  401 ;  ii.  211 ; 
BeU'i  Prine,  §  329,  et  seg.;  lUutt.  ib. ;  Tho»h 
ton  on  Bill*,  256  ;  Tait  on  Evid.,  p.  120 ;  Didc- 
son  on  Evid.,  pp.  210, 354,  361,  409.  See M 
of  Exchange.    Bill  ofLading.    Draft. 

Indomng  of  a  w  arrant  See  Badi»s  t 
Warrant. 

IndnciflB  Legales ;  or  the  legal  ittdmM, 
are  the  days  which  intervene  between  tbe 
citation  of  a  defender  and  the  day  of  t^jpear- 
ance  in  the  action  or  process.  These  differ 
according  to  circumstances.  In  ordinary  ac- 
tions in  the  Coui-t  of  Session,  tbe  days  of  eon- 
pearance  were  formerly  two  diets  of  twenty- 
one  and  six  days'  warning,  unless  when  the 


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defender  resided  in  Orkney  and  Shetland,  in 
vhich  ease  the  inditcice  were  forty  and  six 
days.  Where,  again,  the  defender  was  out 
of  the  kingdom,  he  was  cited  on  sixty  and  fif- 
teen days.  There  are  other  actions  which  are 
termed  privileged,  which  were  formerly  eze- 
eated  on  shorter  indtusia,  as  on  fifteen  or  on 
six  days :  these  required  a  hill.  See  Bills  ef 
Signet  Letters.  But  by  the  statute  6  Geo.  lY., 
c.  120,  §  63,  all  summonses,  idter  the  11th 
NoTember,  1825,  are  directisd  to  proceed  on 
one  diet ;  and  by  the  act  13  and  14  Vict.,  c. 
36,  §  21,  all  summonses  before  the  Court  of 
Session  may  proceed  on  fourteen  days'  warn- 
ing where  the  defender  is  in  Scotland,  unless 
in  Orkney  or  Shetland,  and  twenty-one  days' 
warning  where  he  is  in  Orkney  or  Shetland,  or 
forth  of  Scotland,  in  place  of  the  longer  indueice 
previously  in  practice ;  and  such  shorter  in- 
iimct  are  competent  and  sufficient  in  rei^ct  to 
all  other  letters  passing  the  Signet  bearing  a 
citation, charge,  publication,  or  service  against 
persons  within  or  furth  of  Scotland,  and  in 
respect  to  all  edictal  charges  upon  decrees 
sod  registered  protests,  without  prejudice  to 
shorter  inductee  previously  sufficient  continu- 
ing to  be  sufficient.  The  same  term  is  applied 
to  the  days  which  are  allowed  to  a  debtor  to 
obey  the  command  of  letters  of  homing,  and 
these  vary  according  to  circumstances.  See 
DiUgence.  Charge  on  Letters  of  Homing.  The 
indueia  of  criminal  letters  and  indictments 
sre  fifteen  days.  See  Criminal  Prosecution. 
Diet.  As  to  the  inducios  of  general  and  spe- 
cial charges,  see  Charge.  Ersk.  B.  ii.  tit.  5,  S 
56;  tit  12,  §  40 ;  B.  iv.  tit.  1,  §  6 ;  tit.  3,  § 
10 ;  tit.  4,  §  87  ;  Karnes'  Stat.  Law  Abridg. 
\.  (. ;  Bell  on  Leases,  4th  edit.  ii.  80 ;  Shand's 
Prae.;  Hutch.  Just,  of  Peace,  vol.  i.  pp.  280, 
416,  2d  edit. ;  M'Glashan's  Sherif  Prae.  p. 
179 ;  Jurid.  Styles,  2d  edit.  vol.  iii.  pp.  1-4, 
577,  984-5.  969.  See  Citation.  Edictal 
dtaUon.    Diet. 

Indvetion  of  a  Cletgymioi. ;  was  a  term 
med  in  the  times  of  Episcopacy.  When  the 
clergyman  was  inducted  to  his  living,  there 
were  three  acts :  1.  Presentation  by  the 
patron;  2.  Collation  by  the  bishop,  which 
signified  his  approbation ;  and,  3.  Induction, 
which  consisted  in  his  being  placed  in  the 
polpit  by  a  deputation  of  presbyters  appointed 
by  the  bishop.  These  forms  fell  with  the 
abolition  of  prelacy.  Ersk.  B.  i.  tit.  6,  §  18 ; 
Bank.  ii.  85.     See  Minister. 

Indutrial  Acoesdon  ;  signifies  the  addi- 
tion made  to  the  value  of  a  subject  by  human 
art  or  labour  exercised  thereon.  The  law  of 
Scotland  on  this  subject  is  derived  from  the 
Koman  law ;  and  in  all  cases  of  industrial 
secession,  where  one  man  adjoins  or  attaches 
his  own  property  inseparably  to  that  of 
another,  the  presumption  is  that  he  has  done 


so  bona  fide.  The  modes  of  industrial  acces- 
sion usually  enumerated  are  adjunction,  spe- 
cification and  commixtion ;  and  the  general 
rule  of  law  is  that,  where  the  addition  is 
made  bona  fide,  the  gainer  must  indemnify  the 
loser,  on  the  obvious  principle  of  equity. 
Nemo  debet  ex  alieno  damno  lucrari.  See  Ersk. 
B.  ii.  tit.  1,  §  15.  See  Accession.  Adjunction. 
Commixtion.    Specification.     Contexture. 

In&moiu.  A  person  is  said  to  be  infamous 
who  has  been  convicted  of  crimes  that  infer 
infamy,  or  who  has  been  declared  infamous 
by  a  sentence  of  the  Court  of  Session  or  of 
Justiciary.  Such  a  person  was  formerly  in- 
admissible as  a  witness ;  but,  by  1  Will.  IV., 
c.  37,  §  9,  it  is  enacted,  that  where  a  person, 
who  has  been  convicted  of  any  crime  (except 
perjury,  or  subornation  of  perjury),  and  has 
endured  the  punishment  to  which  he  has  been 
sentenced,  he  shall  not  thereafter  be  deemed, 
by  reason  of  such  conviction  or  sentence,  an 
incompetent  witness  in  any  court  or  proceed- 
ing, civil  or  criminal;  and,  by  15  Vict.,  c 
27,  §  1,  the  objection  of  infamy  as  a  ground 
for  excluding  a  witness  is  altogether  abolished. 
Infamy  is  inferred  by  all  the  crimina  falsi, 
by  theft  and  reset,  and  all  capital  crimes.  A 
proof  of  conviction  without  a  jury,  which, 
though  it  did  not,  even  before  the  passing  of 
the  above  statute,  disqualify  a  witness,  yet 
affected  his  credibility,  was  allowed.  Infamia 
juris,  or  the  infamy  proceeding  upon  convic- 
tion, was  alone  admitted  to  be  proved.  In- 
famia facti,  or  that  proceeding  from  general 
bad  character,  or  a  crime  for  which  the  wit- 
ness has  not  been  convicted,  could  not  be 
proved  to  the  efi'ect  of  excluding;  but  it  might 
be  elicited  by  questions  put  to  the  witness 
himself,  and,  in  that  case,  affected  his  credi- 
bility. Hume,  ii.  351,  et  seq.,  471 ;  Burnet,  397 ; 
Steele,  17;  Alison's  Princ.  482,  567;  Prae. 
385,  448,  451,  672 ;  Ersk.  B.  iv.  tit.  2,  §  23; 
Batik,  vol.  i.  p.  273 ;  vol.  iii.  p.  58 ;  Maefar- 
lane's  Jv/ry  Prae.  p.  162 ;  Hutch.  Justice  of 
Peace,  2d  edit.  vol.  i.  p.  197-9 ;  Tail's  Justice 
of  Peace,  vocibtu  Punishment,  Proof;  Tait  on 
Evidence,  233-4,  85-6,  345-7;  Dickson  on  Ev. 
887,  897,  706,  1004.    See  Evidence. 

In&ng.     See  Fang. 

Infangthefe ;  "  is  a  liberty  or  power,  per- 
taining to  him  who  is  infeft  therewith,  to 
cognosce  upon  theft  committed  by  his  own 
man  taken  within  his  own  dominion  and 
lands."    Skene,  h.  t. 

In&nt.  See  ChUd-murder.  Concealment  of 
Pregnancy. 

lofiEUits.  This  term,  in  the  law  of  Eng- 
land, is  applied  to  every  person  under  the  age 
of  majority.  In  Scotland,  the  term  is  not 
used  in  that  sense.  The  periods  of  life  dis- 
tinguished by  our  law  are  three :  Pupillarity, 
which  reaches  from  the  birth  of  the  child  to 


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the  age  of  fourteen  in  males  and  twelve  in 
females;  and  during  this  period  they  are 
termed  pupils : — puberty,  which  reaches  from 
the  termination  of  pupillarity  to  the  age  of 
twenty-one  years,  which  is  the  period  of  ma- 
jority in  both  sexes ;  and  from  that  time  for- 
ward the  person  is  said  to  be  of  lawful  age. 
Stair,  B.  i.  tit  6,  §  3 ;  tit.  10,  §  13 ;  Erdc 
B.  i.  tit.  1,  §  11 ;  Bank.  vol.  i.  p.  161,  tt  teq., 
200 ;  Tol.  iii.  p.  48 ;  vol.  ii.  pp.  339, 669 ; 
BelPt  Com.  ii.  667 ;  Tomlint'  Diet.  A.  <.  See 
Curatory.     Minor.    Pupil.     Tutor, 

Infeftmeat ;  may  be  said,  correctly  speak- 
ing, to  be  the  act  of  giving  symbolical  pos- 
session of  heritable  property  ;  the  legal  evi- 
dence of  which  is  an  instrument  of  saaine. 
But  this  distinction,  in  the  colloquial  lan- 
guage of  the  law  of  Scotland,  is  not  always 
attended  to.  Anciently,  infeftment  seems  to 
have  ^n  synonymous  with  investiture ;  in 
which  last  sense  it  signified  both  the  charter 
by  which  the  superior  conferred  the  right, 
and  the  sasine  or  infeftment  by  which  posses- 
sion was  given.  There  was  in  former  times 
less  room  for  any  distinction,  because  the 
superior,  by  one  and  the  same  act,  in  preseuce 
of  the  pares  curiae,  gave  out  lands  to  his  vassal, 
and  gave  him  sasine ;  and  this  was  done  with- 
out the  intervention  of  writing,  the  evidence 
of  the  paret  curia  being  that  on  which  the 
rights  of  superior  or  vassal  depended.  In 
modem  language,  investiture  is  the  term  ap- 
plied to  the  whole  progress  of  titles,  whereby 
the  right  is  vested  in  the  feudal  proprietor. 
Erik.  B.  ii.  tit.  3,  «  18 ;  Stair,  B.  ii.  tit.  3 ; 
Mor^s  Notet,  p.  clvii.,  tt  $eq.;  Bank.  vol. 
i.  p.  546,  d  ttq. ;  BMs  Com.  i.  681 ;  Kama' 
StcU.  Law  Abridg.  h.  t. ;  Ross's  Led.  ii.  259. 
See  Investiture.     Sasine. 

By  the  Infeftment  Act,  8  and  9  Vict.,  c 
36,  1845,  infeftment  may  be  effectually  ob- 
tained by  producing  to  the  notary-public  the 
warrants  of  sasine  and  relative  writs  which 
are  in  use  to  be  produced  at  taking  infeft- 
ment, and  by  expeding  and  recording  in  the 
appropriate  register  an  instrument  of  sasine 
setting  forth  that  sasine  had  been  given  in 
the  lands,  and  subscribed  by  the  notary-public 
and  witnesses  according  to  the  form  then  in 
a  schedule  annexed  to  the  Act.  By  the  Titles 
to  Land  Act,  21  and  22  Vict.,  c.  76, 1858, 
instruments  of  sasine  are  no  longer  necessary, 
but  the  conveyances  themselves  may  be  re- 
corded instead.    See  Titles  to  Land. 

Infeftment  in  Security.  According  to 
the  modern  use  of  the  term,  infeftment  in 
security  is  used  to  express  an  heritable  bond 
and  sasine,  or  a  disposition  in  security  and 
relative  sasine,  by  which  the  creditor  is  infeft 
in  an  annualrent  out  of  the  lands,  corres- 
ponding to  the  principal  sum,  and  in  the 
lands  themselves  in  security  of  the  principal 


sum,  interest,  and  penalty,  or  in  the  lands 
themselves  redeemably,  in  security  of  the 
principal  sum  and  interest  Stair,  B.  iv. 
tit.  35,  §  24;  Jfore's  Notes,  p.  cex.;  ErA. 
B.  ii.  tit.  8,  §  35 ;  BelPs  Princ  §  901 :  lUnst. 
ib.     See  Bond.    Annualrent.     Titles  to  Land. 

Infeftment  of  Seliel  An  heritable  se- 
curity to  a  cautioner  or  co-obligant,  that  he 
shall  be  relieved  from  the  engagement  he  hss 
come  under,  by  which  the  cautioner  is  infeft 
in  lands,  in  security  of  such  relief,  is  termed 
an  infeftment  of  relief.  Stair,  B.  ii.  tit  3, 
§48;  ^«fc.B.  ii.  tit8,§35;  Awtiim. 
See  Bond  of  Rdi^.    Titles  to  Land. 

Infeniare  curiam ;  "  is  when  the  judge  in- 
forms the  suitors  in  things  whereof  they  are 
ignorant"    Skene,  k.  t. 

Infiunnation.  Under  the  old  form  of  pro- 
cess in  the  Court  of  Session,  an  information 
was  a  written  argument  ordered  by  the  Lord 
Ordinary,  when  he  took  a  cause  to  report  to 
the  Inner-House.  It  served  to  explaiB  to 
the  Judges  the  circumstances  of  the  case 
which  the  Lord  Ordinary  was  to  report,  snd 
to  enable  them  to  give  their  decision  in  the 
cause.  The  analogous  pleading,  according  to 
the  present  practice,  is  called  a  Case.  See 
Cases.  In  the  Court  of  Justiciary,  in  eases 
of  difRculty  on  questions  of  law  and  relevancy, 
the  Court  is  in  use  to  order  Informations,  on 
which  the  points  raised  are  argued  fully  in 
writing.  See  Criminal  Prosecution.  As  to 
Informations  in  the  Exchequer  Court,  see  19 
and  20  Vict,  c  56,  §7. 

lutormfttion ;  in  English  law,  is  an  acen- 
sation  or  complaint  exhibited  against  a  per- 
son for  some  criminal  offence,  either  immedi- 
ately against  the  Sovereign,  or  against  some 
private  person.  It  differs  from  an  indictment 
in  being  only  the  allegation  of  the  officer  vho 
exhibits  it.  Informations  are  either  partly 
at  the  suit  of  the  Crown,  and  partly  at  tlw 
suit  of  a  subject,  or  only  in  the  name  of  tlie 
Crown.  The  former  are  usually  brought  upon 
penal  statutes,  inflicting  a  penalty  on  convic- 
tion of  the  offender,  one  moiety  to  the  Crown, 
and  another  to  the  informer.  The  latter  are 
also  of  two  kinds :  First,  Such  as  are  properl; 
the  Crown's  own  suits,  and  are  filed,  ex  ofido, 
by  the  Attorney-Q-eneral.  The  objects  of 
such  suits  are  enormous  misdemeanours,  t«id- 
ing  to  disturb  or  endanger  Govemmwit 
Secondly,  Those  in  which,  though  the  Sove- 
reign is  the  nominal  prosecutor,  it  is  at  the  in- 
stance or  promotion  of  some  private  person, 
or  common  informer.  These  are  filed  by  the 
master  of  the  Crown-office,  under  the  expres 
direction  of  the  Court,  and  are  directed  agsiott 
any  gross  misdemeanours,  riots,  itc,  deserving 
of  public  animadversion.     Tomlins'  Diet.  k.  i 

InformatiQn  and  Presentment ;  in  crimi- 
nal process.     See  Circuit  Court.    Dittaif. 


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Infoimer.  Yarions  statutes  enact  pecu- 
niary penalties,  and  award  part,  or  the  whole, 
to  the  informer.  In  such  a  case  it  is  usually 
provided  that  any  person  may  prosecute ;  and 
then  it  is  not  necessary  to  qualify  a  peculiar 
interest,  or  to  have  the  concourse  of  the  pro- 
corator-fiscal.  An  informer,  entitled  to  a 
reward  on  conviction,  is  not  inadmissible  as  a 
witness.  Hunter,  1838,  2  Swinton,  1.  And, 
in  questions  of  defamation,  a  person  inform- 
ing against  his  neighbour  as  disorderly,  or  a 
thief,  will  be  presumed  to  have  done  so  to 
satisfy  justice,  or  maintain  good  order.  In 
Bngland,  by  18  Eliz.,  c.  5,  it  is  enacted,  that 
if  a  common  informer  wilfully  delays  his  suit, 
or  discontinue,  or  be  nonsuited,  or  has  a  ver- 
dict or  judgment  against  him,  he  must  pay 
costs  to  the  defendant.  And  2/  Eliz.,  c.  10, 
makes  an  informer  compounding  with  an  of- 
fender liable  to  be  set  on  the  pillory,  to  suffer 
fine  and  imprisonment,  and  to  forfeit  L.IO. 
He  is  also  disabled  to  sne  popular  actions  for 
the  future.  The  Lord  Advocate  and  inferior 
public  prosecutors  in  Scotland,  may  be  com- 
pelled to  give  up  their  informers ;  and  if  the 
information  was  malicious,  the  informer  will 
be  liable  in  damages  and  expenses.  Ertk.  B. 
iv.  tit.  1,  §  17  ;  tit.  4,  §§  80-6 ;  Bank.  ii. 
610 ;  Taifs  Justice  of  Ptaee,  19,  246 ;  Tom- 
tew'  Diet.  k.  t. ;  Aliton's  Prae.  94. 

InhibitiiHi;  is  a  writ  passing  under  the 
Signet,  whereby  the  debtor  or  party  inhibited 
is  prohibited  from  contracting  any  debt  which 
niay  become  a  burden  on  his  heritable  pro- 
perty, or  whereby  his  heritage  may  be  at- 
tached or  alienated  to  the  prejudice  of  the  in- 
hibiters'  debt.  Like  every  other  signet 
letter,  the  inhibition  contains  a  narrative  and 
a  will.  The  narrative  recites  the  ground  of 
debt,  and  asserts  that  the  debtor,  knowing 
that  the  creditor  will  proceed  against  him 
with  diligence,  means  to  sell  and  dispose  of 
his  effects,  unless  a  remedy  be  provided.  On 
this  narrative,  the  mil  of  the  letters  inhibits 
the  debtor  from  selling,  annailzieing,  wad- 
ntting,  disponing,  and  so  forth,  his  lands, 
teinds,  heritages,  &c. ;  and  also  from  granting 
any  deed,  or  contracting  any  debt  which  may 
affect  his  lands.  The  will  farther  prohibits 
the  lieges  from  taking  from  the  debtor  any 
conveyance  of  his  property,  or  any  vouchers 
of  debt ;  so  that  there  is  a  double  prohibition ; 
one  against  the  debtor,  and  the.other  against 
the  pnblic  This  diligence  may  proceed  on  a 
liquid  ground  of  debt,  or  on  the  decree  of  a 
court,  or  on  a  decree  of  registration ;  and  it 
nay  also  proceed  on  a  depending  action,  or 
even  on  a  conditional  debt.  But  on  which- 
ever of  these  several  grounds  the  inhibition 
is  raised,  a  Bill  must  be  presented  to  the 
Lord  Ordinary  on  the  Bills,  stating  the  na- 
ture of  the  debt,  and  craving  warrant  for  the 


letters ;  which  warrant  is  granted,  as  a  mat- 
ter of  course,  on  production  of  the  ground  of 
debt,  or  of  the  executed  summons. 

In  virtue  of  this  Bill-Chamber  warrant, 
letters  of  inhibition  are  expede  and  signeted ; 
after  which  they  must  be  executed  and  pub- 
lished in  the  following  manner :  (1.)  There 
must  be  a  personal  execution  against  the 
debtor,  by  a  messenger-at-arms,  in  the  usual 
manner,  and  with  the  formalities  explained, 
voce  Charge  on  Letters  of  Homing.  (2.)  The 
inhibition  must  be  published  at  the  head 
burgh  of  the  shire  where  the  debtor  resides, 
or  edictally,  where  the  debtor  is  forth  of  the 
kingdom.  This  publication  is  also  made  by 
a  messenger-at-arms,  who,  after  crying  three 
several  oy esses  at  the  cross  of  the  burgh, 
reads  over  the  letters  of  inhibition,  and  affixes 
there  a  copy  of  the  letters  and  charges.  (8.) 
The  last  requisite  towards  the  completion  of 
the  diligence  is  registration.  By  the  act 
1581,  c.  119,  the  letters  and  executions  must 
be  recorded  in  the  books  of  the  shire  where 
the  debtor  resides,  and  of  the  county  where 
his  lands  lie,  which  registration  must  take 
place  within  forty  days  from  the  day  of  pub- 
lication of  the  inhibition.  The  act  1600,  c. 
13,  gives  the  creditor  an  option  to  record  the 
letters  and  executions  in  the  General  Register 
at  Edinburgh ;  one  advantage  of  which  is, 
that  when  recorded  in  the  General  Register, 
the  inhibition  affects  the  debtor's  lands  wher- 
ever situated  in  Scotland ;  whereas,  if  the 
Particular  Register  be  taken,  there  must  be 
a  registration  in  the  books  of  every  county 
in  which  the  debtor  has  lands  ;  otherwise  the 
inhibition  will  have  no  effect,  quoad  the  lands 
in  the  county,  in  the  books  of  which  it  has 
not  been  recorded.  The  inhibition  thus  exe- 
cuted, published,  and  recorded,  strikes  against 
all  the  acts  and  deeds  of  the  debtor  falling 
within  the  words  of  the  prohibition,  done  or 
granted  posterior  to  the  execution  of  the  dili- 
gence. But  the  diligence  is  strictly  personal 
to  the  party  inhibited,  and  strikes  against  the 
debtor  only.  If  he  should  die,  his  heir  will 
not  be  affected  by  the  prohibition,  unless  it 
be  renewed  against  him. 

The  terms  of  the  prohibition  include 
moveables ;  but  whatever  may  have  been  the 
intention  when  this  style  of  the  letters  was 
originally  introduced,  the  diligence  has  long 
been  restricted  to  heritage,  as  above  explained. 
This  diligence,  however,  will  affect  not  only 
the  heritage  belonging  to  the  debtor  at  the 
date  of  its  execution,  but  also  future  acquisi- 
tions, provided  they  be  within  the  shire,  in 
the  books  of  which  the  inhibition  has  been 
recorded,  or  wherever  they  be,  in  Scotland,  if 
the  registration  has  been  in  the  General 
Record.  Inhibition  strikes,  however,  only 
against  the  voluntary  deeds  of  the  debtor 


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posterior  to  its  execution,  and  not  against  debts 
or  deeds,  resulting  from  obligations  previously 
contracted.  Thus,  if  prior  to  the  date  of 
inhibition,  the  debtor  has  become  bound,  by 
minute  of  sale,  to  sell  his  lands,  a  disposition, 
in  implement  of  that  prior  obligation,  al- 
though executed  posterior  to  the  inhibition, 
will  not  be  affected  thereby.  Neither  will 
the  inhibition  strike  at  posterior  judicial 
rights,  such  as  au  adjudication  proceeding  on 
a  debt  contracted  prior  to  the  date  of  the 
inhibition.  It  would  even  seem,  according 
to  some  of  the  undernoted  authorities,  that 
it  will  not  strike  at  a  conveyance  to  trustees 
for  behoof  of  creditors,  or  at  a  fair  sale  for 
an  adequate  price,  to  be  distributed  amongst 
the  creditors.  Another  peculiarity  in  this 
diligence  is,  that  it  confers  no  active  right 
on  the  creditor  using  it.  It  is  an  inert  pro> 
hibition,  merely  negative  in  its  operatiou ; 
and  although  the  creditor  is  entitled  to  re- 
duce deeds  to  his  prejudice,  executed  tpreia 
inkibitunu,  he  cannot  rank  on  the  debtor's 
estate  in  virtue  of  the  inhibition  per  se.  In 
order  to  give  himself  an  active  right,  he  must 
follow  up  his  inhibition  by  an  abjudication. 
Practically,  no  doubt,  an  inhibition  becomes 
a  very  efficient  diligence;  since,  so  far  as 
concerns  voluntary  sales,  no  purchaser  will 
pay  the  priee  until  the  inhibitions  appearing 
on  the  record  are  discharged.  Still,  if,  apart 
from  this  indirect  advantage,  the  creditor 
mean  to  take  active  steps,  he  must  a4judge  ; 
and  then  his  Inhibition,  followed  by  adjudi- 
cation, will  give  him  an  available  preference 
over  all  the  creditors  whose  debts  were  con- 
tracted posterior  to  the  execution  of  the  in- 
hibition. Prior  personal  creditors  by  bond, 
bill,  or  decree,  antecedent  to  the  date  of  the 
inhibition,  may  also  adjudge,  and  will  not  be 
prejudiced  by  the  inhibition.  But  if  such 
personal  creditors  do  not  secure  a  pari  p<usu 
ranking,  by  adjudging  within  year  and  day 
of  the  inhibiting  and  adjudging  creditor,  he 
will  exclude  them,  in  virtue,  not  of  his  inhi- 
bition, however,  but  of  his  adjudication.  On 
the  other  hand,  personal  creditors,  whose 
debts  were  contracted  posterior  to  the  inhi- 
bition, will  be  entirely  excluded  in  competition 
with  the  inhibiting  creditor.  In  the  case  of 
sequestration  under  the  bankrupt  statute,  the 
trustee's  right  is  not  challengeable  on  the 
ground  of  any  prior  inhibition ;  but  the  effect 
which  inhibitions  may  be  entitled  to  in  the 
ranking  of  creditors  is  saved ;  19  and  20 
Vict,  c.  79,  §  102.  It  is  thus,  in  strict  prin- 
ciple, incorrect  to  describe  inhibition  as  a  rati 
diligence.  It  is  rather  of  the  nature  of  a  per- 
ianal prohibition;  which,  by  certain  ulterior 
proceedings  on  the  part  of  the  inhibiting 
creditor,  may  secure  him  a  preference  on  the 
debtor's  heritage,  in  competition  with  poe- 


terior  debts  or  contractions  by  the  inhibited 
party.  The  following  authorities,  as  to  the 
nature,  operation,  and  character  of  this  dili- 
gence, about  which  many  loose  and  inaccurate 
views  prevail,  may  be  consulted  and  con- 
sidered:  Stats.  1581,  c.  119;  1597,  c  264 
and  265 ;  1600.  c.  13 ;  1672,  c  16,  $  32 ; 
169.3,  c.  14 ;  A.  S.  16tk  July  1692 ;  Stair, 
B.  iv.  tit  50 ;  also  tit  20,  §  28 ;  tit  35, 
§  21 ;  Mor«'$  Notes,  p.  ccccxiii. ;  Ersk.  B.  ii. 
tit  11 ;  Bank.  B.  i.  tit  7,  S  139 ;  BttitsCm. 
ii.  141,  ft  seq.,  418,  and  authorities  there  eitei; 
Beits  Prine.  §  2390 ;  Kamt^  Eludd.  art  42 ; 
Karnes'  Stat.  Law,  h.  t.,  and  voce  Recognition ; 
BeU  on  Leases,  L  110-2  ;  Hunter's  Landlord 
and  Tenant;  Brown  on  Sale,  203;  Bdl  on 
Purchaser's  Title,  368, 374;  Jurid.  SU/ks,  ii. 
409,  iii.  525-40,  990  ;  Ros^s  LecL  i.  459,  it 
seq.;  Thomson  on  Bills,  577;  Douglas,  Heron 
and  Co.,  24th  July  1785,  Mor.  7070 ;  Ferrier 
V.  Pennycuick,  8th  July  1812,  Fac.  Ccli.; 
McCartney,  15th  Jan.  1702,  Mor.  6965;  Mrnuro, 
19th  July  1777, Mor.  App.  Inhibition;  M'Lure, 
19th  Nov.  1807,  Mor.  App.  Gompetitum; 
Holmes,  7  S.  *  D.  535;  Roberts,  ib.  611 ; 
CarlisU,  1st  Feb.  1739,  Mor.  6971 ;  Stormont, 
5th  Dec.  1783 ;  HaOes,  ii.  933 ;  Memies,  4  D. 
257  ;  Livingstone,  5  D.  1. 

Inhibition  agminat  a  Wife.  This  dili- 
gence  is  intended  to  notify  to  the  public  that 
the  wife's  legal  prapositura  over  the  domestic 
affairs  has  ceased ;  so  that  she  may  not  longer 
have  it  in  her  power  to  burden  her  hnsbaod 
with  the  expense  of  domestic  furnishings, 
usually  falling  within  the  wife's  province. 
Like  the  inhibition  for  debt,  this  is  a  writ  in 
the  Sovereign's  name  passing  the  Signet  ob- 
tained upon  a  bill  presented  to  the  Lord 
Ordinary  on  the  Bills ;  and  it  prohibits  and 
discharges  all  and  sundry  from  transacting 
with  the  wife,  or  from  giving  her  credit  It 
is  executed  against  her  and  against  the  pub- 
lic, and  recorded  like  an  inhibition  by  a 
creditor.  The  husband  is  not  bound  (how 
rigorous  aud  harsh  soever  it  may  appear)  to 
assign  any  reason  for  this  step  ;  nor  will  he  ' 
be  allowed,  in  the  narrative  of  his  diligence, 
to  assign  any  grounds  injurious  to  the  wife. 
The  consequence  of  this  is,  that  the  inhibi- 
tion cannot  be  stopped  by  the  wife,  however 
little  ground  there  may  be  for  the  measure. 
Its  effects,  though  it  saves  the  husband  from 
liability  for  such  furnishings  as  he  can  prove 
to  have  been  otherwise  made  for  the  familj, 
will  not  protect  him  against  paying  for  those 
which  are  proper  and  necessary,  and  for 
which  he  has  not  otherwise  provided.  Ertk. 
B.  i.  tit.  6,  §  26 ;  Stair,  B.  i.  tit  4,  §§  15  sod 
17 ;  B.  iv.  tit  60,  §  21 ;  Mor^s  Notes,  p. 
xxiii.;  Bank.  vol.  i.  p.  126;  BeWs  Prine. 
§  1566;  Jurid.  Styles,  2d  edit  vol.  iii.  p.  540, 
See  Prapositura.     Wife. 


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Inliibitioa  of  Titbes ;  is  a  writ  issuing 
either  nnder  the  Signet  or  from  the  Commis- 
Htry  Court,  by  which  the  titular  of  teinds 
it  enabled  to  interrupt  the  possession  of  a 
tenant  of  the  teinds  possessing  by  tacit  relo- 
cation. In  consequence  of  this  diligence,  the 
titular,  in  place  of  the  teind-duty  stipulated 
in  the  lease,  is  entitled  to  draw  the  fiill 
teind ;  and  all  concerned  are  discharged  from 
meddling  with  the  teinds.  This  founds  an 
action  at  the  instance  of  the  titnlar,  in  which 
he  will  be  entitled  to  the  actual  proven  teind 
of  each  year,  or  where  there  is  a  valuation 
to  the  vidned  teind.  Ersk.  B.  ii.  tit.  10,  §  45; 
Stair,  B.  ii.  tit.  8,  §  23  ;  B.  iv.  tit.  24,  §  2 ; 
Bmk.  vol.  Ji.  p.  65 ;  Bell's  Prine.  §  1168 ; 
BttA.Juttice  of  Peace,  2d  edit.  vol.  ii.  p.  451 ; 
Bnvm't  Synop.  pp.  292,  4>74,  2418;  Jwrid. 
S^les,  2d  edit.  vol.  i.  pp.  683-5 ;  iii.  pp.  227, 
542,900. 

InUbitioiB;  in  English  law,  a  writ  to  for- 
bid a  judge  from  further  proceeding  in  a 
eanse  depending  before  him.  Tomlitui' Diet. 
Lt. 

Iniqiiity.  This  is  a  technical  expression, 
nraally  applied  to  the  decision  of  an  inferior 
jadge  who  has  decided  contrary  to  law ;  he  is 
in  that  case  said  to  have  committed  iniquity. 
SnL  B.  iv.  tit.  3,  §  41.    See  Advocation. 

Ldtialia  Testiiiunlii  It  was  formerly 
the  practice  before  a  witness  was  allowed  to 
be  examined  in  relation  to  the  cause,  to  inter- 
rogate him  in  regard  to  his  disposition  to- 
wards the  parties ;  whether  he  bore  malice 
or  ill-wiU  to  either  of  them ;  whether  he  had 
been  instructed  what  to  say,  and  had  under- 
taken to  give  his  evidence  accordingly ; 
whether  he  had  received  any  bribe  or  reward 
for  what  he  was  to  say,  or  had  been  promised 
any  reward.  This  wag  called  the  examina- 
tion of  a  witness  in  initialibiu,  by  which  the 
witness  was  said  to  be  **  purged  of  malice  and 
partial  counsel ;"  and  where  it  was  intended 
to  oppoae  the  examination  of  a  witness  on  the 
groond  that  he  was  disqualified  by  ill-will, 
bribery,  or  the  like,  the  evidence  in  support 
of  the  objection  might  be  instantly  brought 
forward.  Where  the  opposing  party  could 
not  bring  immediate  proof  to  disqualify  the 
witness,  it  was  the  practice  to  protest  for 
reprobators;  in  consequence  of  which  he 
might  afterwards  have  brought  an  action  of 
reprobator,  in  which  he  would  have  been 
tUowed  to  bring  evidence  for  disqualifying 
the  witness. 

Initial  examinations  are  not  now  usual  or 
neeetsary,  but  they  are  still  competent;  3 
and  4  Vict.,  cap.  59,  §  2 ;  and  in  certain 
circumstances  are  properly  insisted  in.  Dick- 
Km  on.  Evid.  906,  964 ;  Erfk.  B.  iv.  tit.  2, 
§  28 ;  Tait  on  Evid.,  424.     See  Evidence, 

laitiab.  Subscription  by.    The  initials  of 


a  party's  name,  adhibited  to  a  writing,  are, 
in  some  cases,  held  equivalent  tp  subscription. 
Erskine  says,  it  is  seldom  admitted  as  a 
ground  sufficient  by  itself  for  supporting  a 
subscription  by  initials,  that  the  granter  usu- 
ally signed  in  that  way ;  a  proof  by  the  iu- 
strumentary  witnesses  being  also  required 
that  the  granter  did  de  facto  sign  the  parti- 
cular deed  in  question,  at  least  if  it  be  chal- 
lenged during  the  life  of  instrumentary  wit- 
nesses. A  subscription  by  initials,  however, 
with  the  attestation  by  one  notary  that  the 
party  could  not  write  otherwise,  and  produc- 
tion of  another  writing  by  the  same  party 
subscribed  in  a  similar  way,  was  found  good ; 
and  a  cautioner's  subscription  by  initials  to  a 
lease  was  sustained,  it  not  being  denied  that 
the  initials  were  those  of  the  cautioner.  This 
mode  of  subscription  is  inadmissible  in  the 
case  of  a  witness.  A  bill  subscribed  by  ini- 
tials will  not  authorize  summary  diligence ; 
but  it  will  be  a  valid  document  of  debt  and 
a  good  ground  of  action,  if,  as  in  the  case  of 
other  writings  so  subscribed,  it  be  proved 
that  the  indorser  de  facto  adhibited  his  initials, 
and  that  it  was  his  usual  mode  of  subscribing. 
Even  when  no  such  proof  is  brought,  a  bill 
signed  by  initials  may  be  received  as  an  ad- 
minicle in  proof  of  the  debt.  Ersk.  B.  iii.  tit. 
2,  §§  8  and  26,  notes  hy  Ivory;  BelPs  Com.  i. 
326,  390 ;  BeWs  Prin.  §  323 ;  lUust.  ib. ; 
BeU  on  Leases,  i.  276  ;  Hunter's  Landlord  and 
Tenant;  Thomson  on  BiUs,  46  ;  Tait  on  Evid. 
8,  64,  116  ;  Ross's  Leet.  i.  136  ;  Dichsmi  on 
iJwy.  360,  409,412,374,617.  See  ifarib. 
Subscription  by.     Testing  Clause. 

Ii\jimoti<Hi;  in  English  law,  is  a  writ 
generally  grounded  upon  an  interlocutory 
order  or  decree,  out  of  the  Court  of  Chancery 
or  Exchequer,  sometimes  to  give  possession 
to  the  plaintiff,  in  consequence  of  the  de- 
fendant's failure  to  appear ;  sometimes  to 
stop  proceedings  in  a  cause,  upon  the  ground, 
that  the  rigour  of  the  law,  if  it  take  place, 
will  be  against  equity  and  conscience,  or  on 
similar  grounds  of  equity.  The  writ  of  in- 
junction is  directed  not  only  to  the  party 
himself,  but  to  his  counsellors,  attorneys,  and 
solicitors ;  and  if  any  attorney,  after  having 
been  served  with  an  injunction,  proceeds  con- 
trary to  it,  the  Court  of  Chancery  will  com- 
mit him  to  the  Fle'bt  prison  for  contempt. 
But  if  an  injunction  be  granted  by  the  Court 
of  Chancery  in  a  criminal  matter,  the  Court 
of  Queen's  Bench  may  dissolve  it,  and  pro- 
tect any  one  who  proceeds  in  contempt  of  it. 
Bank.  ii.  675  ;  Tomlins'  Did.  h.  t.  In  Shand, 
Dow's  App.  Reports,  ii.  523,  and  Goldie,  ib. 
536,  the  English  reporter  applies  the  word 
injunction  to  Scotch  cases.     See  Interdict. 

Iqiiry.    An  injury  is  defined  to  be  any- 
thing said  or  done  with  the  intention  of  hurt- 
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ing,  and  which  actually  does  hurt  another  in 
his  person,  character,  or  property.  It  is  so 
called,  as  being  an  infringement  of  the  natu- 
ral right  which  every  one  has  to  safety  in 
goods  and  person.  It  has  been  usual  to  make 
a  division  of  injuries  into  verbal  and  real ; 
the  former  comprehending  wrongs  which  an 
individual  suffers,  in  consequence  of  the  words 
or  writings  of  another ;  the  latter,  such  as 
are  inflicted  by  deeds.  A  verbal  injury, 
pointed  against  a  private  person,  consists  in 
the  uttering,  or  writing,  of  contumelious 
words  which  tend  to  vilify  his  character,  or 
render  it  little  or  oootemptible.  For  satire, 
though  it  does  not  blat^en  a  man's  moral 
character,  but  only  places  him  in  a  ridiculous 
light,  may  be  injurious.  The  animiu  mjuri- 
andi,  which  u  of  the  essence  of  this  crime, 
will  be  inferred  from  presumptions ;  and  in 
gpeneral,  it  is  presumed  from  the  words  them- 
selves, especially  where  they  are  made  use  of 
to  hurt  one  in  his  moral  character,  or  to  fix 
some  particular  guilt  upon  him,  as  if  one 
should  give  his  neighbour  the  name  of  (&»«/', 
(Aeat,  liar,  Sic,  This  presumption,  however, 
may  be  either  weakened  or  elided  by  special 
circumstances ;  e.'g.,  if  the  exproKions  have 
been  used  in  the  heat  of  passion,  with  no 
previous  or  subsequent  indication  of  a  mali- 
cious purpose.  Verbal  injuries  are  punished 
by  fine,  according  to  the  circumstances  of  the 
case.  They  also  found  a  civil  claim  for 
damages  or  reparation,  at  the  instance  of  the 
iiyured  party,  against  him  who  has  done  the 
injury.  A  real  injury  is  committed  by  doing 
anything  which  may  hurt  one's  person,  in- 
fringe his  right  of  personal  liberty,  or  affect 
his  honour  and  dignity.  The  offender  is 
liable  both  to  a  criminal  prosecution,  and  to 
a  civil  action  for  reparation  and  tolatium. 
Although,  strictly  speaking,  no  act  ought  to 
be  called  injurious,  where  there  is  not  animus 
injuriandi,  yet  the  term  is  frequently  applied 
where  there  is  reparation  due  on  account  of 
wrongs  suffered  through  gross  carelessness, 
the  law  holding  such  fault  equivalent  to  ma- 
lice. Stair,  B.  i.  tit.  9,  §  1,  «<  teq. ;  Erik.  B. 
iii.  tit.  1,  §  13 ;  B.  iv.  tit  4,  §  81 ;  Bank.  i. 
248,  302  ;  Bdfs  Prine.§  2028 ;  Taifs  Jiutice 
of  Peace,  h.  t. ;  Blair's  futtice  of  Peace,  h.  t. ; 
Shauft  Digett,  voce  Reparaiion.  See  Damnum 
sine  iwuria.    Damages.    Defamation, 

Inluid-BiUB.  An  inland  bill,  is  one 
drawn  upon  a  person  living  in  the  same 
country  with  the  drawer,  either  in  favour  of 
a  third  party  or  of  the  drawer  himself.  A 
bill  drawn  by  a  person  in  Scotland,  on  a  per- 
son in  England,  or  e  contra,  was  formerly  held 
not  to  l)e  an  inland  bill ;  but  by  the  Mercan- 
tile Law  Amendment  Act  1856  (19  and  20 
Vict,  c.  60,  §  12),  all  bills  drawn  in  any  part 
of  the  United  Kingdom,  and  made  payable 


in  or  drawn  upon  any  person  resident  in  the 
United  Kingdom  are  to  be  deemed  inland 
bills.  By  §  14  of  the  same  act,  notice  of  dis- 
honour is  required  in  the  case  of  inland  bilk, 
as  in  the  case  of  foreign  bills.  Under  §  13, 
notarial  protest  of  such  bills  is  unnecessary. 
Bell's  Com.  i.  419  ;  Thomson,  2 ;  BeWs  iVtw. 
§  308.     See  BM  of  Exdtange, 

Inner-Howe ;  the  name  given  to  the 
chambers  in  which  the  First  and  Second 
Divsions  of  the  Court  of  Session  hold  their 
sittings;  applied  also  to  the  Courts  them- 
selves, and  used  in  contradistinction  to  the 
Outer-House,  or  hall  in  which  the  Lords 
Ordinary  sit  to  hear  motions  and  causes.  All 
causes  commencing  in  the  regular  form  by 
summons,  or  by  notes  of  suspension  or  advo- 
cation, arrive  at  the  Inner- House  after  pass- 
ing through  the  Outer-House.  But  there 
are  some  cases,  which,  though  originating 
with  summonses,  are  specially  appropriated 
to  the  Inner-House,  in  the  first  instance,  and 
in  which  no  discussion  takes  place  in  the 
Outer-House,  except  by  special  remit  from 
one  or  other  of  the  Divisions  of  the  Conri 
Such  are  actions  of  proving  of  the  tenor  and 
formerly  reductions,  actions  of  aliment,  of 
cessio  bonorwn,  and  of  cognition  and  nle. 
These  causes,  on  appearing  in  the  Onter- 
House  rolls,  are  at  once  transmitted  to  the 
Inner-House ;  great  avisandum,  as  it  is  tech- 
nically called,  being  the  first  motion  in  saeh 
cases.  The  Inner-House  has  an  original 
jurisdiction  in  all  cases  which  commence  by 
summary  or  incidental  application,  except 
notes  of  suspension  and  advocation,  which 
must  be  presented  in  the  first  instance  in  the 
Bill-Chamber.  The  whole  Judges  formerly 
sat  together  in  the  Inner-House ;  but  the 
Court  was,  in  1808,  divided  into  two  Divi- 
sions; the  Lord  President  and  three  ordi- 
nary Judges  now  forming  the  Inner-Honse 
of  the  First  Division ;  the  Lord  Justice-Clerk 
and  other  three  ordinary  Judges  forming  the 
Inner- House  of  the  Second  Division  ;  and  the 
remaining  Judges  officiating  as  permanent 
Lords  Ordinary  in  the  Outer-House.  DoriDg 
session,  the  Inner-Honse  meets  at  11  o'clock 
daily.  There  are  four  rolls  in  the  Inner- 
House,  the  roll  of  single  bills,  the  snmmsr 
roll,  the  long  roll,  and  the  short  rolL  (See 
Rolls  of  Court.)  The  usual  manner  in  which 
a  cause  comes  into  the  Inner-House  is  by 
reclaiming  note  (see  Reclaiming- Note) ;  but 
there  are  several  other  modes.  Thus,  the 
Lord  Ordinary,  without  himself  prononndng 
any  decision,  may  report  a  case  as  it  is  ex- 
pressed, which  appears  to  be  attended  with 
more  than  usual  difficulty  or  importance,  to 
the  Inner- House  of  the  Division  to  which  the 
cause  belongs.  After  the  record  and  papers 
are  boxed  (which  must  be  done  immediately 


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after  tbe  warrant  to  enrol  is  granted),  or  after 
a  reclaiming  note  is  presented,  the  cause  be- 
longs to  the  Inner-House,  where  it  is  regu- 
larly enrolled  by  the  keeper  of  the  Inner- 
House  rolls,  in  the  Long  or  in  the  Summar 
roll,  according  to  the  nature  of  the  case. 
The  roles  as  to  the  preparation,  lodging,  and 
signing  of  papers,  reporting  of  diligence,  &c., 
are  the  same  in  the  Inner  as  in  the  Outer- 
House.  See  OuterrHouse.  The  following  re- 
gulations are  peculiar  to  the  Inner-House. 
When  canses  are  set  down  for  advising  in  the 
Skvrt  roll  (which  is  just  a  section  of  the  Long 
nil  put  out  daily  for  hearing),  or  in  the 
Stimmar  roll  (which  is  the  roll  for  summaiy 
coMt),  no  delay  will  be  granted  on  account  of 
the  absence  of  counsel  or  agent,  except  in  the 
case  of  unexpected  and  necessary  absence, 
and  then  only  for  such  short  time  as  may  be 
necessary  to  instruct  other  counsel  or  agents ; 
A.  S.  nth  July  1828,  §  81.  Where  a  party 
fails  to  lodge  his  paper  within  tbe  time  fixed, 
the  cause  may,  immediately  on  the  expira- 
tion of  the  time,  be  enrolled  in  the  Summar 
roll ;  and  judgment  will  be  pronounced 
against  the  party  so  failing,  in  such  manner, 
and  to  such  extent,  as  may,  in  the  form  and 
circumstances  of  the  process,  be  competently 
craved ;  unless  in  those  cases  where  no  pro- 
rogation has  been  previously  granted,  and 
where  the  party  in  default  can  satisfy  the 
Court  that  a  further  time  ought  to  be  allowed 
him.  But  such  prorogation  can  be  granted 
only  on  payment  of  such  previous  expenses 
as  the  Court  may  judge  reasonable ;  A.  S. 
ib.  §  80.  See  Default.  The  only  other  mode 
of  obtaining  a  prorogation  in  the  Inner- 
House  is  by  application  by  Note  to  the  Lord 
President  of  the  Division.  Parties  or  their 
agcDts  cannot,  in  the  Inner-House,  as  they 
may  in  the  Outer-House,  prorogate  of  consent 
the  time  for  lodging  papers  ordered  by  either 
Division  of  the  Inner- House;  A.  S.  18th  Nov. 
1829.  See  Prorogatum.  The  most  solemn 
mode  of  determining  a  cause  in  the  Inner- 
House  is  after  a  hearing  in  presence.  See 
Bearing  in  Pretence.  All  interlocutors  pro- 
nounced in  the  Inner-House  are  now  final, 
no  reclaiming  against  them  being  competent. 
In  deciding  the  cause,  the  matter  of  expenses 
must  also  be  determined ;  6  Geo.  IV.,  c.  120, 
§  21.  All  acts  pronounced  in  the  Inner- 
House  may  be  extracted  immediately,  with- 
ont  abiding  the  reading  thereof  in  the  Minute- 
book. 

Tinder  the  Act  13  and  14  Vict.,  c.  36, 
§  32,  certain  advocations  and  suspensions 
may  be  taken  de  piano  to  the  Inner-House, 
on  a  motion  by  either  party  before  the  Lord 
Ordinary  at  the  first  calling  of  the  cause. 
By  the  statute  20  and  21  Vict.,  c.  56,  §  4, 
aommary  petitions  and  applications  to  the 
2p 


Lords  of  Council  and  Session  (not  being  in- 
cident to  causes  actually  in  dependence), 
which  were  previously  in  use  to  be  disposed 
of  exclusively  by  the  Inner-House,  are  ap- 
pointed to  be  brought  before  the  Junior  Lord 
Ordinary  in  the  Outer-House.  See  these 
Statutes.  See  also  A.  S.  11th  July  1828, 
§  116  ;  Brsk.  B.  i.  tit.  3,  §  16,  note  by  Mr 
Ivory ;  Shanes  Prac.  761, 757,  963,  &c.  See 
Consultation  of  Judges.  Session,  Court  of.  Judi- 
cial Factor.  Reduction.  Actions.  Advocation. 
Suspension. 

unkeepen.  This  seems  to  be  the  appro- 
priate head  for  an  explanation  of  the  extent 
to  which  tlte  Koman  law  edict,  Kaut(B  eau- 
pones  ttaMarii,  has  been  adopted  in  the  law 
of  Scotland.  Under  that  edict,  the  masters 
of  ships,  inns,  stables,  &c.,  were  held  liable 
for  the  loss  of  luggage,  goods,  &c.,  placed 
under  their  charge  by  passengers,  lodgers, 
and  the  like.  The  principle  of  that  edict  has 
been  fully  recognised  in  our  practice ;  and 
with  us  the  liability  extends  not  only  to  losses 
arising  from  the  fault,  negligence,  or  fraud  of 
the  innkeeper  himself,  but  also  to  those  cases 
in  which  the  loss  has  resulted  from  the  fault 
or  crime  of  his  servants,  or  of  the  other  in- 
mates of  his  house.  The  only  case  in  which 
the  innkeeper  is  not  liable,  is  when  the  loss 
arises  from  an  unavoidable  accident,  or  dam- 
num fatale.  The  rule,  as  laid  down  in  Eng- 
land, is,  "  that  nothing  is  an  excuse  except 
an  act  of  God,  or  of  the  King's  enemies." 
(See  Act  of  God.)  What  is  to  be  considered 
damnum  fatale  is  sometimes  a  question  of  con- 
siderable difSculty.  Some  authorities  do  not 
reckon  fire  such  an  accident ;  but  in  one  case, 
it  was  decided  that  an  accidental  fire,  where- 
by both  stables  and  horses  were  destroyed, 
did  not  subject  the  innkeeper.  Loss  by  rob- 
bery is  also  a  controverted  point ;  but  it  is 
unquestionable,  that  in  England  it  is  not  held 
damnum  fatale,  and  that  even  in  Scotland 
loss  by  theft  makes  the  innkeeper  responsible. 
The  edict  applies  to  the  keepers  of  tippling- 
houses,  with  whom  travellers  lodge,  and  even 
to  mere  vintners ;  but  it  is  a  question  still 
open,  whether  it  applies  to  lodging-house 
keepers.  (See  Lodging- Houses.)  Where  a 
horse  has  been  put  into  a  stable  to  bait,  and 
money  or  goods  have  been  abstracted  from  a 
valise  or  portmanteau  on  the  hoi-se's  back, 
the  stabler  must  make  good  the  loss ;  and  a 
stabler  has  been  found  liable  for  the  value  of 
a  horse  which  died  in  consequence  of  an  ac- 
cident while  under  his  care.  An  innkeeper 
neglecting  to  give  a  parcel  containing  money 
to  a  carrier,  as  he  ought  to  have  done,  was 
held  liable  for  its  contents.  But  this  liability 
does  not  extend  to  money  contained  in  a 
parcel,  addressed  to  his  care,  but  to  a  person 
not  a  guest  in  his  house.    It  is  sometimes  a 

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question  whether,  in  order  to  make  the  inn- 
keeper liable  for  a  certain  article,  it  is  ne- 
cessary to  give  him  information  respetting  it, 
or  to  commit  it  to  his  care.  An  innkeeper 
has  been  found  not  liable  for  a  purse  of  gold 
alleged  to  hare  been  lost,  of  which  he  was 
told  nothing  previously.  But  he  was  held 
liable  for  a  pair  of  breeches  and  their  alleged 
contents,  said  to  hare  been  abstracted  fi-om  a 
traveller's  room.  The  danger  of  admitting 
such  allegations  without  proof  is  apparent ; 
and  it  is  now  established,  that  although  the 
extent  of  the  loss  may  be  ascertained  against 
the  innkeeper  by  the  oath  in  litem  of  the 
party  sufferingthe  loss,  fortified  in  the  general 
case  by  such  reasonable  collateral  evidence  as 
nay  prevent  an  extravagant  demand,  yet  it 
is  necessary  for  the  traveller  to  prove  that 
some  of  his  property  has  been  carried  away, 
or  some  of  bis  securities  broken  open.  See, 
however,  as  to  the  mode  of  proof,  Crawcour, 
1842,  5  D.IO;  and  the  act  16  and  17  Vict^, 
c.  20,  §  3.  An  innkeeper  has  a  lien  upon  a 
traveller's  luggage  and  goods  for  the  price 
of  his  lodging  and  entertainment,  and  upon 
his  horse  for  its  provender  and  stabling.  This 
lien  operates  even  against  the  true  owner  of 
the  horse,  though  it  had  been  stolen  by  him 
who  brought  it  to  the  inn.  It  is  strictly  con- 
fined to  the  keep  of  the  horse  itself,  and  is 
lost  without  revival,  if  the  horse  has  once 
been  allowed  to  go  away.  Effects  belonging 
to  a  traveller  in  an  inn  or  hotel  are  not 
subject  to  the  landlord's  hypothec.  In  the 
Jurid.  Stylet,  iii.  81,  will  be  found  the  form  of 
a  summons  upon  the  edict,  Nautce,  cauponet, 
against  an  innkeeper  for  the  loss  of  a  horse. 
See  Stair,  B.  i.  tit.  9,  £5  ;  More's  Notes,  Ivii. ; 
Brodie's  Supp.  918  ;  Ersk.  B.  iii.  tit.  1,  §28, 
and  notes  by  Ivory;  Bank.  B.  i.tit.  16 ;  aelVs 
Com.  i.  469 ;  ii.  103, 311 ;  BeWt  Prine.  §  236  ; 
JUutt.  ih. ;  Bell  on  Learn,  i.  387 ;  Hunter's 
Landlord  and  Tenant;  Hutch.  Justice  of  Peace, 
ii.  164, 494 ;  Taifs  d0.,vocibus Location,Naut(e, 
Caupones,  Alehouses;  Blair's  do.,  voce  Nautoe. 
See  NautcB  Caupones.  Carriers.  Public  Car- 
es. 


aoration;  is  a  technical  expression, 
signifying  the  exchange,  with  the  creditor's 
consent,  of  one  obligation  for  another ;  so  as 
to  make  the  second  obligation  come  in  the 
place  of  the  first,  and  be  the  only  subsisting 
obligation  against  the  debtor,  both  the  ori- 
giniJ  ohligants  remaining  the  same.  This 
change  is  not  to  be  presumed,  and  must  there- 
fore be  precisely  expressed;  e.g.,  where  the 
second  obligation  bears  to  have  been  granted 
"  in  satisfaction "  of  the  first.  Ersk.  B.  iii. 
tit.  4,  §  22  ;  Stair,  B.  i.  tit.  18,  §  8  ;  Bank. 
i.  495 ;  BeWs  Princ.  §  576  ;  Brown's  Synop. 
h.  t.;  Shaa's  Digest ;  Thomson  on  Bills,  136, 
146, 166.    See  Delegation. 


Luu  of  Court.  In  England,  the  eollega 
of  municipal  or  common  law  professors  and 
students  are  called  inns.  The  inns  of  conrt 
are  governed  by  masters,  principals,  benchen, 
stewards,  and  other  officers ;  and  they  hare 
public  halls  for  exercises,  readings,  and  the 
like,  which  the  students  are  obliged  to  attend 
for  a  certain  number  of  years  before  they  can 
be  admitted  to  plead  at  the  bar.  Although 
these  societies  have  no  judicial  authority  over 
their  members,  there  exist  among  themselves 
certain  orders  or  regulations,  which  have, by 
consent,  the  force  of  law.  The  gentlemen  is 
these  societies  may  be  divided  into  benchen, 
outer-barristers,  inner-barristers,  and  stu- 
dents. The  four  principal  inns  of  court  are 
the  Inner  and  Middle  Temple,  Lincoln's  Ion, 
and  Giray's  Inn.  The  other  inns  are  the  two 
Serjeants'  Inns.  The  Inns  of  Chancery ;  were 
formerly  preparatory  colleges  for  younger 
students ;  and  many  were  entered  there  be- 
fore they  were  admitted  into  the  inns  of  court. 
They  are  now  almost  entirely  occupied  bj 
attorneys,  solicitors,  and  others.  They  all 
belong  to  one  or  other  of  the  inns  of  court 
They  are  Thavie's,New,  Symond's,  Clement's, 
Clifford's,  Staple,  Furnival's,  and  Bernard's 
Inn.    Tomlins"  Diet.  h.  t. ;  Bladcst.  i.  23, 25. 

Innuendo ;  a  word  frequently  used  in 
English  writs,  declarations,  and  pleadings, 
to  ascertain  a  person  or  thing  named  before, 
but  left  doubtful ;  as  "  he  [innuendo,  the 
plaintiff),  did  so  and  so."     Tomlins,  L  t. 

In  the  law  of  libel  and  slander,  words 
which  are  not  pet  se  injurious  or  actionable 
may  become  so  by  reason  of  the  meaning  or 
signification  with  which  they  are  uttered. 
The  meaning  conveyed  by  the  words  as  used 
is  called  the  innuendo,  and  is  usually  intro- 
duced into  the  record  and  issue  by  the  words 
"meaning  thereby,"  after  the  expressions 
alleged  to  have  been  used.  See  Borthwid^s 
Law  of  LiM;  Macfarlane  and  Cleghmn  t» 
Issues. 

Inqneit ;  is  a  certain  number  of  men  to 
whom  the  trial  of  a  question,  civil  or  crimi- 
nal, is  committed.  They  are  termed  the  in- 
quest, from  their  being  appointed  to  inquire 
into  the  state  of  the  facts ;  and  jury,  beeattse 
they  are  sworn  to  give  their  verdict  accord- 
ing to  the  evidence.  See  Jury.  Jury  TriaL 
ChMenge  of  Jurors.    Brieve.     Service. 

InSMii^.  There  are  various  degrees  of 
aberration  of  intellect  recognised  in  the  biw 
of  Scotland  as  calling  for  its  special  protec- 
tion. But  in  determining  the  appropriate 
measure  of  protection  to  be  afforded  to  per- 
sons affected  in  mind,  they  may  be  divided 
into  two  great  classes.  The  first  compre- 
hends every  one  who  is,  in  legal  language, 
fatuous  and  naturally  an  idiot,  or  furious, 
mad,  and  a  lunatic ;  or  whose  external  senses 


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are  so  imperfectlj  organised  as  to  render  him 
totally  incapable  of  the  independent  manage- 
ment of  himself  or  his  affairs.  The  second 
comprehends  those  who,  althongh  not  so  de- 
void of  reason  as  to  be  absolutely  incapable  of 
acting  for  themselves  in  the  minor  affairs  of 
life,  are  yet,  from  imbecility  or  weakness  of 
judgment,  considered  by  the  law  fit  subjects 
for  a  limited  degree  of  restraint,  in  matters 
of  importance.  The  remedy  in  the  former 
case  is  to  place  the  fatuous  or  furious  person 
nnder  permanent  and  unlimited  curatory ; 
and  for  that  purpose  an  inquiry  is  made 
into  his  state  of  mind  by  a  cognition  and  in- 
quest, the  proceedings  in  which  will  be  found 
explained  in  the  articles  Brieve.  Fatuous. 
Fttriout.  Idiotty.  The  remedy  afforded  in 
the  latter  class  of  cases  is  interdiction,  by 
which  lavish  and  facile  persons  are  disabled 
from  signing,  any  deed  to  their  prejudice 
without  the  consent  of  their  interdictors. 
(See  Facility.  Imbecility.  Interdiction.)  A 
very  good  illustration  of  the  distinction  be- 
tween the  two  classes  of  persons  will  be  found 
in  a  fall  and  excellent  report  of  the  proceed- 
ings under  a  brieve  of  idiotry  against  David 
Yoolow  (reported  by  Mr  Ludovic  Colqu- 
honn,  1837).  The  insanity  of  a  partner, 
when  of  a  permanent  nature,  is  a  ground  for 
dissolving  a  partnership.  Notwithstanding 
a  mandant's  supervening  insanity,  the  acts  of 
a  mandatory  previously  appointed,  are  good 
to  the  public  against  the  mandant's  estate. 
The  curators  of  insane  persons  can  grant 
leases  of  a  duration  only  equal  to  that  of  their 
«fSce.  See  Bel^s  Com.  i.  489  ;  ii.  279,  453, 
635  ;  Hunter's  Landhrd  and  Tenant;  Tait  on 
Evidence,  342  ;  Blair's  Justice  of  Peace,  h.  U  ; 
Thomson  on  Bills,  226,  246 ;  Brown's  Synop. 
209,  1744 ;  Shaw's  Digest,  155, 239 ;  S.diD. 
xiii.  703.  For  the  rules  as  to  the  admissibi- 
lity of  witnesses  subject  to  insanity,  and  the 
excuse  which  insanity  furnishes  for  crime, 
see  Idiots  ;  Imbecility  ;  Dickson  on  Evid.  844  ; 
Smith,  1856,  2  Irv.  p.  1 ;  Gibson,  1844,  2 
Br.  332 ;  and  for  the  treatment  of  insane 
persons,  see  Madhouses,  Lunatics,  and  the  sta- 
tute 20  and  21  Vict.,  c.  71.  Insanity,  be- 
sides being  pleadable  as  freeing  from  respon- 
sibility for  criminal  acts,  may  also  be  pleaded 
in  bar  of  trial  where  the  party  is  incapable 
of  pleading  to  the  libel. 

toMlvwioy,  When  a  person's  debts  ex- 
ceed the  value  of  his  estate,  he  is  said  to  be 
insolvent ;  and  this  has  various  effects  in  law. 
Insolvency  is  a  ground  for  reducing  or  setting 
aside  all  voluntary  gratuitous  rights  by  the 
insolvent  debtor  which  come  in  competition 
with  the  claim  of  a  creditor;  1621,  c.  18. 
An  insolvent  person  has  not  the  power  of 
effectually  disposing  of  his  means  and  estate 
to  the  prejudice  of  his  creditors.    Bat  insol- 


vency is  a  fact  very  difiBcnlt  to  be  established. 
Nor  would  it  be  possible,  in  a  commercial 
country,  to  fix  on  insolvency  alone  as  the  point 
at  which  a  mercantile  man  must  suspend  his 
transactions,  and  surrender  his  affairs  into 
the  hands  of  his  creditors.  Our  law  there- 
fore, in  the  ordinary  case,  takes  bankruptcy 
as  the  legal  indication  of  insolvency;  the  dis- 
tinction between  the  two  being,  that  a  man 
may  be  actually  insolvent,  although  not  bank- 
rupt; since  he  may  have  so  managed  his 
affairs  as  to  have  escaped  the  execution  of 
those  steps  of  real  or  personal  diligence,  which 
are  requisite  to  render  him  notour  or  legally 
bankrupt.  See  Bankrupt.  Conjunct  and  Con- 
fident. SequestrcUion.  Ranking  and  Sale.  Di- 
ligence. 

Instalment.  When  parties  have  agreed 
that  a  sum  of  money  due  shall  not  be  paid 
in  the  gross,  but  in  parts,  at  certain  stated 
intervals,  that  sum  is  said  to  be  payable  by 
instalments.  In  the  case  of  a  bill  or  note 
payable  by  instalments,  effect  is  given  to  a  con- 
dition inserted  in  the  bill,  that  if  there  should 
be  a  failure  to  pay  one  instalment,  the  whole 
shall  become  due.  In  England,  it  has  even 
been  doubted  whetlTer  the  holder  of  a  bill  or 
note  payable  by  instalments  is  not  entitled 
to  take  a  verdict  for  the  whole  of  them  at 
once,  although  not  more  than  one  has  become 
due.  But  in  Scotland  neither  action  nor 
diligence  can  be  raised  on  such  a  bill  or  note, 
except  for  the  several  instalments  as  they  re- 
spectively become  due.  Where,  however,  the 
debtor  is  sequestrated,  the  holder  of  a  bill 
payable  by  instalments  would  be  entitled, 
under  the  bankrupt  statute,  to  rank  im- 
mediately for  the  amount  of  each  instalment, 
under  an  abatement  of  interest  corresponding 
to  the  time  that  must  elapse  before  it  falto 
due.  For  the  form  of  an  inland  bill  payable 
by  instalments,  see  Jurid.  Styles,  ii.  4. 

Institor ;  in  the  Roman  law,  was  a  person 
to  whom  the  immediate  management  of  any 
manufactory,  shop,  or  undertaking  was  com- 
mitted. A  mercantile  consignee  or  factor  is, 
in  this  sense,  an  institor.  Those  granting  the 
deputation  were  termed  prepositors.  In  the 
same  way  with  exercitors,  who  are  liable  for 
the  acts  of  the  shipmaster  (see  Exercitor), 
prepositors  are  liable  for  the  acts  of  the  in- 
stitor; only  that  it  is  more  incumbent  on 
those  who  transact  with  institors  that  they 
should  know  precisely  the  powers  of  the  in- 
stitor. Institors  do  not,  like  shipmasters, 
bind  themselves  in  their  transactions ;  they 
bind  only  their  constituents.  Ersk.  B.  iii. 
tit.  3,  §  46 ;  Stair,  B.  i.  tit.  13,  §  18 ;  Bank. 
vol.  i.  p.  400 ;  BeU's  Com.  i.  477, 490  ;  BeWs 
Princ.  §  231 ;  lUust.  ib.;  Tait's  Justice  of  Peace, 
voce  Mandate.    See  Factor.    Mandate. 

Institate ;  is  the  person  to  whom  the  estate 


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is  first  given  in  a  destination.  Thus,  where 
a  person  ezecnting  a  settlement  dispones  his 
lands  to  A.,  whom  failing,  to  B.,  &c.,  A.  is 
the  institute,  B.,  and  all  who  follow  him  in 
the  destination, are  heirs,  or  substitutes,  as  they 
are  also  termed.  Hence  a  considerahle  de- 
gree of  nicety  sometimM  arises  in  completing 
the  title  to  the  estate ;  for  the  procuratories 
of  resignation  and  precepts  of  sasine  for  com- 
pleting the  title  of  the  disponee  may  be 
directly  used  by  the  institute,  but  cannot  be 
used  by  any  of  the  heirs  without  a  service. 
When  the  institute  predeceases  the  granter 
of  a  deed,  the  next  in  order  becomes  the  in- 
stitute, and  takes  without  a  service.  In 
directing  the  conditions  or  prohibitions  of  the 
deed  against  those  who  are  called  to  possess 
the  estate,  it  is  also  requisite  to  distinguish 
between  the  institute  and  the  heir,  since  con- 
ditions, directed  against  heirs  only,  will  not 
affect  the  institute.  Ersk.  B.  iii .  tit.  8,  §  44  ; 
Stair,  B.  iii.  tit.  8,  §  17 ;  BelPs  Com.  i.  46 ; 
BeWs  Princ.  §  1745 ;  Sandford  on  Herit.  Suc- 
cession, i.  pp.  264,  380 ;  Sandford  on  Entails, 
pp.  48,  136-6-8,  317.  See  Tailzie.  Con- 
dition(d  Institute. 

Initmmentary  Witnesaat ;  are  such  as  at- 
test the  subscription  of  parties.  The  wit- 
nesses to  a  formal  written  deed  or  instrument 
must  be  of  the  male  sex,  and  above  fourteen 
years  of  age.  Being  of  the  male  sex  is  a 
requisite  stoted  by  most  of  the  institutional 
writers;  hut  it  is  proper  to  mention,  that, 
according  to  the  older  practice,  women  were 
frequently  inserted  as  witnesses ;  and  that  a 
recent  annotator  holds,  that  now,  when  the 
incompetency  of  female  testimony  in  a  court 
of  justice  is  entirely  removed,  it  is  probable 
women  would  not  be  objected  to  as  instru- 
mentary  witnesses  (More's  Notes  on  Stair, 
cccxcix.).  Where  a  person  is  so  blind  as  to 
be  incapable  of  seeing  the  party  touch  the  pen 
of  the  notaries  who  subscribe  for  him,  or  of 
knowing  whether  a  paper  laid  before  him  is 
written  upon  or  not,  he  is  an  inluMle  instru- 
mentary  witness.  The  witnesses  ought  to 
know  the  party,  and  to  see  him  subscribe,  or 
hear  him  acknowledge  his  subscription.  In 
the  latter  case  they  ought,  immediately  after 
the  acknowledgment,  to  add  their  subscrip- 
tions as  witnesses.  This  is  not  necessary  in 
the  former  case  ;  and,  indeed,  two  witnesses 
may  attest  all  the  subscriptions,  however  nu- 
merous, and  although  adhibited  on  different 
days,  provided  they  have  seen  the  parties  sub- 
scribe. At  first,  the  rules  as  to  instrumeutary 
witnesses  were  very  lax ;  designation  was  not 
necessary;  and  it  was  not  even  required  that 
the  witnesses  should  subscribe,  it  being  snfB- 
cient  that  their  names  were  mentioned  in  the 
testing  clause.  But  improvements  were  gra- 
dually introduced ;  and  the  law  was  finally 


placed  npon  its  present  secure  footing,  hj 
1681,  c.  6,  enacting,  that  only  subscribing 
witnesses  should  be  probative,  and  that  they 
should  be  designed  in  the  body  of  the  writ. 
Where  there  is  any  error  in  specifying 
the  name  or  designation  of  the  witness,  or 
where  he  is  named  by  a  familiar  appellation 
instead  of  his  true  name,  or  where  there  is  an 
error  in  his  Christian  name,  the  deed  is  null. 
Where  such  mistakes  are  committed  inad- 
vertently, they  may  be  corrected  before  pro- 
ducing the  deed  in  judgment,  by  inserting  at 
the  end  of  the  testing  clause  a  correction  of 
the  mistake.  Grammatical  errors  are  not 
regarded  when  the  meaning  is  plain ;  nor  is 
it  an  objection  that  the  witnesses,  though 
mentioned  in  the  testing  clause,  are  not  there 
described  as  witnesses ;  and  an  execution  of 
arrestment  has  been  sustained,  which  one  of 
the  witnesses  had  subscribed  without  adding 
the  word  "  witness,"  in  regard  he  was  de- 
signed as  one  of  the  witnesses  in  the  body  of 
the  writ.  Witnesses  are  neeeasary  to  authen- 
ticate the  subscription  of  consenters  (such  as 
curators),  as  well  as  of  the  principal  party. 
Where  a  deed  is  granted  by  two  persons,  and 
subscribed  by  a  notary  for  one  of  them,  the 
same  witnesses  may  authenticate  both  sub- 
scriptions. It  has  been  said,  that  where  the 
parties  to  a  deed  are  numerous,  they  are  pre- 
sumed to  be  witnesses  to  one  another's  sub- 
scriptions ;  but  there  are  several  more  recent 
decisions  establishing  a  contrary  doctrine. 
Where  a  tack  or  other  contract  has  been  anb- 
scribed  by  the  parties,  but  not  by  the  wit- 
nesses, the  witnesses  cannot  ex  interoallc  sub- 
scribe it  at  the  desire  of  one  of  the  parties. 
In  terms  of  1686,  c.  17,  witnesses  to  sasinet 
must  subscribe  each  leaf;  and  although  there 
have  been  several  cases  decided  on  the  as- 
sumption that  the  necessity  for  this  was  taken 
away,  yet  one  of  these  decisions  was  reversed 
in  the  House  of  Lords,  and  it  is  now  under- 
stood that  the  subscription  to  each  page  is 
essential  to  the  validity  of  the  deed.  The  ob- 
jections of  partial  favour,  undue  influence,  or 
immoral  character,  did  not  affect  instrumeu- 
tary witnesses,  in  so  far  as  they  attested  the 
subscription  of  parties ;  but  might  formerly 
have  been  pleaded  against  them  if  they  were 
afterwards  produced  in  proof  of  extrinsic 
facts  affecting  the  validity  of  the  deed;  «.»., 
the  state  of  the  grantor's  health  when  he 
signed  the  deed.  An  executor  in  a  testament 
has  been  found  a  valid  instrumentary  witness 
to  support  the  deed,  in  every  respect,  except 
his  own  nomination.  Both  trustees  and  lega- 
tees may  attest  the  deed  in  which  theysre 
appointed.  The  creditor  in  a  bond  cannot  be 
an  instrumentary  witness ;  but  it  is  thought 
that  one  of  the  creditors  concerned  in  a  relief 
may  be  witness  to  a  bond  of  warrandice  or 


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relief,  his  interest  being  only  consequential. 
The  instrnmentary  witnesses  may  be  examined 
as  to  tbe  fact  of  their  having  seen  the  granter 
subscribe,  or  heard  him  acknowledge  his 
snbscription ;  but  it  will  not  invalidate  the 
deed,  that  they  do  not  distinctly  recollect  hav- 
ing seen  it  subscribed.  Yet,  if  it  be  clearly 
proved  that  one  of  the  instrnmentary  wit- 
nesses neither  saw  the  party  subscribe,  nor 
heard  him  acknowledge  his  snbscription,  it  is 
a  relevant  ground  for  reducing  the  deed, 
though  it  should  not  be  alleged  that  the  deed 
is  false  or  forged.  But  a  party  cannot,  with- 
out averring  forgery  of  his  sulncription,  chal- 
lenge his  owu  deed  on  the  ground  of  its  not 
having  been  snbscribed  in  the  presence  of  the 
instrnmentary  witnesses.  It  is  not  necessary 
for  the  witnesses  to  a  messenger's  execution, 
or  a  notarial  instrument,  to  see  the  messen- 
ger or  notary  sign ;  they  do  not  attest  the 
subscription,  but  the  transaction  narrated. 
For  the  same  reason,  where  an  execution  con- 
sists of  several  pages,  they  ought,  like  the 
executor,  to  sign  each  page.  Witnesses  can- 
not sign  by  initials.  More't  Notes  on  Stair, 
clxii.,  cccxcvii. ;  Ersk.  B.  iii.  tit.  2,  §  7 ; 
B.  ir.  tit.  2,  §  27 ;  Bank.  i.  349 ;  Tait  on  Evi- 
dence, 5-11,  21-7,  81, 99;  Ross's  Leet.  i.  127, 
et  seq.,  141;  Bell  on  Purchaser's  Title,  216 ; 
Bell  on  Leases,  i.  274 ;  Hunter's  Landlord  and 
Tenant,  310 ;  Broum's  Syn.  2701 ;  Shaw's  Di- 
gest, 637 ;  S.dD.  xi.  915 ;  Dickson  on  Ev. 
369,  350,  421.  See  Evidence.  Writ.  Testing 
Clatue. 

Instrnmeiits.  In  the  phraseology  of  the 
Scottish  law,  the  term  instrument  is  usually 
applied  to  notarial  instruments,  such  as  in- 
struments of  sasine,  instruments  of  resigna- 
tion, instruments  of  intimation  of  an  assig- 
nation, instruments  of  premonition,  of  pro- 
test, and  the  like.  Where  certain  demands 
are  by  contract  agreed  to  be  made,  it  is 
generally  under  form  of  instrument  that  the 
demand  is  made.  The  evidence  which  these 
notarial  acts  afford  varies  according  to  cir- 
cumstances. Thus,  instruments  of  sasine  or 
of  resignation  are  the  only  legal  evidence  of 
those  acts  of  possession  and  of  divestment ; 
whereas  the  notarial  intimation  of  an  assig- 
nation may  be  supplied  by  equipollents ;  and 
demands  made,  or  facts  attempted  to  be  es- 
tablished by  notarial  instruments,  require,  if 
disputed,  to  be  established  by  the  evidence 
of  those  concerned  in  tbe  act.  Tait  on  Evi- 
dence, 6,  21-41,  54,  217,  318 ;  Didcson  on 
Evidence,  596,  «<.  seq.  See  Sasine.  Resig- 
nation.   Assignation.    Evidence. 

Insocken  Hultiires.  In  the  servitude  of 
thirlage,  insucken  multures  are  the  multures 
exigible  from  the  suekeners,  or  parties  astrict- 
ed  to  the  mill ;  and,  having  been  originally 
composed  in  part  of  &  premium  to  the  pro- 


prietor of  the  mill,  they  exceed  in  amount 
what  may  be  called  the  market  price  of  grind- 
ing. They  are  contradistinguished  from  cut- 
sucken  multures,  which  is  tbe  price  or  return 
for  grinding  exacted  by  the  miller  from 
parties  who  are  under  no  obligation  to  come 
to  his  mill.  Ersk.  B.  ii.  tit.  9,  §  20 ;  BdPs 
Princ.  §  1018 ;  Hunter's  Landlord  and  Tenant, 
206.  See  Thirlage.  Multures.  Astrieted  Mul- 
tures.   Out-Sucken. 

Insnffioiency.    See  Fault. 

Insurance ;  is  a  contract  by  which  a  person, 
who  thence  is  termed  the  insurer,  in  consi- 
deration of  a  sum  of  money  (technically  call- 
ed a  premium),  becomes  bound  to  indemnify 
the  insured  against  certain  risks  to  which 
bis  property  is  exposed.  Insurance  is  a  con- 
sensual contract ;  but  a  written  instrument, 
on  stamped  paper,  is,  by  statute,  requisite 
to  its  constitution.  This  instrument  is  called 
the  policy,  and  specifies  the  premium,  the  risk, 
the  names  of  the  underwriters  or  insurers, 
and  the  name  of  the  insured.  The  best 
known  and  most  important  kinds  of  insurance 
are, — Marine  Insurance ;  Insurance  on  Lives ; 
and  Insurance  against  Fire. 

I.  Mabtitk  Iksdbanoe. 

1.  Of  the  parties  to  the  contract.— Under 
this  head,  it  may  be  questioned  whether  an 
insurance  in  favour  of  an  alien  enemy  would 
be  effectual.  Against  such  insurances  there 
have  been  temporary  statutes,  as  21  Geo.  II., 
c.  4,  and  33  Geo.  III.,  c.  27,  §  5.  But,  in- 
dependently of  these,  the  intercourse  which 
such  a  contract  occasions  seems  to  be  contrary 
to  the  allegiance  of  a  subject ;  it  is  inconsist- 
ent with  the  superior  maritime  power  of  the 
country,  and  counteracts  its  influence  on  the 
enemy :  nor  would  it  be  possible  to  enforce 
such  an  agreement  during  war,  as  the  alien 
would  not  be  permitted  to  appear  in  court. 
This  seems  to  be  the  only  exception  to  the 
rule,  that  every  person  may  insure  his  goods 
at  sea.  The  question,  who  may  be  parties  to 
the  contract,  was  formerly  affected  by  tbe 
statute  6  Geo.  I.,  c.  18,  which  authorized  his 
Majesty  to  grant  a  monopoly  to  t  wo  eompan  ies 
for  the  insurance  of  ships,  goods,  and  mer- 
chandises at  sea,  or  lending  money  on  bot- 
tomry, to  the  exclusion  of  all  other  corpora- 
tions or  partnerships.  Individual  persons, 
however,  were  entitled  to  underwrite  poli- 
cies or  lend  on  bottomry,  if  not  on  account 
of  a  corporation  or  partnership.  In  pur- 
suance of  that  power,  the  two  companies  of 
the  Royal  Exchange  Assurance  and  the 
London  Assurance  were  established  by  royal 
charter,  22d  June  1720;  and  under  their 
charters  they  had  the  exclusive  right  of 
making  marine  insurances,  as  a  company  or 

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partnership,  on  a  joint  capital.  This  priri- 
lege  is  now  taken  away  by  the  act  5  Geo. 
IV.,  c.  114,  which  makes  it  lawful  for  other 
corporations  and  bodies  politic,  and  persons 
acting  in  partnership,  to  grant  and  make  po- 
licies of  assurance  and  contracts  of  bottomry. 

2.  Of  the  articles  insured. — The  subject 
must  be  lawfully  insurable.  An  insurance  of 
contraband  and  illicit  trade  is  void,  or  rather 
cannot  be  enforced  by  a  court  of  justice. 
But  where  the  object  of  the  voyage  is  inimi- 
cal to  the  revenue  laws  of  another  state,  this 
rule  does  not  necessarily  apply.  So  also  war- 
like stores,  carried  to  a  nation  with  whom 
Great  Britain  is  at  war,  whether  they  belong 
to  a  native  or  to  a  foreigner,  cannot  lawfully 
be  insured  in  Britain  ;  and  it  has  been  found 
in  England,  that  trading  with  an  enemy 
without  the  Sovereign's  license  is  illegal, 
and  therefore  that  the  insured  could  not  re- 
cover on  a  policy  which  covered  trade  of  that 
description  ;  MarshalVs  Treatise  on  Insurance, 
B.  i.  ch.  3,  §  4.  Finally,  seamen's  wages  in 
England  are  not  a  fit  subject  of  insurance, 
though  goods  belonging  to  them  on  board 
the  vessel  may  be  insured. 

3.  Of  the  interest  of  the  insured, — Insurance 
is  a  contract  of  indemnity,  and  it  is  absolutely 
necessary  that  the  subject  be  one  in  which 
the  insured  has  an  interest,  though  it  need 
not  be  specified.  This  rule  is  enforced  by 
statute,  prohibiting  assurances  by  way  of 
wagering  or  gaming,  and  assurances,  "  in- 
terest or  no  interest;  or  without  farther 
proof  of  interest  than  the  policy ; "  19  Geo. 
//.,  c.  37 ;  14  Geo.  III.,  c.  48.  The  insurance 
profit  on  a  fishing  adventure  is  not  a  mere 
wager  policy,  and  has  been  held  effectual ; 
Addison  v.  Duguid,  23d  May  1757.  But  a 
qualified  property  in  the  thing  insured,  or 
any  reasonable  expectation  of  profit  or  ad- 
vantage, will  constitute  that  sort  of  interest 
which  the  party  may  legally  protect  by  in- 
surance. The  holder  of  respondentia,  or 
bottomry  bonds,  may  insure  the  interest 
thence  arising  to  him  from  the  ship  over 
which  the  bonds  extend.  See  Bond  of  Bot- 
tomry. Bond  of  Respondentia.  It  is  held  to 
create  an  insurable  interest,  if  a  person  has 
already  underwritten  a  policy ;  and  be  will 
be  allowed  to  protect  himself  against  his  own 
risk,  as  an  original  insurer  or  underwriter, 
by  what  is  termed  a  re-assurance.  See  Re- 
insurance. The  freighter  has  an  insurable 
interest  in  any  advances  made  to  the  ship- 
master, provided  they  be  distinguished  as 
freight,  or  made  to  depend  on  the  earning 
of  freight.  The  effect  of  stopping  tn  transitu 
a  cargo  insured  has,  in  one  special  case, 
been  held  to  annihilate  the  vender's  interest 
under  the  policy ;  but  this  case  has  not  been 
held  to  settle  the  general  point ;  and  its 


Principle  has  been  questioned.     BdTs  iVmc. 
461 ;  lUust.  ib. 

4.  Of  the  voyage. — The  voyage  may  be  di»- 
tingui^ed  from  the  trade  in  which  a  vessel 
is  engaged :  Thus,  the  trade  may  be  illegal, 
and  the  voyage  perfectly  lawful ;  or  the  voy- 
age may  be  illegal,  though  the  goods  are 
not  contraband.  The  general  rule  is,  that 
no  insurance  can  be  legally  made  on  a  voyage 
prohibited  by  law.  Hence,  a  voyage  contrary 
to  the  Briti^  navigation  laws  cannot  be  the 
object  of  insurance ;  and,  in  the  same  way, 
insurance  on  a  voyage  undertaken  contrary 
to  the  monopoly  formerly  granted  to  the 
East  India  Comjpany  would  have  been  void. 
See  East  India  Company. 

5.  Of  the  risks  insured  against. — All  the  risks 
incident  to  a  sea  voyage  may  be  insured 
against,  subject,  however,  to  such  exceptions 
as  are  founded  on  public  policy;  as,  fw  in- 
stance, an  insurance  cannot  be  made  against 
losses  ariMug  from  the  fault  of  the  insured, 
nor  against  losses  arising  from  an  infringement 
of  the  laws ;  nor,  before  the  slave  trade  was 
declared  illegal,  could  policies  on  the  slave 
trade  insure  the  dealers  in  that  traffic  against 
the  mortality  of  slaves  by  natural  death  or 
ill-treatment,  or  by  throwing  them  over-board 
on  any  account  whatever ;  30  Geo.  ///.,  e.33, 
§8;  34  Geo.  III.,  c.  80,  §  10,  and  39  6m. 
III.,  c.  80,  §  24.  The  words  of  the  policy  by 
which  the  risks  are  described  are  broad  and 
extensive.  The  perils  against  which  the  un- 
derwriters become  bound  to  insure  "are  of  the 
sea,  men-of-war,  fire,  enemies,  pirates,  rovers, 
jettisons,  letters  of  mart  and  eoantermart, 
surprises,  takings  at  sea,  arrests,  restraints 
and  detainments  of  all  kings,  princes  and 
people,  of  what  nation,  condition  or  quality 
soever,  barratry  of  master  and  mariners,  and 
all  other  perils,  losses,  or  misfortunes  that  have 
or  shall  come  to  the  hurt,  detriment,  ordanuge 
of  the  said  goods  and  merchandises,  &e.,  or 
any  part  thereof,  during  this  adventure."  But 
to  the  policy  is  added  a  memorandum  which 
qualifies  the  obligation  on  the  underwriter. 
The  memorandum  is  in  these  terms : — "  NJ. 
— Corn,  fish,  salt,  fruit,  flour,  and  seed  are 
warranted  free  from  average,  unless  general, 
or  the  ship  be  stranded;  sugar,  tobacco,  bemp, 
flax,  hides,  and  skins  are  warranted  free  from 
average,  under  5  per  cent.;  and  all  other 
goods,  also  the  ship  and  freight,  are  warrant- 
ed free  from  average  under  3  per  cent.,  unless 
general,  or  the  ship  be  stranded."  This  form 
of  the  memorandum  is  used  in  the  English 
policies,  and  has  given  rise  to  much  dispnte, 
whether  the  words  "  free  from  average,  unless 
general,  or  the  ship  be  stranded,"  be  a  con- 
dition or  an  exception.  This  is  a  point  on 
which  the  highest  authorities  in  England 
have  differed,  though  latterly  they  have  come 

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to  consider  fhe  stranding  as  a  condition,  which, 
in  the  event  of  its  happening,  takes  off  en- 
tirely the  effect  of  the  restriction  created  by 
the  memorandum,  and  gives  the  same  mean- 
ing to  the  policy  as  if  no  such  memorandum 
had  been  entered  in  ii.  A  case  talcen  notice 
of  by  Marshall  puts  this  question  in  a  very 
clear  light.  The  ship  had  struclc  on  a  rock 
off  Sicily,  and  to  save  the  vessel  it  was  run 
on  shore ;  the  cargo  was  saved,  and  brought 
to  the  port  of  destination,  but  considerable 
damage  was  done  to  some  fruit  which  had 
been  insured,  thongh  the  damage  did  not 
arise  from  the  stranding  of  the  vessel,  but 
from  the  opening  in  the  ship's  bottom  made 
by  the  rock  against  which  it  struck.  The 
question  was,  whether,  as  the  damage  arose 
from  one  of  the  perils  of  the  sea  against 
which  the  general  tenor  of  the  policy  insured, 
and  not  from  the  stranding,  the  nnderwriters 
were  liable;  and  this  raised  the  question,  whe- 
ther the  memorandum  created  an  exception  or 
s  condition :  for,  if  it  made  an  exception  only 
of  the  damage  arising  from  stranding,  then 
the  damage  that  occurred  in  this  case  was  not 
owing  to  the  stranding ;  whereas,  if  the  me- 
morandum created  a  condition,  as,  if  it  had 
said  that  no  average  should  bo  due  unless  the 
ship  was  stranded,  the  condition  being  puri- 
fied by  the  stranding  of  the  ship,  an  average 
lofls  (in  the  same  way  as  if  there  had  been  no 
restriction  by  the  memorandum)  was  due. 
The  Court  found  that  the  stranding  of  the 
ship  rendered  the  underwriters  liable  for  the 
loss,  in  precisely  the  same  manner  as  if  there 
had  been  no  memorandum  annexed  to  the 
policy.  Lord  Eenyon,  in  delivering  his 
opinion,  said,  "  I  do  not  know  how  to  con- 
stme  the  words  of  the  memorandum  gram- 
matically, but  by  saying,  that  if  the  ship  be 
stranded,  that  destroys  the  exception,  and 
lets  in  the  general  words  of  the  policy.  If  a 
general  provision  be  made  in  any  instrument, 
and  it  be  then  said  that  certain  things  shall 
be  excepted,  unless  another  thing  happen,  if 
that  other  thing  do  happen,  it  destroys  the 
exception,  and  gives  effect  to  the  general 
operation  of  the  deed."  The  Scotch  policies 
are  not  all  expressed  in  the  same  terms 
with  the  English  private  policies  (those  of 
the  two  English  companies  omit  the  condi- 
tion in  regard  to  the  stranding).  Some  of 
the  Scotch  policies  bind  the  underwriters  for 
a  particular  average  on  the  articles  excepted 
in  the  memorandum,  only  where  the  damage 
happens  "  from  stranding  or  bulging,"  and 
this  leads  necessarily  into  the  cause  of  the 
damage,  which  it  seems  to  have  been  the 
great  object  of  the  memorandum  to  avoid, 
fhe  insertion  of  the  clause,  "  unless  the  ship 
be  stranded,"  in  the  memorandum,  has  given 
rise  to  a  nnmber  of  questions  as  to  what 


amounts  to  stranding.  These  are  considered 
under  the  article  Stranding  of  Shipt.  There 
appears  to  be  still  a  question  undecided  on 
the  nature  of  a  general  or  a  partial  loss,  in 
the  case  where  goods  are  put  up  in  separate 
packages  or  in  barrels,  and  one  or  two  of 
these  are  completely  destroyed,  whether  each 
package  or  barrel  is  to  be  considered  as  sepa- 
rate, and  the  loss  to  be  considered  as  a  total 
loss,  or  as  a  part  only  of  the  whole,  and  calcu- 
lated at  so  much  per  cent,  on  the  whole  cargo. 
The  duration  of  the  risk  differs  on  the 
goods,  on  the  ship,  and  on  the  freight.  1. 
Upon  goods. — By  the  policy,  the  insurance  on 
the  goods  is  made  "  from  the  loading  thereof 
on  board  the  said  ship,  until  the  same  be  dis- 
charged and  safely  landed."  From  these 
terms,  it  would  seem  that  the  risk  com- 
mences when  the  goods  are  actually  put  on 
board,  and  terminates  when  they  are  landed 
or  put  on  board  another  ship.  But  this  ge- 
neral rule  has  exceptions,  as, — ls(.  The  course 
of  trade  in  the  port  of  loading  or  unloading 
must  regulate  the  endurance  of  the  risk; 
and,  therefore,  where  lighters  are  used,  the 
risk  of  the  goods  while  in  these  lighters  is 
part  of  the  risk  insured  against.  In  Eng- 
lish practice,  a  distinction  has  been  made 
where  the  insured  receives  the  goods  on 
board  his  own  lighter.  This  has  been  con- 
sidered as  a  delivery  to  the  insured,  and  suf- 
ficient to  put  an  end  to  the  insurance.  In 
the  same  way,  although  the  goods  are  to  be 
delivered  as  soon  as  convenient  at  the  port 
of  delivery,  yet  the  course  of  trade  will  also 
regulate  this  matter ;  Noble  v.  Kennoway, 
Doug.  492.  A  ship  in  the  Labrador  trade 
arrived  at  her  point  of  destination  June  22, 
and  from  the  time  of  her  arrival  the  crew 
were  employed  in  iishiag  till  August  13, 
when  an  American  privateer  took  the  ship. 
Lord  Mansfield,  on  the  practice  of  the  trade, 
held  the  insurers  to  be  liable  for  the  loss, 
and  so  the  Court  decided.  2d,  In  the  case  of 
the  ship  being  disabled  in  a  storm,  so  as  to 
render  it  necessary  to  shift  the  cargo  to 
another  ship,  the  risk  will  continue  on  the 
new  ship  till  she  arrive  at  the  port  of  desti- 
nation in  the  common  way.  2.  Upon  the 
ship. — The  terms  of  the  policy  and  the  nature 
of  the  voyage  seem  to  regulate  this  matter 
a  good  deal.  Where  the  policy  bears  from 
one  port  to  another,  the  risk  commences  only 
from  the  time  the  ship  breaks  ground ;  but 
if  it  be  expressed  at  and  from  a  port,  then 
the  risk  commences  from  the  date  of  sub- 
scribing the  policy.  Where  the  policy 
bears,  "from  the  ship's  arrival  at  a  port 
abroad,"  then  the  risk  commences  from  her 
first  arrival  there  during  her  continuance  at 
that  port.  The  policy  bears,  that  the  risk 
continues    until    the    ship   be  moored    at 

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anchor  twenty-four  honra  in  good  safety ; 
but  it  is  not  a  mooring,  in  this  sense  of  the 
expression,  where  she  is  obliged  to  perform 
quarantine;  she  must  be  moored  with  a 
power  of  unloading ;  and  where  a  ship  was 
destroyed  by  fire  during  the  time  she  was 
lying  at  quarantine,  the  underwriters  were 
held  to  be  answerable  for  the  loss ;  Wapk*  v. 
Cartes,  2  S<r,  1248.  The  risk  on  the  rig- 
ging, tackle,  furniture,  and  provisions,  con- 
tinues no  longer  than  while  they  are  attached 
to  the  ship,  unless  when  they  are  put  on 
shore  in  order  to  repair  the  ship ;  Felly  t. 
Roy,  Ex.  Ass.,  1  Bur.  341 ;  Brmgh  t.  Whit- 
more,  4  T.  R.  206.  Liberty  to  touch  at  a 
place  or  places,  means  places  in  the  course  of 
the  voyage  ;  liberty  to  touch  and  stay  does 
not  authorize  the  ship  to  trade.  3.  Upon 
freight. — The  risk  begins  from  the  time  the 
goods  are  put  on  board  ;  but,  if  the  ship  be 
chartered  to  proceed  to  a  port,  and  there  to 
take  her  cargo  on  board,  the  freight  may  be 
insured,  and  the  risk  commence  from  the 
sailing  of  the  vessel  to  the  port  where  the 
cargo  is  to  be  shipped ;  and  a  capture  before 
its  arrival  at  that  port  will  give  the  owner 
a  claim  for  the  freight  against  the  insurers ; 
Thomson  v.  Taylor,  6  T.  R.,  478.  (See  Char- 
ter Party).  The  nature  of  the  risk  under  a 
policy  of  insurance  cannot  be  changed,  un- 
less with  the  consent  of  the  insurers,  other- 
wise it  voids  the  policy.  For  instance,  let- 
ters of  marque  given  to  a  trading  vessel  after 
she  has  been  insured  is  such  an  alteration  in 
the  condition  of  the  ship  as  to  change  the  risk 
entirely. 

G.  Of  the  policy. — The  policy  is  a  written 
instrument  upon  stamped  paper,  by  statute 
made  requisite  to  the  constitution  of  the  con- 
tract. The  stamp  cannot  afterwards  be  sup- 
plied. A  policy  may  be  distinguished  as  an 
interest  or  as  a  wager  policy.  It  is  the  for- 
mer only  which  constitutes  a  proper  contract 
of  insurance  binding  on  the  underwriters. 
The  interest  policy  may  be  either  an  open  or  a 
valued  policy.  The  open  policy  is  one  where 
the  value  is  left  to  be  ascertained  should  a 
loss  arise.  A  valued  policy  is  when  a  value 
has  been  set  on  the  ship  or  goods  insured, 
the  sum  specified  being  demandable  without 
proving  the  amount,  when  there  is  no  fraud. 
At  first  it  was  thought  that  valued  policies 
were  struck  at  as  wager  policies  by  the  sta- 
tute of  Geo.  II, ;  but  the  contrary  is  now 
established.  Investigation  is  open  to  the  in- 
surer, to  see  that  there  is  no  fraud.  The  in- 
surance is  usually  made  by  the  interposition 
of  an  insurance-broker.  Mutual  accounts 
are  kept,  in  which  the  broker  states  in  the 
underwriter's  account  all  the  premiums  which 
he  is  authorized  by  the  underwriter  to  draw. 


underwriter's  credit,  against  which  he  placet 
all  return  premiums  or  sums  received  for 
losses  (if  he  be  authorized  to  recover  them), 
and  he  settles  the  account  periodically  witii 
the  underwriters.    On  the  other  hand,  in  ac- 
count with  the  insured,  he  debits  him  with 
the  unpaid  premiums,  giving  him  credit  for 
any  return  premiums,  or  for  losses  which  he 
may  be  empowered  to  recover.     This  ar- 
rangement is  accomplished  by  means  of  a 
receipt  for  the  premiums  signed  by  the  un- 
derwriter, in  these  terms:  "The  assoren 
confess  themselves   paid  the  consideratioo 
due  to  us  for  this  assurance  by  the  assured." 
This  receipt  delivered  to  the  broker,  is  a 
warrant  to  him  to  receive  the  premiums  so 
acknowledged ;  but  it  is  not  effectual  to  dis- 
charge the  insured,  since  it  is  not  delivered 
to  him  as  his  document  of  discharge.    When, 
however,  the  broker  ^ves  the  insured  credit 
for  the  premiums,  the  underwriter  is  bound 
by  his  discharge,  although  the  broker  never 
paid  any  part  of  them.    But  recall  of  the 
broker's  authority  while  things  are  entire, 
transfers  the  accounting  to  the  insurers  and 
insured,  and  the  former  are  entitled  directly 
to  claim  the  unpaid  premiums.   In  thisqnes- 
tion,  the  broker's  bankruptcy  is  equivalent 
to  a  recall.     The  receipt  has  the  effect  of 
laying  the  onus  probandi  on  the  underwriter, 
to  show  that  neither  actual  payment  has 
taken  place,  nor  such  a  settlement  of  ac- 
counts between  the  parties  as  is  equivalent 
to  payment  of  the  premiums.    BeU's  Con.,  i. 
599,  et  seq.,  and  authorities  there  cited.    An 
agent  for  a  merchant  abroad  must  employ 
a  broker  and  procure  insurance  :  1.  Where 
the  agent  has  effects  in  his  hands.  2.  Where 
the  agent  here  has  been  in  use  to  answer 
orders  of  insurance  on  former  occasions.   3. 
Where  the  agent  here  receives  bills  of  load- 
ing with  an  order  to  insure.    In  making  the 
insurance,  the  agent  must  proceed  regnlarlj 
and  actively,  and  will  be  answerable  for  the 
failure  of  the  act  he  has  undertaken  to  per- 
form.   The  policy  may  be  considered  under 
the  following  heads:    1.  The  names  of  the 
insured, — The  statute  25  Geo.  III.,  c.  44, 
requires  the  name  of  the  insured  to  be  in- 
serted in  the  policy,  whenever  the  insured 
resides  in  Great  Britain  ;  where  he  resides 
abroad,  that  the  name  of  his  agent  be  in- 
serted.   This  act  was  repealed  by  the  act 
28  Geo.  III.,  c.  56,  which,   however,  pro- 
vides that  no  person  shall  effect  any  policy 
on  "  any  ship  or  goods,  without  first  inserting 
the  name  or  names,  in  the  usual  style  and 
form  of  dealing,  of  one  or  more  of  the  per- 
sons interested,  or  of  the  consigner  or  con- 
signers, consignee  or  consignees,  of  the  pro- 
perty to  be  insured,  or  of  the  person  or  per- 


as  already  received,  and  as  articles  to  the  I  sons  residing  in  Great  Britain,  who  shall  re- 


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ceiTe  tbe  order  for  and  effect  such  policy,  or 
of  the  person  or  persons  who  shall  give  the 
order  to  the  agent  or  agents  immediately 
employed  to  negotiate  or  effect  sach  policy ; 
and  every  policy  made  contrary  to  the  true 
intent  and  meaning  of  this  act  shall  he  null 
and  void."    2.  The  name  of  the  Ship,  etc.— li 
is  necessary  that  the  name  of  the  ship  should 
be  mentioned,  in  order  that  the  nature  of  the 
risk  may  be  known  ;  and  no  other  ship  can 
be  sabetituted  unless  in  the  case  of  necessity^ 
or  with  the  consent  of  the  underwriters.   At 
the  same  time,  where  it  is  not  known  in 
what  ship  a  cargo  is  to  be  sent  home,  it  may 
be   insured  generally,  as  goods  on  board 
"  ship  or  ships."    The  name  of  the  master 
ought  also  to  be  declared ;  but  it  is  generally 
expressed  in  the  policy,  "  or  whosoever  else 
shall  go  as  master  in  the  said  ship ; "  and 
under    these  terms    the    master    may  be 
changed ;  but  this  ought  not  to  be  done  un- 
necessarily.     The  names  of  the  ship  and 
master  are  required,  not  as  a  warranty,  but 
as  identifying  the  risk ;  and  an  innocent  mis- 
take in  those  names  will  not  defeat  the  in- 
surance, provided  there  is  clear  proof  of  the 
identity  of  the  ship.  3.  The  subject  insured. — 
The  policy  must  express  whether  it  be  goods, 
freight,  ship,  or  whatever  is  the  object  of 
the  insurance  ;  but  it  is  not  necessary  that 
the  goods  be  specified,  though  it  is  sometimes 
done  on  the  foot  of  the  policy  ;  and  in  that 
ease,  no  other  goods  than  those  expressed 
will  be  insured.  4.  Description  of  Oievoyage. — 
The  voyage  must  be  truly  and  accuratdy  de- 
scribed; the  time  and  place  at  which  the 
risk  is  to  commence ;  the  time  of  the  ship's 
departure ;  her  destination ;  and  the  time 
when  the  risk  shall  end ;  or,  when  the  in- 
surance is  on  time,  the  commencement  and 
end  must  be  distinctly  specified.     5.  The 
periU  intured  against. — ^The  perils  are  suffi- 
ciently expressed  in  the  policy ;  but  those 
arising  from  bad  stowage,  from  wet,  from 
theft  and  embezzlement  of  the  master  or 
mariners,  do  not  fall  on  the  underwriter. 
In  the  policy,  the  words  "lost  or  not  lost" 
are  inserted,  and  they  insure  against  losses 
whether  they  happen  subsequent  or  prior  to 
the  date  of  the  policy.     6.  The  powers  of  the 
insured  in  ease  of  loss. — ^Under  a  clause  in  the 
policy,  the  insured,  or  those  acting  for  them, 
may  take  every  means  to  defend,  preserve,  or 
recover  the  goods  insured,  the  expense  of 
which  shall  be  contributed  proportionally  by 
the  underwriters.    7.  The  acknowledgment  of 
the  receipt  of  the  premium. — This  acknowledg- 
ment does  not  preclude  the  underwriter  from 
demanding  the  premium,    nor  can    it  be 
founded  on  by  the  insured  as  a  discharge  of 
the  premium.     8.  The  testing  clause. — In  all 
Scotch  deeds,  it  is  requisite  that  the  writer 


(or  filler  np  of  that  part  of  the  deed  which 
is  written)  should  be  named  and  designed, 
and  that  the  witnesses  should  be  named  and 
designed.  Those  are  statutory  requisites, 
without  which  a  Scotch  policy  would  not  be 
effectual.  The  testing  clause,  then,  may  be 
in  this  form :  "  In  witness  whereof,  these 
presents,  printed  on  stamped  paper,  conform 
to  Act  of  Parliament,  and  the  written  parts 
thereof  being  written  by  C,  insurance-broker 
here,  are  subscribed  by  us  at  L.,  of  the 
dates  put  by  us  respectively  to  our  subscrip- 
tion, before  these  witnesses,  the  said  C,  and 
D.,  his  clerk."  A  policy  of  insurance,  how- 
ever, being  a  writing  in  re  mereaioria,  is  effec- 
tual if  signed  by  the  underwriters  only,  with 
the  sum  fbr  which  each  is  to  be  liable.  No 
witnesses  are  required ;  Bdl's  Com.,  i.  606. 
9.  The  common  memorandum. — The  use  of  this 
is  to  save  the  parties  from  adjusting  trifling 
losses  arising  from  causes  which,  properly 
speaking,  do  not  fall  under  the  nature  of  the 
contract,  and  which  would  not  admit  of 
being  easily  settled. 

7.  Of  warranties. — ^A  warranty  is  an  abso- 
lute condition,  expressed  or  implied,  which, 
if  not  true,  or  not  complied  with,  defeats  the 
insurance,  whether  material  to  the  risk  or 
not.  An  express  warranty  is  a  stipulation 
on  the  part  of  the  insured  affirmative  or  pro- 
missory, and  it  is  binding  according  to  the 
commercial  meaning  put  upon  the  words. 
But  it  must  be  strictly  and  literally  per- 
formed ;  and  therefore  the  falsehood  of  an 
affirmative,  or  the  non-performance  of  a  pro- 
missory warranty,  will  vacate  the  policy.  In 
England,  the  warranty  must  be  written  on 
the  policy ;  the  same  statement  on  a  paper 
apart  is  not  sufficient.  The  warranty  to  sail 
on  a  given  day  must  be  strictly  performed ; 
nor  would  the  best  reason,  or  even  detention 
by  Government,  be  received  as  an  excuse  for 
not  complying  with  the  warranty.  But 
should  the  ship  break  ground  on  the  day  of 
sailing,  and  begin  the  voyage,  the  fact  of 
her  being  afterwards  brought  back  (however 
little  way  the  vessel  had  made),  and  laid 
under  an  embargo,  would  not  vacate  the 
policy.  The  warranty  to  sail  with  convoy 
must  also  be  strictly  complied  with.  In  sail- 
ing with  convoy,  the  following  things  are 
essential.  1.  The  vessel  must  sail  with  a  re- 
gular convoy  appointed  by  Government.  2. 
It  must  be  from  the  place  of  rendezvous  ap- 
pointed by  Government.  3.  It  must  be  a 
convoy  for  the  voyage.  4.  The  ship  insured 
must  have  sailing  instructions.  5.  It  must 
depart  and  continue  with  the  convoy,  unless 
separated  by  necessity.  See  Convoy.  There 
are  also  certain  implied  warranties,  the  most 
important  of  which  is  sea-worthiness.  See 
No.  10,  Infra.    It  is  of  no  avail,  in  defenc« 

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against  breach  of  warranty,  that  the  repre- 
sentation was  true,  according  to  the  belief  of 
the  insured.  The  insured  is  not  bound  to 
disclose  what  is  the  subject  of  a  warranty. 
The  truth  of  the  warranty  is  presumed,  espe> 
cially  of  sea-worthiness,  subject  to  refutation 
by  evidence  or  counter  presumption. 

8.  Of  repraentations. — A  representation 
means  a  collateral  statement  of  such  facts 
and  circumstances  as  are  material  in  forming 
a  judgment  of  the  risk.  This  statement  may 
be  untrue,  either  fraudulently  or  innocently. 
Where  the  representation  is  nntrne,  with  a 
fraudulent  design  to  impose  on  the  under- 
writer, the  policy  is  completely  vacated  ;  and 
a  loss,  even  from  a  canse  not  depending  on 
the  untrue  statement,  will  not  be  covered  by 
the  policy.  But  where  the  statement  has 
been  fairly  and  honestly  made,  and,  though 
not  true  in  every  point,  yet,  if  it  be  substan- 
tially true,  it  is  not  judged  of  with  the  same 
precision  as  a  warranty,  and  does  not  neces- 
sarily vacate  the  policy.  The  warranty  is 
invariably  made  part  of  the  policy  by  an  en- 
try on  the  back  or  margin  of  the  policy ;  but 
a  representation  is  made  on  a  separate  paper, 
as  in  a  letter  shown  to  the  underwriters. 

9.  0/ Concealment, — This  consists  in  the  sup- 
pression of  any  circumstance  material  to  the 
risk,  and  it  vitiates  completely  the  policy ; 
nor  does  it  alter  the  case  that  the  conceal- 
ment has  been  the  effect  of  inadvertency  alone. 
The  insured  ought  therefore  to  disclose  every 
circumstance  which  has  come  M  his  know- 
ledge with  the  most  perfect  frankness.  But 
there  are  certain  things  which  the  insured 
are  not  bound  to  communicate,  because  the 
insurer  must  be  supposed  to  be  equally  well 
acquainted  with  them  ;  as,  general  intelli- 
gence, the  result  of  political  speculations,  the 
natural  perils  to  which  the  voyage  is  subject. 
It  is  such  facts  only  as  vary  the  nature  of 
the  contract,  which  one  party  privately 
knows,  and  the  other  is  ignorant  of,  and  has 
no  opportunity  of  knowing,  which  cannot  be 
legally  conceited.  The  question,  therefore, 
in  cases  of  concealment,  must  always  be,  whe- 
ther, under  all  the  circumstances  at  the  time 
the  policy  was  underwritten,  there  was  or  was 
not  a  concealment,  material  to  the  risk,  or 
which,  if  known  to  the  underwriter,  would 
probably  have  altered  his  resolution. 

10.  Cff  the  ship. — ^Under  this  head  the 
principal  obligations  on  the  insured  are,  that 
the  ship  shall  be  sea-worthy — that  it  shall 
not  be  changed — and  that  it  shall  be  navi- 
gated according  to  law.  In  regard  to  sea- 
worthiness, if  the  ship  be  found  incapable  of 
performing  the  voyage  insured,  from  some 
latent  defect  existing  before  the  voyage  com- 
menced, the  insurer  is  not  bound.  Under 
sea-worthiness  is  understood    that  the  ship 


I  shall  be  tight,  stannch,  and  strong,  properly 
manned,  provided  with  all  necessary  stores, 
and  in  all  respects  fit  for  the  intended  voy- 
age ;  for,  otherwise,  the  insurer  has  not  a  fair 
chance  of  gaining  the  premium.  He  under- 
takes to  indemnify  the  insured  against  the 
extraordinary  and  unforeseen  perils  of  the 
sea,  but  the  ship  must  be  in  a  condition  to 
encounter  the  ordinary  perils  of  her  voyage. 
See  Charier-Party.  If  in  the  course  of  the 
voyage  the  ship  be  disabled,  by  stress  of  wea- 
ther or  any  other  peril  of  the  sea,  the  captain 
ought  to  hire  another  vessel  for  completmg 
the  voyage ;  so  that,  although  the  rule  cer- 
tainly be,  that  the  ship  ought  not  to  be 
changed  on  the  insurer,  yet,  where  it  is  ah 
act  of  necessity,  the  change  may  be  made 
without  liberating  the  insured.  It  is  allov- 
able  to  insure  goods  from  abroad  by  a  ship  or 
ships,  where  the  insured  is  ignorant  of  the 
ships  by  which  the  goods  are  to  be  sent  The 
ship  must  be  navigated  according  to  lav,  that 
is,  according  not  only  to  the  laws  of  this 
country,  but  according  to  the  treaties  subsist- 
ing between  this  country  and  foreign  states. 
In  short,  in  the  branch  of  trade  in  which  the 
ship  is  employed,  all  the  statutory  regulations 
in  regard  to  that  trade  must  be  observed. 
See  Sea-worthiness. 

W.  Of  deviation.  By  deviation  is  under- 
stood voluntary  deviation  ;  and  from  the  mo- 
ment that  a  voluntary  deviation  takes  phiee, 
the  insurer  is  discharged  from  all  subseqoent 
responsibility.  In  judging  of  a  deviation,  it 
is  not  the  shortest  possible  way  from  the  port 
of  departure  to  the  port  of  delivery  that  con- 
stitutes the  voyage ;  it  is  the  usual  tract  of 
the  voyage  that  is  the  rule ;  hence  stopping 
at  such  places  as  it  has  been  the  nsutd  and 
settled  practice  to  stop  at  in  the  course  of  the 
voyage,  is  no  deviation.  But  where  a  deris- 
tion  has  been  made,  it  will  be  no  answer  thst 
after  the  deviation  the  ship  regained  her  ori- 
ginal tract.  In  order  to  discharge  the  in- 
surer, the  deviation  must  be  a  voluntary  de- 
viation ;  for  where  the  captain,  in  making 
the  deviation,  acts  fairly  and  hyna  fide,  e.g., 
deviates  to  avoid  danger,  the  insurers  are  not 
liberated.  Thus,  a  deviation  may  be  made 
by  stress  of  weather,  from  the  necessity  of 
repairs,  in  order  to  avoid  an  enemy,  or  in 
consequence  of  a  mutiny  in  the  crew.  These 
are  all  cases  of  imperious  necessity,  sufficient 
to  authorize  a  deviation ;  bat  it  must  in  its 
extent  be  commensurate  to  the  cause,  and 
will  in  no  case  be  allowed  to  exceed  what  ne- 
cessity requires.    See  Demotion. 

12.  Of  hs$. — A  loss  in  this  sense  is  damage 
sustained  by  the  insured  from  one  or  other 
of  the  misfortunes  against  which  the  insurer 
is  bound  to  indemnify  him ;  and  they  are  all 
very  particularly  enumerated  in  the  policy. 

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Losses  are  distingaished  into  total  or  partial 
losses.    A  total  loss  is  either  where  the  thing 
insared  is  completelj  destroyed,  or  where, 
although  it  specifically  remains,  it  is  of  uo 
ralue,  or  not  sufBcient  to  bring  the  amount  of 
the  freight.    A  partial  loss  is  one  short  of  a 
total  loss ;  or,  where  the  articles  insured  are 
sctaally  landed  at  the  port  of  delivery,  the 
iDJury  will  amount  to  a  partial  loss.    A  par- 
tial loss  is  sometimes  denominated  an  average 
loss,  because  these  partial  losses  are  often  the 
subject  of  average  contributions ;  and  they 
are  distinguished  into  general  and  particular 
averages.     See  Average.     The  losses  insured 
against  may  be  brought  under  the  following 
heads: — 1.  Lost  ly  perils  of  the  tea. — This 
may  happen  from  the  ship's  foundering.    Of 
this  fact  the  insurers  are  not  entitled  to  re- 
qaire  direct  and  positive  evidence  ;  and  the 
law  has  fixed  on  no  time  within  or  beyond 
which  a  legal  preanmption  of  the  ship's  being 
lost  arises ;  the  circumstance  must  be  left  to 
the  mind  of  the  court,  or  the  jury.    The  loss 
may  happen  from  the  ship  stranding ;  which 
is  either  accidental,  where  the  vessel  is  driven 
oD  shore  by  the  winds  and  waves ;  or  volun- 
tary, when  it  is  run  on  shore  to  save  it  from 
a  worse  fate.     Stranding  may  be  followed 
by  shipwreck,  in  which  case  the  loss  is  total; 
or  the  vessel  may  be  got  off  in  a  condition  to 
prosecute  the    voyage,  in  which   case    the 
damage  and  expense  incurred  will  be  a  par- 
tial loss,  of  the  nature  of  an  average.    An- 
other peril  of  the  sea  is  the  ship's  striking 
against  a  rock,  which  may  occasion  a  leak  or 
absolute  shipwreck.    A  loss  consistent  with 
the  ordinary  service  in  which  a  ship  is  en- 
gaged founds  no  claim  against  the  under- 
writer, as  where   an  anchor  is  lost  by  the 
rabbing  of  a  cable  on  the  rocks ;  but,  should 
it  happen  from  the  violence  of  the  winds,  it 
becomes  a  loss  within  the  policy.     Where 
animals  on  board  a  ship  are  insured,  their 
death,  if  occasioned  by  the  shot  of  an  enemy, 
or  by  a  tempest,  or  by  their  being  necessarily 
thrown  overboard,  founds  a  claim  against  the 
insurer.     2.  By  running  foul. — The  injury 
sustained  by  one  ship  running  foul  of  another 
is  a  loss  within  the  policy,  unless  it  be  imput- 
able to  the  misconduct  of  the  master  or  mari- 
ners; though  even  then  it  might  be  covered 
nnder  the  head  of  barratry,  and  relief  would 
he  doe  by  those  to  whom  the  accident  was 
imputable.    See  CoUition.    3.  Loss  hyfire. — 
This  is  one  of  the  losses  falling  nnder  the 
policy;  and  it  will  authorize  a  claim  even 
where  the  ship  is  set  on  fire  by  the  master  to 
preserve  her  from  the  enemy.     4.  Ofhss  by 
capture. — Capture  may  be  either  by  an  enemy, 
according  to  the  rules  of  war,  or  contrary  to 
those  rules,  or  by  a  pirate ;  but  in  whatever 
way  the  capture  may  be  made,  and  whether 


or  not  the  property  be  thereby  actually  trans- 
ferred, the  insurers  are  bound  to  indemnify 
the  insured  to  the  extent  of  their  loss,  in  so 
far  as  they  are  respectively  bound.  A  cap- 
ture may  be  total,  as  where  the  ship  is  not 
recovered ;  or  partial,  where  the  ship  is  re- 
captured ;  in  which  case  the  underwriter  is 
bound  to  pay  the  salvage,  and  the  expenses 
which  the  insured  may  have  been  put  to. 
When  a  capture  takes  place,  the  insured  lose 
all  control  over  the  property,  and  are  entitled 
to  abandon ;  but  should  they  not  declare  that 
intention,  and  should  the  ship  be  retaken, 
they  cannot  then  abandon,  unless  the  object 
of  the  voyage  has  been  lost  by  the  capture. 
In  all  cases,  therefore,  between  the  insurers 
and  the  insured,  there  is  no  question  as  to  the 
legality  of  the  capture  or  the  change  of  pro- 
perty, but  simply  whether  it  be  a  total  or  a 
partial  loss,  and  whether  it  admits  of  an 
abandonment ;  and  these  depend  on  the  cir- 
cumstances which  have  been  already  taken 
notice  of.  5.  0/  loss  by  deteiUion. — This  ap- 
plies to  all  detentions  by  the  ruling  power  of 
the  country,  and  whether  of  any  foreign  conn- 
try  or  of  this,  on  whatever  account  the  deten- 
tion may  be  made,  unless  from  the  fault  of 
the  captain  or  mariners,  by  infringing  rules 
which  occasion  the  detention ;  in  all  other 
cases  the  detention  by  the  ruling  power  of  a 
country  occasions  a  loss  falling  under  the 
policy.  6.  Of  loss  by  barratry. — Barratry  is 
any  species  of  fraud,  knavery,deceit,  or  cheat- 
ing, committed  by  the  master  or  mariners, 
whereby  the  owners  sustain  an  injury,  as  by 
running  away  with  the  ship,  wilfully  carry- 
ing it  out  of  the  course  of  the  voyage,  sink- 
ing or  deserting  it,  embezzling  the  cargo, 
smuggling,  or  any  other  offence  whereby  the 
ship  or  cargo  may  be  subjected  to  arrest,  de- 
tention, loss,  or  forfeiture  ;  barratry,  in  short, 
comprehends  every  fraud  which  may  be  com- 
mitted by  the  master  or  mariners  against  the 
owners.  But  this  does  not  protect  the  in- 
sured against  loss  arising  from  the  ignorance 
or  unskilt'ulness  of  the  master;  the  cause 
must  be  fraudulent.  See  Barratry,  7.  Of 
loss  by  average  contributions. — Average  signi- 
fies a  contribution  made  by  the  owners  of  the 
ship,  freight,  and  goods  on  board,  in  propor- 
tion to  their  respective  interests,  towards  any 
particular  loss  or  expense  sustained  for  the 
general  safety  of  the  ship  and  cargo,  to  the 
end  that  the  particular  loss  may  fall  equally 
on  all ;  as  where  goods  are  thrown  overboard 
in  a  storm,  or  where  the  masts,  cables,  or 
anchors  are  cut  away  or  destroyed  for  the 
general  preservation,  or  money  or  goods  given 
as  a  composition  to  pirates,  or  damage  sus- 
tained in  defending  the  ship  against  an 
enemy,  or  expense  in  curing  the  wounded,  or 
the  expense  of  defending  an  Ji^tion  for  dis- 

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charging  the  ship  from  an  unjust  capture,  or 
detention.  In  those  cases,  and  in  every  one 
where  an  expense  is  bona  fide  incurred  to  pre- 
vent a  total  loss,  it  ought  to  be  borne  rate- 
ably  by  all  concerned;  and  this  equitable 
contribution  is  called  general  or  gross  aver- 
age. In  opposition  to  this  is  particular  aver- 
age ; .  but  this  means  nothing  more  than  a 
particular  loss,  and  has  no  affinity  to  an  aver- 
age loss  properly  so  called.  Besides  these, 
there  are  what  are  called  petty  or  accustomed 
averages — as  pilotage,  towage,  beaconage,  an- 
chorage, &c.  &C.  But,  where  these  are  in- 
curred in  the  ordinary  course  of  the  voyage, 
they  are  not  considered  as  losses,  but  as  part 
of  the  necessary  expense  ;  it  is  only  where 
charges  of  that  kind  are  incurred  for  an  extra- 
ordinary purpose,  and  to  provide  against  any 
impending  danger,  that  they  will  be  deemed 
gross  or  general  average,  for  which  the  in- 
surer will  be  liable.  The  contribution,  in 
this  case,  is  settled  by  ascertaining  the  value 
of  the  ship  and  cargo  as  if  it  had  arrived  safe. 
They  are  then  vuued  at  the  ready-money 
price  they  would  bring  at  the  port  of  dis- 
charge ;  and  the  nett  amount,  deducting  all 
charges,  is  the  sum  subject  to  the  contribu- 
tion ;  and  each  person's  share  of  the  loss  will 
be  in  the  same  proportion  to  the  value  of  his 
property  as  the  wholel  oss  bears  to  the  whole 
property.  These  contributions,  under  the 
general  words  of  the  policy,  are  a  charge 
which  the  underwriter  is  bound  to  pay.  8. 
O/loss  by  the  expense  of  salvage. — The  expense 
of  salvage,  like  other  average  contributions, 
is  a  charge  for  which  the  insurer  is  liable.  It 
is  understood  to  mean  the  allowance  made  to 
those  by  whose  means  the  ship  or  goods  have 
been  saved  from  shipwreck,  fire,  pirates, 
enemies,  or  any  other  loss  or  misfortune. 
When  the  salvage  is  very  high,  the  insured 
may  abandon.  See  Average.  Contribution. 
Jactus  Mercivm, 

li.  Of  abandonmeni. — ^By  a  total  loss  is 
meant  not  only  the  absolute  destruction  of  the 
thing  insured,  or  such  a  damage  as  renders  it 
of  little  or  no  value,  but  also  such  a  loss  or 
misfortune  as  shall  have  occasioned  the  loss  of 
the  voyage.  In  such  cases  the  insured  may 
abandon  as  for  a  total  loss.  In  consequence 
of  this  abandonment,  the  insurers  come  into 
the  place  of  the  insured,  and  are  entitled  to 
all  that  can  be  rescued  from  destruction. 
From  the  instant  that  a  capture  or  detention 
takes  place,  the  insured  may  abandon  ;  but 
if  advice  be  at  the  same  time  received  that  the 
ship  has  been  retaken,  or  been  allowed  to 
resume  her  voyage,  the  insured  cannot  aban- 
don, unless  the  object  of  the  voyage  has,  by 
reason  of  the  capture  or  detention,  been  dis- 
appointed, or  rendered  not  worth  pursuing ; 
or,  if  farther  expense  be  neccssai7,  which  the 


underwriter  will  not  undertake,  the  insured 
may  abandon.   Shipwreck  entitles  the  insured 
to  abandon  ;  yet  the  mere  stranding  of  the 
vessel  does  not  necessarily  authorize  an  aban- 
donment.   But  if  the  voyage  be  lost,  from 
whatever  cause,  it  is  held  to  be  a  total  loss, 
which  is  a  ground  for  abandoning.     In  the 
same  way,  where  the  cargo  is  damaged,  so  as 
to  reduce  it  to  a  less  value  than  the  freight, 
it  is  held  to  be  a  total  loss.    There  is  no  time 
within  which  the  insured  are  bound  to  abas- 
don  ;  but,  whenever  they  receive  intelligence 
of  the  loss,  they  must  decide  whether  they  are 
to  abandon ;  and  of  this  intention  the  under- 
writers must  receive  intimation  within  a  rea- 
sonable time ;  nor  can  the  insured  abandon 
after  having  once  treated  the  loss  as  a  partial 
one.   Where  a  ship  is  not  heard  of  for  a  rea- 
sonable time,  the  insured  may  abandon.  There 
does  not  seem  to  be  any  form  of  intimation 
by  which  the  insured  must  intimate  to  the 
underwriters  that  they  mean  to  abandon ;  on 
the  contrary,  it  would  appear  that  the  inti- 
mation may  be  effectually  made  by  letter  to 
the  underwriter,  or  to  the  agent  who  hassqb- 
seribed  for  him.     Where  an   abandonment 
takes  place,  the  insured  resigns  his  entire 
interest  in  the  ship  or  in  the  goods  insured, 
and  they  become  the  property  of  the  under- 
writers, in  proportion  to  their  respective  sub- 
scriptions.    W  hen  there  has  not  been  a  fall 
insurance,  and  the  insured  means  to  abandon, 
he  abandons  in  proportion.     Thus,  if  the 
value  of  the  goods  was  L.5000,  of  which  only 
L.4000  was  insured,  he  abandons  to  the  ex- 
tent of  four-fifths  of  what  is  saved ;  and,  to 
to  the  extent  of  the  fifth  retained,  he  vill 
have  a  right  of  common  property  along  with 
the  underwriters.    In  the  case  of  shipwreck 
or  other  misfortune,  the  ship  and  goods  con- 
tinue the  property  of  the  insured  until  aban- 
donment ;  but,  by  a  clause  in  the  policy,  the 
master  and  othera  may  do  every  thing  to  pre- 
serve the  property  wiUiont  being  understood 
to  act  for  the  insured,  or  to  deprive  them  of 
the  right  of  abandoning;  and  the  underwriters 
are  liable  for  the  expense  which  such  attempts 
to  save  the  property  may  occasion.    The  cap- 
tain, therefore,  acts  for  theme  who  may  ulti- 
mately be  found  to  have  an  interest  in  the 
ship  or  cargo.    Although,  in  the  exercise  of 
this  power,  where  the  wreck  has  happened 
abroad,  the  master  seems  to  be  warranted  in 
selling  the  wreck  for  behoof  of  all  concerned, 
yet  it  would  appear  that  the  master  has  no 
power  to  sell  the  vessel,  so  long  as  she  pre- 
serves the  appearance  and  character  of  a  ship, 
and  is  not  what  has  been  called  a  mere  "  con- 
geries of  planks."    Hughes  on  Insurance,  383; 
Camhridge  v.  Anderson,  4  Bowling  and  Bylaiid, 
203 ;  2  Bam.  and  Cress.  691 ;  Holt  on  Ship- 
ping, 243 ;  Gardner  v.  Salvador,  2  Moodie  and 


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Martin,  1.    See  Abandonment.    See  also  3 
Ross's  L.  C.  783,  et  seq. 

14.  0/  tht  adjustment  of  hsses. — The  first 
thing  to  be  considered  is  how  the  quantity  of 
the  damage  for  which  the  underwriters  are 
liable  shall  be  ascertained  ;  the  next  point  is 
by  what  rule  this  shall  be  appreciated.  1. 
How  the  amount  of  damage  shall  be  ascertained. 
—The  insured  ought  to  be  well  informed  of 
the  circumstances ;  and  if  it  appear  to  be  a 
total  loss,  and  he  decide  to  abandon,  he  must 
iotimate  his  intention,  or  be  will  be  held  to 
have  waived  his  right,  and  to  be  entitled  to 
claim  only  as  for  a  partial  loss.  When  the 
loss  is  total,  and  the  policy  valued,  the  in> 
sured  is  entitled  to  receive  the  sum  insured, 
rabject  to  the  deductions  pointed  out  by  the 
policy,  on  his  proving  that  the  goods  insured 
were  actually  on  board.  Where  the  policy  is 
not  valued,  but  an  open  policy,  the  insured 
must  prove  not  only  that  the  goods  were  on 
bosrd,buthemnst  also  prove  their  value,  which 
value,  not  exceeding  the  sum  insured,  is  the 
amount  of  his  claim.  In  the  case  of  a  partial 
loss,  the  same  inquiry  as  to  the  value  of  the 
loss  must  be  made,  whether  the  policy  be  a 
valued  or  an  open  one.  Where  the  loss  is 
that  of  ten  barrels  out  of  an  hundred,  the 
English  practice  seems  to  render  this  a  loss 
which  the  underwriter  must  pay.  When  the 
part  of  the  goods  saved  exceeds  the  amount 
of  the  freight,  the  practice  is  to  deduct  the 
freight  from  the  salvage,  and  to  make  up  the 
difference.  But  when  the  fi-eight  exceeds  the 
salvage,  it  is  held  to  be  a  total  loss.  Where 
goods  have  been  damaged,  their  present  value 
is  taken  from  the  prime  cost,  and  the  differ- 
ence is  the  damage.  Where  articles  are  in- 
sured for  one  entire  sum,  but  each  article 
separately  valued,  the  insured  will  recover 
the  amount  of  any  one  of  the  articles  which 
may  have  been  lost.  When  the  underwriters 
are  to  be  freed  from  average  under  so  much 
f«r  cent.,  any  loss  that  may  arise  must  be 
estimated  on  the  cargo  as  it  stood  at  the  time 
of  the  loss;  and  whether  the  proportion  ren- 
ders it  a  claim  on  the  underwriters  or  not  will 
depend  on  the  proportion  between  the  loss  and 
cargo  as  it  then  stood.  2.  Eow  the  loss  is  to  be 
appreciated. — ^In  England,  the,  practice,  in 
case  of  a  loss,  is  to  value  the  goods  at  the 
prime  eoet,  and  the  duties,  expenses  of  ship- 
ping, and  premium  of  insurance.  The  ship 
is  Tidued  at  the  price  she  is  worth  at  the  time 
of  her  sailing,  including  the  expense  of  her 
repairs,  tha  value  of  her  furniture,  provisions, 
sod  stores,  the  money  advanced  to  the  sailors, 
and,  in  general,  every  expense  of  the  outfit, 
and  premium  of  insurance.  A  partial  loss, 
00  either  ship  or  goods,  is  that  proportion  of 
the  prime  cost  eqnal  to  the  diminution  in 
value  occasioned  by  the  damage.   Where  the 


policy  is  valued,  the  loss  is  that  proportion  of 
the  value  in  the  policy  which  the  difference 
between  the  price  of  the  sound,  and  the  price 
6f  the  damaged,  bore  to  the  price  of  the  sound 
at  the  port  of  delivery.  Thus,  if  sugars  are 
valued  in  the  policy  at  L.30  per  hogshead,  and 
are  so  damaged  as  to  be  worth  no  more  than 
L.20,  Os.  8d.  per  hogshead,  while,  if  sound, 
they  would  have  brought  L.23,  7s.  8d.,  the 
difiference  being  L.3,  7s.,  the  loss  would  be 
that  proportion  of  the  L.30,  which  L.3, 7s. 
bears  to  L.23, 7s.  8d. ;  and  the  same  rule 
holds  whether  the  goods  come  to  a  rising  or 
to  a  falling  market.  3.  The  effect  of  an  ad- 
juttment.—An  adjustment  of  the  loss  indorsed 
on  the  policy,  and  signed  by  the  underwriters, 
is  like  a  note  of  hand,  and  supersedes  all  fiir- 
ther  proof  on  the  point.  At  the  same  time, 
the  underwriters  will  be  allowed  to  traverse 
it  by  direct  evidence,  disproving  the  grounds 
of  adjustment.    See  Adjustment, 

15.  Of  return  of  premium. — The  premium 
and  risk  are  co-relatives.  The  insurer  cannot 
be  exposed  to  the  risk  without  being  entitled 
to  the  premium,  nor  entitled  to  the  premium 
without  having  been  exposed  to  the  risk.  It 
remains,  therefore,  to  be  considered,  under 
ivhat  circumstances  the  insured  shall  be  en- 
titled to  demand  a  return  of  premium.  1. 
Where  the  contract  is  void  ab  initio. — This  is 
owing  either  to  want  of  interest  in  the  insured, 
or  because  the  insurance  is  illegal,  or  on  ac- 
count of  fraud.  When  there  is  no  interest, 
or  an  interest  much  below  the  sum  insured, 
the  insurer  must  return  the  whole  premium, 
or  retain  so  much  of  it  only  as  may  be  pro- 
portioned to  the  actual  interest ;  and  where 
there  are  more  than  one  policy,  the  under- 
writers settle  according  to  the  sum  subscribed 
by  each,  without  regard  to  priority  of  dates. 
If  the  insurer  might  at  any  time  have  been 
called  on  for  the  loss,  the  premium  is  carried; 
therefore,  in  a  valued  policy,  though  there  be 
twice  the  amount  of  the  value  insured,  no  re- 
turn is  claimable.  A  voyage  on  trade  with 
an  enemy  is  not  insurable ;  yet  the  premium 
cannot  be  demanded  back — Potior  est  conditio 
possidentis.  But  when  the  policy  is  void  with- 
out any  fraud  on  the  part  of  the  insured,  the 
premium  may  be  demanded ;  or  where  it  is 
void  from  the  fraud  of  the  underwriter,  the 
same  thing  happens.  It  seems  to  be  doubtful 
when  the  fraud  is  on  the  part  of  the  insured. 
2.  Where  the  risk  has  not  been  commenced. — In 
this  case,  whether  it  be  owing  to  the  neglect 
or  fancy  of  the  insured,  the  return  of  the  pre- 
mium may  be  demanded,  since  the  under- 
writers never  ran  the  risk  of  which  it  was  the 
consideration.  When  the  voyage  is  divided 
into  separate  risks,  the  premium  may  be  allo- 
cated according  to  the  several  risks ;  and  in 
case  one  or  more  has  not  commenced,  a  pro- 
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portional  retnni  may  be  demanded.  When 
the  insurance  is  at  and  from  a  place  with  con- 
voy, and  the  ship  sails  without  convoy,  the 
premium  may  be  demanded  back,  bat  nnder 
a  small  deduction  for  the  insurance  at  the 
port  of  departure,  for  which  the  underwriters 
were  liable.  When  the  risk  has  commenced, 
though  the  insurer  should  be  relieved  by  a 
deviation,  or  by  the  voyage  being  abandoned, 
the  premium  cannot  be  demanded  back  by 
the  insured.  8.  Upon  the  performance  of  tome 
ttipulations. — It  is  frequently  a  stipulation, 
that  upon  the  happening  of  certain  events,  or 
the  performance  of  certain  things,  the  in- 
sored  shall  return  a  part  of  the  premium.  If 
the  event  shall  have  happened,  the  insured 
will  be  entitled  to  the  return,  though  the 
underwriter  be  liable  for  a  partial  loss.  4. 
Of  the  deduction  of  one-half  per  cent,  on  a  relwm 
<f  premium. — Where  the  insurer  puts  a  stop 
to  the  risk,  the  underwriter  is  entitled  to  one- 
half  jper  cen<.  from  the  premium,  which,  in  that 
case,  he  retains,  on  account  of  the  entries  he 
has  had  to  make  in  his  books.  See  MartkalFs 
Treatise  on  the  Law  of  Insurance. 

16.  Of  the  action  on  the  policy. — The  action 
on  the  policy  of  insurance  is  a  maritime  action, 
and  as  such  could  formerly  be  brought  before 
the  Jndge-Admiral  alone  in  the  first  in- 
stance ;  and  it  was  only  by  appeal  that  the 
Court  of  Session  had  jurisdiction.  But  this 
is  now  one  of  the  class  of  actions  which  were, 
by  the  Judicature  Act,  6  Geo.  IV.,  c.  120,  § 
28,  appropriated  to  jury  trial. 

17.  Of  tiie  duties. — There  are  certain  stamp 
duties  payable  on  marine  insurances.  These 
are  regulated  by  55  Geo.  III.,  c.  184,  amended 
by  8  and  4  Wm.  IV.,  c.  23.  See,  on  the 
snbject  of  marine  insurance,  Tomlint^  Diet, 
h.  t.;  BeWs  Com.  i.  593,  et  seq.;  Ersk.  B.  iii. 
tit.  3,  §  17 ;  Bank.  vol.  i.  pp.  419,  426 ; 
BdVs  Prine.  §  457,  et  seq.;  lUutt.  ib. ;  Stoint. 
Abridg.  A.  (. ;  Karnes'  Stat.  Law  Abridg.  h.  L; 
Jurid.  Styles,  2d  edit  vol.  ii.  pp.  663-9; 
Brown's  Synop.  h.  t.,  and  p.  1779;  Shaw's 
Digest,  p.  243 ;  S.<tD.  vol.  xL  p.  21 ;  Karnes' 
Equity,  213 ;  Brodit^s  Supp.  to  Stair,  988 ; 
Watt,  Dovfs  Appeal  Gases,  i.  32 ;  Tenant,  324 ; 
Waism,  326 ;  Brown,  349 ;  Sibhald,  ii.  263  ; 
Haa,  367  ;  SmiU,  638 ;  Parker,  iii.  23 ;  WiU 
kie,  67  ;  Reid,  iv.  97 ;  Douglas,  269 ;  Amot,  v. 
274  ;  Fasker,  Bligh,  i.  87.  See  also  Marshall 
on  Insurance.  Park  on  Insurance.  Miller  on 
Insurance.  PhiUipt  on  Insurance.  Hildyard 
on  Marine  Insurances.  Duer  on  Marine  Insur- 
ances.   Amould  on  Insurance. 

II.   iNSUBAirCE  OK  LiTZS. 

The  insurance  upon  life  is  a  contract  by 
which  an  underwriter,  for  a  certain  sum,  pro- 
portioned to  the  risk  (judged  of  &om  the  age. 


INS 

state  of  hetdth,  or  profession  of  the  peratm 
whose  life  is  to  be  insured),  engages  to  pay  a 
certain  sum,  should  the  person  die  within  the 
time  limited  in  the  policy.  To  prevent  the 
application  of  this  useful  expedient  to  the 
improper  purposes  to  which  it  was  sometimes 
applies,  it  was  enacted,  by  the  statute  14 
Geo.  III.,  c  48,  that  no  insurance  shall  be 
made  on  the  life  or  lives  of  any  person  or 
persons,  wherein  the  person,  for  whose  dm 
the  policy  is  made,  shall  have  bo  pecuniary 
interest;  or  by  way  of  gaming  or  wagering ; 
policies  made  contrary  thereto  being  declared 
void  and  null.  And  it  is  provided^  that  the 
names  of  those  interested  in  the  policy  shall 
be  inserted  therein,  and  no  greater  sum  can 
be  recovered  from  the  insurer  than  the  value 
of  the  interest  of  the  insured  on  such  life  or 
lives.  Under  this  interest  a  creditor  may  in- 
sure his  debt,  where  the  debt  stands  upon 
a  personal  obligation  only.  He  may  either 
himself  open  a  policy  on  his  debtor's  life, 
or  he  may  have  assigned  to  him  a  policy 
opened  by  the  debtor  on  his  own  life.  It 
has  been  doubted  whether  an  heritable  eie- 
ditor  can  validly  insure  his  debtor's  life.  A 
father  has  no  insurable  interest  in  the  life  of 
his  son  ;  but  in  a  policy  opened  by  a  person 
on  his  own  life  his  family  has  a  sufficient  in- 
terest. The  interest  is  not  to  be  reckoned 
by  the  actual  value  of  the  life.  It  is  not 
diminished  to  the  creditor  by  collateral  seca- 
rities ;  for  while  the  debt  subsists  the  policy 
is  good,  leaving  the  collateral  securities  to 
be  otherwise  available.  In  a  life  inairance, 
the  underwriter  usually  undertakes  to  answer 
for  all  those  accidents  or  diseases  to  which 
human  life  is  subject,  except  duelling,  suicide, 
the  hands  of  justice,  and  death  at  sea.  Bat 
death  by  duelling,  suicide,  and  the  hands  of 
justice,  are  not  understood  to  be  excepted 
where  the  insurance  is  effected  on  the  life  of 
another.  The  death  must  happen  within  the 
time  specified  in  the  policy,  in  order  to  render 
the  insurer  liable ;  and  although  the  in- 
sured receives  the  wound  of  which  he  dies 
before,  if  he  does  not  die  till  after  the  period, 
the  insurer  is  free.  Fraud  may  be  the 
ground  for  voiding  this,  as  it  does  every  other 
contract  into  which  it  enters.  When  the 
risk  has  once  begun,  though  it  should  be 
shortened  by  the  suicide  of  the  person,  the 
whole  premium  is  due ;  there  is  no  appor- 
tionment of  the  premium,  and  no  return  of 
any  part  of  it.  See  Bell's  Com.  i.  627 ;  Tom- 
IfW  Diet.  h.  t.;  Beffs  Princ.  §  618,  d  tei.; 
must.  618. 

Where  a  party  effected  an  assurance  on 
the  life  of  another,  it  was  at  one  time  held 
that  his  right  to  recover  upon  the  policy  w« 
limited  by  the  interest  he  had  in  the  life  of 
the  party  assured  at  the  time  when  the  ac- 


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tion  for  recovery  was  brought,  and  cense- 
quently,  that  if  the  debt  of  a  creditor  who 
bad  effected  an  assurance  was  paid  at  that 
date  he  conld  not  recover.  Such  was  the  law 
laid  down  in  the  case  of  Godsall  v.  Boldero, 
25tli  Nov.  1807,  9  Eatt.  71.  A  different 
law  was  laid  down  in  the  case  of  DtMy  v.  The 
India  and  London  Life  Assurance  Company, 
2d  Dec  1854,  18  Jurist,  1024.  It  that  case 
it  was  held,  that  the  provisions  of  the  act  14 
Geo.  III.,  c.  48,  were  satisfied  if  the  party 
effecting  an  assurance  on  the  life  of  another 
had  an  interest  in  the  life  at  the  time  the 
annranee  was  effected.  Whether  the  case  of 
GodtaU  V.  Boldero  was  otherwise  rightly  de- 
cided or  not,  it  may  be  doubted  whether  the 
jodgment  did  not  go  too  far  in  restricting  the 
claim  of  the  plaintiff  to  the  interest  he  had 
in  Mr  Pitt's  life  at  the  date  of  the  action 
being  brought.  Possessing,  as  he  did,  an  in- 
terest in  Mr  Pitt's  life,  down  to  the  date  of 
bit  death,  it  would  rather  seem  that  he  was 
entitled  to  recover  the  amount  of  his  interest 
is  at  the  date  of  the  death,  and  that  the  cir- 
cumstance of  a  third  party  having  paid  the 
debt  after  Mr  Pitt's  death  ought  not  to  have 

§reTented  his  recovering  the  amount  assured, 
'he  pnrpose  of  the  statute  seems  to  have 
been  to  prevent  a  party  holding  an  assurance 
on  tbe  life  of  another  when  he  had  no  in- 
terest depending  on  the  life.  If,  however, 
the  party  retain  his  interest,  down  to  the 
death  of  the  party  whose  life  is  assured,  the 
object  of  the  statute  seems  to  be  satisfied.  In 
the  recent  case,  however,  effect  was  given 
neither  to  this  middle  view,  nor  to  the  view 
adopted  by  the  Court  of  Queen's  Bench,  and 
it  was  held  that  the  third  section  of  the 
itatate  was  to  be  taken  in  connection  with 
the  first  section,  and  that  a  party  effecting  an 
acarance  upon  the  life  of  another  was  en- 
titled to  recover  whatever  amount  of  interest 
he  had  in  the  life  at  the  date  of  effecting  the 
usnrance,  although  the  day  after  effecting  it 
his  interest  might  have  entirely  ceased.  It 
may  be  doubted  whether  such  a  result  was 
intended  by  the  legislature  in  passing  the  act'. 
It  may  rather  be  thought  that  the  true  ob- 
ject of  the  statute  was  to  prevent  any  party 
not  merely,  effecting,  but  also  holding  a  po- 
licy of  assurance  on  the  life  of  another,  when 
he  had  no  interest  in  the  life.  To  effect  an 
assurance  one  day  having  an  interest,  and  to 
hold  it  the  following  day  without  an  interest, 
has  rather  the  appearance  of  being  an  eva- 
sion of  the  statute.  If,  therefore,  the  con- 
ttmetion  recently  put  upon  the  statute  be 
the  right  one,  it  will  be  for  the  legislature  to 
consider  whether  the  statute  ought  not  to  be 
aoiended,  so  as  to  prevent  any  one  holding  a 
policy  of  assurance  upon  the  life  of  another, 
when  he  has  no  interest  in  the  life.    Pablic 


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policy  would  seem  to  point  to  such  a  limita- 
tion in  the  law  of  life  assurance.  See  3  Rostra 
L.  C.  703,  et  seq. 

iNSUnANCB  AOAINST  FlEB. 

This  is  a  contract  by  which  the  insurer 
undertakes,  in  consideration  of  the  premium, 
to  indemnify  the  insured  against  all  losses 
which  he  may  sustain  in  his  house,  furniture 
or  goods  by  means  of  fire,  within  the  time 
limited  in  the  policy.  The  contract  must  be 
by  policy  on  stamped  paper ;  but  the  agree- 
ment may  be  so  conclusively  fixed  before  de- 
livery of  the  policy,  as  to  ground  an  action 
for  implementing  it  by  a  regular  policy.  The 
insurer  must  have  value ;  but  it  is  not  re- 
quired that  he  should  have  the  absolute  and 
unqualified  property  of  the  effects  insured : 
he  may  insnre  as  a  trustee,  an  heritable  cre- 
ditor, a  fiar,  or  a  factor  with  the  custody  of 
the  goods.  But  the  nature  of  the  property 
must  be  distinctly  specified ;  and  all  the  in- 
surances, by  those  having  an  interest  in  the 
same  subject,  roust  not  exceed  its  fair  value. 
Fire  policies  are  not  valued  policies:  they 
limit,  but  do  not  measure,  the  liability  for 
loss.  The  settlement  is  on  the  principle  of 
average  loss,  not  of  abandonment.  When  in- 
surance against  fire  is  made  at  different  of- 
fices, intimation  of  the  different  insurances 
should  be  made  to  each  office.  The  dangers 
against  which  the  insurer  undertakes  to  in- 
demnify the  insured  are  those  arising  from 
fire ;  but  there  is  an  exception  of  those  aris- 
ing in  case  of  invasion,  foreign  enemy,  or  any 
military  or  usurped  power,  or  civil  commo- 
tion ;  and  to  this  effect  a  memorandum  or 
condition  is  entered  in  the  policy.  In  Eng- 
land fire  policies  are  not  assignable  at  law, 
but  they  are  in  equity.  They  are  assignable 
in  Scotland,  provided  the  interest  goes  with 
them.  Upon  the  death  of  the  insured,  the 
interest  is  continued  in  his  heir ;  but  it  can 
be  assigned  only  with  the  consent  of  the  in- 
surer. Where  a  loss  happens,  evidence  of 
the  loss  must  be  produced  to  the  office  ;  and 
allowance  is  made  not  only  for  what  has  been 
actually  consumed,  but  for  what  has  been 
damaged,  and  also  for  the  expense  incurred 
in  removing  the  furniture.  But  it  is  not 
held  a  loss  by  fire  if  there  be  no  ignition ;  as 
in  heat  by  effervescence,  or  injury  by  the 
over-heating  of  a  flue  not  followed  by  actual 
ignition.  Upon  each  insurance  an  annual 
duty  is  payable ;  see  19  Vict.,  c.  22,  and  acts 
therein  referred  to.  From  this  annual  duty, 
insurances  upon  agricultural  produce.farming 
stock,  and  implements  of  husbandry  are,  by 
statute,  excepted,  provided  snch  insurances  are 
effected  by  a  separate  and  distinct  pKolicy, 
relating  solely  to  such  agricultural  subjects ; 

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8  and  4  Will.  IV.,  c.  23,  §  5.  It  is  also  pro- 
vided bj  the  same  statate,  that,  in  rendering 
their  quarterly  accounts,  insurance  companies 
shall  deliver  to  the  commissioners  a  separate 
account  of  all  insurances  of  agricultural  pro- 
duce, farming  stock,  tie. ;  §  6.  See,  on  fire 
insurance,  Bell's  Com.  i.  539-543, 625,  et  $eq.; 
Bell't  Princ.  §  508,  et  seq. ;  lUutt.  ib. ;  Hun- 
ter's Landlord  and  Tenant ;  Newcastle  Fire  In- 
surance Company,  Dow's  Appeal  Cases,  iii.  255; 
Menzies,  9  D.  694. 

Intendment;  the  understanding,  intention, 
and  true  meaning  of  law.  Also,  the  true 
meaning  of  parties  contracting,  as  distin- 
guished from  the  literal  interpretation  of  the 
words  employed.    Tomlin^  Dtct.  h.  t. 

Interoommnning,  Letters  o£  Letters  of 
intercommuning  were  letters  from  the  Scotch 
Privy  Council  passing  (on  their  act)  in  the 
King'  name,  charging  all  and  sundry  the 
lieges  not  to  reset,  supply,  or  intercommane 
with  the  persons  thereby  denounced ;  not  to 
furnish  them  with  meat,  drink,  house,  har- 
bour, or  any  other  thing  useful  or  comfort- 
able ;  nor  to  have  intercourse  with  them  by 
word  or  writing,  or  otherwise,  under  pain  of 
being  repute  art  and  part  in  their  crimes, 
and  dealt  with  accordingly ;  desiring  all 
sheriffs,  bailies,  &e.,  to  apprehend  and  com- 
mit such  rebels  to  prison.  See  Nimmo's  Hist, 
of  Stirling  {per  WGregor,  Stirling),  2  edit, 
vol.  ii.  426,  in  note. 

Interdict;  uf  an  order  of  the  Court  of 
Session,  or  of  an  inferior  court,  pronounced, 
on  cause  shown,  for  stopping  any  act  or  pro- 
ceedings complained  of  as  illegal  or  wrongful. 
The  interdict  is  obtained  in  the  Court  of  Ses- 
sion on  presenting  what  is  termed  a  note  of 
suspension  and  interdict  to  the  Lord  Ordinary 
on  the  Bills.  It  may  be  resorted  to  as  a 
remedy  against  all  encroachments  either  on 
property  or  possession ;  and  is  a  protection 
against  any  unlawful  proceeding  For  the 
form  of  the  note  see  Shand's  Fract.  p.  1059 ; 
and  1  and  2  Vict.,  c.  86,  §  6.  In  the  course 
of  the  proceedings,  the  propriety  of  granting 
an  interdict  will  be  discussed.  But  the  de- 
cision on  that  point  is  quite  distinct  from 
the  question  of  right ;  and  an  interdict  may 
be  granted  in  consequence  of  previous  posses- 
sion, though  there  be  no  ground  to  support 
an  ultimate  decision  in  favour  of  such  posses- 
sion. It  is  necessary,  however,  that  the 
party  applying  should  have  both  title  and 
interest  to  apply  for  an  interdict.  When  a 
note  of  suspension  and  interdict  is  passed,  and 
a  declaratory  action  also  brought  into  court, 
the  action,  of  suspension  and  interdict,  and 
the  declaratory  action  may  be  conjoined,  and 
the  right  in  dispute  settled  in  the  course  of 
the  conjoined  action.  In  the  inferior  courts, 
the  procedure  is  analogous,  only  that,  instead 


of  a  note  of  suspension  and  interdict,  the  pro- 
cess commences  by  a  summary  petition  to  the 
inferior  judge.  Erst.  B,  iv.  tit.  1,  §  47 ;  tit 
3,  §  20 ;  Bank.  voL  ii.  p.  619 ;  BeU's  Cm.  i. 
123  ;  Hunter's  Landlord  and  Tenant;  Sia»it 
Prae.  pp.  440,  448,  460,  975 ;  JfaciwnVi 
Sheriff-Court  Froeess;  Jurid.  Styles,  voL  ii. 
p.  78 ;  Thomstm  on  Bills,  216.  See  InjwuiiM, 
Interdiction ;  is  a  system  of  judicial,  or  of 
voluntary  restraint,  provided  for  those  who, 
from  weakness,  facility,  or  profusion,  are 
liable  to  imposition.  It  is  directed  at  the 
sight  of  the  judge,  on  proper  evidence  of  the 
facility  of  the  party,  or  voluntarily  imposed 
by  the  party  himself.  Hence  the  distinc- 
tion into  voluntary  and  judicial  interdiction. 
Voluntary  interdiction,  is  imposed  by  the  sole 
act  of  the  interdicted  person,  who,  being  con- 
scious of  his  facility,  lays  himself  under  this 
restraint.  This  interdiction  is  usually  exe- 
cuted in  the  form  of  a  bond,  whereby  the 
grantor  obliges  himself  to  do  no  deed  which 
may  affect  his  estate,  without  the  consent  of 
certain  persons  therein  named,  technically 
called  interdictors.  But  although  this  is  a 
voluntary  restraint,  it  cannot  be  recalled  at 
the  pleasure  of  the  person  who  has  laid  him- 
self under  it.  It  may  be  removed,  howerer, 
1.  By  a  sentence  of  the  Court  of  Seaion, 
either  on  the  ground  that  it  was  originally 
unnecessary,  or  that  the  interdicted  person 
has,  since  the  date  of  the  bond,  become  net 
suce providus.  2.  Without  judicial  interfer- 
ence, it  may  be  removed  by  the  joint  act  of 
the  interdictors  and  the  interdicted  person. 
3.  Where  a  quorum  of  interdictors  is  named, 
the  restraint  ceases,  if  by  death,  or  other- 
wise, the  number  of  interdictors  is  reduced 
below  the  quorum.  Judicial  interdiction,  is 
imposed  by  sentence  of  the  Court  of  Session; 
generally  proceeding  on  an  action  at  the 
instance  of  a  near  kinsman  of  the  facile  per- 
son ;  but  sometimes  ex  nobUi  officio  of  the 
Court,  where,  during  the  dependence  of  » 
suit,  they  discover  that  any  of  the  litigants, 
by  reason  of  natural  infirmity,  is  subject  to 
imposition.  Judicial  interdiction  cannot  be 
recalled  but  by  the  authority  of  the  Court  of 
Session,  by  whom  it  was  imposed.  The  sen- 
tence of  the  Court,  recalling  the  interdiction, 
affords  security  to  those  afterwards  contract- 
injg  with  the  interdicted  person,  even  al- 
though evidence  should  be  brought  that  he 
still  continues  profuse.  An  interdiction  need 
not  be  served  against  the  interdicted  pereon ; 
but  it  must  be  executed  or  published  by  s 
messenger-at-arms  at  the  market-cross  of  the 
jurisdiction  within  which  the  prodigal  reside, 
by  publicly  reading  the  interdiction  there, 
after  three  oyesses.  A  copy  of  the  messen- 
ger's execution  must  be  affixed  to  the  croe ; 
and  thereafter  the  interdiction  and  execution 


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mast  be  registered  in  the  books  both  of  the 
jurisdiction  within  which  the  interdicted  per- 
son resides,  and  in  that  within   which   his 
lands  lie,  within  forty  days  after  the  publica- 
tion ;  1581,  c  119 ;  1597,  c.  264 ;  or  the 
interdiction  may  be  recorded  in  the  general 
register  at  Edinbnrgh ;  1600,  c.  13.    And 
before  such  registration,  the  interdiction  has 
no  effect  against  third  parties,  although  they 
should  be  in  the  private  knowledge  of  it ;  but 
it   operates  against  the  interdictors  them- 
■elves,  as  soon  as  it  is  delivered  to  them. 
All  deeds  done  by  the  interdicted  person, 
after  interdiction  thus  duly  completed,  with- 
ont  the  consent  of  the  interdictors,  and  affect- 
ing his  heritable  estate,  are  reducible.     Re- 
gistration in  the  general  register  secures  all 
the  lands  belonging  to  the  interdicted  person, 
within  Scotland,  from  alienation  by  him  ;  but 
where  the  interdiction  is  recorded  in  the  par- 
ticular register,  it  protects  the  lands  within 
that  district  only.    Interdiction  imposes  no 
restraint  on  the  interdicted  person's  manage- 
ment of  his  moveable  property,  of  which  he 
may  dispose  not  only  by  testament,  but  by 
deeds  of  present  alienation.   Hence  creditors, 
in  personal  bonds  granted  after  interdiction, 
may  use  execution  against  the  debtor's  person, 
and  against  his  moveable  estate ;  such  bonds 
being  reducible  only  in  so  far  as  diligence 
against  the  heritable  estate  may  have  pro- 
ceeded  upon   them.      Onerous   or  rational 
deeds,  granted  by  the  interdicted  person,  are 
effectual  without  the  consent  of  the  inter- 
dictors ;  but  he  cannot  alter  the  succession  of 
his  heritable  estate  by  any  settlement,  how- 
ever rational.     Deeds  granted  with  consent 
of  the  interdictors  are  not  reducible,  although 
lesion  or  prejudice  to  the  interdicted  person 
should  be  proved.    In  such  a  case  the  only 
remedy  is  an  action  against  the  interdictors 
for  indemnification  of  the  loss  occasioned  by 
their  undue  consent.    The  interdictors  have 
no  concern  in  the  management  of  the  inter- 
dicted person's  estate,  or  in  the  receipt  of  his 
money  ;  their  duty  is  confined  merely  to  in- 
terposing their  authority  to  reasonable  deeds ; 
and  hence  they  are  accountable  for  nothing 
bat  fraud  or  fault  in  giving  their  consent. 
Where  a  deed  has  been  granted  by  the  inter- 
dicted person,  which  is  liable  to  reduction  on 
the  bead  of  interdiction,  an  action  of  reduc- 
tion, ex  capile  interdietionis,  may  be  brought 
not  only  by  the  heirs  of  the  interdicted  per- 
son, and  by  the  interdictors,  but  by  the  in- 
terdicted person  himself.    Ersk.  B.  i.  tit.  7, 
§  53,  et  tea. ;  iiiair,  B.  i.  tit.  6,  §  28  ;  B.  iv. 
tit.  20,  §  30 ;  Bank.  vol.  i.  p.  191 ;  BdPs 
Com.  i.  139;  BeU'$  Princ.  §  2123,  «t  seq. ; 
Kama'   Stat.  Law  ahridg.,  voce  Regittration ; 
Hunter'a  Landlord  and  Tenant;  Brown  on  Sale, 
p.  173 ;  Themton  on  BOU,  p.  242  ;  Hutch.  Jut- 

26 


tice  of  Peace,  2d  edit;  vol.  ii.  p.  267  ;  Jurid. 
Stylet,  2d  edit.  vol.  ii.  pp.  94,  414 ;  iii.  179, 
199,  228,  544-6,  991 ;  Kama'  Equity,  399. 
See  Facility.    Idiot. 

Interest  Excluding  a  Witness.    Interest 
in  the  issue  of  a  cause  or  trial  was  formerly 
a  ground  of  exclusion  against  a  witness,  but 
now  it  is  enacted  by  15  and  16  Yict.,  c.  27, 
§  1,  inter  alia,  That  "  no  person  adduced  as  a 
witness  in  Scotland  before  any  court  or  be- 
fore any  person  having  by  law  or  by  consent 
of  parties  authority  to  take  evidence  shall  be 
excluded  from  giving  evidence  by  reason  of 
interest."    This  Act  does  not  apply  to  in- 
strumentary  witnesses;  who, however,  are  not 
disqualified  by  any  interest  which  is  not  mate- 
rial and  direct;  Memies' Lee.  p.  110. ;  Dickson 
on  Evidence,  370,  889.    No  objection  made  by 
a  witness  against  his  own  deponing  is  sus- 
tained, unless  where  the  fact  put  to  him  may 
infer  guilt  or  infamy;  and  accordingly,  in 
exhibitions  and  other  cases,  witnesses  may 
be  examined  upon    facts  which   may  infer 
against  themselves  fraud  and  damage.    As  to 
the  former  state  of  the  law  on  this  subject, 
see  Stair,  B.  iv.  tit.  43,  §  8 ;  More't  Notes, 
ecccxiii.;  Ersk,  B.  iv.  tit.  2,  §  25;  BelVs  Com 
ii.  482-5  ;  BdVs  Princ.  §  2244,  and  authori- 
ties there  cited  ;  Ma^arlane's  Jury  Prac.  142  ; 
Hutch.  Justice  of  Peace,  i.  266 ;  Tait  on  Evi- 
dence, 349 ;  Ross's  Led.  i.  148 ;  Thomson  on 
Bills,  616,  where  several  English  cases  are 
analysed.    See  Evidence. 

Interest  (as  a  QcAuricATioir  ob  Dis- 
QUALiFiGATioir.)  In  order  to  entitle  a  party 
to  institute  an  action  in  a  court  of  law,  he 
roust  have  a  title,  and  also  a  proper  interest 
in  the  issue,  for  if  he  can  derive  no  benefit 
from  the  result,  the  action  will  not  be  sus- 
tained ;  the  presumption  being,  "  that  it  is 
calculated  to  distress  the  defendant,  and  done 
in  cemulationem  vicini;"  Karnes'  Equity,  37. 
Such  cases  are  necessarily  of  rare  occurrence; 
but  it  is  a  question  frequently  tried,  whether 
a  person  has  sufficient  interest  to  sist  himself 
as  a  pursuer  or  defender,  in  a  cause  to  which 
he  has  not  been  specially  summoned.  Where 
an  action  is  raised  against  a  party,  who,  if 
unsuccessful  in  his  defence,  will  have  a  claim 
of  relief  against  another,  the  party  liable  in 
relief  may  appear  and  defend  the  action. 
One  may  appear  and  defend  his  author's 
title,  where  an  action  has  been  raised  for  set- 
ting it  aside.  A  landlord  having  interest 
may  sist  himself  as  defender  in  an  action 
raised  against  his  tenant.  In  actions  of  com- 
petition, snch  as  multiplepoindings,  rankings 
and  sale,  &c.,  a  party,  though  not  cited,  may 
appear  and  compete,  and  crave  a  preference. 
But  it  has  been  held,  that  the  omission  to 
cite  the  real  creditors  in  possession,  in  a  pro- 
cess of  ranking  and  sale,  cannot  be  supplied 

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by  their  appearing  and  sigting  thenuelves.  In 
some  cases,  the  interest  has  not  been  held 
sufficient  to  make  it  competent  for  a  party  to 
sist  himself.  Thus,  one  cannot  appear  and 
defend  an  action  raised  against  another  for 
payment  of  a  sum  contained  in  a  document  of 
debt,  on  the  ground  that  he  has  the  prefer- 
able  right  to  the  debt.  Nor  can  the  debtor, 
in  an  action  of  maills  and  duties,  object  to 
decree  passing  against  his  tenants  who  hare 
not  entered  appearance.  Where  a  creditor 
has  a  peculiar  interest,  adverse  to  the  general 
interest  of  the  creditors,  he  will  not  be  allowed 
to  vote,  where  the  object  or  effect  of  that  vote 
is  to  stifle  inquiry,  or  determine  any  ques- 
tionable matter  against  the  interest  of  the 
creditors  generally.  A  creditor,  however, 
having  an  adverse  interest,  although  himself 
ineligible  as  trustee,  will  not  be  deprived  of 
his  right  of  voting  in  the  election  of  a  trustee, 
without  evidence  of  collusion  to  the  injury  of 
other  creditors.  Marine  policies  of  insurance 
are  invalid,  unless  they  contain  the  name  of 
s  person  or  persons  interested  in  the  event. 
And  by  14  Geo.  III.,  c.  48,  no  policy  of  in- 
surance against  fire  is  valid  where  the  person 
for  whose  use  it  is  made  has  no  interest  in 
the  event ;  nor  can  any  gpreater  sum  be  re- 
covered than  the  amount  of  the  interest  of 
the  insured.  In  life  assurance  there  is,  by 
statute,  the  same  necessity  for  the  person  in- 
suring having  a  pecuniary  interest  in  the 
life  which  he  insures.  BeWs  Com.  i.  604, 
625-9 ;  ii.  350,  367-9  ;  Princ.  §«  456,  461, 
608,  520 ;  lUtut.  §§  461,  520 ;  Shand's  Prac. 
139,  489  ;  Madawrin's  Sheriff  Prac.  90,  393. 
Interest  in  the  cause  is  a  ground  of  declina- 
ture of  a  judge.  Erdc  D.  i.  tit.  2,  §  25 ; 
Bank.  ii.  480 ;  ShemJ^s  Prac.  62.  See  Dedi- 
luUure. 

Interest  of  K oney ;  may  be  defined  to  be 
the  creditor's  share  of  the  profit  which  the 
borrower  or  debtor  is  presumed  to  make  from 
the  use  of  the  money.  The  prohibition  in 
the  law  of  Moses  to  take  interest  had  operated 
so  powerfully  with  the  clergy,  that  by  the 
canon  law  it  was  prohibited,^nd  the  taking 
of  interest  was  regarded  as  criminal.  This 
led  to  various  devices,  such  as  the  introduc- 
tion of  wadsets  and  of  aniualrent  rights  (see 
Bond);  until  at  last,  on  the  wider  diffusion 
of  commercial  notions,  the  taking  a  certain 
rate  of  interest  was  made  lawfuL  After  the 
Reformation  there  was  no  restraint  on  the 
amount  of  interest,  when  by  the  act  1587,  c. 
52,  the  rate  of  interest  was  regulated,  and 
was  then  fixed  at  10  f>«r  cent  From  that 
time  it  gradually  fell,  till  by  12  Anne,  stat. 
2,  c.  16,  it  was  reduced  to  5  percent.  By  the 
Acts  4  Will.  IV.,  c.  98,  7  Will.  IV.,  and  1 
Vict.,  c.  80,  and  13  and  14  Vict.,  c.  66,  bills 
of  exchange  «id  promissory-notes  were  ex- 


empted from  the  operation  of  the  vmrj 
laws ;  and  by  the  act  17  and  18  Vict.,  e.  90, 
1854,  all  existing  laws  against  usury  were 
repealed ;  subject  to  the  following  provisos,— 
1st  (§  2),  That  transactions  previous  to  the 
passing  of  the  act  should  not  be  affected ;  2d, 
(§  3),  That  the  expressions  legal  or  ettTraU 
rate  of  interest  should  continue  after  the  pass- 
ing of  the  act  to  mean  the  same  rate  of  inte- 
rest as  before ;  and  3d  (§  4),  That  the  set 
should  not  affect  the  laws  as  to  pawnbrokers. 
The  statutes  as  to  usury  are  contabed  in  a 
schedule  annexed  to  this  act. 

Interest  is  due  ex  lege  or  ex  pacta.  It  it 
due  ex  lege,  or  by  the  act  of  the  law  itself: 
].  By  statute,  as  in  the  case  of  bills  of  ex- 
change, inland  bills  and  promissory-notes, 
which  by  1681,  c.  20,  lri96,  c  36, 12  Geo. 
III.,  c.  72,  bear  interest  from  their  date,  m 
case  of  non-acceptance,  or  from  the  day  they 
fall  due,  in  case  of  non-acceptance  or  non- 
paymentL  Interest  is  doe  on  the  whole  sum 
contained  in  a  horning,  interest  as  well  as 
principal,  accumulated  into  a  principal  snm 
from  the  day  of  denunciation,  if  made  at  the 
head  burgh  of  the  debtor's  residence;  1621, c. 
20 ;  and  by  1  and  2  Vict.,  c.  114,  §§  5  and  10, 
the  registration  of  an  execution  of  charge 
has  the  same  effect  as  denunciation  on  letters 
of  horning.  Sums  paid  by  cautioners  on  dis- 
tress bear  interest  by  the  Act  of  Sederast, 
Dec.  21  1590.  By  Act  of  Sederunt,  July  31 
1690,  where  there  is  a  sequestration  of  reats, 
and  a  factor  appointed,  the  factor  is  liable  in 
interest  on  the  rents  recovered,  or  which  ht 
might  by  diligence  have  recovered,  within  s 
year  after  they  are  due.  Interest  is  due  ex 
lege,  on  the  price  in  a  sale  of  lands,  from  the 
time  at  which  the  purchaser  gets  right  to  the 
rents,  and  that  from  whatever  cause  the 
delay  to  pay  the  pfice  may  have  originated. 
Where  one  receives  money  belonging  to 
another,  which  formerly  bore  interest,  he  is 
liable  for  interest  on  the  sum  received;  or, 
when  money  is  paid  at  the  desire  of  one,  he 
must  be  liable  for  the  interest  of  the  money 
advanced  at  his  desire.  Merchants,  in  the 
same  way,  are  entitled  to  interest  on  the 
price  of  goods  sold  by  them,  where  the  psj- 
ment  is  beyond  the  usual  credit  of  the  trade. 
Interest  is  not  due  on  fen-duties  ex  lege;  it 
requires  express  stipulation ;  Napier,  31st 
May  1831,9  S,  and  D.  655;  ifai^M  ff 
Tweeddale,  1842,  4  D.  862.  See  Denuncuiiea. 
Drawer  of  a  Bill.  Double  Bonds.  Interest  is 
due  by  paction,  express  or  implied.  It  is 
due  by  express  paction  wherever  the  gronnd 
of  debt  bears  a  clause  of  interest ;  hut  in  the 
expression  of  this  clause  there  must  be  no 
provision  for  accumulating  the  arrears  of  in- 
terest into  a  principal  sum  bearing  interest 
Yet  it  is  allowable  to  take  a  bond  payable  at 


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s  term  for  the  principal  suin,  and  interest 

from  the  date  of  the  advance  to  that  term, 

by  which  means  the  whole  becomes  a  principal 

snm  bearing  interest  from  that  time.  Interest 

is  due  from  tacit  or  presumed  paction,  as, 

where  a  person  becomes  bound  for  interest  on 

a  gum  for  the  time  past,  which  implies  an 

obligation  for  the  time  to  come.   Interest  can 

in  DO  ciise  begin  to  run  until  the  debt  exists ; 

and  therefore,  wherever  it  is  made  to  run 

for  a  period  prior  to  the  existence  of  the 

debt,  the  contract  becomes  usurious.  See  BeWt 

Com.  16th  edit.  p.  348 ;  Ersk.  B.  iii.  tit.  3, 

§  75,  et  s«q. ;  Stair  B.  i.  tit.  17,  §  16 ;  Mor<fs 

Notes,  p.  Ixxviii.,  et  seq. ;  Bank.  vol.  i.  p.  436, 

et  seq. ;  BdPs  Com.  i.  646,  et  seq. ;  BeWs  Prine. 

§  32, 1479-84-95, 1503,  1880 ;  lUust.  §  32 ; 

Swtnt.  Ahridg.  voce  Uswry ;  Karnes'  Stat.  Law 

abridg.  voeibut  Usury,  Anmudrent ;  Brown  on 

Sale,  pp.  347,  350 ;  Thomson  on  BiUs,  pp.  14, 

39, 133,  S87,  740;  Tait'sJust.  of  Peace,  h.  t.; 

Blair's  Just,  of  Peace,  h.  t. ;  Jurid.  Styles,  2d 

edit.  vol.  i.  p.  260-1 ;  ii.  pp.  23,  73,  332, 

422-6 ;  Brown's  Synop.  pp.  5,  86,  343,  2196  ; 

Shaufs  Digest,  h.  t.;  Shand's  Prac.;  Ross's  Lect. 

i.  p.  4,  et  seq.,  3,  5  ;  ii.  379  ;  Earned  Equity, 

488 ;   Graham,  Bligh's  App.  Cases,  ii.  126 ; 

Hamilton,  ib.  170 ;  Union  Canal  Co.,  I  Bell's 

App.  316 ;  Hurlet  and  Gampsie  Alum  Co.,  13 

D.  370 ;  Blair,  6  i).  1315 ;  Dalmahoy  and  Wood, 

1859,  21  D.  210.    See  Compound  Interest. 

Fctnus  Nautieum. 

Interim  Decree ;  is  a  decree  disposing  of 
part  of  a  cause,  but  leaving  the  remainder 
nnexhansted.  The  most  ordinary  examples 
of  such  decrees  occur  in  cases  of  accounting, 
or  in  actions  concloding  for  a  certain  snm, 
where  the  defender  admits  so  much  to  be 
dne,  but  disputes  the  balance.  In  these,  and 
similar  cases,  it  is  competent  to  the  pursuer 
to  apply  for  an  interim  decree  to  the  amount 
of  the  admitted  or  indisputable  balance.  Ac- 
cording to  the  strict  rule  of  the  Judicature 
Act,  6  Geo.  IV.,  c.  120,  it  would  seem  not 
to  be  competent  to  pronounce  such  an  interim 
decree  until  the  record  is  closed ;  but  in  one 
case,  where  a  party  in  his  defences  made  such 
aa  aidmission,  interim  decree  was  pronounced 
for  the  admitted  balance  before  the  record 
was  closed,  and  quoad  ultra,  a  record  was,  in 
that  case,  directed  to  be  made  np ;  Crawford, 
22d  Nov.  1833, 12  S.  *  D.  113.  Formerly 
no  interim  decree  could  be  extracted  until 
the  final  issue  of  the  cause,  unless  the  judge 
granted  warrant  for  extracting  it  as  an  in- 
terim decree.  Hence,  where  such  a  decree 
was  pronounced,  or  where,  in  the  course  of 
a  process,  the  expenses  of  any  part  of  the  dis- 
cussion were  incidentally  found  due  and  de- 
cerned for,  a  warrant  to  extract  the  decree  as 
Ml  interim  one  bad  to  be  applied  for,  where 
there  was  any  risk  of  the  payment  not  being 


made  without  an  extract.  This  is  now  altered 
by  13  and  14  Vict.,  c.  36,  §  28;  and  interim 
decrees  are  now  extractable  without  a  special 
allowance,  unless  it  is  otherwise  directed. 
Similar  rules  apply  in  the  inferior  courts. 
See  Maclaurin's  Form  of  Process,  426.  In 
Sheriff-court  causes  above  L.25  value,  inter- 
locutors giving  interim  decree  for  payment  of 
money  are,  under  16  and  17  Vict.,  c.  80,  §  24, 
reviewable  by  the  Court  of  Session.  See  also 
Record.    Decree. 

Interim  Executioii,  pending  an  Appeal. 
The  presentment  and  intimation  of  a  petition 
of  appeal  to  the  House  of  Lords,  and  war- 
rant of  service,  suspends  execution  of  a  decree 
of  the  Court  of  Session.  But,  by  the  act  48 
Geo.  III.,  c.  151,  §  17,  it  is  declared,  "  that 
when  any  appeal  is  lodged  in  the  House  of 
Lords,  a  copy  of  the  petition  of  appeal  shall 
be  laid  by  the  respondent  or  respondents  be- 
fore the  Judges  of  the  Division  to  which  the 
cause  belongs,  and  the  said  Division,  or  any 
four  of  the  Judges  thereof,  shall  have  power 
to  regulate  all  matters  relative  to  interim 
possession  or  execution,  and  payment  of  costs 
and  expenses  already  incurred,  according  to 
their  sound  discretion,  having  a  just  regard 
to  the  interests  of  the  parties,  as  they  may  be 
affected  by  the  affirmance  or  reversal  of  the 
judgment  or  decree  appealed  from."  Under 
this  statutory  provision,  the  practice  is,  for 
the  respondent  in  the  appeal  who  wishes  to 
have  interim  execution  pending  the  appeal, 
to  present  a  summary  petition  to  the  Division 
of  the  Court  to  which  the  cause  belongs,  to 
which  petition  a  copy  of  the  petition  of  ap- 
peal is  appended ;  and  the  prayer  of  the  pe- 
tition for  interim  execution  is,  that  the  Court 
may  allow  the  decree  of  the  Court  of  Session 
appealed  against  to  go  out  and  be  extracted 
in  name  of  the  petitioners,  and  execution 
to  proceed  thereon,  notwithstanding  the  ap- 
peal, with  the  expense  of  extract,  upon 
caution  to  repeat  what  may  be  paid  under 
the  decree,  in  the  event  of  the  decree  being 
reversed  in  the  House  of  Lords.  This  peti- 
tion is  intimated  by  delivering  copies  to  the 
agent  of  the  appellant  in  the  Court  of  Ses- 
sion, and  in  the  ordinary  case  the  prayer 
of  it  is  granted.  'Cases  illustrative  of  this 
article  will  be  found  in  Shaw's  Digest.  See, 
inter  alia,  Sir  J.  Inglis  Cochrane,  1849,  12 
D.  302  ^  Toung,  1852,  14  D.  746,  811; 
Granger,  1857,  19  D.  1010 ;  Russell,  1858, 
20  D.  772;  Tulloch,  ib.  1319.  See  also 
Paton's  App.  Prac.  p.  48,  and  the  article 
Appeal. 

Interim  Factor.  Under  the  former 
bankruptcy  statutes,  54  Geo.  III.,  c.  137,  §§ 
16, 17 ;  2  and  3  Vict.,  c.  41,  §  45 ;  and  16 
and  17  Vict.,  o.  53,  §  1,  the  first  step  in  a 
sequestration   was  the  appointment  of  an 

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interim  factor  for  tlie  preaerration  of  the 
banlirupt'a  estate  nntil  the  election  of  a 
trustee,  which  was  a  matter  frequently  at- 
tended with  delay.  See  BeWs  Com.  iii.  360. 
By  the  recent  bankruptcy  act,  19  and  20 
Vict.,  c.  79,  provision  is  made  for  the  im- 
mediate election  of  a  trustee,  and  the  ap- 
pointment of  an  interim  factor  is  no  part  of 
the  ordinary  procedure  in  a  sequestration. 
The  interim  preservation  of  the  bankrupt's 
estate,  pending  a  petition  for  sequestration, 
and  until  the  election  of  a  trustee,  where 
this  needs  to  be  attended  to,  is  provided  for 
by  §§  16  and  17,  the  former  of  which  enacts 
that  "  it  shall  be  competent  for  the  Court  to 
which  a  petition  for  sequestration  is  pre- 
sented, whether  sequestration  can  forthwith 
be  awarded  or  not,  on  special  application  by 
a  creditor,  either  (1)  in  such  petition,  or  (2) 
by  a  separate  petition,  with  or  without 
citation  to  other  parties  interested,  as  the 
said  Court  may  deem  necessary,  or  (3)  with- 
out such  special  application,  if  the  Court 
think  proper,  to  tako  immedfat«  measures 
for  the  preservation  of  the  estate,  either  (1) 
by  the  appointment  of  a  judicial  factor,  who 
shall  find  such  caution  as  may  be  deemed 
necessary,  with  the  powers  necessary  for  such 
preservation,  including  the  power  to  recover 
debts,  or  (2)  by  such  other  proceedings  as 
may  be  requisite  ;  and  such  interim  appoint- 
ments or  proceedings  shall  be  carried  into 
immediate  effect ;  but  if  the  same  have  been 
made  or  ordered  by  the  sheriff,  they  may  be 
recalled  by  the  Court  of  Session  on  appeal 
taken  in  manner  hereinafter  directed."  Sec- 
tion 17  gives  power  to  the  sheriff,  upon  cause 
shown  by  a  creditor,  or  without  any  appli- 
cation, if  he  shall  think  fit,  at  any  time  after 
the  sequestration  and  before  the  election  of 
s  trustee, "  to  cause  to  be  sealed  up  and  put 
under  safe  custody  the  books  and  papers  of 
the  bankrupt,  and  (2)  to  luck  up  nis  shop, 
warehouce,  or  other  repositories,  and  (3)  to 
keep  the  keys  thereof  till  a  trustee  is  elected 
and  confirmed. 

Interim  Maaagera.  Prior  to  the  passing 
of  the  Burgh  Reform  Act,  it  was  customary 
for  the  Court  of  Session,  where  a  royal 
burgh  had  been  disfranchised,  or  had  no 
regular  magistrates,  to  appoint  persons  by 
special  commission  to  act  as  officers  of  the 
law  in  completing  of  feudal  rights,  where 
property  might  be  in  danger  by  the  death  or 
supervening  incapacity  of  the  proper  func- 
tionaries. Thus,  when  the  city  of  Edinburgh 
was,  after  Michaelmas  1745,  without  a  ma- 
gistracy, and  so  had  no  bailies  to  receive 
resignation  or  give  sasine  in  burgage  tene- 
ments, the  Court  appointed  certain  persons 
bailies  for  that  special  purpose,  till  a  new 
magistracy   shouM    be    established  in  due 


course  of  law.  Since  then  there  have  bsea 
fi^quent  instances  of  this  power  having  been 
exercised  in  the  appointing  of  persons  not 
only  to  give  sasine,  but  to  manage  all  the 
ordinary  affairs  of  the  burgh  during  its  dis- 
franchisement. Such  emergencies,  howerer, 
are  now  provided  for  by  the  statute  16  Viet., 
cap.  26,  entituled  "  An  Act  to  provide  for 
the  supplying  of  vacancies  in  town  councils 
of  burghs  in  Scotland,  consequent  on  noil  or 
irregular  elections."  On  the  death  of  any 
sheriff-depute,  the  Court  of  8e8sion  has 
power,  ex  nobili  officio,  to  appoint  an  interim 
deputy,  who  acts  under  their  authority,  not 
only  as  an  officer  of  the  law,  but  as  a  jedg«, 
Ersk.  B.  i.  tit.  3,  §  23 ;  ShantPs  Prac.  p.  42. 
See  Bviroh  Royal. 

Intttim  PoHesiioa.  In  all  advocations 
of  interlocutors  pronounced  by  sheriffs,  it  is 
competent  to  the  inferior  judge  to  regulate, 
in  the  meantime,  on  the  application  of  either 
party,  all  matters  regarding  interim  posses- 
sion, having  due  regard  to  the  manner  ia 
which  the  mutual  interests  of  the  parties 
may  be  affected  in  the  final  decision  of  the 
cause.  This  interim  order  is  not  subject  to 
review,  except  by  the  Lord  Ordinary  or  the 
Court,  in  the  course  of  discussing  the  procett 
of  advocation.  But  full  powers  are  reserved 
to  the  Court  of  Session  or  Lord  Ordinary, 
during  the  discussion  of  the  cause,  to  gir« 
such  orders  and  directions  in  respect  to 
interim  possession  as  justice  may  require. 
6  Geo.  IV.,  c.  120,  §42 ;  1  ami  2  Viet.,  c.  86, 
$  4  ;  A.S.\Q  July  1839.  §  130.  See  Aiet- 
cation.      Interim  Execution. 

InteriBi  Warrant  Where,  in  a  process 
of  ranking  and  sale,  there  is  a  class  of 
creditors  preferable  on  a  particular  snlgett 
which  has  been  sold,  it  is  the  practice,  with- 
out waiting  for  the  sale  of  the  remainder  of 
the  property,  to  prepare  an  interim  scheme 
of  division,  that  the  price  may  be  divided 
without  delay.  The  expense  of  such  interim 
warrants  falls  on  the  particular  erediter 
thereby  benefited.  The  principal  and  in- 
terest of  these  preferable  creditors'  debts  is 
accumulated  at  the  term  of  the  payment  of 
the  price ;  and,  unless  when  the  warrant  is 
obtained  expressly  in  payment  of  ieterestt 
the  partial  payments  are,  contrary  to  the 
ordinary  rule  in  indefinite  payments,  de- 
ducted ih>m  the  accumulate  sum.  It  was 
formerly  common  for  preferable  creditors  to 
obtain  interim  warrants  on  the  judicial 
factor,  or  purchaser,  or  bank  in  which  the 
money  was  consigned,  for  sums  to  account  of 
their  claims.  But  the  confusion  thereby 
occasioned  led  to  the  A.  S.  lllh  July  1794, 
by  which,  §  13,  it  was  declared  that  n« 
creditor  should  in  time  coming  draw  by 
interim  warrants  any  sura  out  of  the  oemnoo 


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fa  ad  without  rafieieut  cause  shown  to  the 
Court,  and  in  no  case  should  draw  Full  pay- 
ment ;  and  that  no  interim  warrant  should 
be  granted  before  decree  of  certification  is 
pronounced,  except  for  interest  or  annuities. 
Ko  such  application  can  be  received  after 
the  25th  Pebruary  for  the  winter  session,  or 
the  fith  of  July  for  the  summer  session,  or 
during  the  fire  sederunt  days  preceding  the 
rising  of  the  Court  for  the  Christmas  recess; 
A.  S.  13th  July  1844,  and  A.  S.  2Ut  Dee. 
1765.  When  it  is  doubtful  whether  or  not 
an  interim  warrant  should  be  granted,  a 
remit  is  made  to  an  Ordinary  to  investigate. 
The  common  agent,  or,  before  his  appoint- 
ment, the  agents  for  the  raisers  of  the  pro- 
cess, may  get  interim  warrants  on  the  factor 
for  payments  to  account  of  the  expenses  of 
the  proceedings.  Bell's  Cam.  ij.  280 ;  Shand's 
Prac.  919.     See  Ranking  and  Sale. 

InterlineatioBS.  The  subscription  at  the 
bottom  of  the  page  of  a  formal  writ  does 
not  apply  to  the  interlineations  in  that  page. 
Such  interlineations,  when  of  no  importance, 
are  htildpro  non  teriftit,  and  as  if  they  were 
blank.  Stair,  B.  iv.  tit.  42,  §  19;  Mor^s 
NoU$,  cccviii. ;  Rom's  Led.  i.  143 ;  Menties' 
Leet.  123 ;  Dielam  on  Evid.  389.  See  Era- 
turea.     Testing  Clause.    Illegibility, 

InterlocntorB ;  correctly  speaking,  are 
judgments  or  judicial  orders  pronounced  in 
the  course  of  a  suit,  but  which  do  not  finally 
determtno  the  cause.  The  term,  however, 
in  Scotch  practifee,  is  applied  indiscriminately 
to  the  judgments  or  orders  of  the  Court,  or  of 
the  Lords  Ordinary,  whether  they  exhaust 
the  question  at  issue  or  not.  All  interlo- 
cutors pronounced  by  Lords  Ordinary  must 
be  signed  by  the  Judge  pronouncer ;  and 
interlocutors  of  either  Division  of  the  Court 
must  be  signed  by  the  presiding  Judge  in 
presence  of  a  quorum  of  the  Court ;  I.P.D., 
for  In  Presentia  Dominorum,  being  added  to 
the  presiding  Judge's  signature,  1693.  c.  18. 
Every  paper  given  in  to  process  in  the  Inner 
or  Outer  House,  in  terms  of  an  interlocutor, 
ordering  or  allowing  the  same  to  be  given  in, 
and  also  every  reclaiming  note,  and  eve]7 
note  craving  to  repone  the  petitioner,  which, 
by  Act  of  Sederunt,  is  required  to  be  pre- 
sented within  the  reclaiming  days,  must  have 
prefixed  thereto  a  full  copy  (including  the 
date)  of  the  interlocutor  ordering  or  allowing 
snch  paper,  or  of  the  interlocutor  complained 
of,  as  the  case  may  be.  The  interlocutor 
need  not  be  repeated  in  the  body  of  the 
paper.  There  must  also  be  prefixed,  in  like 
manner,  a  copy  of-  any  interlocutor  proro- 
gating tho  time  originally  allowed ;  A.  S. 
July  11,  1858,  §  110.  Every  interlocutor  of 
the  Lord  Ordinary  is  final  in  the  Outer- 
House,  subject,  however,  to  the  review  of  the 


Inner-House ;  6  Geo.  IV.,  c.  120,  §  17 ;  18 

and  14  Vict.,  c.  36,  §§  11,  12.  The  Lord 
Ordinary  may,  with  consent  of  both  parties, 
correct  or  alter  any  interlocutor  at  any  time 
before  extract,  provided  that  consent  be 
given  by  the  counsel  for  the  parties  in  a 
minute  signed  by  them;  A.  S.  July  11. 
1828,  S  63.  It  is  ako  competent  to  get  a 
clerical  error  corrected.  Erdc.  B.  iv.  tit.  2, 
§  40,  Note  by  Mr  Ivory ;  Bank.  vol.  ii.  p.  676 ; 
Shand's  Prae.  347,  968 ;  Uaclawrin's  Sheriff- 
Court  Prac.;  Dickson  on  Evid.  342,  625; 
Shaw'i  Digest,  vote  Process;  Stewart,  Dow's 
App.  Cases,  ii.  36. 

By  16  and  17  Vict.,  c.  80,  |  47,  Sherifi 
are  empowered  to  pronounce  and  sign  inter- 
locutors when  furth  of  their  sheriffdoms; 
and  by  §  20,  any  sheriff-substitute  or  sheriff 
may  correct  "  any  merely  clerical  error"  in 
their  judgments,  "  at  any  time  before  the 
proceedings  have  been  transmitted  to  the 
judge  or  Court  of  Review,  not  being  later 
than  seven  days  from  the  date  of  such 
judgment"  By  §  13  the  grounds  of  judg- 
ment must  be  set  forth  in  the  interlocutor  or 
in  a  note.  Interlocutors  prononnced  in  the 
Court  of  Session  in  causes  commencing  in 
the  inferior  Courts  where  proof  is  allowed, 
must  specify  and  separate  findings  in  fact  and 
findings  in  law ;  6  Geo.  IV.,  c.  120,  §  40 ; 
Shand's  Prac.  p.  466.  This  rule  is  applied 
also  to  all  interlocutors  pronounced  by  the 
inferior  courts,  where  matter  of  fact  is  dis- 
puted and  proof  is  allowed  ;  A.  S.  15I&  Feb. 
1851.  An  interlocutor  not  signed  is  null; 
Smith,  1846,  9  D.  190.  By  11  and  12  Vict., 
c.  79,  §  10,  provision  is  made  for  a  new  and 
shorter  form  of  interlocutor  of  relevancy  in 
criminal  cases  in  the  Court  of  Justiciary. 
See  Clerical  Error. 

Imterlooatory  Deores.  In  England,  in  a 
suit  in  equity,  if  any  matter  of  fact  be 
strongly  controverted,  the  fact  is  usually 
directed  to  be  tried  at  the  bar  of  the  Court 
of  Queen's  Bench,  or  at  the  assizes,  upon  a 
feigned  issue.  If  a  question  of  mere  law 
aiises  in  the  course  of  a  cause,  it  is  the 
practice  of  the  Court  of  Chancery  to  refer 
it  to  the  opinion  of  the  Judges  of  the  Court 
of  Queen's  Bench,  upon  a  case  stated  for  that 
purpose.  In  such  cases  interlocutory  decreet 
or  orders  are  made.  Interlocutory  judgments 
are  such  as  are  given  in  the  middle  of  a 
cause,  upon  some  plea  proceeding  on  default, 
which  is  not  intermediate,  and  does  not 
finally  determine  or  complete  the  suit.  But 
the  interlocutory  judgments  most  usually 
spoken  of  are  those  incomplete  judgments  by 
which  the  right  of  the  plaintiff  is  established, 
but  the  quantum  of  damages  sustained  by  him 
is  not  ascertained,  which  is  the  province  of  a 
jury.    Interlocutory  orders  ara  such  aa  do  not 

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decide  the  cause,  bat  settle  some  intervening 
matter  relating  to  the  cause.  Tomlin'sDict.  h.  t. 
Interlocutory  Judgment.  As  contradis- 
tinguislied  from  a  final  judgment,  an  interlo- 
cutory judgment  is  any  judicial  order  or  in- 
terlocutor pronounced  in  the  preparation  or 
disposal  of  a  canse,  whether  ittrthe  Court  of 
Session  or  in  an  inferior  court,  vhicfa  is  not 
decisive  of  the  whole  merits  of  the  suit.  In 
the  inferior  courts,  it  is  not  competent  to 
advocate  an  interloMtory  judgment,  except 
under  the  circumstances  explained,  voce  Advo- 
calien ;  and,  in  the  Court  of  Session,  an  ap- 
peal to  the  House  of  Lords  is  not  competent 
againstan  interlocutory  judgment,  except  with 
the  leave  of  the  Division  of  the  Judges  pro-' 
nouncing  it,  or  unless  there  has  been  difference 
of  opinion  among  the  Judges.  48  Geo.  III., 
c.  151,  §  15.  See  also  1  and  2  Vicl.,  c  86, 
§  3 ;  16  and  17  Vict.,  c.  80,  §§  19,  24;  13  and 
14  Vict.,  c.  36,  §  12;  Paton'i  Appeal  Practice. 
See  Appeal.    Final  Judgment.    Advocation. 

International  Law.  The  term  2aio^na- 
tions,  among  the  Romans,  had  a  somewhat 
different  signification  from  that  which  it 
bears  in  modem  times.  It  comprehended  all 
those  laws  and  customs  which  are  so  reason- 
able in  themselves,  as  to  be  embraced  by  all 
civilized  nations,  modified  by  the  particular 
constitution  of  each  individual  state.  But 
the  division  of  modernEurope  into  a  numberof 
independent  kingdoms,  and  the  frequent  in- 
tercourse maintained  between  them,  has  given 
birth  toasystem  ofexpressortacitrules,  scarce- 
ly, if  at  all  known  among  the  Romans,  and 
termed  the  law  of  nations,  or  international  law. 
This  law  considers  independent  nations  as  so 
many  political  persons  in  a  state  of  equality, 
and  owing  to  each  other  duties  similar  to  those 
which  individuals  reciprocally  owe.  By  it 
are  constituted  the  rights  of  war,  the  security 
of  ambassadors,  the  obligations  arising  from 
treaties,  and  the  like.  It  also  comprehends 
those  rules  generally  received  by  sovereign 
powers  for  fixing  the  order  of  their  mutual 
correspondence  during  vpar  and  peace;  such  as 
the  form  of  declaring  war  previous  to  any  acts 
of  hostility,  the  regulations  relating  to  re- 
prisals, to  contraband  goods  found  on  board 
neutral  ships,  to  the  exchange  of  prisoners, 
and  to  suspensions  of  arms  or  negotiations  of 
peace,  the  ceremonial  of  receiving  and  enter- 
taining ambassadors,  the  privileges  indulged 
to  their  servants  and  domestics,  &c.  Recent 
legal  authors  have  also  considered  under  this 
head  questions  relative  to  the  conflict  of  laws; 
to  what  is  called  comitas  ;  to  the  effect  given 
in  one  country  to  the  law  of  another;  the 
constitution,  evidence,  interpretation,  and 
dissolution  of  foreign  contracts ;  the  force  of 
foreign  awards ;  the  laws  of  succession  to 
foreign  heritage  or  moveables;  the  mutual 


relation  between  the  bankrupt  laws  of  differ- 
ent countries,  and  so  forth.  See  ImX.  <^  Jw- 
tinian,  lib.  i.  tit.  2,  and  Conmentatort ;  GVotiw 
de  Jure  BeUi  ae  Pads ;  Maekintoth't  Ditcnn* 
on  the  Law  of  Nature  and  Nations ;  Stair,  B. 
i.  tit.  1,  §§  11  and  16 ;  More's  Notes,  i.  a 
seq. :  Ersk.  B.  i.  tit.  1,  §  14 ;  Bank.  i.  9 ;  Wfi 
Com.  ii.  680.  Wheaton's  Intematumal  Im. 
Stort/'s  Conflict  of  Laws.    See  Foreign. 

Interpretation.  It  is  scarcely  possible  to 
express  laws  in  such  terms  as  to  avoid  all 
ambiguity.  Such  a  degree  of  precision  is 
perhaps  unattainable;  and  the  want  of  a 
clear  and  distinct  idea  of  the  object,  or  of 
views  BuflSciently  comprehensive,  or  the  defect 
of  language,  will  constantly  either  encumber 
the  regulation,  or  leave  some  parts  of  the  role 
to  be  inferred.  Even  in  the  framing  of 
private  deeds  (which  properly  form  the  law 
of  the  transaction,  for  the  regulation  of  which 
they  are  provided),  the  same  inaccuracy  pre- 
vails ;  and,  circumscribed  as  the  object  is,  the 
provisions  of  the  deed  will  be  found  in  many 
cases  to  have  fallen  short,  or  to  have  misre- 
presented the  views  and  intentions  of  the  psr- 
ties.  Hence,  rules  of  interpretation  are  re- 
quired, which  may  insure  just  and  uniform 
decisions.  The  rules  for  interpreting  a  st*- 
tute  have  been  laid  down  by  Mr  Brakine; 
and  every  deed  which  receives  the  decision  of 
a  court  has  rules  of  interpretation  peculiar  to 
itself,  drawn  from  the  general  scope  and  in- 
tention of  the  deed ;  from  the  nature  of  the 
transaction ;  from  the  legal  rights  of  the  par- 
ties, independently  of  agreement ;  and  from 
circumstances  which  it  is  impossible  to  parti- 
cularize, but  which  render  this  one  of  the 
most  important  studies  of  the  lawyer,  and  io 
a  particular  manner  of  the  conveyancer; 
since  a  thorough  knowledge  of  the  rnlec  of 
interpretation  must  ever  be  the  surest  ground 
on  which  to  place  that  knowledge  which  is 
required  in  framing  deeds.  Stair,  B.  iv.  tit. 
1,  §  61;  tit.  43,  §  21;  Mor^s  Notes,  i.; 
Bank.  i.  339 ;  iii.  62,  82,  93 ;  £rsk.  B.  i.  tit. 
1,  §  49,  et  seq. ;  Sandford  on  Entails,  pp.  155, 
175,  287  ;  Divarris  on  Statutes.  See  Oottva- 
ancing.    Deeds.     Contract  of  Marriage. 

Intem^tories.  An  interrogatory,  al- 
though frequently  used  to  signify  every  kind 
of  question  put  to  witnesses  or  others,  is  ap- 
plied in  a  technical  and  more  limited  sense 
to  a  written  question  previously  a4jnsted. 
By  the  Act  of  Sederunt  "  regulating  proce- 
dure in  JU17  causes"  (16th  February  1841, 
§  17),  it  is  provided.  That  "  when  it  shall  he 
made  out  upon  oath,  to  the  satisfaction  of  the 
Court,  that  a  witness  resides  beyond  the  rea«h 
of  the  process  of  the  Court,  and  is  not  likely 
to  come  within  its  authority  before  the  dsj 
of  trial,  or  cannot  attend  on  account  of  age  or 
permanent  infirmity,  or  is  labouring  under 

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471 


Mrere  illness,  which  renders  it  doubtflil  whe- 
ther his  evidence  may  not  be  lost,  or  is  a  sea- 
faring man,  or  is  obliged  to  go  into  foreign 
parts,  or  shall  be  abroad  and  not  likely  to  re- 
tarn  before  the  day  of  trial,  it  shall  be  com- 
petent to  examine  such  witness  by  commis- 
sion, on  interrogatories  to  be  settled  by  the 
parties,  and  approved  of  by  one  of  the  prin- 
cipal Clerks  of  Session,  or  Kecord  Clerk ;  and 
it  being  established  at  the  trial,  to  the  satis- 
faetioQ  of  the  Coart,  by  affidavit,  or  by  oath 
in  open  Court,  that  such  witness  is  dead,  or 
cannot  attend,  owing  to  absence,  age,  or  per- 
manent infirmity,  it  shall  be  competent  to  use 
at  the  trial  the  evidence  so  taken,  subject  to 
all  legal  objections  to  its  admissibility ;  and, 
in  all  cases  where  a  commission  is  granted 
upon  the  application  of  one  party,  for  exa- 
mining witnesses  as  aforesaid,  it  shall  be  com- 
petent to  the  other  party  to  have  a  joint  com- 
mission, or  to  propose  cross  interrogatories  to 
such  witnesses,  to  be  settled  as  aforesaid; 
and,  in  addition  to  the  interrogatories  so 
settled,  it  shall  be  competent  to  the  commis- 
sioner to  put  such  additional  questions  to  the 
witnesses  as  may  appear  to  him  to  be  neces- 
sary, taking  care  to  mark  the  question  so  put 
as  pat  by  him.  That  when  one  party  obtains 
a  commission  to  examine  witnesses,  and  does 
not  use  the  evidence  obtained  under  the  com- 
mission, the  other  party  may  use  the  evidence 
given  under  it  at  the  trial,  provided  he  satis- 
fies the  Court,  at  the  trial,  that  he  could  not 
bring  the  witness  or  witnesses  whose  evidence 
he  proposes  to  read,  in  which  case  he  shall 
be  liable  for  the  expense  of  the  commission. 
The  depositions  taken  on  commission  shall 
not  be  used,  if  the  witnesses  so  examined 
shall  afterwards  be  brought  forward  at  the 
trial."  Under  §  21  of  the  same  Act  of  Se- 
derunt, motions  for  such  commissions  may  be 
made  during  vacation  before  the  Judge  who 
is  to  try  the  cause,  or  before  either  of  the 
Judges  appointed  to  be  on  the  circuit  at  which 
it  is  to  be  tried,  or,  in  their  absence,  be- 
fore the  Lord  Ordinary  on  the  Bills,  it  be- 
ing shown  to  the  satisfaction  of  such  Judge 
that  the  motion  could  not  have  been  made 
during  session.  No  alteration  is  made  on 
these  provisions  by  the  act  13  and  14  Vict., 
c.  36.  In  the  A.  S.,  3d  July  1823 ;  also  in 
Ma^arUme's  Jury  Prac.  App.  343,  and  Jurid. 
Styk$,  iii.  785,  will  be  found  the  form  of  in- 
terrogatories attached  to  a  commission  for 
taking  a  proof.  See  also  BeWs  Com.  ii.  395 ; 
Macfarlane,  88, 93, 188 ;  Dickson  on  Evid.  973. 
See  (kmrnitsion  to  take  Proof.    Evidence. 

Interraptioii ;  as  a  law  term,  is  usually 
applied  to  the  step  legally  requisite  to  stop 
the  currency  of  the  period  of  a  prescription. 
Various  prescriptions  have  been  introduced, 
depending  on  uninterrupted  possession  or  un- 


interrupted silence,  or  acquiescence  for  a 
longer  or  shorter  period  of  time,  according  to 
circumstances.  The  principles  of  these  pre- 
scriptions, and  the  nature  and  effect  of  each, 
are  explained  under  the  title  Prescription. 
At  present  it  is  only  necessary  to  observe, 
that  the  acts  whereby  each  of  the  prescrip- 
tions may  be  legally  interrupted,  and  in  effect 
put  an  end  to,  are  of  various  kinds — as  by  an 
acknowledgment  of  debt — by  citation  in  an 
action,  or  by  execution  of  diligence — by  par- 
tial payments,  in  the  long  negative  prescrip- 
tion— ^and  by  payment  of  interest  in  all  of 
them — by  an  instrument  of  protest,  which  is 
termed  civil  interruption,  or  interruption  via 
faeti.  There  is  a  register  of  interruptions, 
which  it  is  sometimes  necessanr  to  examine  in 
a  search  of  incumbrances.  The  term  inter- 
ruption is  not  properly  applicable  to  the  tri- 
ennial prescription.  In  cases  where  that  pre- 
scription is  pleaded,  the  question  is,  whether 
the  statute  applies,  or  has  been  obviated  by 
the  requisite  "  pursuit,"  See  Dunn  v.  Lamb, 
1854,16  D,  944,anc2  auUwrities  there  cited.  See 
also  Napier  on  Prescription ;  Dickson  on  Evi- 
dence; Stair,  B.  ii.  tit.  3,  §§  22  and  73;  tit. 
12,  §  56,  et  seq. ;  B.  iv.  tit.  35,  §  14 ;  Ersk.  B. 
iii.  tit.'  7,  §  37,  ei  seq. ;  Notes  by  Ivory ;  Bank. 
vol.  ii.  p.  175,  et  seq. ;  BeWs  Com.  ii.  287, 
335 ;  BdVs  Princ.  §  615,  et  seq.,  2007  ;  lUust. 
614 ;  Tail's  Justice  of  Peace,  voce  Prescription  ; 
Jurid.  Styles,  2d  edit.  vol.  iii.  p.  210 ;  Thom- 
son on  BiUs,  630,  659.  See  Search  of  Incum- 
brance*.   Prescription. 

Interventos  Bei.    See  Rei  interventtu. 

Ititiiiiation ;  is  a  step  necessary  in  certain 
circumstances  for  the  complete  transference 
of  a  right.  An  assignation  is  completed  by 
intimation,  which  is  necessary  both  for  complet- 
ing the  transference,  and  for  interrupting  bona 
fides  on  the  part  of  the  debtor,  so  as  to  give 
the  assignee  a  preference  in  competition. 
Intimation  is  regularly  made  by  the  assignee 
giving  notice,  in  presence  of  a  notary  and 
witnesses,  to  the  debtor  personally,  or  at  his 
dwelling-house,  the  procurator  of  the  assig- 
nee reading  the  assignment  of  the  special  debt, 
or  leaving  a  written  schedule  or  copy  of  it. 
The  proof  of  notice  is  a  notarial  instrument. 
But  there  are  many  substitutes  for  this  for- 
mal method  of  intimation.  It  is  sufficient  if 
the  debtor  be  a  party  to  the  assignation,  or 
if  he  acknowledge  having  received  notice  in 
writing  on  the  b^ck  of  the  assignation,  or  by 
letter ;  but  a  letter  written  to  the  debtor  is 
not  sufficient.  Judicial  notice  is  sufficient. 
A  promise  to  pay,  proved  by  writing,  is  suffi- 
cient. Certain  assignations  require  no  inti- 
mation. Stair,  B.  iii.  tit.  1,  §  5,  e(  seq. ;  B. 
iv.  tit.  32,  §  4;  More's  Notes,  p.  cclxxxi.; 
Ersk.  B.  iii.  tit.  5,  §  3,  etseq.;  Bank.  vol.  ii. 
p.  191,  etseq.;  Bell's  Com.  i.  722;  ii.  17,  el 

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INT 


HIT 


«?.;  BeU'i  Princ.  §  1462,  tt  teq.;  lUutt.  ib. ; 
Bell  en  Leases,  i.  452,  et  seq. ;  HimUr't  Land- 
lord and  Tenant;  Taii  on  Evidence,  pp.  44, 
218 ;  Jurid.  Sighs,  2d  edit.  vol.  ii.  p.  343-4 ; 
Brown's  St/nop.  h.  U;  Dickson  on  Evidenee; 
Karnes'  Equity,  38,  488 ;  Ros^  Leet.  i.  181, 
«(<«?.,  231;  ii.  354,  et  te;.,  488.  S6«  Assig- 
nation. 

IntozicatiiHl.     Se«  Drunkenness. 

Intrinflic;  isa  term  applied  tocircumstanoes 
Bworn  to  by  a  party  on  an  oath  of  reference, 
so  intimately  connected  with  the  point  at 
issue  that  they  make  part  of  the  evidence 
afforded  by  the  oath,  and  cannot  be  separated 
from  it.  Mor^s  Notes  to  Stair,  p.  ecccxviii ; 
Ersk.  B.  iv.  tit.  2  §§  11  and  12  ;  Bell's  Com.  i. 
833  ;  Dickson  on  Evidence,  818  ;  Thomson  on 
Bills,  652.    See  Evidenee,  Extrinsic,  p.  342. 

Intromistion ;  is  the  assuming  of  the  pos- 
session and  management  of  property  belong- 
ing  to  another,  either  on  legal  grounds  or 
without  any  authority.  Intromission  is  there- 
fore either  legal  or  vicious. 

I.  Legal  Intbohissior. 

1.  Intromission  as  an  adjudger, — The  ad" 
judication  was  originally  a  purcliase  under 
reversion ;  and  the  estate  having  been  in 
general  proportioned  to  the  debt,  the  rents 
were  held  to  indemnify  the  adjudger  for  the 
interest  of  his  money.  But  as  this  diligence 
degenerated  from  ita  original  purity,  the 
estate  was  carried  off  by  the  debt,  however 
inadequate  it  might  be  to  the  value  of  the 
estate.  An  attempt  was  made  to  remedy 
this  injustice,  by  the  act  1621,  c.  6,  by  which 
the  rents  of  the  estate,  in  so  far  as  they  ex- 
ceeded the  interest  of  the  debt,  were  annually, 
during  the  legal,  to  be  applied  in  payment 
of  the  principal  sum.  And,  in  the  case  of  a 
minor,  this  was,  by  the  act  1663,  c.  10,  to 
continue  during  his  minority ;  and  if,  after 
this,  the  debt  were  not  completely  paid  off, 
the  estate,  by  the  expiration  of  the  legal, 
or  period  of  redemption,  was  to  become  the 
property  of  the  adjudger.  This  so  far  check- 
ed the  abuse ;  and  hence,  where  adjudgera 
have  entered  into  possession  by  a  decree  of 
maills  and  duties,  they  are  accountable,  not 
only  for  what  they  have  intromitted  with,  but 
for  what  they  might  have  intromitted  with  by 
proper  diligence.  They  are  chargeable  by  a 
rental,  and  are  entitled  to  take  credit  for 
those  arrears  only,  in  attempting  to  recover 
which  they  can  show  that  they  have  used  the 
most  exact  diligence,  bee  Adjudication.  Ex- 
piry of  Legal. 

2.  Intromission  as  an  heritable  creditor. — 
In  the  common  case,  a  written  obligation 
requires  a  written  discharge ;  but  heritable 
bonds  usually  contain  a  clause  empowering 


the  ereditor  to  intromit  with  the  rents  of  tU 
subject;  and  as,  when  the  ereditor  has  in- 
tromitted, his  intromissions  consist  of  aeU 
which  may  be  proved,  the  proof  of  these  fomu 
one  of  the  exceptions  to  the  general  rule, 
that  a  written  obligation  requires  a  written 
discharge.  Proof  of  intromission  under  sach 
a  warrant,  therefore,  willbe  received  to  re> 
duce  the  debt  in  whole  or  in  part  Set 
Discharge. 

3.  Intromission  on  mors  than  one  tUle.— 
Where  one  in  possession  of  an  estate  is  called 
to  account  by  a  person  claiming  a  right  i» 
the  estate,  and  the  person  in  possession  holdi 
two  titles,  one  of  which  is  preferable,  the 
other  inferior,  to  the  title  in  the  person 
competing,  it  becomes  a  question  whether 
the  previous  intromissions  are  to  be  imputed 
to  the  strongest  or  weakest  of  his  titles ;  for, 
should  the  intromitter  be  obliged  to  impute 
his  intromissions  to  the  preferable  title— a^ 
for  instance,  to  an  adjudication  or  heritable 
bond — then  all  his  intromissions  must  go  to 
extinguish  the  heritable  debt,  which  being 
thereby  paid  off,  he  draws  nothing  in  resped 
of  his  inferior  title ;  whereas,  if  he  be  allowed 
to  impute  bis  former  intromissions  to  bis  in- 
ferior title,  his  future  intromissions,  after 
the  appearance  of  the  competitor,  will  go  in 
extinction  of  his  preferable  claim,  and  thus 
a  considerable  advantage  will  be  eujoyed  by 
him.  The  rule  of  the  law  of  Scotland,  onder 
certain  modifications,  authorizes  this  last  mode 
of  settlement.  See  Ersk.  B.  ii.  tit.  1  §  30; 
Stair,  B.  iii.  tit.  2,  §  29 ;  Bank.  vol.  ii.  p.  229; 
Bell's  Com.  ii.  85,  531,  et  seq. ;  BeU  on  Leases, 
ii.  31,  315;  Hunter's  Landlord  and  Te»aat, 
ii.  412 ;  Tait  on  Evidence,  3d  edit  p.  313 ; 
Jurid.  Styles,  2d  edit  vol.  ii.  p.  399 ;  Brown's 
Synop. 

II.  Vrnous  Inteomissiows. 

The  term  vitious  intromission  is  aj^lied 
exclusively  to  the  heir's  unwarrantable  intro- 
mission with  the  moveable  estate  of  the  ances- 
tor; his  intromission  with  the  heritage  or 
rents  of  the  heritage,  being  termed  gestiopre 
hmrede.  The  effect  of  vitious  intromission  is 
to  render  the  heir  who  is  guilty  of  it  liable, 
under  the  passive  title,  of  vitious  intromis- 
sion, for  the  debt  of  the  ancestor  univenally 
— the  severity  of  this  passive  title  being  in- 
tended to  prevent  the  carrying  off  of  move- 
ables, which  are,  from  their  nature,  so  liable 
to  embezzlement.  With  the  same  view,  its 
consequences  are  extended  to  every  intro- 
mitter with  the  effects  of  the  deceased,  whe- 
ther he  be  the  heir  or  a  stranger  to  the  soe- 
cession.  A  confirmation  as  executor  pats  an 
end  to  the  vitious  intromission,  since  it  infers 
an  intention  on  the  part  of  the  intromitter 


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INT 

to  Moonnt  for  hia  introraiationa,  wbieb  UKos 
off  the  vitiosHj,  and  renders  him  liable  only 
to  tiie  extant  of  hie  intromigsions.  This  pu- 
sive  title  is  availnble  only  to  creditors  whose 
debts  are  constituted  by  an  obligation  inter 
vhoa ;  and  therefore  legatees,  or  donees  mortit 
eauMa,  cannot  sue  upon  it.  Er$k.  B.  iii.  tit. 
9,  §  49,  d  »eq.  See  Eteeutor.  Behavumr  at 
Heir.    Pauive  Titlet, 

iBtnuion ;  is  the  delict  of  entering  into 
possession  of  an  heritable  subject  without  any 
title  in  the  person  entering.  The  remedy  is 
generally  sought  in  the  Sheriff-court  by  an 
aetiwi  or  petition  for  ejectment.  See  Hun- 
ter's  Landlord  and  Tenant,  192  ;  Brown's  Sy- 
%op.  h.  t.  Articles  Ejection  audlntnuion.  De- 
lingueney. 

Imreota  et  Illata.  This  term,  in  questions 
of  hypothec  and  thirlage,  applies  to  the  arti- 
cles brought  within  the  tenement,  or  within 
tlie  thirl.  lu  the  case  of  urban  tenements, 
tbere  is  an  hypothec  upon  the  inveeta  et  illata  ; 
that  is,  on  the  household  furniture  and  articles 
for  the  nse  of  the  family,  or  for  ornament, 
which  are  brought  into  the  house ;  or  over 
the  instruments  and  utensils  brought  into  a 
workship  by  the  tenants,  for  carrying  on  the 
bnsinesa  of  the  shop  or  manufactory.  In  re- 
tail shops,  the  articles  there  are  liable  to  the 
same  hypothec ;  but,  to  render  it  effectual  to 
the  landlord,  the  goods  on  sale  must  be  se- 
qneetrated.  See  Hypothec,  Furniture.  In 
thirlage,  again,  there  is  sometimes  a  thirlage 
of  the  inveeta  et  illata,  in  the  case  of  a  village 
where  all  the  grain  brought  within  tlie  vil- 
lage "  that  tholes  fire  and  toater"  (such  are 
the  terms  of  the  astriotion)  is  liable  to  cer- 
tain thirlage.  These  terms  apply  to  malting 
and  drying  within  the  thirl,  but  not  to  bak- 
ing and  brewing ;  and  accordingly  no  mul- 
ture is  due,  in  the  thirlage  of  inveeta  et  illata, 
fw  flour  or  oatmeal  imported  in  that  state 
into  the  thirl.  Stair,  B,  i.  tit.  13,  §  15 ;  B. 
ii.  tit.  7,  §  20 ;  B.  iv.  tit.  25,  §  3 ;  Morels 
Notes,  p.  Ixxzii ;  Ersh.  B.  ii.  tit.  6,  §  64 ; 
Bemt,  vol.  i.  pp.  386,  688  ;  Beies  Com.  li.  27, 
et  teg.:  BdCs  Princ.  §§  1028,  1276;  lUust. 
ib.;  Belt  on  Leatet,  4th  edit.  vol.  i.  p.  387; 
HwfUer't  Landlord  and  Tenant,  ii.  353,  357, 
.%5,  376  ;  Broum't  Synop.  p.  944.  See  Thir- 
lage. 

Invmtory;  is  a  regular  list  of  articles, 
or  of  an  estate,  describing  each  article  fully 
and  precisely  by  itself,  and  teriatim,  so  as  to 
point  ovt  every  article  of  which  the  estate 
consists.  The  evidence  afforded  by  a  regular 
and  orderly  list  of  articles  has  been  resorted 
to  by  the  law  on  different  occasions,  for  the 
benefit  of  heirs,  or  of  creditors,  or  of  minora ; 
and  regular  inventories  have  been  required 
in  different  cironmstances,  where  those  bene- 
ticialiy  interested  in  the  estate  are  unable  to 


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attend  to  their  own  intereat;  aa  in  the  case— 

1.  Of  heirs. 

2.  W  pupils,  minors,  and  insane  persont. 

3.  0/  creditort  and  hankruptt. 

T.  Invshtobt  tob  the  Seovbitt  of  Heirs. 

This  has  been  resorted  to  in  the  ease  of 
moveable  succession  as  well  as  of  heritage. 

1.  Inventory  in  a  service  cum  beneficio  inven- 
tarii. — The  entry  of  an  heir  by  inventory 
was  introduced  by  the  act  1696,  c.  24,  en- 
tituled,  an  "  Act  for  obviating  the  frauds  of 
apparent  heirs,"  which,  after  making  certain 
provisions  against  the  contrivances  of  such 
heirs  in  prejudice  of  the  creditors  of  their 
predecessors,  provided  that  thereafter  they 
might  enter  to  their  predecessors  "  cum  bene- 
ficio inventarii,  or  upon  inventary,  as  use  is 
in  executories  and  moveables."  This  inven- 
tory "  must  be  full  and  particular"  as  to 
the  heritable  estate  of  the  ancestor,  and 
must  be  lodged  within  the  year,  with  the 
clerk  of  the  shire  within  which  the  lands 
lie :  it  is  signed  by  the  heir,  the  judge,  and 
clerk  of  court,  and  recorded  in  the  sheriff- 
clerk's  books.  In  special  circumstances,  how* 
ever,  the  Court  will,  on  a  summary  petition, 
authorize  the  recording  of  the  inventory  after 
the  expiration  of  the  year  and  day;  BeU, 
28th  May  1830,  8  S.  <k  D.  839.  An  extract 
of  the  inventory  must,  within  forty  days  after 
the  expiration  of  the  tempus  deliberandi,  be 
recorded  in  a  register  kept  for  that  purpose 
in  the  books  of  Session.  When  the  inven- 
tory has  been  made  up  within  the  year,  and 
recorded  in  the  books  of  Session  within  the 
forty  days  after  the  expiration  of  the  year, 
the  heir  may  enter  at  any  time  thereafter, 
with  all  the  advantage  of  the  act  1696,  c.  24 ; 
and  there  is  no  alteration  in  the  form  of  the 
service  farther  than  that  it  is  stated  that  he 
is  served  heir  cum  beneficio  inventarii.  The 
lodging  of  the  inventory  infers  of  itself  no 
passive  title,  provided  it  be  not  followed  up 
by  service.  Bank.  vol.  ii.  p.  311,  etseq. ;  BelPt 
Com.  i.  663 ;  Bdl't  Princ.  §  1926.  The  bene- 
fit of  entry  with  a  limited  responsibility  is 
now  effected  in  a  more  simple  way  under  the 
Service  of  Heirs  Act  (10  and  11  Vict.,  c.  47,  § 
25),  which  practically  supersedes  the  provi- 
sion of  the  old  act  on  this  subject.  Menzie^ 
Lect.  p.  766.    See  Beneficium  Inventarii. 

2.  Inventory  of  personal  estate. — Is  a  list  of 
the  whole  moveable  effects  belonging  to  a 
deceased  person,  which  must  be  given  up  on 
oath  by  his  executor  or  nearest  of  kin,  or 
other  person  entering  on  their  administra- 
tion. This  is  required,  under  penalties,  by 
the  act  regulating  the  duties  payable  on 
succession,  16  and  17  Vict.,  c.  61,  §§  45,  46. 
It  is  also  necessary  as  part  of  the  procedure 

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in  confirmations  of  executor*.  See  ConjmiM- 
tion.  Executor.  Stat.  21  and  22  Vict.,  c.  56, 
§§  8-15.  By  §  8  of  the  latter  statute  inven- 
tories of  personal  estates  of  deceased  per- 
sons may  be  given  up  and  recorded  in,  and 
confirmation  granted  by,  any  commissary 
court  to  which  it  is  competent  to  apply  under 
the  act  for  appointment  of  an  executor-datire. 
Under  §  9,  the  inrentory  in  the  case  of  a  per- 
son dying  domiciled  in  Scotland  may  include 
personal  estate  in  any  part  of  the  United 
Kingdom — ^personal  estate  in  England  and 
Ireland  beingstated  separately.  By  §  11,  such 
inventories  must  be  sworn  to  before  the  com- 
missary or  his  depute,  or  the  commissary- 
clerk  or  his  depute,  or  a  commissioner  ap- 
pointed by  the  commissary,  or  a  magistrate, 
or  justice  of  the  peace,  or  British  consul.  By 
§  15,  for  securing  the  payment  of  the  stamp 
duties,  the  inventory  required  by  law  to  be 
exhibited  before  obtaining  confirmation  must 
extend  to  and  include  the  whole  personal 
and  moveable  estate  of  the  deceased  in  the 
United  Kingdom,  and  the  value  thereof.  A 
very  full  account  of  the  procedure  in  this 
matter,  so  far  as  not  altered  by  the  recent 
statute,  with  a  form  of  the  inventory  itself, 
will  be  found  in  the  Appendix  to  the  Juridi- 
tal  Styles,  vol.  ii.  2d  edit.  Stair,  B.  iii,  tit. 
8,  §  54  ;  BeWs  Com.  ii.  82,  et  seq. ;  BeWt  Princ. 
§  1894-7-8;  Jitrid.  Stylet,  2d  edit.  vol.  ii.  p. 
491-5. 

II.  Invbntort  for  thb  Secubitt  or  Pd- 

FILS,  MiKOBS,  AND  IkSANS  PekSOITS. 

The  tutorial  or  curatorial  inventory  is  a  list 
of  the  whole  estate,  heritable  or  moveable, 
which  belongs  to  a  minor,  made  up  by  the 
tutor  or  curator  before  he  enters  on  his  office, 
at  the  sight  of  a  judge,  and  after  citing  the 
nearest  of  kin  on  the  sides  of  the  father  and 
mother  of  the  minor.  In  an  action  for  mak- 
ing up  tutorial  inventories,  the  citation  of 
the  next  of  kin  on  the  mother's  side  is  some- 
times dispensed  with,  where  they  live  beyond 
the  jurisdiction  of  the  Court ;  but  such  dis- 
pensation can  be  granted  only  on  a  petition 
to  the  Court,  stating  the  circumstances ;  JVo- 
$myth's  Tutors,  8th  Dec.  1830,  F.  C;  Hobbs, 
29th  June  1831, 9  Sh.  841 ;  Dingwall  Fordyce, 
1836, 14  Sh.  992 ;  BannemuiK,  1838  ;  10  Jvr. 
241 ;  A.  <t  B.,  1841 ;  16  F.  1055.  This  in- 
ventory is  ordered  to  be  made  up  by  the  act 
1672,  c.  2,  and  three  duplicates  thereof, 
subscribed  by  the  tutor  or  curator,  and  by 
the  next  of  kin,  and  by  a  delegate  appointed 
by  the  judge,  are  directed  to  be  judicially 
produced  before  the  Judge  Ordinary ;  and, 
after  being  signed  by  the  clerk  of  Court,  one 
duplicate  is  to  l)e  delivered  to  the  next  of 
kin  by  the  father,  another  to  the  next  of  kin 


by  the  mother,  and  the  third  to  the  tutor  or 
curator.  If,  after  completing  the  inventory, 
any  other  property  or  estate  be  discovered, 
or  shall  open  to  the  minor,  it  is  to  be  added 
to  the  former  inventory  within  two  months 
after  the  minor  has  attained  possession ;  the 
same  forms  being  observed  as  at  first.  £rsL 
B.  i.  tit.  7,  §  21,  et  teq.  The  penalties  of 
neglecting  to  make  this  inventory  are,  1. 
That  no  expense  incurred  in  theaflTaiitof 
the  minor  shall  be  allowed  to  the  tutors.  2. 
They  shall  be  accountable  for  omissions,  and 
may  be  removed  from  their  offices  a*  suqiect; 
Ertk.  ib.  §  22.  Forms  of  the  snmmouet, 
and  other  writs  used  in  the  above  cases,  will 
be  found  in  Bdl  on  Deeds,  vol.  iii.  Mor^s 
Notes  to  Stair,  p.  xli. ;  Bank.  vol.  i.  p.  168 ; 
BeWs  Princ.  §  2081-95 ;  Skand's  Prae.  p. 
560 ;  Jurid.  Styles,  2d  edit.  vol.  ii.  p.  499- 
503 ;  iii.  39,  270-3.     See   Curatory.    Tutor. 

By  the  Pupils'  Protection  Act  (12  and  13 
Vict.,  c.  31,  §§  3, 25),  all  judicial  factors,  and 
persons  served  tutors  of  law  to  pupils,  or 
appointed  tutor-dative  to  pupils,  insane  per- 
sons, or  idiots,  or  served  curators  to  insane  per- 
sons or  idiots,  are  required,  within  six  months 
of  receipt  of  their  bond  of  caution,  to  lodge 
with  the  Accountantof  Court  a  distinct  rental 
of  lands,  &c.,and  an  inventory  of  moveables; 
and  they  must  close  their  accounts  once  in 
every  year,  on  a  day  to  be  fixed  by  the  Account- 
ant, and  lodge  an  account  with  the  Accountant 
within  a  month  of  that  day,  §  4. 

By  the  Bankruptcy  Sutute  (19  and  20 
Vict.,  c.  79,  §  80),  trustees  on  sequestrated 
estates  are  required, "  as  soon  as  may  be  after 
the  appointment,"  to  make  up  and  transmit 
to  the  Accountant  in  Bankruptcy  an  inven- 
tory and  valuation  of  the  bankrupt  estate 
and  effects. 

InTentwy  of  Prooew.  The  clerks  of 
Court  are  directed  to  make  out  and  main- 
tain a  correct  inventory  of  the  articles  of 
which  each  process  consists ;  specifying  the 
dates  of  the  productions  and  ingivings.  Two 
duplicates  of  the  inventory  are  made,  of  which 
one  remains  in  the  custody  of  the  clerk  of 
Court  till  the  final  transmission  of  the  process 
to  the  keeper  of  the  records,  and  the  other 
forms  one  of  the  articles  of  the  process  when 
transmitted  to  the  Lord  Ordinary  for  advising. 
A.  S.  IQth  March  1798,  and  8ti  July  1819; 
Alexander's  Ahridg.  of  A.  S.  109, 160-1. 

Investiture ;  is  the  complete  act  by  which 
a  right  of  land  is  eonf«rred,  conusting 
anciently  of  the  possession  given  to  the  vassal 
by  the  superior  in  presence  of  the  pares  mrur, 
where,  without  writing  or  any  other  cere- 
mony, the  vassal  was  fully  and  completely 
possessed  of  his  feu.  But  now  this  right  is 
conferred  by  a  charter  and  recorded  instru- 
ment of  sastne  following  upon  it,  or  by  the 

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charter  itself  being  recorded  in  the  register 
of  sasines,  in  virtue  of  the  Titles  to  Lands  Act. 
Without  this,  no  feudal  right  to  land  is  com- 
pleted  ;  and  what  is  called  the  investiture  is 
thereby  completed.  Where,  therefore,  lands 
hare  been  vested  in  a  person  by  charter  and 
saaine,  the  charter  and  sasine  are  said  to  be 
the  investiture  ef  the  estate ;  and  the  person 
called  by  the  title-deeds  to  succeed  on  the 
death  of  the  vassal,  whether  heir-male  of  the 
vassal's  body,  or  heir-at-law,  is  said  to  be  the 
heir  of  investiture.  See  Ertk.  B.  ii.  tit.  3,  § 
17  ;  Bank.  i.  509 ;  Shaufs  Digest,  181.  See 
IiMtment.    Charter.    Titles  to  Land. 

fnTOioe ;  a  particular  account  of  merchan- 
dise, with  its  value,  custom,  and  charges,  &c., 
sent  by  a  merchant  to  his  factor  or  correspond- 
ent in  another  country.  Tomlins'  Diet.  h.  t. 
Irritanoy,  Legal  and  ConventionaL  The 
irritancy  of  a  right  is  its  forfeiture  in  conse- 
qnence  of  some  neglect  or  contravention. 
Such  a  forfeiture  takes  place  either  by  the 
force  of  the  law  alone  (ae  lege),  or  in  conse- 
quence of  some  previous  stipulation  (ex  con- 
traetu).  Of  the  former  kind,  is  the  irritancy 
of  a  feu  from  non-payment  of  the  duty  during 
t#o  years.  (See  Tinsel  of  ike  feu.)  In  like 
mauner  a  lease  may  be  dissolved  during  its 
currency,  by  the  operation  of  a  legal  as  well 
as  of  a  conventional  irritancy.  Legal  irritan- 
cies are  incurred  by  the  lessee  allowing  his 
rent  to  fall  into  arrear  for  two  full  years,  or 
by  the  lessee  deserting  possession,  or  neglect- 
ing to  cultivate  the  farm  at  the  usual  period. 
The  law  with  regard  to  this  irritancy  was 
formerly  rather  uncertain,  and  the  Act  of 
Sederunt,  14th  Dec.  1756,  was  passed  with 
the  view  of  establishing  a  definite  and  per- 
manent rule.  Where  a  tenant  has  in'itated 
his  lease,  by  being  two  years  in  arrear,  the 
lessor  may  have  the  irritancy  declared  before 
the  Judge  Ordinary,  and  insist  on  a  summary 
removing.  If  a  tenant  run  one  full  year's 
rent  in  arrear,  or  desert  his  possession  and 
leave  the  farm  unlaboured,  action  may  be 
raised  before  the  Judge  Ordinary,  who  may 
decern  him  to  find  caution  within  a  limited 
time,  for  arrears,  and  for  the  rent  of  the  five 
succeeding  crops,  or  during  the  currency,  if 
the  lease  be  of  shorter  duration  than  five 
years ;  and  on  failure,  may  decern  him  to  re- 
move, and  eject  him  in  the  same  way  as  if 
the  lease  were  determined,  and  the  lessee  had 
been  legally  warned  in  terms  of  the  statute, 
1555,  c.  39.  If  the  amount  of  a  year's  rent 
be  due,  it  is  of  no  consequence  whether  it  be 
the  rent  of  a  single  crop,  or  made  up  of  por- 
tions of  the  rent»  of  several  years.  The 
landlord  is  not  bound  to  accept  of  partial  pay- 
ments; and  debts  of  the  landlord,  or  even 
public  burdens,  paid  by  the  tenant  without 
authority,  are  not  computed  so  as  to  diminish 


the  year's  rent  due.  In  construing  the  act 
relatively  to  desertion,  or  leaving  the  ground 
unlaboured,  the  leaning  has  been  in  favour  of 
the  tenant  The  Act  of  Sederunt  is  appli- 
cable only  to  agricultural  subjects,  not  to 
mines,  collieries  nor  fisheries.  Urban  sub- 
jects are  also  excluded.  But  it  is  thought  that 
the  older  law,  viz.,  that  the  tenant  might  be 
removed,  if  he  were  behind  in  payment  of  his 
rent,  unless  he  found  caution  as  to  the  future, 
is  still  applicable  to  urban  subjects.  Conven- 
tional irritancy  is  the  result  of  a  stipulation 
in  the  lease.  To  secure  regular  pt^yment,  a 
clause  is  sometimes  inserted  in  the  lease, 
bearing,  that  if  one  whole  year's  rent  shall 
remain  unpaid  after  the  term  of  payment 
specified,  or,  if  two  years'  rent  be  allowed  to 
run  into  the  third  unpaid,  the  lease  shall,  in 
the  option  of  the  lessor,  be  null  and  void, 
without  any  procedure  of  law,  and  the  irri- 
tancy shall  not  be  purgeable.  In  construing 
this  clause,  the  decisions  at  first  fluctuated  a 
little ;  but  it  is  now  settled,  that  the  irritancy 
is  constituted  by  two  years'  rent  remaining 
unpaid.  Of  course,  conventional  irritancies 
must  vary  according  to  the  views  of  the  con- 
tracting parties,  and  any  complete  enumera- 
tion of  them  is  impossible.  The  following 
stipulations,  however,  sometimes  occur.  That 
the  lease  shall  be  void,  on  the  bankruptcy  of 
the  tenant ;  on  his  non-residence  ;  on  his  not 
searching  for  minerals,  within  a  specified 
time,  and  continuing  to  work  them  ;  on  his 
assigning  or  subletting  ;  on  his  not  possessing 
the  farm  with  his  own  stocking.  This  last 
clause  has  not  been  strictly  construed.  At 
first,  actions  of  declarator  of  irritancy,  and 
extraordinary  removings,  were  competent 
only  before  the  Court  of  Session ;  but  this 
power  was '  afterwards  given  to  Sheriffs ; 
A.  S.  Uth  Dee.  1756.  There  has  been  a  good 
deal  of  discussion  as  to  the  jurisdiction  conferred 
upon  the  sheriff  by  this  Act  of  Sederunt,  on 
the  ground  that  actions  of  declarator  can  be 
pursued  before  the  Supreme  Court  only.  But 
with  respect  to  conventional  irritancies,  it 
has  been  settled,  that  a  clause  in  a  lease, 
although  expressed  in  the  form  of  an  irri- 
tancy, may,  if  it  form  a  reasonable  condition 
of  the  contract,  support  an  action  of  remov- 
ing before  the  sheriff;  and  that  declaratory 
expressions  do  not  necessarily  infer  a  decla- 
ratory summons,  so  as  to  render  the  action 
incompetent  before  the  Judge  Ordinary ; 
Hall,  19th  May  1831, 9  S.  d;  D.  612.  In  a 
former  case,  where  the  lease  contained  a  pro- 
vision that  it  should  expire  on  the  tenant's 
bankruptcy,  and  where  the  defender  joined 
issue  in  the  inferior  court,  on  various  pleas 
in  fact  and  law,  without  objecting  that  no 
declarator  of  irritancy  had  been  raised  in 
the  Supreme  Court,  and  the  cause  had  been 

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more  than  a  jraar  in  dependenee,  b«for«  tbat 
plea  was  resorted  to,  it  was  held  that  the  ac- 
tion was  competent  before  the  inferior  court. 
Irritancies  are  pnrgeable  at  any  time  before 
decree.     This  is  done  by  payment  where  the 
irritancy  is  for  a  failure  in  payment,  or  by 
producing  a  renunciation  or  decree  of  reduc- 
tion of  a  sublease,  where  it  is  founded  on  the 
tenant's  subsetting  the  farm  ;  and  in  general 
by  performing,  where  that  is  possible,  the 
thing,  the  failure  to  perform  which  occa- 
sioned the  irritancy.     (See  Pwrgiiig  an  Irri- 
toncjr.)    But  should  the  tenant  allow  a  decree 
in  absence  to  go  against  him  and  be  extracted, 
ho  may  find  it  difficult  to  get  quit  of  the  irri- 
tancy ;  and  where  there  has  been  an  appear- 
ance for  him  in  the  action,  however  absurd 
the  defence,  he  will,  on  that  decree  becoming 
final,  be  deprived  of  all  relief.    Stair,  B.  ii. 
tit.  10,  §  6;  B.  iv.  tit.  6,  §  3,  and  tit.  18  ; 
Mort't  Notes,  Ixxx  ;  Bank.  vol.  i.  p.  584 ; 
vol.  ii.  p.  101 ;  BeU't  Princ.  §  1248;  BeU  on 
Leases,  i.  180,  199,  229 ;  ii.  14,  17  ;  Hunter's 
Landlord  and  Tenant;   Shand^s   Prae.  654; 
M'Olashan's  Skerif  Court  Prae.  p.  46  ;  Jurid. 
Styles,  2d  edit.   vol.  iii.  p.   188 ;   Brown's 
Synop.  and    Shaw's  Digest,  voce   Irritancy ; 
Karnes^  Equity,  45,  148 ;  Ros^s  Led.  ii.  4ti3, 
et  seq..     See  Lease.    Declarator. 
Imtaney  of  a  Fen.    See  Tinsel  of  the  Feu. 
Irritant  Claue ;  is  a  clause  by  which  cer- 
tain prohibited   acts  specified  in  a  deed,  if 
committed  by  the  person  holding  under  the 
deed,  are  declared  to  be  void  and  null.    But 
where  the  right  of  property  is  conferred  on 
the  disponee  or  substitute,  his  acts  and  deeds 
as  fiar  burden  the  property.   Hence,  in  order 
to  make  the  prohibition  effectual,  another 
clause,  called  a  resolutive  clause,  is  required, 
whereby  the  right  of  the  eontravener  is  re- 
solved and  put  an  end  to  on  his  committing 
the  acts  against  which  the  irritancies  are  di- 
rected.   It  ii  by  the  joint  aid  of  those  two 
clauses  that  the  object  of  the  maker  of  the 
deed  is  attained.     Stair,  B.  i.  tit.  14,  §  4 ; 
Elchies'  Annotations,  p.  110,  et  seq. ;  More's 
Notes,  clxxvi.  et  seq. ;  Brsk.  B.  iv.  tit.  8,  §  25 ; 
Bant.  i.  584 ;  ii.  101 ;  BelTs  Prine.  §  1731 ; 
Sandford  on  Entails ;  Duncan's  Digest  of  En- 
tail Cases.     See  Tailzie. 

Ish  and  Entry.  The  clause,  cum  Ubero 
exitu  et  introilu  ("  with  free  ish  and  entry,") 
in  the  tenendas  of  a  charter,  importe  a  right 
to  all  ways  and  passages,  in  so  far  as  they 
may  be  necessary  to  kirk  and  market,  through 
the  adjacent  grounds  of  the  grantor,  who  is, 
by  the  clause,  laid  under  that  burden.  But 
though  the  ground  through  which  the  dis- 
ponee must  necessarily  pass  should  belong  to 
another  than  the  granter,  and  though  it 
should  not  be  subjected  to  any  conventional 
servitude,  it  arises  from  the  rights  and  ob- 


ligatioot  esMotial  to  proferiy,  that  tntj 
proprietor  must  allbrd  to,  and  is  entitled  te 
claim  from  his  neighbour,  ft-ee  ish  and  en^. 
This  right,  however,  which  is  founded  in  ne- 
cessity, will  not  be  extended  to  all  conveoieiit 
passages,  or  to  roads  by  the  nearest  line,  or 
through  different  parte  of  the  grounds  belong- 
ing to  the  conterminous  proprieter.  iSlstr, 
B.  ii,  tit.  3,  §  79;  Ersk,  B.  ii.  tit  6,  $9; 
Bank.  i.  692. 

Isine ;  has  different  signifieations  in  law  : 
it  means  the  progeny  begotten  between  a 
man  and  his  wife ;  the  profits  arising  fron 
amerciamente  and  fines;    or  the  profits  of 
lands  and  tenements  (see  Exitus);  hut  it 
most  generally  signifies  the  question  of  lav 
or  fact  issuing  out  of  the  allegations  and 
pleas  of  the  pursuer  and  defender  in  a  cause. 
When,  in  the  eonne  of  pleading,  eae  party 
makes   an   averment   which    bis    opponent 
denies,  the  parties  are  said  to  be  at  issue. 
Issues  are  either  upon  matter  of  law,  or  upon 
matter  of  fact.     Issues  in  law  are  pure  ques- 
tions of  law  for  the  determination  of  a  judge. 
In  Scotland,  an  issue  in  law  is  breught  oat 
either,  \st.  As  preliminary, or  in  the  shape  of 
a  question  of  relevancy ;  or,  2d,  As  resulting 
from  admitted  or  proved  facte;  or,  Sd,  is 
arising  out  of  a  special  verdict,  bill  of  ex- 
ceptions, or  reserved  question  of  law.    In  the 
recent  practice  of  the  Court  of  Session,  the 
tendency  has  been  to  avoid  disposieg  of  qses- 
tions  of  law  before  ascerteinment  of  the  facts, 
where  there  is  issuable  matter  on  record; 
although  there  are  circumstances  in  which 
the  Court  will  dispose  of  ao  action  upon  the 
relevancy  in  law  of  the  avermente  upon  which 
the  cause  depends ;  Earl  of  GaUowai/  v.  Grant, 
20th  June,  1857 ;  Dobbie  v.  Johnston  and  Rut- 
sell,  26th  February  1869.    The  result  of  this 
course  of  practice  is,  that,  in  the  general  caae, 
where  parties  do  not  renounce  probation,  and 
the  questions  arising  between  them  are  such 
as  require  and  admit  of  proof,  matters  gener 
rally  resolve  at  once  into  an  issue  or  issues  of 
fact.     For  the  ascertainment  of  such  matten 
of  fact  there  are  various  forms  of  procedure 
adapted  to  the  nature  of  the  cause  and  of  the 
matter  to  be  ascertained ;  inter  alia  (1.)  Proof 
by  commission,  13  and  14  Vict.,  c.  36,  §  49; 
(2.)  Remits  to  persons  of  science  and  skill; 
(3.)  Trial  of  special  questions  of  fact  before 
the  Lord  Ordinary  under  13  and  14  Vict.,  e. 
36,  §  48 ;  and  lastly  (4.)  Trial  by  jury  (or 
before  the  Jiord  Ordinary  of  consent  withont 
a  jury,  under  §  46  of  the  above  statute)  upon 
issues  adjusted  at  the  sight  of  the  Court.   Of 
these  the  most  important  is  the  last ;  and  in 
that  form  of  process  no  step  is  of  more  con- 
sequence, or  requires  greater  delicacy  and  at- 
tention on  the  part  of  practitioners,  than  the 
adjustment  of  the  issue  or  issues. 

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As  to  the  causes  specially  appropriated  to 
jury  trial,  and  which,  in  the  ordinary  course, 
lead  to  issues  of  fact,  see  the  article  Jnry  Trial. 
It  is  to  be  observed,  howeTer»  that  it  is  not 
merely  in  the  enumerated  actions,  but  wher- 
ever matters  of  fact  suitable  for  trial  by  jury, 
and  not  appropriated  to  any  other  form  of 
procedure,  require  to  be  ascertained,  that 
issues  may  be  ordered. 

The  mode  of  adjusting  issues  now  in  use  is 
regulated  by  the  Court  of  Session  Act  of  1850 
(13  and  14  Vict.,  c.  36),  by  which  the  pro- 
cedure in  jury  causes  is  assimilated  as  far  as 
possible  to  the  procedure  in  other  Court  of 
Session  causes  (§  36).  The  offices  of  Issue 
Clerk  and  Jury  Clerk  are  abolished,  and  their 
duties  are  transferred  to  the  clerks  of  Session 
(§  37) ;  and  it  is  enacted  by  section  38,  as  to 
the  procedure  for  the  adjustmebt  of  issues, 
"  that  where,  in  the  course  of  any  cause  be- 
fore the  Court  of  Session,  ihatter  of  fact  is  to 
be  determined,  and  an  issue  is  to  be  adjusted 
with  reference  thereto,  it  shall  be  the  duty  of 
the  pursuer  to  prepare  and  lodge  in  process 
the  issue  he  proposes,  and  it  shall  be  the  duty 
of  the  defender  to  prepare  and  lodge  in  pro- 
cess any  couiiter  issue  required  by  the  nature 
of  his  defence ;  and  the  Lord  Ordinary,  before 
whom  such  cause  depends,  after  causing  issues 
to  be  prepared  and  lodged  as  aforesaid,  shall 
forthwith  appoint  parties  to  attend  him  at 
chambers,  or  shall  order  the  case  to  the  roll, 
fbr  the  adjustment  of  an  issue  or  issues,  for 
the  trial  of  such  cause,  or  of  such  matter  of 
fact  arising  therein  as  is  to  be  determined  by 
Jury  trial ;  or  if  such  issue  or  issues  be  not 
adjusted  and  settled  with  the  consent  of  par- 
ties at  the  meeting  or  enrolment  so  fixed,  or 
at  a  second  such  meeting  or  enrolment  for 
the  same  purpose,  if  such  second  meeting  or 
enrolment  shall  be  appointed  by  the  Lord 
Ordinary,  the  Lord  Ordinary  shall  imme- 
.difttely  report  the  matter  to  the  Inner  House, 
by  whom  such  issue  or  issues  shall,  upon  such 
report,  be  adjusted  and  settled."  Section  39 
enacts,  "  That  it  shall  not  be  necessary  to 
engross  any  issne  or  issues  with  a  view  to 
trial  by  jury,  but  such  issue  or  issues,  when 
adjusted  and  settled,  as  aforesaid,  by  the  Lord 
Ordinary  or  the  Court,  shall  at  the  same  time 
be  approved  by  interlocutor  to  that  effect, 
and  shall  be  signed  and  authenticated  by  the 
judge  as  relative  thereto,  which  proceeding 
shall  be  equivalent  to  engrossment  as  at  pre- 
sent practised."  In  order  to  discourage  un- 
necessary disputes  before  the  Lord  Ordinary 
.upon  the  terms  of  issues,  involving  the  neces- 
sity of  reporting  the  matter  to  the  Inner 
House,  the  Court  have  recently  disposed  of 
the  question  of  expenses  connected  with  such 
reports  apart  from  the  general  expenses  in 
the  caase^  and  in  the  same  manner  as  if  par- 


ties had  gone  to  the  Inner  House  on  a  Re- 
claiming Note ;  Maekdlar  v.  Dukt  of  Suther- 
land,  Jan.  14, 1869 ;  21  D.  222. 

As  to  the  general  principle  on  which  issues 
are  framed  in  Scotland,  doubts  have  recently 
been  suggested  (see  case  of  Tulloch  v.  Davidson, 
July  17,  1858,  20.  D.  1319)  whether,  in 
consequence  of  certain  observations  in  the 
House  of  Lords  in  the  case  ofMoryan  v.  Morris 
(20.  D.  H.  L.  p.  18 ;  89.  Jur.  p.  690),  it 
is  not  necessary  to  make  the  issues  more  pre- 
cise and  specific  than  has  been  usual  in  recent 
practice.  The  observations  referred  to  were 
to  the  effect  that  the  issues  adjusted  are  in- 
dependent of  the  record,  and  that  it  is  incom- 
petent to  refer  to  the  record  for  the  purpose 
of  limiting  or  controlling  a  general  issue. 
See  opinion  of  LobdCbelmstobd  in  the  above 
case  of  Tulloch  v.  Davidson,  and  the  opinion  of 
Lord  Brouoham  in  the  case  of  Leys,  Mason, 
and  Co.  v.  Forhes  (5  W.  and  S.,  p.  403).  See 
also,  however,  the  opinion  of  Lobd  CaupbeIiIi 
to  a  contrary  effect  in  the  case  of  the  House- 
hill  Go.  V.  Ifeilson,  6th  March  1843,  2  Bell's 
App.  p.  1.  Issues  are  framed  in  the  form  of 
questions,  raising  not  merely  isolated  points 
of  fact,  but  the  general  question  or  questions 
on  which  the  case  or  cases  of  the  parties  de- 
pends, or  is  alleged  to  depend;  and  these 
questions  are  expressed  in  as  short  and  con- 
cise a  form  as  possible,  "  consistently  with  a 
fair  indication  of  the  nature  of  the  points  in 
dispute,  and  the  legal  principles  which  are 
involved  in  the  discussion  of  them  "  (Ma^.  on 
Iss.,  p.  11).  No  issue  will  be  allowed  on  a 
point  not  fairly  within  the  action  as  laid,  nor 
on  a  matter  even  within  the  grounds  of  action, 
if  vaguely  and  indefinitely,  or  inconclusively 
set  forth  in  the  record.  To  entitle  a  party 
to  an  issne  of  fraud,  or  of  acquiescence,  or  of 
homologation,  or  of  other  matter  involving 
legal  considerations,  the  averments  on  record 
must  be  specific'  The  mere  general  state- 
ment oi fraud,  acquiescence,  &c.,  will  not  do ; 
but  facts  must  be  set  forth  relevant  and  suffi- 
cient in  law  to  support  the  statement.  It  is 
usual  to  preface  the  issues  with  such  admis- 
sions as  may  be  proper,  for  the  purpose  of 
narrowing  the  point  or  points  to  be  tried. 
The  Court,  however,  are  not  in  use  to  compel 
a  party  to  allow  the  facts  admitted  by  him  on 
record  to  be  thus  set  forth.  (See  Admissions.) 
Where  several  different  claims  are  involved 
they  are  referred  to,  as  specified  in  a  schedule 
subjoined;  but  this  schedule  is  not  in  any 
other  sense  to  be  held  a  part  of  the  issues 
than  as  showing  the  limits  of  the  claims. 
Malice  must  be  inserted  in  the  issue  where 
the  defender  is  entitled  to  found  on  the  pro- 
tection of  privilege,  but  not  otherwise.  (See 
Malice,  Probable  Cause.)  Although  both  the 
summons  and  condescendence  aver  malice,  it 

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does  not  of  neeeaiity  follow  that  it  mast  be 
inserted  in  the  issue.  In  actions  for  reducing 
deeds,  where  the  grounds  of  action  infer  an 
absolute  nullity,  the  general  issue  is  adopted, 
e.g.,  whether  the  deed  in  question  is  not  the 
deed  of  the  party  whose  deed  it  purports  to 
be  ?  But  where  it  is  voidable  onlj  on  spe- 
cial grounds,  issues  specifying  the  particular 
grounds  of  reduction  are  the  proper  issues. 
It  is  sometimes  necessary  for  the  defender  to 
take  an  issue.  Where  his  defence  is  a  simple 
avoidance  he  does  not  require  a  separate 
issue.  But  where  the  case  depends  on  two 
separate  and  distinct  pleas,  as  to  which  the 
onus  of  proof  is  thrown  on  the  parties  respec- 
tively, each  ought  to  take  an  issue.  In  ge- 
neral, the  same  issue  or  set  of  issues  serves, 
where  several  defenders  are  called  in  the 
same  action  about  the  same  subject  matter. 
But  special  circumstances  may  render  it  in- 
expedient to  adhere  to  this  rule.  After  the 
issues  have  been  adjusted  and  settled,  the  par- 
ties can  have  no  farther  discussion  regard- 
ing them  ;  a  rule  strictly  adhered  to,  unless 
when  both  parties  consent  to  an  alteration. 
It  is,  however,  competent  for  the  Court  at  the 
trial,  whether  both  parties  consent  or  not,  to 
allow  a  mere  verbal  alteration,  or  the  cor- 
rection of  a  clerical  mistake,  in  the  writing 
out  or  engrossing  of  the  issues.  For  the 
forms  of  issues  in  different  cases,  see  Macfar- 
lane  and  Cleghom  on  Itsues  (1849),  and  the 
cases  in  the  Session  Reports  under  the  head 
Proeeu.    See  also  Ertk.  B.  i.  tit.  3,  §  35, 


noU  77  by  Ivory;  BeWt  Prine.  §  2272;  Mat- 
/arlane'$  Jury  Prac.  63 ;  Atexander't  Abridg. 
of  A.  S.  281,  291  ;  Shaw's  Digest. 

Israing  of  Bills.  In  questions  as  to  the 
power  of  making  certain  alterations  on  the 
terms  of  a  bill  or  note,  it  b  of  importance  to 
determine  whether  or  not  it  has  been  issued. 
A  bill  or  note  is  issued  as  soon  as  it  is  in  the 
hands  of  a  person  entitled  to  enforce  paymeDt, 
whether  it  has  been  given  in  exchange  for  s 
cross  acceptance,  or  for  any  other  value,  and 
whether  the  payee  and  holder  is  the  drawer 
or  a  third  party.  But  it  is  not  issued  unless 
it  is  in  the  hands  of  the  payee  or  other  holder, 
when  drawn  in  favour  of  a  third  party,  or  if 
it  is  made  payable  to  the  drawer,  unless  it 
has  been  accepted  or  indorsed  by  the  drawer. 
In  England,  an  accommodation  bill,  which, 
though  both  accepted  and  indorsed,  was  de- 
posited in  the  hands  of  an  agent  for  behoof 
of  all  parties,  was  held  not  to  be  fullj 
issued  till  it  had  been  given  to  a  third  partj. 
Thonuon  on  Bilk,  187.  See  BUI  of  Ex- 
change. 

Iter;  a  Roman  law  rural  servitude,  sig- 
nifying the  dominant  proprietor's  right  of  • 
horse  or  foot  passage  for  himself,  his  family 
and  tenants,  through  the  servient  proprietor's 
lands.  Stair,  B.  ii.  tit.  7,  §  10 ;  Erik.  B.  il 
tit.  9,  §  12.    See  Road.    Actus.     Via. 

Iter ;  according  to  Skene,  is  whatever 
travels-  Thus,  iter  camerarii,  the  chamber- 
lain aire;  iter  justieiarii,  the  justice  aire. 
Skene,  h.  t.   See  Juttioe  Aire. 


Jftetu  Kereiiim,  levandas  navis  causa;  or 
Jettison.  Where  goods  are  thrown  overboard 
for  the  purpose  of  lightening  a  ship  4uring  a 
storm,  the  owners,  both  of  the  ship  and  of  the 
cargo  saved,  are  liable  to  the  owners  of  the 
goods  thrown  out  for  the  common  benefit,  in  a 
proportion  of  the  loss.  The  necessity  of  the 
measure  mast  be  determined  upon  by  the 
master  and  a  majority  of  the  mariners.  But 
where  the  mast  goes  by  the  board,  or  the  an- 
chor is  lost  through  the  violence  of  the  storm, 
and  not  by  a  voluntary  act  for  the  general 
benefit,  the  loss  falls  on  the  ship  and  freight 
alone.  And  even  where  any  of  these  articles 
have  been  cut  away  to  avoid  danger,  there  is 
no  contribution  if  the  danger  arose  from  the 
state  of  the  articles  themselves.  Where  the 
ship,  notwithstanding  the  jettison,  has  been 
at  last  wrecked,  if  any  part  of  the  goods  have 
bees  saved  from  the  wreck,  the  owners  of  the 
goods  previously  thrown  overboard  to  lighten 
the  ship  will  have  a  claim  to  a  proportional 
contribution  from  those  whose  goods  are  saved; 


the  presumption  being  that  the  prior  lighten- 
ing of  the  ship  was  the  means  of  preventing 
the  total  loss  of  the  goods.  See  this  sabjeet 
treated  of,  voce  Contribution.  See  also  Stair, 
B.  i.  tit.  8,  §  8 ;  More's  Notes,  Iv. ;  Broditft 
Supp.  1006;  Ersk.  B.  iii.  tit,  3,  5  55  ;  BdPi 
Com.  i.  584;  Taiet  Justice,  voce  Wreck;  Jwid. 
Styles,  ii.  554.    See  Average. 

JTaU.    See  Prison. 

Jail-Breaking.    See  Breaking  <f  Prison. 

Jail-Feofl.  Jailors  had  been  in  use  to  charge 
fees  against  debtors  at  so  much  a-day.  But 
the  point  having  been  tried  in  a  question  be- 
tween a  jailor  and  a  person  imprisoned  for  a 
civil  debt,  it  was  held  that  the  magistrates  of 
every  burgh  are  obliged  to  keep  up  a  free 
jail ;  and  that  neither  they  nor  their  jailon 
are  entitled  to  exact  any  such  dues  fron 
debtors  incarcerated  in  their  prisons;  Jf'fTiM- 
nie,  Dec.  7, 1803,  Mor.  p.  11,769.  When  a 
debtor  has  obtained  the  benefit  of  the  act  of 
grace,  the  jailor  has  no  right  to  jail  fees  from 
him;  M'Whinnie,  March  11,  1801,  M.App. 


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Pritoner,  No.  1.  See  Mor.  Diet,  voce  Prisoner; 
Brown's  Synop.  1769. 

Jedge  and  Warrant;  is  the  authority  given 
by  the  Dean  of  Quild  to  rebuild  or  repair  a 
minous  tenement.    A  petition  is  presented, 
praying  the  judge  to  visit  the  premises,  and 
to  grant  warrant  to  build  agreeably  to  a  plan, 
and  to  find  and  declare  the  expense  of  the 
building  to  be  a  real  and  preferable  debt  af- 
fecting the  subject ;  the  account  to  be  cog- 
nosced by  the  court  after  the  building  is  com- 
pleted.    On  this  application  the   Dean  of 
Guild,  after  a  citation  of  all  partis  interested, 
summons  a  jury  to  examine  the  subject ;  and 
their  verdict,  on  the  necessity  of  the  opera- 
tion of  building  or  repairing,  authorizes  the 
Dean  of  Guild  to  grant  a  warrant  for  having 
it  done.    The  accounts  are  afterwards  pro- 
duced to  the  court,  referred  to  tradesmen, 
and  being  approved  of  by  those  to  whom  they 
are  referred,  they  are  by  the  court  declared 
to  form  a  real  burden  on  the  property.    This 
form  is  usually  resorted  to  by  those  who  have 
a  title  to  the  area,  but  are  doubtful  of  the 
validity  of  their  title.  It  may  also  be  resorted 
to  by  an  adjudger  or  heritable  creditor  in 
possession ;  since,  without  such  judicial  autho- 
rity, it  is  doubtful  whether  he  would,  in  ac- 
counting with  other  creditors  adjudging,  have 
a  claim  for  the  expense  laid  out  in  repairs. 
But  where  the  person  having  right  to  the  re- 
version or  property  either  cannot  be  found, 
or  takes  no  charge  of  the  property,  the  cre- 
ditor, adjudger,  or  other  possessor  is  safe  to 
make  the  repairs  required ;  the   Dean  of 
Guild  pronouncing  a  decree,  cognoscing  and 
declaring  the  amount  of  repairs,  and  costs  of 
the  proceedings,  with  interest,  to  be  a  real 
and  preferable  debt  affecting  the  tenement, 
and  granting  a  warrant  to  the  applicant  to 
let  or  possess  the  tenement  until  the  sums 
expended,  with  interest,  shall  be  repaid.  The 
extract  of  the  decree  is  the  ground  and  voucher 
of  the  debt  and  of  the  preference,  and  the  re- 
cording of  it  in  the  Dean  of  Guild  books  is 
held  legal  notice  of  the  burden.    (See  Search 
of  Incwnbranees.)     Where  the  tenement  is 
ruinous,  and  has  been  uninhabited  for  three 
years,  a  judicial  procedure  is  authorized  by 
the  statute  1663,  c.  6,  the  provisions  of  which 
will  be  found  in  the  article  Souses.     Where 
a  tenement  belonging  to  several  persons  has 
been  burnt,  and  some  of  the  proprietors  will 
not  consent  to  rebuild  it,  any  one  of  them 
may  apply  to  have  the  rest  decerned  to  give 
their  concurrence  to  a  plan  and   elevation 
made  oat,  and  to  build  their  respective  por- 
tions within  a  limited  time ;   and  on  their 
failure,  for  a  warrant  to  the  petitioner  to  do 
the  work  at  their  expense.    The  expense  of 
the  rebuilding  the  storeys  or  subjects  becomes, 
as  in  the  other  eases,  a  real  burden  on  the 


property,  and  the  petitioner  may  have  war- 
rant to  let  or  possess  the  subjects  until  fully 
indemnified.  The  form  of  the  application  and 
of  the  other  proceedings  in  the  jedge  and 
warrant  will  be  found  in  Jvrid.  Styles.  See 
also  Bank.  B.  iv.  tit.  20,  §  2  ;  Bell's  Com.  i. 
750 ;  Karnes'  Stat.  Law,  h.  t. ;  Bell  on  Pur- 
chaset's  Title,  139 ;  Ross's  Lect.  ii.  505 ;  Boyd's 
Jud.  Proceed.  342.  See  Houses.  Dean  of  Guild. 
Common  Interest. 

Jettison.  SeeJactusMerdum.  Contribution. 

JewishLaw.  The  judicial  law  of  Moses  has 
no  binding  authority  as  law  in  this  country. 
Ersk.B.i.ut.i.^26. 

Jewish  Beligion.  Persons  of  the  Jewish 
religion  are  relieved  from  taking  the  decla- 
ration required  by  9  Geo.  IV.,  c.  17,  and  are 
required  instead  thereof  to  make  and  sub- 
scribe the  declaration  set  forth  in  the  8  and 
9  Yict.,  c.  52.  See  that  act,  and  21  and  22 
Vict.,  c.  48.  As  to  Jewish  marriages,  see  10 
and  11  Vict.,  c.  58.  As  to  Jewish  schools, 
and  rights  of  property,  see  9  and  10  Vict.,  c. 
39,  §  2. 

Joint  Obligant;  means  a  person  bound 
along  with  another  to  pay  or  perform.  Such 
co-obligants  were  termed  in  the  Roman  law 
correi  debendi.  Where  the  obligation  is  to 
perform  any  act,  they  are  bound  in  solidum, 
and  each  may  be  sued  singly  to  perform  the 
act ;  but  where  the  obligation  is  to  pay  money, 
or  to  deliver  fungibles,  which  admit  of  being 
divided  into  parts,  each  will  be  liable  only 
for  a  proportional  performance  of  the  obli- 
gation. Even  where  the  original  obligation 
is  such  that  it  cannot  be  divided,  and  where, 
therefore,  performance  of  the  obligation 
might  have  been  demanded  from  either  of 
the  obligants,  yet  where  the  obligation  has 
not  been  performed,  and  where,  in  default  of 
performance,  a  sum  of  money  in  name  of 
damages  has  been  awarded  in  lieu  of  perform- 
ance, the  money  so  substituted  being  divisible, 
each  obligant  will  be  liable  only  pro  rata. 
Generally  speaking  it  is  only  where  joint  ob- 
ligants are  \>emii  jointly  and  severally,  or  bound 
as  full  debtors,  that  they  are  held  liable  sin- 
guli  in  solidum,  or  each  for  the  whole,  the  ex- 
ceptions to  this  rule  being,  1st,  In  the  case  of 
the  obligants,  in  a  bill  of  exchange,  who  are 
bound  jointly  and  severally,  whether  the  ob- 
ligation be  so  expressed  or  not ;  and  2d,  In 
the  case  of  indivisible  obligations,  as  above 
explained.  Akxawkr,  28th  Nov.  1827,  6  S. 
it  D.  150 ;  Darlington  v.  Gray,  6th  Dec.  1836, 
15  S.  lb  D.  197 ;  Ersk.  B.  iii.  tit.  3,  §  74 ; 
BeWs  Princ.  §  51,  et  seq. ;  Illust.  ib. ;  Thomson 
on  Bills,  262-4 ;  Menzies'  Lect.  p.'  206.  See 
Correi  Debendi,  and  authorities  there  cited.  See 
also  Conjunctly  and  severally. 

Joint  Tiade  or  Adventure.  This  differs 
from  society.   A  copartnership  is  held  in  law 

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u  one  person,  all  the  partners  being  bound 
tinguli  «n  lolidum  for  the  debts  of  the  company. 
But  a  joint  trade  is  merely  an  union  of  the 
joint  adventurers  for  a  particular  adventure, 
in  which  there  is  no  corporation  nor  firm  to 
bind  the  persons  concerned,  who  are  not  bound 
unless  by  their  own  acts,  or  the  stipulation  of 
the  contract.  Yet  the  joint  concern  is  so  far 
a  pro  indivito  property,  that  the  creditors  of 
one  individual  concerned  cannot  appropriate 
the  joint  stock  to  his  own  payment  until  the 
debts  of  the  concern  be  paid  off,  and  the  other 
persons  concerned  receive  their  shares.  A 
company  may  be  partners  to  a  joint  adventure, 
and  this  to  the  effect  of  introducing  a  prefer- 
ence in  favour  of  the  creditors  of  the  adven- 
ture over  the  creditors  of  the  proper  com- 
pany. Where  goods  are  purchased  for  the 
purpose  of  carrying  on  the  joint  adventure, 
the  adventurers  are  liable  as  partners  for  the 
price.  But  there  is  no  such  responsibility 
for  goods  purchased  previously  to  the  con- 
tract, though  afterwards  brought  into  stock. 
In  dealings  within  the  limits  of  the  concern, 
each  partner  is  prcepotitut  negnim  $ocutstii, 
but  he  has  no  implied  mandate  to  bind  the 

Partners  generally.  Ersk,  B.  iii.  tit.  3,  §  29 ; 
feU's  Com.  ii.  649 ;  More'tNotet  «n  Stair,  xcviii ; 
Thornton  on  BiUt,  269 ;  Blair' t  Jnttiee  of  Peace, 
h.  t. ;  Tait  on  Evidence,  299.    See  Partnership. 
Joint-Stock  Compuuet;  are  associations 
of  a  number  of  individuals  for  the  purpose 
of  carrying  on  a  specified  business  or  under- 
taking.   They  are  generally  formed  for  the 
accomplishment    of    extensive    schemes    of 
trade  or  manufscture,  or  the  completion  of 
some  object  of  national  or  local  importance, 
to  execute  which  individual  capital  or  energy 
would  prove  inadequate ;  such  as  railways, 
bridges,  canals,  &c.     They  have  also  been 
found  well  adapted  for  the  formation    of 
banks,  as  the  success  of  such  establishments 
depends  entirely  on  the  amount  of  public 
confidence  reposed  in    them.      Joint-stock 
companies  are  usually  constituted  by  a  writ- 
ten contract,  binding  every  one  who  becomes 
a  shareholder  to  contribute  an  amount  of 
capital    corresponding    to    the   number    of 
shares  which  he  may  hold,  and  to  concur 
with  the  other  shareholders  in  carrying  on 
the  proposed  undertaking   under   specified 
regulations.     The  transactions,  however,  of 
the  company  are  not  conducted  by  the  per- 
sonal co-operation  of  the  shareholders,   as 
partners  in  trade,  but  are  managed  by  direc- 
tors chosen  by  the  association,  and  announced 
to  the  public  by  advertisemeut  or  otherwise. 
The  shares  are  transferable.     They  are  held 
by  the  original  subscriber  to  the  stock  by 
means  of  a  scrip  receipt,  which  certifies  that 
he  is  entered  in  the  books  of  the  company 
as  possessor  of  a  certain  number  of  shares. 


The  scrip  receipts  are  not  transferable ;  sod 
in  the  event  of  a  sale,  a  regular  stamped 
deed  of  transfer  is  required  to  be  signed  bj 
both  parties  before  witnesses.    These  deeds 
of  transfer  make  over  to  the  purchaser -for  s 
specified  sum  of  money,  a  certain  amount  of 
the  capital  stock  of  the  company ;  and  the 
purchaser  binds  himself  to  fulfil  all  the  con- 
ditions of  the  company's  contract.    The  sale 
of  a  share  in  a  joint-stock  company  csasot 
be  relied  on  as  terminating  the  seller's  per- 
sonal responsibility,  unless  it  be  accompanied 
by  such  precautions  as  are  necessary  in  dis- 
solving an  ordinary  partnership  ;  BdT*  Cm. 
ii.  630.     But  a  clause  is  usually  inserted  is 
the  contract,  by  which  the  remaining  share- 
holders guarantee  the  seller  of  stock  against 
all  the  consequences  of  his  personal  responsi- 
bility.   Several  of  the  old  banking  establiih- 
menta,  such  as  the  Bank  of  Scotland,  the 
Royal  Bank,  and  the  British  Linen  Com- 
pany, claim   exemption   for  their  partnen 
from  all  responsibility  beyond  their  shares. 
But  with  reference  to  associations  of  that 
nature  of  more  recent  formation,  the  under- 
standing of  the  public,  and  of  the  companies 
themselves,  undoubtedly  is,  that  the  holders 
of  stock  are  liable  to  the  full  extent  of  their 
fortunes.    Some  legal  writers,  on  the  autho- 
rity of  a  decision  pronounced  in  the  middle 
of  last  century,  are  inclined  to  hold  it  as  the 
law  of  Scotland  that  the  responsibility  of 
the    partners    of  joint-stock    companies  is 
limited  to  their  shares  ;  Steventon  and  Co.  v. 
IfNair,    14th   Dec.    1757,    M.  14607;  5 
Broteti't  Sup.  340.    The  question  seeu»  not 
to  have  occurred  for  determination  since; 
but  there  is  a  strong  impression  that,  were 
such  a  question  to  be  raised,  the  individssl 
responsibility  would  be  held  unlimited.    A 
joint-stock  company,  with  a  descriptive  fins, 
has  no  pertona  standi  by  that  firm,  and  the 
partners  cannot  subscribe  it  to  bind  the  com- 
pany.    But  although  an  action  cannot  be 
raised  by  or  against  the  company  by  a  de- 
scriptive firm,  action  may  be  maintained  by 
the  social  name,  along  with  that  of  tk* 
partners,  or  against  the  society  by  its  nsae 
only,  if  the  partners  be  called.    A  distinction 
has  been  taken  between  a  proper  and  a  de- 
scriptive firm  relatively  to  the  right  to  sne 
and  defend :  the  decisions  upon  this  pwnt 
are  cited  in  the  article  Finn.     Under  the  act 
7  Geo.  IV.,  c  67,  joint-stock  banking  com- 
panies may,  on  fulfilling  certain  conditions, 
sue  and  be  sued  in  name  of  their  manager ; 
Ersk.  B.  iii.  tit.  3,  §  28,  noU  by  Mr  Imj ; 
BdVs  Com.  ii.   627;    Belts  Pnne.  §  399; 
lUust.  ib. ;    Thomson  on  Bilk,  561.      See 
Partnership.    Bank, 

Persons  not  fewer  than  aeren  may  no* 
form  themselves  into  a  corperated  oompany. 


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with  or  without  limited  liability,  hy  suhscrib- 
ing  their  names  to  a  memorandum  of  associ- 
ation in  the  form  A,  annexed  to  the  Act  19 
and  20  Vict.,  c.  47, 1856,  and  by  having  such 
memorandum  registered  in  terms  of  that  act. 
A  partnership  of  more  than  twenty  persons 
cannot  now  carry  on  any  trade  or  business 
having  gain  for  its  object,  unless  it  is  regis- 
tered as  a  company  under  the  act,  or  are 
authorized  to  do  so  by  some  private  act  of 
Parliament,  or  by  royal  charter  or  letters 
pa'.ent.     The  memorandum  of   association 
sets  forth  (1.)  The  name  of  the  company ; 
(2.)  The  place  of  the  registered  office  in  which 
the  company  is  to  be  established  ;  (3.)  The 
objects  of  the  company  ;  (4.)  The  liability  of 
the  shareholders,  whether  it  is  to  be  limited 
or    unlimited ;    (5.)    The    tCmount  of   the 
nominal  capital  of  the  company ;  (6.)  The 
number  of  shares,  and  the  amount  of  each 
share.     Where  a  company  is  formed  with 
limited  liability,  the  word  "limited"  must 
he  the  last  word  in  the  name  of  the  company. 
Every  subscriber  to  the  memorandum  of  the 
association  must  take  one  share  at  least,  and 
the  number  of  shares  taken  by  each  sub- 
scriber must  be  set  opposite  his  name  in  the 
memorandum,  and  upon  the  incorporation  of 
the  company  he  is  entered  in  the  register  of 
shareholders  as  a  shareholder  to  the  extent 
of  the  shares  taken  by  him.    The  memoran- 
dum of  the  association  may  be  accompanied 
by  articles  of  association  signed  by  the  sub- 
scribers to  the  memorandum,  and  prescribing 
regulations  for  the    company,  the   articles 
being  in  the  form  C  annexed  to  the  schedule 
of  the  act.    The  memorandum,  and  also  the 
articles  of  association,  must  respectively  bear 
the  same  stamps  as  if  they  were  deeds,  and 
the  execution  by  any  person  of  the  memo- 
randum or  the  articles  must  be  attested  by 
one  witness  at  least.    The  memorandums  and 
articles  must  be  delivered  to  the  registrar  of 
joint-stock  companies,  who  retains,  and  re- 
gisters, and  certifies  under  his  hand  that  the 
company  is  incorporated ;  and  in  the  case  of  a 
limited  company,  that  it  is  limited.    On  this 
being  done,  the  subscribers  of  the  memoran- 
dum become  a  body  corporate  by  the  name 
prescribed  in  the  memorsmdum,  having  a 
perpetual  succession  and  a  common  seal,  with 
power  to  hold  lands.    Shares  ia  the  company 
are  then  issued,  which  form  personal  estate, 
and  each  share  is  distinguished  by  its  appro- 
priate number.     A  register  of  the  share- 
holders is  kept  containing  (1.)  The  names, 
addresses,  and   occupation   of   any  of   the 
shareholders  and  the  shares  held  by  each  of 
them,  distinguishing  each  share  by  its  num- 
ber:  (2.)  The  amount  paid  by  each  share- 
holder ;  (3.)  The  date  at  which  any  person 
was  entered  in  the  register  as  a  shareholder ; 
2h 


(4.)  The  date  at  which  any  person  ceased  to 
be  a  shareholder  in  respect  of  any  share. 
An  annual  list  of  the  shareholders  must  be 
made,  specifying  also  (1.)  The  amount  of  the 
nominal  capital  and  the  number  of  shares ; 
(2.)  The  number  of  shares  taken  up  to  the 
date  of  each  annual  list ;  (3.)  The  amount  of 
calls  made  on  each  share;    (4.)  The  total 
amount  of  calls  received;    (5.)  The  total 
amount  of  calls  unpaid  ;  and  (6.)  The  total 
amount  of  shares  forfeited.     No  notice  of 
any   trust,  expressed   or   implied,   or   con- 
structive, is  eutered  on  the  register  as  re- 
ceivable by  the  company,  and  every  person 
whose  name  is  entered  on  the  register  is,  for 
the  purposes  of  the  act,  deemed  to  be  a  share- 
holder.   Shares  are  transferred  in  the  form 
F  in  the  schedule,  and  are  executed  both  by 
the  transferror    and   the    transferree,    the 
transferror  remaining  a  shareholder  until 
the  name  of  the  transferree  is  entered  on  tho 
register.    Calls  unpaid  on  any  share  consti- 
tute a  debt  due  by  the  shareholder  to  the 
company.      The  management  and  adminis- 
tration of  companies  formed  under  the  act 
are  regulated  by  §§  28  to  68  inclusive.     The 
winding  up  of  such  companies  is  regulated 
by  §§  67  to  105  inclusive.     In  the  event  of 
a  company  being  wound  up  by  the  court  or  vo- 
luntarily, the  existing  shareholders  are  liable 
to  contribute  to  the  assets  of  the  company  to 
an  amount  sufficient  to  pay  its  debts,  and  the 
costs,  charges,  and  expenses  of  winding  up 
the  same,  with  this  qualification,  that  if  the 
company  is  limited  no  contribution  is  required 
from  any  shareholder  exceeding  the  amount, 
if  any,  which  may  be  unpaid  on  the  shaves 
held  by  him.    Where  a  company  (not  a 
limited  one)  is  wound  up,  any  person  who  has 
ceased  to  be  a  shareholder  within  the  period 
of  three  years  prior  to  the  commencement  of 
the  winding  up,  is  deemed,  for  the  purposes 
of  contribution  towards  payment  of  the  com- 
pany's debts,  and  the  costs,  charges,  and  ex- 
penses of  winding  it  up,  to  be  an  existing 
shareholder,  and  has  in  all  respects  tho  same 
rights,  and  is  subject  to  the  same  liability  to 
creditors,  as  if  he  had  not  ceased  to  be  a 
shareholder,  with  this  exception,  that  he  is 
not  liable  in   respect   of   any  debt  of  tho 
company  contracted  after  the  time  at  which 
he  ceased  to  be  a  shareholder.    Where,  also, 
a  limited  company  is  wound  up,  any  person 
who  has  ceased  to  be  a  shareholder  within 
the  period  of  one  year  prior  to  the  com-r 
mencement  of  the  winding  up,  is  deemed,  fur 
the  like  purpose,  and  to  the  like  effect,  to  be 
an  existing  shareholder.     The  winding  up 
of  a  company  is  held  to  commence  at  the 
time  of  presenting  the  petition  to  the  Court, 
or,  if  the  company  is  wound  up  voluntarily, 
at  the  time  of  passing  the  resolution  authn- 

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rizing  the  winding  up.  Where  a  former 
shareholder  of  an  unlimited  company  is 
made  to  contribute,  he  is  entitled  to  be 
indemnified  by  the  transferree  of  his  shares 
in  a  degree  proportioned  to  the  shares 
transferred.  Where  a  former  shareholder 
of  a  limited  company  is  made  to  contribute, 
the  transferree  must  fndemnify  the  trans- 
ferror against  all  calls  made  or  accrued  due 
on  the  shares  transferred  subsequently  to  the 
transfer.  Where  the  directors  of  a  com- 
pany, constituted  under  the  act,  declare  and 
pay  any  dividend  when  the  company  is  known 
by  them  to  be  insolvent,  or  any  dividend  the 
payment  of  which  would  to  their  knowledge 
render  it  insolvent,  they  become  jointly  and 
severally  liable  for  all  the  debts  of  the  com- 
pany then  existing,  and  fur  all  that  shall  be 
thereafter  contracted  so  long  as  they  shall 
respectively  continue  in  office ;  the  amount  of 
such  liability,  however,  not  to  exceed  the 
amount  of  the  dividend  paid.  If,  however, 
any  of  the  directors  shall  be  abroad  at  the 
time  of  making  the  dividend  so  declared  or 
paid,  or  shall  object  thereto,  and  shall  file 
their  objection  in  writing  with  the  clerk  of  the 
company,  they  are  exempted  from  this  liability. 
The  Act  19  and  20  Viet.,  e.  47, 1866,  was 
amended  by  the  Act  20  and  21  Vict.,  c.  14, 

1857,  and  the  Act  21  and  22  Vict.,  c  60, 

1858.  The  Acte  relating  to  the  winding  up 
of  Joint-Stock  Companies  are  7  and  8  Vict., 
e.  Ill,  1844;  11  and  12  Vict.,  c.  45,  1848  ; 
12  and  13  Vict.,  c.  108, 1849  ;  and  20  and  21 
Vict.,  c.  78,  1857.  The  Acts  relating  to 
Joint-Stock  Banks  are  7  and  8  Vict,  c.  113, 
1 844 ;  9  and  10  Vict.,  c  76, 1846 ;  20  and  21 
Vict.,  c.  49, 1857 ;  and  21  and  22  Vict,  c. 
91, 1858. 

Jointure ;  is  a  conventional  provision  to  a 
widow,  consisting  of  an  annual  payment  to 
her  in  money  during  her  lifetime,  or  of  a 
liferent  assignment  of  the  rants  of  lands,  or 
sometimes  of  the  liferent  of  lands  called  a 
locality,  in  which  she.  is  iafeft,  and  whereby 
she  takes  her  chance  of  the  rise  or  fall  in 
the  rents  of  the  lands.  If  a  jointure-house 
he  provided,  it  is  by  a  liferent  infeftmeut,  or 
by  an  obligation  to  pay  a  certain  rent  in 
place  of  a  house.  In  whatever  way  the 
jointure  is  constituted,  whether  by  an  an- 
nuity or  by  a  locality  of  lauds,  and  in  what- 
ever way  it  is  secured,  whether  it  rests  on  a 
personal  obligation  or  is  secured  heritably, 
it  excludes  the  widow's  terce,  unless  the  con- 
trary be  expressed.  See  Terce.  But  if,  by 
fault  or  fraud  of  the  husband,  the  wife's 
jointure  is  left  unsecured,  she  seems  entitled 
to  recur  to  her  terce ;  and  sometimes  there 
is  a  stipulation  to  that  effect.  Baiik.  ii.  289 ; 
Bell's  Com.  i.  637  ;  BeU's  Princ.  §  1947 ; 
Jurid.  Styles,  i.  187,  el  seq.;  ii.  264,  428. 


See  Contract  of  Marriage.  As  to  the  widow's 
share  in  the  goods  in  communion,  tee  7m 
Mieta.    See  also  r«-c«.    CorUrad  of  Marriage. 

Judges.  Jurisdiction  flows  from  the  So- 
vereign alone,  and  is  divided  into  civil  and 
criminal.  The  Court  of  Justiciary,  consietr 
ing  of  the  Lord  Justice-General  and  Lord 
Justice-Clerk,  and  five  of  the  Judges  of  the 
Court  of  Session,  termed  Commissioners  of 
Justiciary,  is  the  supreme  criminal  jurisdit- 
tion  in  Scotland.  The  Court  of  Session,  con- 
sisting of  a  Lord  President  and  twelve  ordi- 
nary Judges  (of  whom  the  liord  Justice-Clerk 
is  one),  is  the  supreme  civQ  court.  Inferior 
to  these,  and  possessing,  to  a  certain  extent, 
both  a  civil  and  criminal  jurisdiction,  are  the 
sheriffs  of  the  different  counties  and  the  nui- 
gistrates  of  royal  burghs ;  and  interior  still 
in  point  of  jurisdiction  are  the  justices  of  the 
peace.  There  was  also  formerly  a  Conunia- 
sary  Court,  which  exercised,  to  a  certain 
extent,  the  jurisdiction  of  the  ancient  eccle- 
siastical courts.  And  the  jurisdiction  on  the 
seas,  and  within  flood-mark,  and  over  all  ma- 
ritime questions,  was  exercised  by  the  Lord 
High  Admiral,  acting  by  the  Judge  of  the 
High  Court  of  Admiralty,  and  by  inferior 
admirals.  But  the  jurisdiction  of  the  High 
Court  of  Admiralty  has  been  transferred  to 
the  Court  of  Session,  and  that  of  the  Com- 
missary Court  partly  to  the  Court  of  Session 
and  partly  to  the  Sheriff  of  Edinburgh.  See 
C»inmissaries.  Admiralty.  The  Scotch  Court 
of  Exchequer,  which  was  established  at  the 
Union,  consiBt«d  of  a  Lord  Chief-Baron  and 
four  puisnl  Barons,  and  had  jurisdiction  in 
questions  of  revenue  ;  but  the  jurisdiction  of 
this  Court  also  ha£  been  transferred  to  the 
Court  of  Session.  See  Exchequer.  The  Judges 
in  these  Courts,  with  the  exception  of  die 
magistrates  of  burghs  and  of  justices  of  the 
peace,  receive  stated  and  regular  salaries, 
corresponding  to  the  rank  and  dignity  of 
their  stations ;  and  they  hold  their  offices  id 
vitam  aut  aUpam.  See  Courts.  Session,  Awrt 
of.     College  <jf  Justice, 

Judge  Ordinary;  a  name  applied  to  all 
those  Judges,  whether  supreme  or  inferior, 
who,  by  the  nature  of  their  oflice,  have  a  fixed 
and  determinate  jurisdiction  in  all  actions  of 
the  same  general  nature,  as  contradistin- 
guished from  the  old  Scotch  Privy  Council, 
or  from  those  Judges  to  whom  some  special 
matter  is  committed ;  such  as  commissiooen 
for  taking  proofs,  messengers-at-anns,  who, 
in  poindings,  &c,  have  a  kind  of  judicisl 
authority,  macers  of  the  Court  of  Sesaon, 
who,  under  the  old  law,hadjuri8dictionin  ser- 
vices, and  other  the  like  cases  of  special  or  ex- 
traordinary jurisdiction.  Ertk.  B.  i.  tit.  2,§  15. 

Judgment;  the  sentence  of  the  lawprv- 
nouuced  by  a  court  upon  the  matter  contained 


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in  the  record.  The  judgments  pronounced 
in  the  different  courts,  unless  it  is  otherwise 
provided  by  statute,  may  be  brought  under 
the  review  of  a  superior  judicature,  with  the 
exception  of  the  judgments  pronounced  by  the 
Court  of  Justiciary.  Thus  the  judgments  of 
inferior  courts  may  be  brought  under  review 
of  the  Court  of  Session  ;  and  the  judgments 
of  the  Court  of  Session  are  subject  to  the 
review  of  the  House  df  Lords.  See  Jurisdie- 
Hon.  Appeal.   Decree.   Interlocutory  Judgment. 

Jndioatam  Solvi    See  Caution. 

Judicial  Procedure.  This  term  is  applied 
to  all  proceedings  in  a  court  of  law  falling 
noder  the  cognisance  of  the  judge.  The  par- 
ticular rules,  according  to  which  the  proceed- 
ings in  the  several  courts  in  Scotland  are 
eondacted,  will  be  more  minutely  treated  of 
under  distinct  titles ;  but  some  general  prin- 
ciples applicable  to  judicial  process  may  here 
be  taken  notice  of.  1.  Although  the  general 
rule  of  law  is,  that  no  judicial  step  can  have 
any  effect  except  against  those  who  have  been 
regularly  called  as  parties,  yet  there  are  cer- 
tain proceedings  which  affect  the  whole  com- 
munity, upon  the  principle  that  they  are 
parties.  Thus  the  judgments  pronounced  in 
any  suit  are  binding  upon  those  only  who  are 
proper  parties  to  it ;  and,  therefore,  although 
such  judgments  may  be  regarded  as  prece- 
dents for  the  determination  of  similar  ques- 
tions, they  do  not  amount  to  res  judicatoe,  nor 
preelnde  the  trial  of  the  same  points  in  a 
question  between  other  parties.  On  the  other 
hand,  the  existence  of  certain  judicial  pro- 
ceedings infers  litigiosity,  which  may  have 
important  effects  even  against  third  parties, 
who  contract  or  enter  into  transactions  with 
the  party  against  whom  litigiosity  strikes. 
See  Litigiosity.  2.  The  courts  of  law  are  of 
course  open  to  every  individual,  whether  a 
subject  of  this  country  or  a  foreigner.  But 
with  regard  to  the  latter,  he  must  have  a  man- 
datory resident  in  Scotland,  personally  liable 
for  the  expenses  or  costs  of  suit,  in  case  they 
should  be  awarded  against  his  constituent. 
See  Defender,  Mandate.  3.  In  order  to  se- 
cure a  more  strict  attention  to  the  forms  of 
judicial  process,  it  has  been  deemed  expedient, 
generally  speaking,  to  commit  the  conduct 
of  all  lawsuits  in  the  inferior  and  supreme 
courts  exclusively  to  certain  licensed  practi- 
tioners, who  have  undergone  a  course  of  study 
to  qualify  them  for  that  duty,  and  who  are 
subjected  to  certain  probationary  trials.  In 
the  Court  of  Session,  although  a  party  may 
be  heard  viva  voce  upon  the  merits  of  his  case, 
be  must  devolve  the  general  management  of 
the  process  upon  a  counsel  and  agent.  The 
same  rule  prevails  in  the  sheriff  courts  and  in 
the  other  inferior  courts,  in  all  of  which  (with 
certain  exceptions  introduced  by  special  sta- 


tutes intended  to  facilitate  the  recovery  of 
small  debts)  the  business  is  conducted  by  pro- 
curators duly  admitted.  4.  In  judicial  pro- 
ceedings a  party  is  entitled  to  aver  any  fact 
pertinent  to  the  cause,  however  much  it  may 
militate  against  the  character  of  his  adver- 
sary, or  of  any  witness  offered  against  him ; 
and  action  will  not'  be  sustained  on  account 
of  pertinent,  although  calumnious,  expressions 
thus  used  judicially!  £ut  any  libellous  mat- 
ter irrelevantly  introduced  is  not  entitled  to 
this  protection — a  distinction  which  has  been 
recognised  and  repeatedly  acted  upon.  See  Pro- 
cess. Courts.  Defamation.  Damages.  Expenses. 
In  the  case  of  Davidson  v.  Paul,  29tb  June 

1848. 10  D.  1457,  it  was  ruled  that  a  party 
might  sign  his  detences.  In  a  subsequent 
stage  of  the  same  case,  it  Vas  ruled,  however, 
that  a  party  could  not  sign  the  minute  closing 
the  record.    See  Davidson  v.  Paul,  23d  Feb. 

1849. 11  2>.  703.  It  was  also  ruled,  in  the 
case  ofRennie  v.  Murray,  12th  Nov.  1850, 13 
D.  36,  that  a  condescendence  roust  be  signed 
by  counsel,  and  not  by  the  party  himself. 

Judicial  Factor ;  is  a  factor  or  adminis- 
trator appointed  by  the  Court  of  Session 
on  special  application  by  petition,  setting 
forth  the  circumstances  which  render  the 
appointment  necessary.  The  power  of  making 
such  appointments  is  vested  in  the  Supreme 
Court  ex  nobile  qficio,  and  as  coming  in  place, 
it  has  been  thought,  of  the  Scotch  Privy 
Council.  The  cases  in  which  such  appoint- 
ments are  usually  applied  for  and  made  are, 
where  a  father  has  died  without  a  settlement, 
leaving  his  children  in  pupillarity,  in  which 
case  the  factor  is  called  a  factor  loco  tutoris ; 
or  where  a  party  resident  abroad  has  suc- 
ceeded to  an  estate  in  Scotland,  the  factor 
in  that  case  being  called  a  factor  loco  absen- 
tis.  So  also,  where,  from  insanity  or  mental 
incapacity,  extreme  age,  or  even  severe  in- 
disposition, a  party  has  become  incapable 
of  managing  his  affairs,  the  Court  of  Ses- 
sion will  appoint  a  curator  bonis;  or  where 
trustees  named  by  a  party  deceased  have  de- 
clined to  accept,  or  have  died  or  become  in- 
capable of  acting,  from  bankruptcy  or  other 
causes ;  or  where  tutors  have  been  removed 
as  suspect ;  or  where  a  subject,  or  its  rents 
and  profits  have  become  the  subject  of  judi- 
cial competition,  or  have  been  placed  under 
sequestration ;  and  generally,  in  all  cases 
where,  but  for  such  an  appointment,  there 
is  risk  of  the  property  perishing,  or  being 
injured  or  going  to  waste,  the  Court  will, 
on  the  application  of  a  party,  or  of  the  par- 
ties interested,  name  a  curator  bonis  or  judi- 
cial factor,  with  what  are  called  "  the  usual 
powers."  On  his  appointment,  the  factor 
must  find  caution  for  his  intromissions  and 
management,  his  cautioners  being  bound  con- 


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junctly  and  severally  with  him;  but  the 
Court  have  refused  to  accept  a  party's  co- 
curators  as  his  cautioners.  In  his  manage- 
ment of  the  estate,  ho  must  conform  to  the 
directions  of  the  A.S.  I3th  Feb.  1730;  lltt 
Dec.  184t) ;  •  lltt  March  1851 ;  the  chief 
injunctions  of  which  are,  that  the  factor 
shall  make  up  and  lodge  in  Court  a  ren- 
tal of  the  estate,  or  an  inventory  of  the 
money  and  effects  falling  under  the  factory; 
that  he  shall  annually  lodge  a  state  of  his 
accounts,  and  that  he  shall  do  proper  dili- 
gence in  recovering  rents  and  debts,  and,  if 
necessary,  confirm  money  and  moveable 
effects,  as  executor-dative  and  as  factor. 
He  holds  the  funds  subject  to  the  orders  of 
the  Court,  and  if  he  fail  in  observing  these 
directions,  he  may  be  removed ;  and  failure 
to  lodge  his  accounts  annually  subjects  him 
in  a  "  mulct,"  to  be  modified  by  the  Court, 
and  not  to  be  under  one  half-year's  salary. 
The  duties  of  a  judicial  factor  in  bankruptcy 
proceedings  are  regulated  by  A.S.  25fh  Nov. 
1857.  A  B  to  the  extent  of  the  factor's  powers 
many  questions  have  arisen.  By  the  Act  of  Se- 
derunt 1730,  he  is  empowered  to  {;rant  leases 
to  continue  during  the  term  that  the  estate 
remains  under  the  inspection  of  the  Court, 
and  for  one  year  more ;  but  with  regard  to 
other  acts  of  administration,  the  practical 
result  of  a  series  of  adjudged  cases  on  the 
subject  seems  to  be,  that  the  Court  never 
will  give,  prospectively,  any  extraordinary 
powers.  If,  however,  in  the  course  of  the 
management,  any  emergency  occurs,  the 
Court,  although  with  hesitation,  will  confer 
special  powers  on  special  application,  but 
only  in  cases  of  absolute  necessity.  In  spe- 
cial circumstances,  powers  to  grant  leases 
to  endure  for  various  periods  have  been  con- 
ferred. Such  powers,  however,  when  granted, 
must  always  be  exercised  periculo  petentit,  and 
subject  to  challenge  by  the  parties  interested. 
The  great  object  which,  in  all  such  cases,  the 
Court  has  in  view,  is  to  preserve  the  pro- 
perty for  the  parties  to  whom  it  belongs  as 
entire  and  as  much  unchanged  as  circumstan- 
ces will  possibly  permit ;  and  power  to  raise 
an  action  of  reduction,  to  carry  on  a  par- 
ticular manufactory,  and  the  like,  has  been 
expressly  refused,  leaving  it  to  the  factor  to 
act  in  such  matters  on  his  own  responsibility. 
This  judicial  management  being  in  its  nature 
temporary,  expires  when  the  cause  whicli 
gave  rise  to  it  ceases,  or  when  a  more  per- 
manent judicial  manager  or  guardian  is  ap- 
pointed. The  factor's  commission  or  fee  is 
generally  fixed  at  5  per  cent,  on  the  sums  re- 
ceived by  him ;  but  in  special  cases  higher 
and  lower  rates  have  been  adopted ;  Moore, 
.3d  July  1849;  11  D.  1496.  Before  a  judi- 
cial  factor  can    obtain   his  discharge,  the 


Court  must  be  satisfied  that  he  has  faith- 
fully performed  his  duty,   which   is  gene- 
rally ascertained  by  a  remit  to  an  accountant, 
and  he  is  not  entitled  to  be  exonered  on  pro- 
ducing an  extra-judicial  discharge  by  parties 
interested  in  the  estate ;  Chrittie,  16th  FeK 
1844 ;  6  D.  681.     Where  the  factory  is  im- 
portant, and    the    intromissions  large  and 
numerous,  it  sometimes  happens  that  the  far- 
tor  applies  at  certain  stated  intervals  to  the 
Court,  to  have  his  accounts  audited  to  a  par- 
ticular date,  and  to  have  a  balance  struck  ; 
which  avoids  the  inconvenience  of  having  old 
accounts  and  vouchers  investigated  when  the 
circumstances  connected  with  them  are  out 
of  mind.    The  Court  will  not  appoint  more 
than  one  person  judicial  factor  or  curator  at 
the  same  time,  or  one  party  to  be  factor, 
whom  failing  another ;  and  idthongh  an  nn- 
married  woman  may  be  appointed,  a  married 
woman,  being  herself  under  curatory,  will 
not  be  appointed  even  to  take  charge  of  the 
estate  of  her  insane  husband.  They  have  also 
declined  to  appoint  a  husband  to  bis  factor  to 
the  children  of  his  wife  by  a  former  marriage, 
and  likewise  a  party  entitled  to  be  tutor-at- 
law  to  a  pupil  to  be  factor  on  his  estate. 
At  common  law,  a  factor  or  trustee  is  not  en- 
titled to  purchase  debts  due  by  his  constitu- 
ents, or  rights  affecting  the  estate  nnder  his 
charge ;  and  in  the  case  of  judicial  factors 
appointed  by  the  Court  of  Session  over  lauded 
estates  under  sequestration,  the  common  law 
principle  is  fortified  by  the  Act  of  Sederont 
25th  Dec.  1708,  whereby  such  factors  are 
prohibited,  either  directly  or  indirectly,  from 
"  buying  in  and  componing  the  debts  affecting 
the  same."    And  it  is  declared,  that  if  any 
such  purchases  are  made,  they  shall  be  held 
equivalent  to  a  discharge  and  renunciation  of 
the  debts  so  bought  in  and  acquired  by  the 
factor;  so  that  the  lands  and  the  debtor  shall 
be  freed  and  disburdened  of  the  same ;  and 
further,  that  if  any  abatement  or  gratuityshall 
be  obtained  from  any  of  the  creditors  to  whom 
they  make  payment  of  any  of  the  rents,  the 
abatement  or  gratuity  shall   accrue  to  the 
common  debtor  and  his  creditors.  See  on  the 
subject  of  this  article,  A.  S.  ISlh  Feb.  1730 ; 
nth  Dee.  1849  ;  UiK  March  1851 ;  25th  Nm. 
1857  ;  Brodie's  Sup.  to  Stair,  879,  et  seq.; 
Thamxon  on  BiUs,  223;  359,  371,  723,755; 
BeWi  Princ.  687,  and  authorities  there  died; 
Shaw's  Digest,  voce  Judicial  Factor;  and  for  the 
forms  of  the  application,  &c.,  see  Jurid.  S/y/**, 
vol.  iii.  p.  866,  et  seq.,  and  Shand's  Prae.  vol. 
ii.  p.  683;   Brown  o«  Sale,  p.  192;  Fraser 
on  Per.  and  Dom,  Relations. 

Judicial  Declaratioii.  See  Deckration. 

Judicial  Law  of  Moses.   See  Jewish  Law. 

Judicial  Sale ;  a  term  applied,  in  a  general 
sense,  to  any  sale  which  takes  place  under  ju- 

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dicial  authority.  The  circumstances  in  which, 
in  the  practice  of  the  law  of  Scotland,  such  a 
sale  may  be  made  are  various.  Thus,  in  the 
process  of  sett,  one  of  the  alternative  conclu- 
sions of  the  action  ia,  that  the  ship  shall  be 
sold  by  judicial  authority,  and  the  proceeds 
divided  among  the  shareholders.  See  Sett. 
So,  in  the  case  of  an  indivisible  heritable  sub- 
ject, any  one  of  the  common  proprietors  is 
entitled  to  call  upon  the  co-proprietors  either 
to  purchase  his  share  at  a  certain  price,  or  to 
sell  him  their  shares  at  the  same  rate,  or  to 
concur  in  exposing  the  subject  to  sale  by  pub- 
lic roup.  See  Common  Property.  Other  in- 
stances of  judicial  sale  are,  the  sale  under  a 
sequestration  for  rent,  the  sale  of  poinded 
effects,  the  sale  of  a  minor's  estate  in  a  pro- 
cess of  cognition  and  sale,  aad  the  sale  of  a 
perishable  subject,  pending  a  litigation  re- 
specting the  right  of  ownership,  or  the  like. 
By  much  the  most  important  judicial  sale, 
however,  is  that  of  the  heritable  property  of' 
an  insolvent  person,  for  the  purpose  of  divid- 
ing the  price  among  his  creditors.  Under 
the  Bankruptcy  Act,  if  any  part  of  the  se- 
questrated estate  consists  of  land  or  other 
heritable  subjects,  it  is  in  the  power  of  the 
creditors,  at  the  meeting  held  after  the  exa- 
mination of  the  bankrupt,  or  at  any  other 
meeting  called  for  the  purpose,  to  resolve 
that  the  trustee  shall  dispose  of  the  heritable 
estate  by  public  sale,  or  bring  it  to  a  judicial ' 
sate ;  and  if  such  resolution  has  been  made 
before  an  heritable  creditor,  having  a  power 
of  sale,  shall  have  commenced  proceedings 
for  sale, — or  if  such  proceedings,  after  being 
commenced  prior  to  the  date  of  such  resolu- 
tion, have  thereafter  been  unduly  delayed, — 
such  creditor  is  not  entitled  to  interfere  with 
the  sale  by  the  trustee.  If  a  public  sale  be 
resolved  on,  the  sale  is  to  be  made  by  auction, 
at  the  upset  price,  and  in  the  manner  which 
shall  be  fixed  by  the  trustee,  « ith  consent  of 
the  commissioner ;  it  is  provided,  however, 
that  the  estate  shall  not  be  sold  for  less  than 
the  upset  price,  and  that  such  upset  price 
shall  not  be  less  than  sufficient  to  pay  the 
debt,  principal  interest,  and  expenses  of  the 
heritable  creditor.  It  is  competent  for  the 
trustee,  with  concurrence  of  a  majority  of  the 
creditors  in  number  and  value,  and  of  the 
heritable  ci'oditors,  if  any,  and  of  the  ac- 
countant, to  sell  the  heritable  estate  by  pri- 
vate bargain,  on  such  terms  and  conditions 
as  the  trustee,  with  the  concurrence  of  those 
parties,  may  fix.  It  is  provided  that  the 
trustee  shall  make  up  a  scheme  of  ranking 
aud  division  of  the  claims  of  the  heritable 
and  other  creditors  on  the  price  of  the  estate 
sold ;  that  such  scheme  shall  be  reported  by 
him  to  the  Court  of  Session ;  and  that  the 
judgment  thereon  shall  be  a  warrant  for  pay- 


ment out  of  the  price  against  the  purchaser 
of  the  heritable  estate.  Provision  is  also 
made  for  the  granting  of  interim  warrants 
out  of  the  price ;  19  and  20  Vict.,  c.  79,  §§ 
114,  115, 116,  117.  The  important  process 
of  ranking  and  sale,  which  may  be  considered 
not  only  as  a  species  of  real  diligence,  but 
also  as  an  action  of  competition,  is  treated  of 
under  the  article  Ranking  and  Sale. 

Judicio  Sisti.    See  Caution. 

Judicinm  Dei ;  the  term  anciently  applied 
to  all  extraordinary  trials  of  secret  crimes,  as 
those  by  single  combat,  the  ordeal  of  fire,  &c. 
See  Combat. 

Judicium  Fariun ;  a  trial  by  one's  peers. 
Tomlins'  Diet.  h.  t. 

Jugglers ;  are  included  amongst  vagabonds 
and  Egyptians,  and  other  descriptions  of  idle 
and  disorderly  persons,  against  whom  many 
penal  laws  were  enacted  by  the  Scotch  Par- 
liaments. Ersk.  B.  iv.  tit.  4,  §  39 ;  Hume, 
vol.  i.  p.  474.    See  Egyptians.     Vagabonds. 

Jurats ;  in  England,  officers,  like  aldermen, 
sworn  for  the  government  of  corporations. 
This  term  is  also  applied  to  the  clause  with 
which  English  affidavits  close.  Tomlins'  Diet, 
h.  t.     See  Affidavit. 

Juratory  Caution ;  is  a  description  of  cau- 
tion, sometimes  offered  in  a  suspension  or 
advocation,  where  the  complainer  is  not  in 
circumstances  to  offer  any  better.  Where 
a  person  wishes  to  advocate  the  judgment  of 
a  sheriff,  or  other  inferior  judge,  upon  jura- 
tory caution  only,  for  expenses,  he  applies, 
by  petition,  to  the  judge  ef  the  inferior  court, 
praying  that  such  caution  may  be  received ; 
which  application  is  intimated  to  the  opposite 
party  or  his  agent.  Before  any  such  appli- 
cation is  granted,  the  complainer  is  required 
to  depone,  at  a  time  and  place  previously  in- 
timated to  the  opposite  party  or  his  agent,  in 
order  that  an  opportuuity  may  be  offered  of 
cross-interrogating  him  as  to  whether  he  has 
any  lands  in  property  or  liferent,  or  bonds, 
bills,  or  contracts  containing  sums  of  money. 
Should  he  acknowledge  that  he  has,  he  must 
condescend  upon  them,  and  depone  that  he 
has  uo  other  lands,  bonds,  bills,  or  contracts 
containing  sums  of  money  belonging  to  him. 
The  complainer  must  also  lodge  with  the 
clerk  of  the  inferior  court  the  bond  of  cau- 
tion ;  a  full  inveutoi-y  of  his  subjects  and 
effects  of  every  kind;  and  an  enactment  sub- 
joined to  the  inventory,  bearing  that  he  will 
not  dilapidate  any  of  his  property,  and  that 
he  will  not  dispose  of  the  same,  or  uplift  any 
of  the  debts  due  to  him,  without  consent  of 
the  respondent  or  his  agent,  or  the  authority 
of  the  judge  (under  pain  of  imprisonment,  or 
being  otherwise  punished  as  guilty  of  fraud), 
till  tlie  advocation  be  discussed,  and  till  there 
be  an  opportunity  of  doing  diligence  for  any 

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expenses  that  may  nitimatelj  be  foand  due 
by  him.  Farther,  the  complainer  most  lodge 
in  the  hands  of  the  clerk  of  the  inferior  court 
the  Touchers  of  any  debts  due  to  him,  and 
the  title-deeds  of  any  heritable  subject  belong- 
ing to  him,  so  far  as  in  his  possession  or  within 
his  power.  And  juratory  caution  has  been 
lefused,  in  respect  of  the  non-delivery  of  the 
titlenleeds,  although  they  were  not  in  the 
suspender's  possession,  but  in  that  of  his 
agents,  subject  to  a  right  of  hypothec,  which 
they  refused  to  waive.  The  complainer,  if 
required,  must  g^ant  a  special  disposition  to 
the  respondent  of  any  heritable  subject  he 
may  be  possessed  of,  and  an  assignation  of  all 
debts  or  other  rights  due  to  him,  for  the  re- 
spondent's further  security.  The  disposition 
and  assignation  are  made  out  at  the  expense 
of  the  respondent,  and  by  his  agent,  and  re- 
main with  the  vouchers  and  title-deeds,  if  so 
deposited,  in  the  hands  of  the  clerk,  subject 
to  the  directions  of  the  court,  till  the  advoca- 
tion be  discussed.  Upon  all  this  being  done 
to  the  satisfaction  of  the  judge,  he  grants 
leave  to  advocate  on  juratory  caution,  which 
is  certified  by  the  clerk  of  the  inferior  court. 
In  case  of  a  note  of  advocation  which  does  not 
pass  de  piano,  or  a  note  of  suspension  being 
presented  on  juratory  caution,  the  Lord  Or- 
dinary, when  he  appoints  the  bill  to  be 
answered,  names  a  commissioner  to  take  the 
complainer's  deposition ;  and  the  complainer 
intimates  to  the  opposite  party  or  his  agent 
that  he  may  attend  at  the  time  and  place 
fixed  by  the  commissioner.  Where  the  jura- 
tory caution  is  offered  in  the  Bill-Chamber, 
the  lodgment  of  the  bond  of  caution,  inven- 
tory, ite.,  is  made  with  the  clerk  of  the  bills, 
till  which  time  it  is  not  necessary  for  the  op- 
posite party  to  give  in  his  answers  in  the 
Bill-Chamber.  6  Geo.  IV.  c.  120,  §  41 ; 
Utk  June  1799 ;  A.  S.  lltt  July  1828,  §  3  ; 
llt&  JWy  1839,  §§  \2\-25;  Alexander's  Ahridg. 
(^  A.  S.  Ill,  114,  302-4.  Before  the  sheriff 
grants  leave  to  advocate,  he  must  be  satisfied 
with  the  examination  of  the  complainer,  and 
with  the  fulfilment  of  all  the  other  requisites 
above  enumerated;  and  in  one  case,  which 
went  no  farther  than  the  Bill-Chamber,  where 
the  complainer's  examination  seemed  contra- 
dictory, and  yet  the  sheriff  had  granted  leave 
to  advocate,  reserving  to  the  respondent  to 
urge  any  objections  founded  on  the  nature  of 
the  complainer's  deposition,  the  liord  Ordi- 
nary refused  the  bill,  observing  that  the 
sheriff  ought  not  to  have  granted  leave  to 
advocate  unless  he  was  satisfied. 

Where  any  note  of  advocation  is  presented 
on  juratory  caution,  it  is  incumbent  on  the 
advocator  to  make  immediate  application  to 
the  lawyers  for  the  poor  for  a  report  that  he 
has  a  jirobabilis  causa  liligaiidi;  and  if  the  ad- 


vocator fails  to  make  such  application,  or  if 
the  lawyers  for  the  poor,  npon  such  applica- 
tion, report  their  opinion  that  no  prwabilit 
causa  has  been  established,  it  is  provided  that 
the  advocation  shall  be  dismissed,  with  ex- 
penses, unless  full  caution  be  forthwith  offered 
and  found  in  common  form.  13  and  14  Fid., 
c.  36,  §  34.  See,  on  the  subject  of  this  artide. 
Stair,  B.  iv.  tit.  62,  §  9-24 ;  ErsL  B.  iv.  tit 
3,  §  19 ;  Bank,  iii.9 ;  Bos^s  Led. i.  369, 382; 
Jurid.  Styles,  it  79;  iil  287,  297,978-81; 
irOlaskan's  Sheriff-Court  Practice,  by  Bardm/, 
p.  452 ;  MacLaurin't  Fortns  of  Process,  voL  ii. 
p.  565 ;  Shanes  Digest,  p.  13 ;  Macbrair  aad 
BairiPs  Procedure,  p.  65 ;  Treatise  on  BiU- 
Chamber,  p.  71 ;  Beveridg^s  Bili-Cham.  Prae. 
p.  45 ;  Bev.  Treatise  on  BiU-Cham.  p.  37.  See 
also  Caution.     Advocation.     Su^entio*. 

Jnri  Sangninii  Hunqnam  Frsacritdtor ; 
a  Roman  law  maxim,  importing  that  the 
right  of  relationship,  being  a  personal  right, 
is  not  lost  non  utendo.  It  is  not  to  be  under- 
stood, however,  that  one  cannot,  by  prescrip- 
tion, establish  his  right  to  a  subject .  which 
another  claims  in  virtue  of  his  right  of  rela- 
tionship.  Thus,  after  the  lapse  of  the  vicen- 
nial prescription  of  retours,  the  party  served, 
although  not  the  true  heir,  may  exclude  him. 
All  that  is  meant  is,  that,  if  no  other  heir 
has  been  entered,  the  right  of  blood  is  not 
lost  by  the  negative  prescription,  but  that  a 
person  may  enter  heir  to  his  predecessor,  al- 
though he  died  centuries  ago.  Stair,  B.  ii. 
tit.  12,  §  16 ;  Ersk.  B.  iii.  tit.  7,  §  12 ;  BanL 
ii.  352 ;  iii.  49.  See  Prescription.  VieeniM. 
Retour. 

Jnri  pro  m  Introdiicto  Cniqne  licet  Be- 
mmoiare;  a  Roman  law  maxim,  importing 
that  any  one  may  at  his  pleasure  renounce 
the  benefit  of  a  stipulation  or  other  right  in- 
troduced entirely  in  his  own  favour.  Thus, 
in  the  ordinary  case,  if  a  mandate  bear  a 
definite  term,  this  is  understood  to  be  in  the 
mandant's  favour,  and  he  may  recall  the 
mandate  at  any  time.  But  the  rule  is  altered 
when  the  mandate  is  partly  for  behoof  of  the 
mandatory,  who  then  has  an  interest  that  the 
term  agreed  upon  should  not  be  altered. 
Stair,  B.  i.  tit.  12,  S  8 ;  tit.  13,  §  8 ;  B.  ii. 
tit.9,§38;  tit.  11,  §6. 

Jnrifdictioii ;  is  either  civil  or  criminal 
By  the  one,  questions  of  private  right  are  de- 
termined ;  by  the  other,  crimes  are  tried  and 
punished.  Jurisdiction  may  be  also  divided 
into  superior,  inferior,  and  mixed.  In  this 
sense,  the  jurisdiction  of  the  Courts  of  Sesuon 
and  Justiciary  is  superior,  since  the  sentences 
of  all  the  inferior  courts  of  Scotland  are  sub- 
ject to  the  review  of  one  or  other  of  them ; 
while  their  sentences  (with  the  exception  of 
the  Court  of  Justiciary),  though  subject  to 
review  in  the  House  of  Lords,  are  not  subject 

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to  the  review  of  any  court  in  Scotland.  In- 
ferior judges  are  those  whose  sentences  are 
subject  to  the  review  of  our  Supreme  Courts, 
and  whose  jurisdiction  is  confined  to  a  county, 
burgh,  or  other  special  territory.  Mixed 
jurisdiction  partakes  of  the  nature  both  of 
superior  and  inferior  jurisdiction.  Thus,  be- 
fore they  were  abolished,  the  High  Court  of 
Admiralty  and  the  Commissary  Court  of 
Edinburgh  had  a  universal  jurisdiction  over 
all  Scotland,  and  might  review  the  sentences 
of  inferior  admirals  and  commissaries — in  so 
far  they  possessed  &  superior  jurisdiction ; 
but,  on  the  other  hand,  their  own  judgments 
were  subject  to  the  review  of  the  Court  of 
Session  or  of  Justiciary,  and  in  so  far  they 
were  inferior  courts.  See  Delegated  Jwisdio- 
tion.  Appeal.  Where  a  new  civil  jurisdic- 
tion is  created  by  statute,  with  a  power  of 
judging  in  special  matters,  this  jurisdiction  is 
not  exclusive  of  the  Judge  formerly  competent 
to  that  species  of  causes,  unless  the  statute 
shall  expressly  give  an  exclusive  right  to  the 
new  court.  It  follows,  also,  that  such  new 
jurisdiction  (unless  the  contrary  be  expressed) 
will  be  accounted  subordinate,  and  subject  to 
the  review  of  the  Supreme  Civil  Court.  It 
is  not  suflScient  to  give  a  supreme  and  sole 
jurisdiction,  that  a  new  court  is  declared  to 
have  the  right  of  determining^/SnaKy ;  to  con- 
fer such  a  power,  the  judgments  of  the  court 
must  be  declared  final,  and  not  subject  to  re- 
view or  appeal.  Erik.  B.  i.  tit.  2 ;  Stair,  B. 
ii.  tit.  3,  §  62 ;  BeW$  Prine.  §  2223,  et.  seq.; 
Swint.  Abridff.  h.  t.;  Earned  Stat.  Law  Abridg. 
h.  L;  Brown's  Synop.  h.  U;  Karnes'  Equity, 
480, 490;  Ross's  Lect.  i.  279 ;  Macqueen's  Ap- 
pellate Jimsdiction ;  Skand,  Dow's  Appeal  Cases, 
iu  519;  Qoidie,  ib.  634;  Campbell,  v.  412. 
See  Courts,  Domicile.  Citation.  Edictal  Ci- 
tation. Exchequer.  Commissaries.  Admiralty. 
Dadling-House.     Jury  Trial. 

JuTuprndenco ;  is  that  science  the  object 
of  which  is  to  show  in  what  manner  the  rights 
of  individuals  may  best  be  protected.  It 
points  out  the  true  nature  of  a  right ;  it  an- 
ticipates the  dangers  to  which  the  enjoyment 
of  rights  is  exposed,  from  trime,  from  injus- 
tice, or  from  uncertainty ;  aud  it  directs  the 
enactment  of  laws  which  may  furnish  incen- 
tives to  virtue  and  discourage  crime ;  which 
may  protect  the  rightful  owner  from  the  force 
or  fraud  of  aggressors ;  and  which  may  estab- 
lish rules  for  defining  and  rendering  certain 
the  rights  of  individuals,  and  prescribing  the 
manner  in  which  such  rights  are  to  be  ac- 
quired, transmitted,  aud  extinguished.  See 
Law.     International  Law.     Rights. 

Jury ;  a  certain  number  of  men  sworn  to 
inquire  into  and  try  a  matter  of  fact,  aud  to 
duclare  the  truth  according  to  the  evidence 
loyally  adduced.     They  are  called  jurors  from 


juratores,  as  being  sworn  to  return  their  ver- 
dict faithfully;  and  in  order  that  the  evi- 
dence may  be  properly  laid  before  them,  and 
no  illegal  evidence  admitted,  the  trial  pro- 
ceeds under  judicial  superintendence  and  di- 
rection, and  in  presence  of  the  parties  or 
their  counsel.  In  criminal  cases,  the  number 
of  the  jury  is  fifteen ;  and  the  majority  of  that 
number  determine  what  the  verdict  shall  be. 
In  civil  causes,  the  number  of  the  jury  is 
twelve ;  and  the  jury  must  be  unanimouily 
agreed  in  their  verdict,  according  to  the  prac- 
tice in  England.  But  by  Act  17  and  18  Vict., 
c.  59  (31st  July  1854),  it  is  provided,  that  if, 
upon  the  trial  by  jury  of  any  civil  cause  iu 
the  Court  of  Session  in  Scotland,  the  jury  are 
unable  to  agree  upon  a  verdict,  and  if,  after 
having  been  kept  in  deliberation  for  a  period 
of  six  hours,  nine  of  said  jury  shall  agree,  the 
verdict  agreed  to  by  such  nine  may  be  re- 
turned as  the  verdict  of  the  jury,  and  shall 
be  taken,  and  shall  have  the  same  force  and 
effect  as  if  found  unanimously  by  the  whole 
of  the  said  jury.  During  the  said  period 
they  may  be  furnished  with  necessary  refresh- 
ment by  leave  of  the  judge.  And  by  the  Act 
19  and  20  Vict.,  c.  56  (2l8t  July  1856),  which 
constitutes  the  Court  of  Session  the  Court  of 
Exchequer  in  Scotland,  this  provision  is  (by 
§  6)  made  applicable  to  the  verdicts  of  juries 
in  Exchequer  causes.  An  Act  has  just  (Aug. 
1859)  been  passed  in  Parliament  shortening 
the  period  of  deliberation  provided  by  the 
above  Statute,  17  and  18  Vict.,  c.  59,  to  three 
hours.  The  English  and  scotch  law  relating 
to  high  treason  having  been  assimilated  at 
the  Union  of  the  kingdoms,  the  jury,  in  all 
cases  of  high  treason,  also  consists  of  twelve ; 
and  their  verdict  must  be  unanimous.  See 
Treason.  Exchequer.  See  also  Eoidcnce.  The 
Act  6  Geo.  IV.,  c.  22,  for  regulating  the  qua- 
lifications and  manner  of  enrolling  jurors  iu 
Scotland,  and  choosing  of  jurors  on  criminal 
trials,  made  many  important  alterations  on 
the  former  practice.  1st,  As  to  the  qualifica- 
tion. Every  man  between  the  ages  of  21  aud 
60  years  is  qualified  to  serve,  if  he  be  iufeft 
iu  his  own  right,  or  in  right  of  his  wife,  iu 
heritage,  in  fee,  or  in  liferent,  to  the  yearly 
value  of  L.5  at  least,  in  the  county  or  city 
from  whence  the  jury  is  to  be  taken ;  or  if  he 
have  moveable  property  worth  L.200  at  least. 
But  Peers,  Judges  of  the  Supreme  Court^i, 
sheriffs,  stewards,  magistrates  of  royal  burghs, 
ministers  of  the  Established  Church,  and  all 
other  ministers  of  religion  who  have  taken 
the  oaths,  aud  whose  place  of  meeting  has 
been  duly  registered,  parochial  schoolmasters, 
practising  advocates,  practising  writers  to  thu 
signet,  solicitors  before  the  supreme  and  in- 
ferior courts  who  have  taken  out  their  annual 
certificates,  all  acting  clerks  or  other  officers 

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of  any  court  of  justice ;  all  jailors  or  keepers 
of  houses  of  correction  ;  all  professors  in  uni- 
versities, physicians  and  surgeons  duly  quali- 
fied and  practising  as  such ;  all  officers  of  the 
army  or  navy  on  full  pay ;  all  officers  of  Cus- 
toms or  Excise ;  messengers-at-arms  and  other 
officers  of  the  law — are  exempted  from  being 
returned  or  from  serving.  2d,  The  sheriffs 
or  stewards  of  each  county  or  stewartry  were 
directed,  before  the  1st  January  1826,  to 
make  up  a  roll  of  all  the  qualified  persons 
within  tneir  territory,  to  be  entered  in  a  book 
called  The  General  Jury  Book,  to  be  kept  in 
the  sheriff  or  steward-clerk's  office  of  each 
county  or  stewartry,  and  to  be  open  to  pub- 
lic inspection  on  payment  of  a  fee  of  one 
shilling.  (See  Oeneral  Jury  Book.)  3d,  The 
sheriff  or  steward  must  select  from  the  list  in 
the  general  jury  book  the  names  of  all  per- 
sons qualified  to  be  special  jurors  under  the 
Jury  Court  Act,  55  Geo.  III.,  c.  42  (».«.,  pay- 
ing cess  upon  L.lOO  of  valued  renter  upwards, 
or  assessed  taxes  on  a  house  rented  at  L.30 
yearly  or  upwards),  the  names  so  selected  to 
be  entered  in  a  Special  Jury  Book,  to  he  kept 
in  like  manner  in  the  sheriff-clerk's  office, 
open  to  the  public  on  the  same  terms ;  the 
persons  whose  names  are  inserted  in  the  spe- 
cial jury  book  being  liable  to  serve  as  special 
jurors  in  all  cases,  civil  or  criminal,  where 
!>pecial  juries  are  required ;  and  the  names  of 
the  persons  qualified  to  be  special  jurors  at 
the  same  time  remaining  in  the  list  in  the 
general  jury  book.  The  qualifications  re- 
qnired  by  the  Act  55  of  Geo.  III.  having  been 
found  to  be  in  many  counties  such  as  not  to 
furnish  an  adequate  number  for  the  discharge 
of  their  duties,  an  act  was  passed  extending 
the  qualification;  7  Geo.  IV.,  c.  8.  Under 
this  act,  every  person,  residing  within  any 
county  or  stewartry  in  Scotland,  who  is  infeft 
in,  and  possessed  of,  lands  and  heritages  in 
any  part  of  Scotland,  yielding  the  sum  of 
L.l  o5  sterling  of  real  yearly  rent  or  upwards, 
'  at  the  time,  or  who  is  possessed  of  personal 
property  to  the  amount  of  L.IOOO  sterling 
or  upwards,  is  qualified  to  serve  as  a  special 
juror  in  Scotland,  exclusive  of,  and  in  addi- 
tion to,  those  qualified  to  serve  as  special 
jurors,  in  terms  of  55  Geo.  III.  See  Special 
Jury  Book,  itk,  The  counties  of  Edinburgh 
and  Lanark  respectively  are  divided  into 
separate  districts,  and  have  separate  lists  of 
the  juroi's  for  each  district  made  up ;  and  the 
sheriffs  of  Haddington  and  Linlithgow  are 
directed  to  transmit  from  their  counties  cer- 
tified copies  of  the  lists,  both  general  and  spe- 
cial, to  the  sheriff  of  Edinburgh,  from  which 
lists,  as  well  as  from  the  Edinburgh  lists,  the 
names  of  jurors  required  for  trials  in  Edin- 
burgh are  taken  in  certain  proportions,  stated 
in  section  7  of  the  statute,  viz.,  24  for  the  city 


of  Edinburgh,  6  for  the  town  of  Leith,  6  for 
the  remainder  of  the  county  of  Edinburgh,  5 
for  Haddington,  and  4  for  Linlithgow ;  and 
in  the  same  proportions  where  fewer  than  45 
jurors  are  required  to  be  returned.  And  in 
all  criminal  trials,  one-third  of  the  whole  45 
returned  must  be  special  jurors.  5A,  Where 
the  attendance  of  jurors  at  the  circuits  is  re- 
quired, the  clerk  of  court  must  give  notice  to 
the  sheriffs  of  the  counties  within  the  circuit 
of  the  number  of  jurors  required ;  and  the 
sheriff  or  steward  must  return  the  number 
required  fi'om  the  different  counties  in  certain 
proportions,  as  directed  in  section  8  of  the 
statute;  taking  the  names  from  the  special 
and  general  jury  books.  6th,  In  criminal 
trials  in  inferior  courts,  the  cl^k  of  the  in- 
ferior court  will  be  in  like  manner  furnished 
with  names  to  the  number  required  from  the 
jury  books  of  the  county  in  which  the  court 
is  held,  one-third  of  the  whole  number  r^ 
turned  being  persons  qualified  as  special 
jurors.  7th,  In  all  returns  made  by  sherifli, 
the  names  must  be  returned  in  regular  order, 
beginning  at  the  top  of  the  lists  in  the  jury 
books ;  commencing  every  new  return  with 
the  name  immediately  after  that  of  the  last 
juror  in  the  preceding  return ;  provision  is 
then  made  for  correcting  the  lists  as  occasion 
may  require,  and  for  going  through  the  lists 
in  regular  rotation.  8th,  Where  the  person 
to  be  tried  is  entitled  to  a  jury  of  fasded 
men,  the  sheriff,  when  required,  mnst  make 
a  return  of  the  names  of  landed  men  as  they 
stand  in  the  jury  books,  a  majority  of  tde 
jurors  in  such  return  being  landed  men.  9t'). 
Any  wilful  or  unwarrant.il)le  departure,  on 
the  part  of  the  sheriff,  from  the  provisions  of 
the  statute,  will  subject  him  in  a  penalty  of 
L.50,  to  be  recovered  on  summary  complaiit 
before  the  High  Court  of  Justiciary,  or  tht 
Circuit  Court  of  Justiciary ;  half  the  penalty 
going  to  the  Crown,  the  other  half  to  tkc 
party  suing  for  the  same.  But  no  irregu- 
larity in  making  up  or  transmitting  the  liste. 
or  in  the  warrant  of  citation,  or  in  summon- 
ing jurors,  or  in  returning  any  execution  c' 
citation,  will  constitute  a  good  objection  t' 
jurors  whose  names  have  been  served  on  anj 
person  accused  of  a  crime,  reserving  it  ti> 
the  court  to  judge  of  the  effect  of  a  felonion^ 
return.  This  provision  is  further  strength- 
ened by  9  Geo.  IV.,  c.  29,  §  7,  which  pots 
an  end  to  all  such  objections  by  the  genersl 
enactment,  that  it  shall  not  bo  competent,  in 
any  criminal  cause  or  prosecution  whatsoever, 
for  any  prosecutor  or  person  accused  to  state 
any  objection  to  any  juror,  or  to  any  witness, 
on  the  ground  of  such  juror  or  witness  ap- 
pearing without  citation,  or  without  having 
been  duly  cited  to  attend.  lOtt,  The  Lord 
Justice- Clerk,  or  anyone  of  the  Commissioners 


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of  Justiciary,  may  direct  sach  Dumber  of  per- 
sons, exceeding  forty-five,  as  may  be  deemed 
necessary,  to  be  summoned  on  any  criminal 
triaJ  in  the  High  Court  of  Justiciary  or  in 
the  Circuit  Court ;  the  warrant  for  summon- 
ing jurors  requiring  the  signature  of  one  of 
the  said  Judges  only,  and  it  being  unneces- 
sary to  annex  a  copy  of  the  signature  of  the 
Judge  to  the  list  of  assize  served  on  the  ac- 
cused. 11^,  Peremptory  challenges,  without 
cause  assigned,  may  be  made  of  five  jurors  by 
each  party  in  a  criminal  trial ;  the  challenge 
to  be  made  when  the  name  of  the  juror  chal- 
lenged is  drawn  from  the  ballot-box.  But 
of  the  five  special  jurors  to  be  chosen,  not 
more  than  two  can  be  challenged  peremptorily 
by  each  person  accused,  or  by  the  prosecutor. 
Challenges,  on  cause  shown,  are  unlimited ; 
hut  where  the  ground  of  objection  is  that  the 
juror  has  not  the  legal  qualification,  that  can 
only  be  proved  by  the  oath  of  the  juror  objected 
to ;  and  no  objection  whatever  to  a  juror  can 
be  competently  made  after  he  is  sworn  to 
serve.  I2th,  In  all  criminal  trials,  the  num- 
ber of  jurors  returned,  unless  the  contrary  be 
directed,  is  forty-five;  and  the  fifteen  jury- 
men to  be  taken  from  that  number  for  the 
particular  trial  must  be  chosen  in  open  court 
by  ballot,  in  the  manner  pointed  out  in  sec- 
tion 17  of  the  statute.  And  the  jurors  once 
so  choaea  may  continue  to  serve  on  the  trials 
of  other  persons  accused,  provided  such  per- 
sons and  the  prosecutor  consent,  and  provided 
that  the  names  of  the  jury  so  continuing  to 
serve  are  contained  in  the  list  of  assize  served 
on  the  accused,  and  that  such  jurors  are  duly 
sworn  to  servo  on  each  successive  trial.  13lh, 
The  teveral  courts  mentioned  in  this  act  have 
power  to  excuse  one  or  more  jurors  from  serv- 
ing, the  grounds  of  excuse  being  stated  in 
open  court.  14.th,  All  verdicts,  whether  una- 
nimous or  not,  must  be  returned  viva  voce  by 
the  chancellor  of  the  jury,  unless  the  court 
direct  a  written  verdict  to  be  returned  ;  the 
chancellor  to  mention  whether  the  jury  are 
unanimous  or  not,  and  that  fact  to  be  recorded 
with  the  verdict.  This  statute,  section  21,  also 
provides  for  the  union  of  several  counties  in 
Scotland  into  districts,  or  larger  counties,  in 
cases  of  high  treason,  in  order  to  obviate  the 
inconveniences  arising  from  the  want  of  pro- 
per court-houses,  and  from  the  difiBculty  of 
getting  a  sufficient  number  of  jurors  for  the 
grand  and  petty  juries  within  the  present 
limits  of  a  county.  In  furtherance  of  this 
object,  and  quoad  hoe,  the  counties  of  Edin- 
burgh, Haddington,  and  Linlithgow  are  held 
as  one  county,  under  the  description  of  the 
county  of  Edinburgh,  the  sheriff-depute  of 
Edinburgh  being  held  to  be  the  sheriff  of 
that  enlarged  county ;  the  counties  of  Rox- 
burgh, Berwick,  Selkirk,  and  Peebles,  as  one 


county,  under  the  description  of  the  county 
of  Roxburgh ;  and  so  on  through  the  other 
counties ;  it  being  lawful  for  the  commission 
of  Oyer  and  Terminer  to  sit  in  any  town  or 
place  of  the  several  counties,  so  held  to  be 
one  county,  whereof  the  county  in  which  the 
treason  has  been  committed  is  one.  See  Trea- 
son. It  is  sufficient  for  the  legal  citation  of 
any  juror  or  witness,  in  any  cause  or  legal 
proceeding,  civil  or  criminal,  that  such  cita- 
tion be  given  by  any  oflScer  of  the  law  duly 
authorised,  without  witnesses ;  and  the  oath 
of  such  officer,  in  support  of  the  execution,  is 
received  as  sufficient  evidence  of  such  citation 
when  the  same  is  questioned  in  a  court  of 
law ;  1  Will.  IV.,  c.  37.  To  verify  the  fact 
of  his  having  cited  the  jury,  the  officer  has  to 
exhibit  under  his  hand  a  written  execution, 
setting  forth  his  having  done  so,  which,  by 
immemorial  custom  anterior  to  the  statute  of 
Will.  IV.,  is  good  without  witnesses,  under 
the  hand  of  the  officer  alone. 

It  is  always  important,  and  often  very  dif- 
ficult, to  determine  whether  a  particular  of- 
fence should  be  prosecuted  before  an  inferior 
court  with  or  without  the  assistance  of  a  jury. 
And  the  court,  in  cases  where  they  think  that 
a  jury  has  been  improperly  omitted,  are  in 
use,  not  only  to  suspend  the  sentence  simpli- 
citer,  but  to  find  the  prosecutor  liable  in  ex- 
penses. The  principle,  as  laid  down  by  Hume, 
is,  that  an  inferior  judge  may  try  without  a 
jury  on  a  libel  concluding  for  fine  and  da- 
mages, or  imprisonment  only,  or  banishment 
forth  of  the  burgh  or  county ;  Hume,  ii.  147. 
This  principle  was  confirmed  by  a  former 
course  of  decisions.  But  of  late  the  Supreme 
Court  have  adopted  a  different  principle,  and 
have  held  that  the  proper  criterion  is  the 
nature  of  the  crime  charged,  not  the  conclu- 
sion of  the  libel.  What  the  nature  of  the 
crimes  must  be  to  require  a  jury  has  never 
been  determined  as  a  general  rule,  the  court 
having  usually  confined  their  judgment  to 
the  special  case  brought  before  them.  In 
each  individual  case,  therefore,  it  is  left  to 
the  prosecutor  to  judge  whether  the  offence 
is  one  of  that  grave  and  serious  nature  which 
requires  a  jury,  whatever  the  punishment 
may  turn  out  to  be.  A  late  writer  recom- 
mends that  where  the  charge  is  of  such  a  kind 
as  to  warrant,  if  proved,  six  months'  impri- 
sonment, and  caution  to  the  amount  of  L.50, 
the  case  should  not  be  tried  without  a  jury ; 
Alison's  Prac.  53.  In  police  offences,  the 
sherifls  and  inferior  burgh  courts  may  punish 
with  fine  and  imprisonment  without  a  jury. 
And  inferior  burghs  have  still  the  power, 
though  of  late  never  exercised,  of  inflicting, 
without  a  jury,  corporal  pains:,  such  as  scourg- 
ing or  the  pillory.  But  sheriffs  or  justices  of 
peace  cannot  exercise  that  power  summarily, 


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at  least  in  the  more  grave  and  serious  trans- 
gressions. In  many  of  the  greater  burghs  the 
magistrates  have  a  right  of  sheriffship,  and,  in 
virtue  of  it,  instances  have  not  been  wanting 
of  late  years  of  trials  by  jury  taking  place  be- 
fore the  magistrates  of  Edinburgh.  All  cita- 
tions for  criminal  trial  by  jury  must  now  be  on 
fifteen  days,  whether  in  the  supreme  or  inferior 
courts;  and  for  summary  trials  without  a  jury, 
six  days  is  the  proper  period.  See  Crimiiud 
Prosecution.  Justiciary,  Court  of.  Sheriff. 
Bmrgh. 

The  Statnte  55  Geo.  ITT.  c.  42,  introducing 
jury  trial  in  civil  causes  in  Scotland,  provides 
that  the  common  jurors  shall  be  summoned 
by  a  precept  signed  by  the  clerk  of  the  Jury 
Court ;  and  that  the  number  summoned  shall 
not  be  less  than  thirty-six,  nor  more  than 
fifty.  From  that  number  the  jury  is  chosen 
by  ballot,  each  party  having  four  peremptory 
challenges.  Persons  so  summoned  as  jurors, 
and  failing,  without  a  sufficient  excuse,  to 
attend,  may  Im  fined,  not  exceeding  L.5,  nor 
less  than  L>2  sterling.  It  is  also  provided 
by  the  same  statute  that  either  party  may 
apply  for  a  special  jury,  qualified  in  the  man- 
ner above  explained ;  and  that  the  sheriff 
shall  make  up  lists  of  persons  qualified  as 
sppcial  jurymen  before  the  1st  of  January 
yearly,  and  return  the  same  to  the  clerk  of 
the  Jury  Court  before  the  Slst  of  January. 
The  number  of  persons  to  be  returned  by  the 
sheriff  as  special  jurymen  to  try  any  issue 
must  be  thirty-six ;  and,  on  receiving  this  list, 
the  clerk  of  the  Jury  Court  must  give  notice 
to  the  agents  and  counsel  for  tlie  parties  to 
attend  him  ;  and,  in  his  presence,  each  party 
alternately  (beginning  with  the  pursuer) 
strikes  off  one  name  trom  the  list,  until  the 
number  is  reduced  to  twenty,  which  twenty 
are  summoned  to  attend  on  the  day  of  trial. 
In  case  either  party  fails  to  attend  at  the 
time  fixed  for  reducing  the  list  to  twenty,  the 
clerk  of  court  shall  strike  off  one  for  him, 
alternately  with  the  other  party  who  attends ; 
and  the  jury  for  trying  the  issue  is  the  twelve 
of  the  said  twenty  who  shall  appear  first, 
on  their  namrs  being  called  over  in  court. 
Where  a  full  jury  does  not  appear,  the  Cotirt 
may  direct  the  Sheriff  to  add  to  the  list  the 
names  of  any  other  persons  then  in  court 
who  shall  be  entered  in  some  other  list  of 
jurors  for  that  city  or  county ;  and  the  trial 
will  proceed  with  those  persons  whose  names 
were  originally  inserted  in  the  list  of  jurors, 
together  with  the  persons  so  added,  in  the 
same  manner  as  if  all  thuse  names  had  ap- 
peared in  the  original  list^— any  person  so 
added  wilfully  withdrawing  being  liable  to  a 
fine  not  exceeding  L.5,  nor  less  than  L.2 
sterling.  Every  juror  who  acts  as  a  juryman 
on  ihe  trial  must  bo  paid,  by  the  party  against 


whom  the  issue  is  found,  the  sum  of  twentj 
shillings ;  and,  in  the  case  of  a  special  verdict, 
this  sum  must  be  paid  equally  by  both  partiet, 
the  party  ultimately  successful  being  entitled 
to  charge  the  sum  so  paid  by  him  as  part  of 
the  costs  of  the  suit,  in  case  costs  are  awarded 
to  him  against  his  adversary.  By  the  Statnte 
59  Geo.  III.,  c.  35,  §  25,  this  provision  Li 
altered  to  a  certain  extent,  and  the  amount 
of  the  sum  paid  to  each  juror  for  serving  ou 
a  jury  directed  to  be  regulated  by  the  pre- 
siding judge,  no  juror  being  entitled  to  mort 
than  twenty  shillings  for  one  trial,  unless  is 
cases  of  adjournment  to  a  second  day,  when 
the  sum  may,  in  the  discretion  of  the  judge, 
be  extended  to  forty  shillings.  The  chso- 
cellor  or  foreman  of  the  jury,  in  civil  causet, 
is  chosen  by  the  majority  of  the  jury  after 
they  are  sworn,  the  juror  first  sworn  having 
a  double  vote  in  cases  of  equality.  The  ver- 
dict, in  which  the  jury  in  civil  causes  must 
be  unanimously  agreed,  is  declared  verballj 
by  the  chancellor,  and  taken  down  by  the 
clerk  in  writing  before  the  jury  is  discharged ; 
and  if  the  jury  are  not  so  agreed'  within 
twelve  hours  after  they  are  inclosed,  they 
shall  be  discharged,  unless  they  apply  for  fiir- 
ther  time ;  the  issue,  where  the  jury  is  dis- 
charged without  returning  a  verdict,  beitg 
either  tried  by  another  jury  or  disposed  vf 
by  a  proof  on  commission,  as  the  Court  may 
direct.  But  see  provision  already  qnoted  fram 
the  Statute  17  <nwi  18  Vict.,  c.  69  (31st  July 
1854),  and  the  Act  of  22  and  23  F»et,c.7, 
Aug.  1859.  Where  a  view  of  the  subject  in 
dispute  is  considered  necessary,  such  view  will 
be  directed  by  the  Court,  and  six  jurore  se- 
lected for  that  purpose,  the  viewers  being 
summoned  by  the  Sheriff  to  attend  at  the 
place  in  question  some  convenient  time  before 
the  trial,  and  the  matters  in  question  being 
shown  to  them  by  two  persons  named  by  tbe 
Court.  The  expense  of  a  view  must,  in  the 
first  instance,  be  equally  borne  by  all  tbe 
parties,  and  no  evidence  connected  with  the 
issue  can  be  given  at  tbe  time  of  taking  the 
view.  In  all  triab  of  any  civil  cause  before 
any  of  the  Judges  of  Justiciary  on  circuit, 
the  jury  are  to  be  taken  from  the  lists  pre- 
pared for  tbe  trial  of  criminal  offences;  1  Wi}L 
IV.,  c.  69,  §  11.  If  any  other  judge  'a  ap- 
pointed to  try  the  cause,  the  Court  may,  if 
necessary,  cause  a  jury  to  be  summoned  there- 
for, in  the  manner  provided  by  the  Acts  65 
Geo.  III.  c.  42,  59  Geo.  III.,  c.  35,  and  6 
Geo.  IV.,  c  120.  The  qualifications  of  jurors 
in  the  Court  of  Exchequer,  are,  by  the  Statute 
6  Anne,  c.  26,  settled  upon  principles  nearly 
similar  to  those  which  have  been  above  ex- 
plained. There  is  no  longer  any  distinction 
as'  to  qualification  between  juries  in  Exche- 
quer causes  and  other  civil  causes  tried  in  tbe 

Digitized  byCjOOQlC 


JUR 


JUR 


491 


Court  of  Session.  Se«  19  and  20  of  Viet.,  c. 
56,  §  6  (21st  July  1856).  See  Exchequer. 
Some  interesting  historical  speculations  con- 
cerning the  nature  and  high  antiquity  of 
juries  will  be  found  in  the  Introduction  to  Mr 
Ivory's  Form  of  Process  in  the  Jury  Court. 
See  Ivory,  ii.  259.  See  also  Ersk,  B.  iv.  tit. 
4,  §§  84-92,  93-101 ;  BeW$  Princ.  §§  7bO, 
207y ;  Brown's  Synop.  h.  L 

Jury  Trial    Jury  trial  in  criminal  cases 
"  has,  by  custom  from  time  immemorial,  been 
the  regular,  constitutional,  and  ordinary  way 
of  trial  for  crimes  in  the  Supreme  (Criminal) 
Court  of  Scotland ;"  Hume,  ii.  135 ;  and  in 
certain  ciril  matters,  e.g.  services  of  heirs, 
cognition  of  idiots,  ascertaining  the  extent  of 
the  widow's  terce,  dividing  property  amongst 
heirs-portioners,  itc,  inquests  on  juries  have 
been  immemorially  known  in  our  practice. 
It  has  also  been  asserted  by  legal  antiqua- 
rians, that  at  one  time  jury  trial  was  the  pre- 
vailing form  of  trial  in  all  civil  causes  in  Scot- 
land.    See  BeWs  Sti/leii,  vi.  1,  et  seq.;  aiso 
Ivory's  Form  of  Process,  ii.  25y.    But  it  was 
not  until  the  year  1815  that  jury  trial  was 
attempted  to  be  introduced,  at  least  into  the 
modern  form  of  process  in  civil  causes.    The 
statute  1>y  which  this  form  of  trial  was  intru- 
duQed  was  55  Geo.  III.,  c  42,  by  which  an 
institution  called  the  Jury  Court  was  estab- 
lished.    This  Court  was  composed  of  a  Lord 
Chief-Commissiouer,  who  required  to  be  le- 
gally qualified  to  hold  the  office  of  a  Senator 
of  the  College  of  Justice,  and  of  two  other 
■Judges  or  Commissioners,  who  were  at  the 
same  time  Judges  of  the  Court  of  Session. 
The  Court  had,  besides,  a  suitable  establish- 
ment of  clerks  and  other  officers,  who,  after 
the  union  of  the  two  courts,  continued  to  dis- 
charge their  duties  in  the  Court  of  Session, 
both  at  Edinburgh  and  on  the  circuits.    See 
Clerks  of  Jury  Causes.    The  Jury  Court  was 
further  regulated  by  the  Statutes  59  Qeo.  III., 
c  35,  and  6  Geo.  iV.,  c.  liO ;  and  the  expe- 
riment having  been  thus  made,  it  was  cuu- 
sidered  to  have  been  so  far  successful  as  to 
justiiy  the  incorporation  of  JU17  trial  with 
the  ordinary  jurisdiction  uf  the  Court  of  Ses- 
sion.    This  was  effected  by  the  statute  11 
Geo.  IV.  and  1  Will.  IV.  c.  69,  whereby  the 
powers  and  duties  of  the  Lord  Cbief-Commis- 
siuner,  and  of  the  other  Commissioners,  were, 
to  a  certain  extent,  reserved  and  continued 
for  a  period  of  three  years.    Under  that  sta- 
tute all  jury  causes  are  directed  to  be  prepared 
fur  trial  by  the  Lords  Ordinary  respectively 
before  whomsuchcausesdepend.  And itis pro- 
vided that  the  liords  President  of  the  two  Di- 
visions shall  respectively  try  by  jury  all  i!^sues 
arising  out  of  causes  depeudiug  in  these  Divi- 
siuns  respectively,  wlieu  such  trials  take  place 
iu  Ediuburgh ;  but  iu  the  eveut  of  the  indispo- 


sition or  necessary  absence  of  either  of  the 
Lords  President,  such  issues  may  be  tried  in 
Edinburgh  by  any  other  Judge  or  Judges  of 
the  Division  of  the  Court  before  which  the 
cause  may  depend.  Either  party  may  apply 
to  the  Division  of  the  Court  to  which  the 
cause  belongs  to  have  the  issue  or  issues  tried 
before  such  Division  ;  and  the  Division  may 
or  may  not,  in  its  discretion,  order  the  cause 
to  he  so  tried.  The  Lord  President  of  each 
Division  of  the  Court  may  order  any  issue  or 
issues  to  be  tried  before  his  Division  of  the 
Court  And  trials  by  jury  under  said  statute 
may  proceed  at  all  times,  as  well  during  ses- 
sion as  in  the  vacation,  as  the  Division  of  the 
Court  before  which  the  cause  stands  enrolled 
shall  appoint ;  and  all  causes  remaining  un- 
tried, and  entered  as  ready  for  trial  at  the 
termination  of  the  winter  or  summer  session, 
or  at  the  commencement  of  the  Christmas 
recess,  shall  be  tried  at  sittings  of  the  Court, 
to  be  held  immediately  after  these  periods 
respectively;  excepting  only  such  causes  as, 
on  the  motion  of  any  party,  the  Court  may 
think  fit  to  postpone.  All  proceedings  for 
the  correction  of  errors  or  injustice  alleged  to 
have  been  committed  in  the  trial  of  a  cause — 
all  questions  reserved  for  decision  after  trial 
— all  questions  relating  to  the  application  of 
the  verdict,  or  the  rights  and  interests  arising 
therefrom — and  all  questions  of  expenses  are 
appointed  to  proceed  before  the  Division  of 
the  Court  to  which  the  cause  belongs.  Trials 
out  of  Edinburgh  may  take  place  before  any 
one  or  more  of  the  Judges  of  the  Court  of 
Justiciary  when  upon  circuit ;  or,  when  it  is 
thought  necessary  by  either  Division  of  the 
Court,  they  may  direct  any  causes  or  issues 
to  be  tried  by  any  other  Judge  or  Judges  of 
the  Court  of  Session  at  any  circuit  town. 
Accordingly,  the  trials  at  circuit  frequently 
take  place  before  one  of  the  Judges  of  the 
Court  of  Session,  specially  appointed  for  that 
purpose ;  il  Geo.  IV.  and  1  Will.  IV.  c.  69, 
§  3, 11.  Although  the  Jury  Court,  as  a  se- 
parate tribunal,  was  thus  abolished,  yet  the 
provisions  of  the  statutes  introducing  jury 
trial,  in  so  far  as  not  inconsistent  with  the 
incorporating  act,  were  declared  to  remain  yi 
force  ;  and  all  the  rules  and  regulations  which 
were  la  observance  in  the  Jury  Court  at  the 
time  of  its  abolition,  established  and  enforced 
by  Act  of  Sederunt,  it  was  enacted,  should  cou- 
tiuue  and  be  observed  as  applicable  to  jury 
trial  in  the  Court  of  Session,  §  16,  until  altered 
by  acts  of  sederunt,  which  the  Court  were 
thereby  empowered  to  pass.  The  Jury  Court, 
as  first  established,  was  not  a  court  of  inde- 
pendent jurisdiction.  On  the  contrary,  every 
case  which  came  before  it  must  have  originat- 
ed in  the  Court  of  Session,  or  in  the  Admi- 
ralty or  Commissary  Court.    As  originally 

Digitized  byCjOOQlC 


492 


JUR 


JUR 


established,  indeed,  this  Court  may  be  said 
to  hare  been  of  the  nature  of  a  judicial 
commission,  for  the  ascertainment,  by  means 
of  a  jury,  of  certain  facts  deemed  pertinent 
to  a  cause,  by  the  judges  of  the  court  by 
whom  the  issues  were  remitted  to  the  Jury 
Court  to  be  tried ;  and  those  acts  having  been 
so  ascertained,  the  verdict  of  the  jury  was 
returned  to  the  court  from  which  the  re- 
mit came,  to  be  applied  according  to  law. 
Afterwards,  however,  the  original  constitu- 
tion of  the  Court  was  so  far  altered  that  it 
possessed  a  kind  of  privative  jurisdiction  in 
certain  actions ;  and,  although  the  acts  which 
introduced  this  privative  jurisdiction  had  re- 
furence  to  the  Jury  Court  as  a  separate  estab- 
lishment, the  incorporating  act  (^2)  provides, 
that  all  causes  and  issues,  which,  if  they  had 
occurred  before  the  passing  of  the  act,  must, 
by  law,  have  been  tried  by  jury  in  the  Jury 
Court,  shall  be  tried  by  jury  in  the  Court  of 
Session.  The  classes  of  actions  so  appro- 
priated for  trial  by  jury  were  all  actions  on 
account  of  injuries  done  to  the  person,  real 
or  verbal ;  assault  or  battery;  libel  or  defa- 
mation ;  or  on  account  of  any  injury  to  move- 
ables or  to  lands,  whore  the  title  is  not  in 
question ;  or  on  account  of  breach  of  pro- 
mise of  marriage  ;  seduction  or  adultery  ;  or 
any  action  founded  on  delinquency,  or  quasi 
delinquency  of  any  kind,  where  the  conclu- 
sion is  for  damages  and  expenses  only  ;  for, 
although '  all  such  actions  must  have  been 
brought  into  the  Court  of  Session  or  the  Court 
of  Admiralty  in  the  first  instance,  yet  the 
judge  before  whom  the  action  came  was  re- 
quired to  remit  it  <le  ilmio  to  the  Jury  Court, 
to  be  there  prepared  for  trial ;  and,  where 
the  verdict  exhausted  the  conclusions  of  the 
action  and  contained  no  special  findings  which 
might  require  the  judgment  of  the  Court  of 
yession  on  the  law,  then  the  Jury  Court  might 
ordain  execution  to  follow  in  common  form, 
and  might  also  award  the  expenses  incurred 
both  in  the  Jury  Court  and  I'n  the  Court  of 
.'■ession  ;  59  Geo.  III.,  c.  35,  §§  1,  2,  3,  19, 
20.  The  Sutute  6  Goo.  IV.,  c.  120,  §  28, 
adds  to  the  preceding  enumeration,  "  all  ac- 
tions on  the  responsibility  of  shipmasters  and 
owners,  carriers  by  land  or  water,  innkeepers 
or  stablers,  for  the  safe  custody  and  care  of 
goods  and  commodities,  horses,  money,  clothes, 
jewels  and  other  articles,  and,  in  general,  all 
actions  grounded  on  the  principle  of  the 
edict  Nantm  caupones  stahulam ;  all  actions 
brought  for  nuisance  ;  all  actions  of  reduc- 
tion on  the  head  of  furiosity  and  idiocy,  or 
on  facility  and  lesion,  or  on  force  and  fear  ; 
ail  actions  on  policies  of  insurance  ;  all  actions 
on  charter-parties  and  bills  of  lading  ;  all 
actions  for  freight ;  all  actions  on  contracts 
for  carriage  of  goods  by  land  or  water  ;  and 


actions  for  the  wages  of  masters  and  mariners 
of  ships  or  vessels." 

Power  was  given  to  the  Lord  Ordinary,  in 
all  caseswhere  matters  of  fact  had  to  be  proved, 
to  order  the  whole  process  to  be  remitted  tea 
jury  for  trial,  without  reporting  to  the  Inner- 
House  ;  or  he  might  himself  direct  such  is- 
sues as  he  thought  fit,  to  be  prepared  aod  re- 
mitted for  trial.     In  like  manner,  power  vas 
given  to  the  Divisions  of  the  Court  respec- 
tively, to  remit  all  cases,  where  matters  of 
fact  required  to  be  ascertained,  for  trial  bj 
jury,  or  themselves  to  appoint  partienUu-  it- 
sues  to  be  tried  ;  59  Geo.  III.  c  35,  §§  4, 5, 
6,  7,  8.    Power  was  also  given  to  the  Conn 
of  Session,  in  revie^ring  the  sentences  of  infe- 
rior judges,  except  in  consistorial  causes,  to 
send  such  issue  or  issues  to  be  tried  by  a  jury, 
as  seemed  necessary  for  ascertaining  facts  not 
proved  to  their  satisfaction  by  the  evidence 
already  taken,  or  which  might  have  been 
omitted  in  the  cause ;  the  verdict  to  be  re- 
turned to  the  Court  of  Session,  to  assist  that 
Court  in  the  determination  of  the  cause.    All 
consistorial  jurisdiction  of  inferior  judg^  ex- 
cept as  to  granting  of  confirmations,  being 
abolished,  the  exception  in  regard  to  those 
actions  is  no  longer  applicable.    And  as  tu 
consistorial  actions  before  the  Court  of  Session, 
it  is  competent,  by  the  Acts  II  Geo.  IV.  and 
1  Wilk  IV.,  c.  69,  §  37,  to  either  Division  of 
the  Court,  or  to  a  Lord  Ordinary  after  advis- 
ing with  the  Division  of  the  Court  to  which 
he  belongs,  to  direct  that  any  such  cause,  or 
any  issue  or  issues  of  fact  connected  therevith, 
be  tried  by  jury.  This  provision  is,  by  §  16  of 
the  Act  13  and  14  Vict.,  c.  36,  made  applicable 
to  all  consistorial  actions,  though  not  speci- 
ally mentioned  in  said  act.     It  is  also  com- 
petent' to  the  Court  of  Session  in  reviemig 
the  sentences  of  inferior  judges  to  remit  the 
whole  cause  for  trial  by  jury,  with  such  direc- 
tions as  to  the  proof  already  taken  as  to  them 
may  seem  proper.     And  in  all  cases  originat- 
ing in  the  inferior  courts,  in  which  the  claim 
is  in  amount  above  L.40,  as  soon  as  an  order 
or  interlocutor  allowing  a  proof  has  been 
pronounced  in  the  inferior  courts  (unless  it 
be  an  interlocutor  allowing  a  proof  to  lie  in 
reteiUi*,  or  granting  diligence  for  the  recoverj 
and  production  of  papers),  it  is  competent  iv 
either  of  the  parties,  who  may  conceive  that 
the  cause  ought  to  be  tried  by  jury,  to -remove 
the  process  into  the  Court  of  Session  by  bill 
of  advocation,  which  is  passed  at  once,  without 
discussion,  and  without  caution.    And  if  no 
such  bill  of  advocation  be  presented,  and  the 
parties  proceed  to  proof  under  the  interlocutor 
of  the  inferior  court,  they  are  held  to  bare 
waived  their  right  of  appeal  to  the  House  of 
Lords  against  any  judgment  which  may  there- 
after be  pronounced  by  the  Court  of  Session, 

Digitized  byCjOOQlC 


JUR 


JUR 


493 


in  so  far  as,  by  such  judgment,  the  several 
facts  established  by  the  proof  are  found  or 
declared ;  6  Geo.  IV.,  c.  120,  §  40,  This  sec- 
tion of  the  statute  has  been  held  to  apply 
only  to  interlocutors  allowing  a  proof  prmit 
d«  jure;  Hamilton,  10th  June  1837,  15  S.  d: 
P.\105.  See  Advocation,  ifac/arlane's  Jury 
Prac.  35.  Trial  by  jury  was  thus  made  im- 
perative in  certain  classes  of  cases,  and  left 
discretionary  with  the  Court  of  Session  and 
House  of  Lords,  in  all  other  cases  coming  be- 
fore them,  where  matters  of  fact  require  to  be 
ascertained.  In  the  latter  class  of  cases,  the 
whole  cause  may  be  remitted  for  trial  and 
disposal  by  a  jury,  or,  in  the  discretion  of  the 
Court,  an  issue  or  issues,  having  reference  to 
a  particular  part  of  the  cause,  or  to  special 
facts,  may  be  sent  for  trial.  Causes  deter- 
mineid  by  the  Court  of  Session,  and  appealed, 
are  sometimes  remitted  by  the  House  of  Lords, 
with  instructions  to  send  issues  to  a  jury  for 
trial.  It  was  decided  by  a  majority  of  the 
whole  Court,  that,  in  the  cases  enumerated 
in  the  statutes  as  appropriated  for  jury  trial, 
where  the  conclusion  is  for  damages  and  ex- 
penses only,  they  had  no  power  to  take  proof 
by  commission,  on  remit,  or  in  prcesentia,  but 
must  remit  all  such  cases  to  be  tried  by  jury. 
Kerr,  10th  March  1837,  15  S.  <k  D.  784. 
Many  of  the  above  provisions  have  been 
materially  altered  by  an  act  of  Parliament 
passed  in  July  1850  (13  and  14  Vict.,  c.  36), 
and  which  came  into  operation  on  1st  No- 
vember 1850,  entitled  "  An  Act  to  facilitate 
Procedure  in  the  Court  of  Session."  By  that 
act,  which  recites  the  several  statutes  55  Geo. 
III.,  c.  42,  59  Geo.  III.,  c.  35;  6  Geo,  IV.,  c. 
120,11  Geo.  IV.,  and  1  Will.  IV.,  c.  69,  and 
1  and  2  Vict.,  c.  118,  it  is  enacted,  §  36, 
that  in  all  causes  appropriated  for  trial  by 
jury,  or  in  the  course  of  preparation  for  trial 
by  jury  before  the  Court  of  Session,  the  pro- 
cedure, both  before  and  after  the  closing  of 
the  record,  shall  be  in  all  respects  the  same, 
so  far  as  applicable,  as  in  other  Court  of  Ses- 
sion causes  for  the  time.  Section  38  provides 
for  the  mode  of  adjustment  of  issues  in  any 
canse  in  which  matter  of  fact  is  to  be  deter- 
mined. Section  39  does  away  with  the  neces- 
sity for  engrossing  issues,  and  provides,  as 
equivalent  thereto,  that  the  issues,  when  ad- 
justed and  settled  by  the  Lord  Ordinary  or 
the  Coprt,  shall  be  approved  of  by  interlocu- 
tor to  that  effect,  and  shall  be  signed  and 
authenticated  by  the  judge  as  relative  thereto. 
By  §  40  it  is  made  competent,  after  issues  are 
so  approved  of,  to  the  Lord  Ordinary  in  the 
cause,  on  the  motion  of  either  of  the  parties, 
to  appoint  a  time  and  place  for  the  trial  of 
such  issue  or  issues ;  such  time  being  as  soon 
after  the  date  of  inch  approval  as,  with  refer- 
ence to  the  proper  trial  of  such  issues,  conve- 


niently may  be,  and,  except  upon  special  cause 
shown,  not  later  than  three  weeks  from  the 
date  of  such  motion,  and  it  is  declared  thnt 
such  trial  shall  proceed  at  the  time  and  plac  e 
so  appointed,  unless  at  the  time  of  such  ap- 
pointment  one  or  other  of  the  parties  shall 
intimate  to.  the  Lord  Ordinary  that  he  ob- 
jects thereto,  in  which  case  the  Lord  Ordi- 
nary shall  report  the  matter  to  the  Court,  by 
whom  it  shall  be  fixed  when  and  where  the 
trial  shall  proceed.  Unless  a  different  ar- 
rangement is  made  by  the  Court,  on  motion 
to  that  effect,  the  Lord  Ordinary  before  whom 
the  cause  depends  is  to  preside  at  the  trial 
of  such  issues,  where  such  trial  takes  place 
during  the  sitting  of  the  Court;  §  41.  All 
the  powers  in  regard  to  summoning  of  juries 
for  trial  of  issues  in  civil  causes,  previously 
exercised  by  the  Court,  or  any  Division  of 
the  Court,  is  conferred  on  the  Lord  Ordinary, 
and  he  is  empowered,  on  the  application  of 
either  of  the  parties,  to  appoint  any  issue  or 
issues  to  be  tried  by  a  special  jury  ;  §  42.  In 
every  trial  before  the  Court  of  Session,  one 
counsel  for  the  pursuer  and  one  for  the  de- 
fender is  to  be  heard  after  the  whole  evidence 
is  closed  ;  §  44.  Bill  of  exceptions  upon  the 
ground  of  the  undue  admission  is  not  to  be 
allowed,  if,  in  the  opinion  of  the  Court,  the 
exclusion  of  such  evidence  could  not  have  led 
to  a  different  verdict ;  and  it  is  not  impera- 
tive on  the  Court  to  sustain  a  bill  of  excep- 
tions on  the  ground  of  undue  rejection  of 
documentary  evidence,  when  it  shall  appenr 
from  the  documents  themselves  that  they 
ought  not  to  have  affected  the  result  at  which 
the  jury  have  arrived  ;  §  45.  With  the  con- 
sent of  the  parties,  a  Lord  Ordinary,  after 
an  issue  is  adjusted,  may  try  such  issue  before 
himself,  without  a  jury ;  unless  the  Court,  on 
the  report  of  the  Lord  Ordinary,  deem  this 
course  inexpedient  and  improper.  On  such 
trial  the  Lord  Ordinary  is  to  take  notes  of 
the  evidence,  and  hear  counsel  thereon  ;  the 
proceedings  to  be  conducted  as  nearly  as 
may  be  as  in  an  ordinary  jury  trial.  Within 
eight  days  after  the  proceedings  at  the  trial 
are  concluded,  the  Lord  Ordinary  shall  pro- 
nounce an  interlocutor  specifying  particu- 
larly what  he  finds  in  point  of  fact.  Either 
party  may,  by  written  note,  within  eight 
days,  bring  this  interlocutor  under  the  re- 
view of  the  Lord  Ordinary  upon  his  own  notes 
of  the  evidence ;  and  he  may,  within  eight 
days  after  hearing  parties,  either  correct  his 
interlocutor  as  regards  such  findings  in  fact, 
or  order  a  new  trial.  If  either  of  the  said 
periods  of  eight  days  extend  into  vacation  or 
recess,  the  period  shall  be  held  not  to  elapse 
until  the  fourth  day  after  the  next  meeting 
of  the  Lords  Ordinary,  or  the  Court  there- 
after; §  46.    The  Lord  Ordinary's  findings. 

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in  point  of  fact,  are  final,  anieas  it  shall  ap- 
pear that  they  proceed  on  gome  erroneous  view 
of  the  law  as  to  competency  of  evidence  or 
otherwise;  but  either  party  may, on  a  reclaim- 
ing note  to  the  Court,  raise  any  question  of 
law  which  may  be  relevantly  raised  on  the  evi- 
dence, as  given  in  the  Lord  Ordinary's  notes. 
No  objection  to  any  finding  in  point  of  law 
by  the  Lord  Ordinary  in  the  course  of  the 
trial  shall  be  competent,  unless  such  objection 
was  stated  and  noted  by  the  Lord  Ordinary 
at  the  time  ;  and  the  notes  of  the  Lord  Ordi- 
nary shall  be  referred  to  for  no  other  pur- 
pose than  to  decide  such  questions  of  law. 
Appeals  against  any  judgment  by  the  Court 
upon  such  questions  of  law  are  put  on  the 
same  footing  as  appeals  against  bills  of  excep- 
tions ;  §  47.  It  is  also  competent  to  a  Lord 
Ordinary,  where  there  are  any  questions  of 
fact  which  it  is  desirable  should  be  investi- 
gated without  jury  trial  or  proof  on  commis- 
sion, to  pronounce  an  interlocutor  specifying 
such  questions,  to  which  the  parties  are  tu 
address  their  proof,  and  appointing  such  ques- 
tions to  be  tried  before  himself.without  a  jury ; 
and  the  proof  shall  be  limited  to  such  ques- 
tions, and  shall  proceed  at  such  time  and  place 
as  may  be  appointed,  unless,  on  review,  it  ap- 
pear to  the  Court  that  such  a  mode  of  inves- 
tigation is  not  expedient,  or  the  interlocutor 
be  otherwise  altered  by  the  Court ;  and  the 
Lord  Ordinary  shall  on  each  such  question 
find  separately,  and  his  findings  thereon  shall 
be  final,  subject  always  to  the  like  review, 
correction,  and  objection  as  would  be  compe- 
tent thereagainst,  under  the  statute,  if  such 
questions  had  been  tried  by  the  Lord  Ordi- 
nary on  issues ;  §  48.  In  any  cause  not  fall- 
ing within  those  specially  enumerated  in  6 
Geo.  IV.,  c.  123,  above  quoted,  it  is  compe- 
tent to  a  Lord  Ordinary,  with  consent  of  both 
parties,  or  upon  the  motion  of  one  of  the  par- 
ties, with  the  leave  of  the  Inner-House,  on 
the  Lord  Ordinary's  report,  or  to  the  Court 
when  the  cause  comes  into  the  Inner- House, 
to  appoint  the  evidence  in  such  case,  or  any 
portion  of  the  evidence,  to  be  taken  on  com- 
mission. And  the  Court  may  allow  proof  on 
commission  in  any  of  the  enumerated  cases, 
except  an  action  for  libel,  or  for  nuisance,  or 
in  one  which  is  properly  and  in  substance  an 
action  of  damages. 

An  interlocutor  of  the  Court  approving  of 
the  issues,  in  regard  to  which  there  is  a 
difference  of  opinion  among  the  Judges  of  the 
Division,  may  be  appealed  from  to  the  House 
of  Lords.  Johnstoa  v.  JohntUm,  10th  Aug. 
1859.    3  Macqueen,  House  of  Lords, 

The  procedure  in  regard  to  jury  trial  is 
also  regulated  by  A.  S.  of  16th  February  1841, 
10<A  July  1844,  24th  February  1846,  18<A 
Jidy  1850,  and  22d  June  1859. 


Without  noticing  the  provisions  more  pro- 
perly belonging  to  "  process,"  those  in  force 
relating  to  jury  trial,  under  the  statutes 
and  acts  of  sederunt,  seem  to  be  the  foUov- 
ing:— 

1.  Notice  of  trial  for  the  sittings  or  the 
circuit  may  be  given  by  the  pursuer  as  soon 
as  the  issues  are  finally  adjusted  and  authen- 
ticated. If  he  fail  for  ten  days  thereafter  to 
give  such  notice,  or  if,  after  giving  notice, 
he  countermands  the  same,  and  does  not  re- 
new the  notice  of  trial  within  ten  days  after 
the  countermand,  it  is  competent  to  the  de- 
fender to  give  notice  of  trial,  and  also  to 
countermand  the  notice  in  the  same  way  is 
the  pursuer.  But  if  the  defender  coonter- 
mands,  the  pursuer's  right  to  take  the  lead 
revives  for  other  ten  days  after  such  counter- 
mand ;  A.  S.  24tt  Feb.  1846.  In  Jf'Ciwaii  t. 
Wright,  17th  July  1852, 24  Jurist,  652,  it  was 
laid  down  by  the  Lord  Justice-Clerk  (Hope), 
that  this  provision  gave  right  to  the  defender 
to  give  notice  of  trial,  on  the  failure  of  the 
pursuer  so  to  do  for  ten  days  after  issues  wen 
settled — otdy  in  cases  to  be  tried  be/ore.ihe  Lord 
Ordinary  during  session ;  that  the  defender  it 
only  entitled  to  give  notice  if  the  paraner 
allows  the  sittings  to  elapse,  and  then  forfeitt 
his  lead ;  and  that  it  was  a  misconstruction 
of  the  acts  to  hold  otherwise.  And  a  notice 
given  by  the  defender  in  the  above  state  of 
matters  was  discharged.  The  cirenmstancea, 
however,  would  have  justified  that  motion 
independently  of  the  above  coostruction  oS 
the  Act  of  Sederunt,  which  may  well  be 
doubted.  See  also  M'NeiU  v.  aiUHe^22d 
March  1853,  15  D.  582,  where  the  pursuer 
was  also  held  not  to  have  lost  the  lead.  Is 
Gilmour  v.  GUmour's  Trs.,  11th  March  1852, 
14  D.  675,  in  appointing,  on  the  defender'^ 
motion,  a  cause  to  be  tried  before  a  partieniv 
judge  and  a  special  jury,  the  pursuer's  right 
to  countermand,  if  he  should  see  proper,  wii 
reserved  to  him,  be  having  given  the  notice 
of  trial. 

2.  As  to  trials  before  a  Lord  Ordinary,  it 
has  been  held,  where  amotion  was  made  to  s 
Lord  Ordinary  within  a  few  days  of  the  doe 
of  the  session,  to  fix  a  day  for  trial  before 
him  ;  and  where  the  three  weeks,  therefore, 
expired  before  the  next  session,  that  he  might 
fix  a  day  for  the  trial  during  the  next  session; 
A.  B.,  16th  March,  1856, 17  D.  759.  Giving 
notice  of  trial  for  the  ensuing  sittings  wiU 
not  prevent  either  party  from  making  a  mo- 
tion to  the  Lord  Ordinary  to  fix  a  day  for 
the  trial  before  himself,  under  §  40  of  13  sad 
14  Vict.,  c.  36 ;  Morrison,  7th  July  1853, 15 
D.  816.  When  such  motion  is  made,  the 
Lord  Ordinary  must  report  it  to  the  Court— 
M'Laren,  6th  June  1854,  16  D.  898— who 
most  fix  when  and  where  the  trial  shall  pro- 


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c^ed ;  and  while  it  has  been  held  that  the 
absolute  right  formerly  in  the  pursuer  to  fix 
the  time  and  place  of  trial  is  taken  away  by 
the  statute,  when  the  defender  avails  himself 
of  the  power  to  make  a  motion  to  the  Lord 
Ordinary  under  §  40,  still  some  cause  must 
be  shown  to  the  Court  for  disturbing  a  notice 
of  trial  given  by  the  pursuer,  and  the 
fact  of  the  pursuer  having  given  a  notice  of 
trial  fbr  the  sittings  is  material  in  a  ques- 
tion of  fixing  the  time  and  place ;  FauVct, 
17th  June  1854,  16  D.  964.  But  on  the 
I  eport  of  the  Lord  Ordinary,  the  trial  was 
fixed  by  the  Court  to  proceed  before  his  Lord- 
ship, although  the  defender  had  previously 
given  notice  of  trial  for  the  sittings;  Garron 
Co.,  7th  Feb.  1857,  19  D.  384.  It  is  no 
reason  for  withdrawing  a  trial  from  before 
the  Lord  Ordinary  during  session,  that  the 
expense  of  citing  the  jury  makes  the  cost  of 
trial  greater  than  at  the  sittings;  Lauder, 
21st  Nov.  1857,  20  D.  71 ;  or  that  the  trial 
is  likely  to  occupy  more  than  one  day ; 
Mtuhei,  2d  Feb.  1856, 15  D.  486.  Where  a 
new  trial  had  been  granted  on  a  defender's 
motion  as  against  evidence,  the  pursuer,  on 
4tfa  July,  the  day  immediately  following  the 
interlocutor  grantiug  the  new  trial,  gave  no- 
tice of  trial  for  the  sittings  in  July.  The 
defender  thereafter,  on  17th  July,  moved  the 
Ijord  Ordinary  to  fix  the  time  and  place  of 
trial.  The  Court  held  the  motion  so  made 
before  the  Lord  Ordinary  incompetent  under 
the  statute,  as  an  indirect  attempt  to  deprive 
the  pursuer  of  bis  right  to  countermand ; 
ShittU,  17th  July  1856,  18  D.  1301.  But 
see  Boyd,  19th  Feb.  1856,  18  D.  618;  Salli. 
day,  27th  June  1857, 19  D.  929  ;  also  WeUh, 
6Ui  Feb.  1868,  20  D.  513 ;  and  Mofal,  7th 
Jan.  1859,  21  D.  212,  where,  in  a  question 
affecting  the  defender's  character,  issues  hav- 
ing been  adjusted,  and  the  pursuers  having, 
on  23d  Dec.  1858,  given  notice  of  trial  tor 
the  circuit — on  the  defender's  motion  to  the 
Lord  Ordinary  to  fix  the  time  and  place  of 
trial  before  himself,  in  terms  of  the  statute 
—the  Court  fixed  the  trial  to  take  place 
before  his  Loi-dship. 

3.  To  entitle  a  party  to  go  to  trial  he  must 
give  fifteen  days'  notice  previous  to  the  trial, 
if  the  cause  is  to  be  tried  in  Edinburgh ;  and 
if  the  ti'ial  is  to  be  on  the  circuit,  be  must 
give  notice  on  or  before  the  second  last  day 
uf  the  session  immediately  preceding  the  cir- 
eait  at  which  the  cause  is  to  be  tried ;  A.  S. 
16A  Feb.  1841,  §  12.  When  a  notice  of 
trial  has  been  given  by  either  party  for  the 
sittings  after  the  winter  session,  or  after  the 
summer  session,  or  during  the  Christmas  re- 
cess, it  is  not  competent  for  him  to  counter- 
mand such  notice  after  the  expiry  of  the  time 
within  which  notices  of  trial  require  to  be 


given  for  such  sittings;  but  either  party, 
after  the  expiry  of  said  time,  may  apply  to 
the  Court  to  postpone  the  trial  for  any  cause 
which  could  not  have  been  foreseen  previous 
to  the  expiry  of  such  time ;  and  such  appli- 
cation may  be  made  after  the  termination  of 
the  session  to  the  Judge  who  is  to  preside  at 
the  trial,  or,  in  his  absence,  to  the  Lord  Ordi- 
nary on  the  Bills,  it  being  shown  to  the  sa- 
tisfaction of  such  Judge  or  Lord  Ordinary 
that  the  application  could  not  have  been 
made  ta  the  Court  during  session  ;  A.  S.,  22d 
June  1859. 

4.  An  application  for  interdict  against  a 
threatened  nuisance  is  not  one  of  enumerated 
causes ;  Amot  v.  Brovm,  7th  May,  Houte  of 
Lords,  1  M%,  229,  24  Jurist,  42.  In  a  re- 
duction on  the  head  of  facility  and  lesion,  the 
Lord  Ordinary,  after  advising  with  the  Court, 
allowed  proof  by  commission,  the  action, 
though  one  of  the  enumerated  causes,  not 
being  "  an  action  for  libel  or  nuisance,  or  in 
substance  an  action  of  damages ;"  LivingsUme, 
7thFeb.  1852,  ]4i).456. 

5.  When  a  party  gives  notice  of  trial  in 
Edinburgh  or  on  the  circuit,  the  other  party, 
if  he  wishes  to  have  the  place  of  trial  changed, 
must,  within  four  days  of  the  receipt  of  such 
notice,  make  a  motion  in  the  Division  for 
that  purpose. 

6.  Notice  of  motion  for  a  special  jury  must 
be  given  also  within  four  days  after  giving  or 
receiving  notice  of  trial,  which  notice  of  mo- 
tion must  be  lodged  and  served  36  hours 
before  it  is  moved  in  Court.  The  mode  of 
striking  the  special  jury  is  prescribed  by  A. 
S.  Uth  Feb.  1841,  §§  14  and  15.  A  special 
jury  will  not  be  granted  merely  in  respect  of 
the  status  of  the  parties;  Lizart  v.  Sytue, 
25th  June  1852,  14  D.  919. 

7.  All  plans,  maps,  models,  or  other  such 
productions  proposed  to  be  used  at  the  trial 
of  a  cause,  must  be  lodged  eight  days  before 
the  trial,  if  in  Edinburgh,  with  the  Clerk  of 
Court,  and  if  in  circuit,  either  with  said 
clerk  or  with  the  sheritt'-clerk  of  the  county 
town  where  the  cause  is  to  be  tried,  notice 
of  the  lodging  being  at  sametime  served  on 
the  opposite  agent ;  but  the  Court  may,  if  it 
be  made  out  on  oath  to  the  satisfaction  of 
the  Court  that  such  productions  could  not  be 
lodged  in  time,  permit  them  to  be  used  at  the 
trial.  In  like  manner,  all  writings  meant  to 
be  put  on  evidence  at  the  trial  must  be  lodged 
with  the  clerk  eight  days  before  the  trial, 
and  notice  given  at  sametime  to  the  opposite 
agent  of  the  writings  being  lodged.  No 
writings  but  those  lodged  as  aforesaid  can  be 
used  at  the  ti'ial,  except  of  consent.  But  the 
Court  may  permit  such  writings  to  be  given 
in  evidence  at  the  trial  on  its  being  established 
to  the  satisfaction  of  the  Couit  that  they  could 


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not  be  lodged  eight  days  before  tbo  trial,  nor 
before  the  period  at  which  they  are  actually 
produced  or  exhibited  to  the  opposite  party, 
and  that  notice  to  the  opposite  party  had  been 
given  of  the  particular  writing  or  writings 
proposed  to  be  produced ;  A.  S.  I6th  Feb. 
1841,  §§  18  and  19.  This  rule  held  to  apply 
to  writings  in  the  possession  of  the  party  be- 
fore the  record  was  closed,  and  not  then  pro- 
duced by  him ;  and  an  exception  to  the  ruling 
of  the  presiding  judge  wlio  excluded  such  writ- 
ings sustained.  Cameron  v.  Cameron's  Trus- 
tees, 2l8t  Dec.  1850, 13  D.  412. 

8.  A  trial  will  not  be  allowed  to  proceed  in 
absence  of  a  party,  unless  the  presiding  judge 
is  satisfied  that  due  notice  of  trial  has  been 
served  upon  the  party,  or  upon  the  known 
agent,  or  the  agent  in  the  former  proceedings 
of  the  cause. 

9.  In  examining  witnesses  at  a  trial,  the 
counsel  who  begins  the  examination  of  the  wit- 
ness shall  continue  it  until  he  exhaust  the  exa- 
mination. A  counsel  on  the  opposite  side  may 
then  cross-examine  until  he  exhaust  the  cross- 
examination  ;  and  then  the  counsel  who  first 
examined  the  witness  may  re-examine,  con- 
fining his  re-examination  strictly  to  such  new 
matter  as  arise  in  cross-examination,  unless 
with  permission  of  the  Court.  When  a  spe- 
cial verdict  is  to  be  found,  it  may,  with  con- 
sent of  parties,  be  settled  out  of  Court  by  the 
order  of  the  presiding  judge,  or  otherwise; 
but  if  parties  do  not  consent  to  this  mode  of 
settling  it,  the  different  parts  of  the  evidence 
shall  be  stated  to  the  jury,  that  they  may 
find  the  facts  which  are  to  constitute  the  spe- 
cial verdict. 

]  0.  Where  the  counsel  for  either  party  ex- 
cepts to  points  of  law  laid  down  by  the  pre- 
siding judge  in  the  course  of  a  trial,  or  in  his 
charge  to  the  jury,  the  counsel  tendering  such 
exception  shall  deliver  in  s  note  thereof  to 
the  judge  at  the  time  the  exception  is  taken  ; 
and  the  same  shall  be  certified  by  the  judge 
at  the  time,  by  subscribing  his  name  to  such 
note.  And  a  note  of  all  such  exceptions  shall 
be  finally  settled  and  certified  before  the  jury 
is  enclosed  to  consider  their  verdict.  A.  S. 
16th  Feb.  1841,  §  32.  See,  as  to  the  proper 
signing  of  such  note  at  the  trial,  PoUok,  4th 
July  1845,  7  D.  973 ;  Hurlet  Alum  Company, 
12th  Feb.  1850, 12  D.  704 ;  House  of  Lords, 
26th  June  1850,  7  Bell,  100. 

11.  All  the  regulations  as  to  notices  of  trial, 
abandonment  of  suit,  not  proceeding  to  trial, 
and  as  to  not  appearing  and  proceeding  with 
evidence  at  the  trial,  and  all  other  provisions 
regulating  the  conduct  of  parties  as  to  trials, 
are  the  same  in  the  case  of  a  new  trial  as  in 
the  case  of  an  original  trial ;  A.  S.  16th  Feb. 
1841,5  41. 

12.  In  case  either  party  do  not  appear  at  the 


trial  of  a  cause  after  due  notice  of  trial  hu 
been  given  by  the  opposite  party,  the  party 
appearing,  if  pursuer  in  the  issue,  shall  lie 
entitled  to  lead  his  evidence,  and  go  to  the 
jury  for  a  verdict,  and,  if  defender  in  the  issue, 
he  shall  be  entitled  to  a  verdict  in  his  favour, 
without  leading  evidence.  If  the  party  ap- 
pearing decline  to  proceed  in  this  manner, 
the  judge  presiding  at  the  trial  shall  certify 
to  the  Division  the  fact  of  the  other  party 
not  appearing,  and  the  Division  shall  there- 
upon proceed  as  in  cases  in  which  parties  are 
held  as  confessed,  unless  it  shall  be  shown  to 
tlie  satisfaction  of  the  Court  that  the  failure 
of  the  party  to  appear  at  the  trial  ira<i 
occasioned  by  some  sufficient  cause;  Do.  § 
46. 

13.  The  Act  of  Sederunt  of  10th  July  1844 
regulates  the  mode  of  charging  for  witnessts 
summoned  for  either  party  to  give  evidem-e 
at  a  trial,  and  the  sums  to  be  allowed  to  them ; 
and  the  Act  of  Sederunt  of  18th  July  185') 
contains  regulations  as  to  the  printing  of 
documents  to  be  used  at  the  trial. 

14.  In  regard  to  trials  before  the  Lord 
Ordinary,  under  the  13  and  14  Vict.,  c.  36, 
without  a  jury,  the  "  trial "  is  held  to  em- 
brace the  whole  proceedings,  including  the 
rehearing  before  the  Lord  Ordinary,  until 
his  final  deliverance  is  obtained ;  and  so  that 
to  entitle  a  party  to  raise  by  reclaiming  note 
objections  in  point  of  law  to  bis  interlocDtor 
or  verdict,  he  must  ask  from  the  Lord  Ordi- 
nary findings  in  point  of  law  ;  Balfour,  9th 
July  1854,  16  D.  1028.  And  that  when  a 
Lord  Ordinary,  after  pronouncing  an  inter- 
locutory verdict  and  appointing  a  rehearing, 
was  removed  to  the  Inner-House,  there  must 
be  a  new  trial  (also  without  a  jury)  before 
the  Lord  Ordinary  who  succeeded  him  in  tbo 
Outer-House.  Allan,  20th  June  1855,  17 
D.  969. 

15.  Questions  to  be  tried  before  a  Lord 
Ordinary  without  a  jury,  under  §  48  of  the 
Act  13  and  14  Vict.,  c.  36,  ought  to  be  snth 
as  to  exhaust  the  debateable  matter,  and  so 
framed  as  to  admit  of  being  answered  by  a 
simple  negative  or  affii-mative,  and  not  so  tta 
to  embrace  a  general  inquiry;  Buchanan. 
11th  March  1857,  19  D.  716.  And  it  is 
not  competent  to  a  Lord  Ordinary  to  pro- 
nounce after  such  trial  findings  as  to  ftets 
not  embraced  in  the  questions.  Buchanaa,  rtt 
supra. 

See,  on  the  subject  of  this  article.  Ail- 
vocation.  Damages.  Remit.  Issue.  Interro- 
gatories. Evidence.  Relationship.  Itttertst. 
Partial  Counsel.  Hearsay  Evidence.  Libd- 
Defamation.  Veritas  Convicii.  Verdict.  Ex- 
ceptions, Bill  of,  <te. 

Jus  AccrescendL    See  Accretion. 

Jus  Deliberandi    The  right  of  deliberaf- 

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ing  for  a  certain  period  after  his  predecessor's 
death,  as  to  the  propriety  of  taking  up  the 
defunct's  succession,  is  one  of  the  privileges 
of  an  apparent  heir.  Formerly,  the  period 
was  one  year ;  and  hence,  until  the  expiration 
of  year  and  day  after  the  ancestor's  death, 
the  heir  could  not  be  forced  to  enter  as  heir. 
By  the  Titles  to  Land  Act  (1858),  §  27,  the 
period  is  limited  to  six  months.  See  Anntus 
Deliberandi.  Heir.  Benefidum  Inventarii.  In- 
ventory.   Entry  of  an  Heir. 

Jus  in  Be— Jos  ad  Bern.  These  two  ex- 
pressions are  derived  from  the  Roman  law, 
and  serve  to  mark  the  distinction  between  the 
right  in  a  subject  enjoyed  by  the  proprietor, 
and  that  enjoyed  by  a  mere  creditor  for  its 
delivery.  The  proprietor  of  a  subject,  he 
who  has  the  jus  in  re,  is  entitled  to  claim  the 
subject,  or  to  defend  it  against  all  the  world. 
The  mere  creditor,  or  he  who  has  the  jus  ad 
rem,  possesses  no  real  right,  and  can  claim 
the  subject  only  from  the  debtor  in  the  obli- 
gation. This  distinction  is  well  illustrated 
by  the  contract  of  sale.  The  completion  of 
the  contract  of  sale  does  not  of  itself  transfer 
the  property  of  the  subject.  The  buyer  is, 
before  delivery,  merely  a  personal  creditor  of 
the  seller ;  and  if  the  subject  were  to  pass  out 
of  the  seller's  hands,  the  buyer  would  have 
no  claim  against  the  new  possessor  for  the 
subject  itself,  but  only  an  action  of  damages 
against  the  seller  for  not  implementing  his 
contract.  The  difference  between  jus  in  re 
And  jus  ad  rem  is  also  clearly  marked  in  cases 
of  bankruptcy.  If  one  person  has  a  right  of 
property  in  a  subject  possessed  by  another 
when  be  becomes  bankrupt,  that  subject  can- 
not be  seized  by  the  bankrupt's  creditors,  but 
must  be  restored  to  its  owner.  If,  however, 
all  the  right  possessed  be  a  jus  ad  rem,  the 
other  personal  creditors  of  the  bankrupt  are 
not  excluded.  Stair,  B.  i.  tit.  1,  §  22 ;  lit.  7, 
§  2;  Ersk.  B.  iii.  tit.  1,  5  2;  BelPs  Com.  i. 
279;  BdPs  Princ.  §  3,  87;  Bank.  i.  89; 
Broum  on  Sale,  Introdue.  p.  3,  et  seq.  See 
Sale.  Properly.  Personal  and  Real.  Obliga- 
tion.    Contract.    Possession. 

Jus  Kariti ;  is  the  uncontrolled  power  of 
administration  of  the  goods  in  communion, 
vested  by  law  in  the  husband.  In  virtue  of 
this  right,  the  husband  acquires  an  unlimited 
right  of  management  and  disposal  of  the 
moveable  estate  of  the  wife,  whether  belong- 
ing to  her  at  the  time  of  the  marriage  or 
acquired  during  its  subsistence.  The  hus- 
band is  entitled  to  sue  for,  recover,  and  in 
his  own  name  discharge,  all  sums  due  to  his 
wife,  and  falling  under  the  communion ;  and 
his  creditors  may  also  attach  them  for  pay- 
ment of  the  husband's  debts ;  insomuch  that, 
where  the  rents  of  the  wife's  heritable  estate, 
or  the  interest  of  heritable  bonds,  in  which 
2i 


she  is  creditor,  have  been  so  attached  as,  fall- 
ing under  the  jus  mariti,  she  is  not  entitled  to 
claim  from  the  creditors  an  aliment  out  of 
the  profits  of  her  own  property.  Hence,  the 
marriage  may  be  said  to  be  in  effect  a  legal 
assignation  by  the  wife  of  her  whole  moveable 
estate  in  favour  of  the  husband ;  in  virtue  of 
which,  even  after  the  dissolution  of  the  mar- 
riage, the  husband  or  his  heirs  may  recover 
subjects  falling  under  the  jus  mariti,  but  not 
recovered  during  the  subsistence  of  the  mar- 
riage. This  right  includes  all  moveable  sub- 
jecte,  the  rents  of  the  wife's  heritage,  the 
interest  of  heritable  or  of  personal  bonds. 
For,  although  personal  bonds,  bearing  inte- 
rest, are  declared  by  statute  to  be  moveable 
as  to  succession,  yet  the  same  statute  expressly 
excepts  from  the^s  mariti  iho  principal  sums 
in  such  bonds;  1661,  c.  32.  The  jus  mariti 
as  to  a  particular  subject  (but  not  per  aver- 
sionem)  may  be  renounced  by  the  husband  in 
an  antenuptial  contract  of  marriage ;  or  an 
estate  may  be  given  to  the  wife  by  a  stranger, 
exclusive  of  the  jus  mariti.  Ersk.  B.  i.  tit.  6,  § 
13,  et  seq.;  Stair,  B.  i.  tit.  4,  §  9,  «(  seq.; 
Mare's  Notes,  p.  xix.  et  seq.;  Bank.  vol.  i. 
p.  128,  et  seq.;  Bell's  Com.  \.  61,  632-8; 
MI'S  Princ.  §  1561 ;  lUust.  ib.  See  Goods 
in  Gommtmion.  Husband.  Contract  (if  Mar- 
riage. 

The  legal  assignation  implied  in  marriage 
does  not  convey  to  the  husband  any  moveable 
estate  conveyed  to  the  wife  before  marriage, 
by  a  deed  excluding  the  jus  mariti  of  any 
husband  she  might  marry,  it  being  immate- 
rial whether  the  exclusion  of  the  jus  mariti 
has  been  made  before  or  after  marriage. 
Accordingly,  in  the  case  of  Toung  v.  Loudon, 
June  26, 1855,  17  D.  998,  a  wife  was  held 
entitled  to  protect,  against  the  diligence  of 
her  husband's  creditors,  furniture  conveyed 
to  her  before  marriage  by  a  deed  excluding 
the  jus  mariti  of  &uy  husband  she  might  marry. 
Legitim  may  be  sued  for  by  a  husband  in  his 
own  name,  and  without  his  wife's  consent. 
See  the  case  of  Macdougal  y.  Wilson,  Feb. 
20,  1858,  20  D.  658.  Where,  however,  a 
wife  has  a  right  of  election  between  her  legi- 
tim and  the  provision  in  her  father's  set- 
tlement, the  exercise  of  that  right  by  the 
husband  is  subject  to  the  control  of  the 
Court;  and  he  or  his  creditors  will  not  be 
entitled  to  enforce  the  wife's  claim  of  legitim 
to  her  prejudice  and  that  of  her  children. 
See  the  case  of  Stevenson  v.  Hamilton,  Dec.  7, 
1838, 1  D.  181 ;  and  the  principle  established 
in  that  case  was  affirmed  by  the  subsequent 
case  of  Lowson  v.  Toung,  16  D.  1098,  in  which 
it  was  held  that  a  wife  had  the  option  of 
adopting  the  provision  in  her  father's  settle- 
ment in  the  place  of  her  legitim,  and  that  she 
could  not  be  controlled  in  the  exercise  of  that 


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option  by  her  husband  or  his  creditors.  In 
the  case  of  Smith  v.  Frier,  Feb.  7, 1857, 19 
D.  384,  an  heritable  bond  belonging  to  a 
wife  had  been  conreyed  by  her  in  security  to 
a  third  party,  with  the  consent  of  her  hus- 
band, shortly  before  his  banlcruptcy.  A  com- 
petition arose  between  the  creditor  assignee 
and  the  trustee  in  the  sequestration  for  the 
interest  which  fell  due  subsequent  to  the  as- 
signation ;  and  it  was  held  that  the  interest 
claimed  did  not  fall  under  the  jus  mariti  of 
the  husband,  and  the  creditor  assignee  was 
preferred. 

Jiu  BeliotSB ;  is  the  share  of  the  goods  in 
communion  to  which  a  wife  is  entitled  on  the 
dissolntion  of  her  marriage  by  death.    (See 
Goods  in  CWmunton.)     Where  the  marriage 
is  dissolred  by  the  predecease  of  the  husband, 
the  moveables  or  goods  in  communion,  after 
deduction  of  debts,  suffer  a  division.     When 
the  husband  has  left  children,  either  by  his 
last  or  by  any  former  marriage,  the  division 
is  tripartite — one-third  goes  to  the  children 
as  legitim — one-third  is  the  dead's  part,  which 
is  at  the  husband's  disp<Mal,  and,  failing  his 
destination  of  it,  it  will  go  to  the  children  as 
his  executors— -and  the  remaining  third  goes 
to  the  widow  as  jus  rdictte.    Where  there 
are  no  children,  the  goods  in  communion  are 
divided  into  two  equal  parts — one-half  is 
dead's  part  of  the  husband,  and  the  other _;uj 
rdictoe.     The  wife  has  right  to  the  jus  relicta, 
although  she  should  also  have  a  conventional 
provision  from  her  husband,  unless,  in  accept- 
ing such  provision,  she  has  bound  herself  to 
renounce  her /us  relicid;  Bell's  Com.  vol.  i.  p. 
632.    On  the  predecease  of  the  wife,  where 
there  were  no  children,  the  division  formerly 
was  into  two  equal  parts,  one  of  which  be- 
longed to  the  husband,  and  the  other  to  the 
next  of  kin  of  the  wife,  unless  she  had  destined 
it  otherwise.    This,  however,  was  altered  by 
the  Act  18  Vict.,  c.  23,  1855 ;    and  now  a 
wife's  representatives  have  no  right  to  any 
share  of  the  goods  in  communion,  and  no 
legacy  or  bequest  by  the  wife  will  affect  these 
goods.     See  Goods  in  Communion.     Where 
there  are  children  of  the  marriage,  or  of  a 
former  marriage  of  the  husband's,  not  foris- 
familiated, the  wife's  share  is  only  one-third ; 
Stair,  B.  i.  tit.  4,  §  23.    The  husband  cannot 
affect  the  jus  rdietce  by  any  testamentary,  or 
revocable,  or  other  mortis  causa  deed,  although 
he  may  diminish  its  amount  indirectly  during 
the  subsistence  of  the  marriage  by  his  man- 
ner of  administering  the  goods  in  communion ; 
Ersk.  B.  iii.  tit.  9,  §  16.     Personal  bonds 
bearing  interest  are  declared,  by  1661,  c.  32, 
to  be  moveable  and  descendible  to  executors ; 
but  that  statute  makes  an  exception  of  the 
rights  of  husband  and  wife,  and,  consequently, 
such  bonds  do  not  fall  nnder  the  iiu  rdietce. 


As  the  jus  rdicta  is  a  share  of  the  free  goods 
in  communion  only.  It  follows  that,  if  the 
husband  is  insolvent  at  the  dissolution  of  the 
marriage,  the  wife  cannot,  in  virtue  of  this 
right,  compete  with  his  creditors ;  nor  does  it 
create  any  jus  credili  in  the  wife,  entitling 
her  to  rank  on  the  bankrupt  estate.  See 
Divorce.  Thejtu  rdicta  being  a  legal  right, 
vested  in  the  wife,  to  a  certain  proportioa 
of  the  goods  in  communion,  is  not  to  be  re- 
garded as  a  succession.  Hence  it  vests  in 
the  wife  without  confirmation.  Stair,  B.  i. 
tit.  4,  §  23;  Morels  Notes,  pp.  cv.  cxxv.; 
Ersk.  B.  iii.  tit.  9,  §  15 ;  Bank.  vol.  i.  p. 
135;  BdTs  Com.  i.  142,  632;  BdTs  Prtw. 
§§  1591,  1946  ;  lUust.  §  1580  ;  Grakam, 
Dole's  Appeal  Cases,  ii.  314.  See  Gonfirmo' 
iion.  Executor.  Exeeutry.  Dead^sPart  Gm- 
tract  of  Marriage, 

Job  Credit! ;  signifies  the  right  vested  m 
the  creditor  in  a  debt  or  obligation ;  and  in 
legal  phraseology  the  term  is  frequently  used 
in  contradistinction  to  a  mere  spes,  or  defeas- 
ible expectancy.  This  jus  erediti  is  often  of 
great  importance ;  for  although  a  person  may 
not  be  entitled  to  be  put  in  immediate  posses- 
sion of  a  subject,  yet  the  obligation  to  deliver 
it  to  him  at  some  future  time  creates  in  him 
a  vested  right,  which  forms  part  of  his  estate. 
Thus,  when  heritage  has  been  conveyed  by  a 
trust-disposition,  the  completion  of  the  title 
in  the  person  of  the  trustee,  although  it  rests 
the  fee  in  him,  yet  leaves  to  the  person  for 
whose  behoof  it  is  intended  a  jus  erediti,  as  a 
real  burden  on  the  trust-estate.  The  conse- 
quence of  this  right  is,  that  the  creditors  of 
the  trustee  are  not  entitled  to  attach  the 
trust-estate  for  the  trustee's  debts.  And 
while  the  maxim  of  the  law,  that  a  fee  can- 
not be  in  pendente,  is  satisfied,  an  effectual 
right  is  constituted  for  persons  yet  unborn, 
or  otherwise  incapable  of  holding  the  fee. 
Where  heritable  subjects  are  vested  in  trus- 
tees, with  directions  to  convey  specific  portions 
of  the  heritage  to  the  parties  beneficially 
interested,  the  jus  erediti  thus  crested  is 
heritable.  If,  on  the  other  hand,  the  trus- 
tees are  directed  merely  to  pay  over  to  the 
parties  interested  a  sum  or  share  of  the  gene- 
ral trust-fund,  or  of  the  proceeds  of  the  trost- 
estate,  the  jus  erediti  is  moveable.  Under  a 
marriage  contract,  provisions  to  the  heirs  of 
the  marriage  constitute  in  them  a  jus  erediti, 
which  vests  in  themselves,  and  transmits  to 
their  representatives,  without  service  or  con- 
firmation, so  that  although,  in  some  respects, 
they  are  heirs  in  questions  with  creditors,  yet 
they  are  creditors  in  questions  with  heirs. 
As  a  consequence  of  this  jus  erediti,  it  hsi 
been  held  that  the  heir  entitled  to  claim  the 
benefit  of  the  contract  may  discharge  bis 
claim  under  it,  even  before  he  could  demsnd 


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the  fulfilment  of  its  terms.  -And  where  the 
father  is  bound  not  merely  to  provide  the  heir 
or  children  of  the  marriage  in  a  sum,  but  to 
make  payment  of  it  to  them  at  a  term  which 
may  happen  to  exist  before  the  father's  death, 
they  are,  in  virtue  of  their  _;««  crediti,  entitled 
to  come  into  competition  with  the  father's 
onerous  creditors ;  and  the  preference  will  be 
determined  according  to  the  nature  of  their 
rights,  and  the  priority  of  the  diligence  used 
upon  them.  More's  Notes  on  Stair,  cxcviii. ; 
Ersk.  B.  iii.  tit.  8,  §  40,  and  Note  by  Ivory; 
BeU'8  Com.  i.  34, 636  j  ii.  5  ;  BeU's  Prine.  §§ 
1482,  1968,  1980,  2017;  must.  §  1482; 
Sandford  on  Heritable  Succession,  i.  239, 
243,  256  ;li.  50;  Majendie,  Bligh's  Reports, 
iu  692. 

Jns  DeTolntnio.  In  order  that  a  church 
may  not  remain  too  long  vacant,  the  patron 
most  present  to  the  presbjrtery  a  fit  person  to 
Bopply  the  cure  within  six  months  after  a 
vacancy  has  occurred  by  the  death  of  the  last 
incambent,  or  otherwise ;  and,  if  the  patron 
fail  to  make  such  a  presentation  within  the 
six  months,  the  right  of  presentation  devolves 
upon  the  presbytery.  The  right  of  presenta- 
tion, thus  accruing  to  the  presbytery,  is  called 
the  JIM  devoliitum.  It  will  be  sufiBcient  to  bar 
the  exercise  of  the  right  of  the  presbytery,  if 
the  patron's  presentation  to  a  new  incumbent 
be  executed  within  six  months  after  the  va- 
caacy  occurs^  although,  from  accidents  not 
imputable  to  the  patron,  the  presentation 
shonld  not  reach  the  presbytery  until  after 
the  expiration  of  the  six  months ;  Lord  Dun- 
das,  15tt  May  1796,  Mor.  p.  9972 ;  1567,  c.  7. 
See  1592,  c  115;  1712,  e.  12;  Ersk.  B.  i. 
tit.  6,  §  17  ;  Hill's  Church  Prac.  58  ;  ifore'a 
Notes  on  Stair,  ccxliii. ;  Connell  on  Parishes, 
494;  Brown's  Synop.  1177, 1498 ;  Coolds  Prac. 
m  ChurtA  Courts,  70. 

Job  PrsBventionis ;  the  preferable  right  of 
jurisdiction  acquired  by  a  court,  in  any  cause 
to  which  other  courts  are  equally  competent, 
by  having  exercised  the  first  act  of  juris- 
diction. Ersk.  B.  i.  tit.  2,  §  9.  See  Juris- 
dietion. 

Jns  QiUBaitnm  Tertio,  Where,  in  a  con- 
tract between  two  parties,  a  stipulation  is 
introduced  in  favour  of  a  third,  who  is  not  a 
contracting  party,  the  right  thus  created  is 
■aid  to  be  jus  qucssitum  tertio.  Such  a  right, 
generally  speaking,  cannot  be  recalled  by  the 
contracting  parties,  and  the  third  party,  so 
far  as  he  is  concerned,  may  require  exhibi- 
tion and  implement  of  the  contract.  In  one 
ease,  where  a  promise,  though  gratuitous^ 
had  been  made  in  favour  of  a  third  party, 
that  party,  although  neither  present  nor  ac- 
eepting,  was  found  to  have  right  thereby.  But 
provisions  or  destinations  in  contracts  of  mar- 
riage, in  favour  of  other  parties,  are  regarded. 


not  as  jura  qucesita  tertio,  but  as  destinations 
of  succession,  which  may  be  altered  by  the 
spouses  at  pleasure.  The  maker  of  an  entail, 
although  he  has  delivered  it  to  a  third  party, 
may  demand  it  back  for  the  purpose  of  can- 
celling it ;  and  the  substitutes  cannot  claim 
a.ny  jus  guasitum  under  it ;  but  where  the  en- 
tail has  been  recorded,  and  an  investiture  ex- 
pede  upon  it,  it  cannot  be  altered  or  revoked, 
unless  express  power  to  that  effect  has  been 
reserved  in  the  deed.  A  right  taken  in  favour 
of  children  by  a  father  or  other  relation,  and 
intimated  to  the  children,  cannot  be  recalled, 
either  by  the  father  himself  or  his  creditors. 
When  the  purchaser  of  lands  has  been  taken 
bound  to  pay  the  price,  or  a  part  of  it,  to  the 
creditors  of  the  seller,  a  right  is  thereby 
vested  in  the  creditors,  upon  which  they  may 
use  inhibition  against  the  purchaser.  And 
In  such  cases^  the  purchaser  is  not  at  liberty 
to  prefer  such  creditors  as  he  thinks  proper, 
but,  having  received  a  list  of  the  creditors,  is 
bound  to  pay  each  creditor  in  this  list  pro- 
portionally. But  the  delivery  of  money  by  a 
person,  with  orders  to  apply  it  to  a  particular 
destination,  vests  no  right  in  those  for  whom 
it  is  destined  till  ii  be  paid  to  them,  or  until 
they  are  informed  that  it  is  held  for  their 
behoof.  In  the  meantime,  the  money  may  be 
reclaimed  by  the  person  who  delivered  it,  or 
it  may  be  arrested  by  his  creditors.  Where 
a  person  takes  a  right  in  the  name  of  a  third 
party,  which  he  never  intimates  or  delivers 
to  him,  the  insertion  of  the  third  party's 
name  is  regarded  as  a  mere  trust  created  in 
him  for  the  benefit  of  the  person  who  directed 
his  name  to  be  inserted.  But  some  authors 
have  thought  this  inconsistent  with  the  ge- 
neral doctrine  of  jus  qucesitum  tertio.  A  trust- 
settlement  partakes  of  the  nature  of  jus  quce- 
situm  tertio,  since  the  object  in  view  is,  not  the 
beneficial  interest  of  the  trustee,  but  some 
purpose  to  be  accomplished  in  which  a  third 
party  is  interested.  A  trust-disposition,  for 
the  behoof  of  creditors,  and  although  followed 
by  infeftment,  is  not  effectual  to  the  credi- 
tors, and  vests  no  interest  in  thera,  unless  they 
accede  to  it  where  accession  is  a  condition  of 
the  trust.  Stair,  B.  i.  tit  10,  §  6  ;  More's 
Notes,  Ixii.  and  cases  there  cited ;  BelTs  Com. 
i.  31;  Brown's  Synop.  h.  U;  Karnes'  Equity, 
321-7  ;  M'Donald,  Bligh's  R^orts,  ii.  547. 

Jos  Beprffisentetionis.  In  heritable  suc- 
cession, this  expression  is  usually  applied  to 
the  rule  of  law,  whereby  the  son  or  other  issue 
of  an  elder  son  deceased,  as  coming  in  place 
of  or  representing  their  father,  succeed  to 
the  grandfather's  heritage,  preferably  to  the 
grandfather's  surviving  younger  sons,  or  other 
immediate  children.  This  right  of  represen- 
tation takes  place  in  collateral  succession  to 
heritage,  as  well  as  in  that  of  descendants  in 

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the  direct  line,  but  formerly  had  no  place  in 
moveable  succession ;  but  this  was  altered  by 
the  Act  18  Vict.,  c.  23  (1855),  to  the  effect  of 
allowing  the  issue  of  a  predeceasing  next  ot 
kin  to  come  in  place  of  their  parent  in  intes- 
tate succession.  Ersk.  B.  iii.  tit.  8,  §  11. 
See  Sueeession.    Executon. 

Jns  luperTeniena  Anctori  aooreacit  Sno- 
oesMri  The  supervening  right  of  the  seller 
or  grantor  of  a  right  accresces  to  the  right 
of  his  disponee  or  successor.  This  is  the  Ko- 
man  law  maxim,  on  which  the  Scotch  law 
doctrine  of  accretion  rests.     See  Accretion. 

Jos  TertiL  When  a  party  in  an  action 
maintains  a  plea  which  he  has  neither  title 
oor  interest  to  maintain,  he  may  be  met  by 
the  reply,  that  it  is  jut  tertii  in  him  to  main- 
tain such  a  plea.  It  does  not  necessarily  fol- 
low that  the  party  so  met  would  not  be  bene- 
fited by  pleading  another  person's  right ;  for 
there  are  frequently  instances  where,  if  he 
were  allowed  to  do  so,  he  would  gain  his  own 
cause.  All  that  is  meant  is,  that  although 
an  objection  may  be  pleaded  against  the  title 
or  claim  of  one  party,  it  is  the  right  of  an- 
other than  the  opposite  party  to  plead  that 
objection,  since,  quoad  him  or  his  rights,  the 
title  or  claim  may  be  perfectly  good.  This 
will  best  be  understood  by  examples.  The 
cases  in  which  the  plea  of  jus  ttrtii  is  most 
frequently  urged  are  those  where  the  rights 
of  the  pursuer  and  of  the  defender  are  both 
derived  from  the  same  author,  and  where  the 
one  cannot  plead  a  defect  in  the  other's  title 
without  admitting  a  defect  in  his  own.  In 
such  a  case,  it  is  held  to  be  the  right  of  a 
third  person  to  plead  the  objection  against 
both.  Thus,  in  a  reduction  of  a  sale,  the  de- 
fender objected  that  the  title  of  the  pursuer's 
author  was  defective.  The  pursuer's  author 
being  the  common  author  of  both  parties,  it 
was  found  to  be  jui  teriii  in  the  defender  to 
object  to  that  author's  title  ;  Livingston,  14<A 
July  1768,  Mor.  7847  ;  Fraser,  26th  Feb.  1794, 
Mor.  7849.  It  is  usual,  in  granting  leases, 
to  insert  a  clause  excluding  assignees  and 
sub-tenants.  But  when  the  tenant  sublets  the 
property,  or,  passing  over  his  own  heir,  as- 
signs the  lease  to  a  second  son,  or  other  per- 
son not  his  heir,  it  is  jus  tertii  in  his  credi- 
tors or  heirs  to  plead  that  the  clause  has  not 
been  complied  with,  since  the  limiting  clause 
is  held  to  have  been  introduced  for  the  benefit 
of  the  landlord  alone ;  Haif,  8th  Dec.  1801, 
F.  C.  Mor.  15,297.  In  like  manner,  where 
a  creditor  had  obtained  decree  of  adjudica- 
tion on  his  debt,  and  charter  and  infeftment 
thereon,  the  debtor  being  alive  and  abroad, 
it  was  found  to  be  jut  tertii  to  the  daughters 
of  the  debtor  to  offer  payment  of  the  debt, 
and  that  the  creditor  was  not  bound  to  accept 
of  it,  and  disencumber  the  subject ;  Qowant, 


22(2  JvM  1810.  For  a  series  of  eases  lllai- 
trative  of  this  subject,  see  Mor.  Diet.  h.  U; 
Brown't  Synop,  h.  t.;  BeU  on  Leatet,  i.  168, 
200. 

Jutiee,  College  of.    See  CoUege  of  JutUee. 

Jtutice.  In  a  legal  acceptation,  justice 
may  be  said  to  be  the  impartial  administra- 
tion of  the  law,  according  to  the  principle  of 
giving  to  every  man  that  which  is  his  due. 
As  applied  to  the  conduct  of  individuals,  jus- 
tice consists  in  the  conformity  of  their  actions 
to  the  law  as  established.  Thus,  a  man  is 
said  to  be  just,  who,  whatever  his  motives 
may  be,  acts  conformably  to  the  principles 
of  justice,  by  implementing  his  legal  obli- 
gations and  engagements.  Ertk.  B.  i.  tit. 
1.  §  4 ;  Stair,  B.  i.  tit.  1,  §  2 ;  Bank.  i.  2. 
See  Equity. 

Jutiees;  officers  deputed  by  the  Sovereign 
to  administer  justice,  and  do  right  by  way  of 
judgment.  In  England,  justices  are  of  various 
kinds.  Justicet  of  Peace  (see  infra);  Jutticet 
of  Attize,  or  such  as  were  formerly  sent  by 
special  commission  into  the  different  counties 
to  take  Assizes ;  Jutticet  o/boih  £«nc&«s.  See 
Kin/t  Bench.  Common  Pleat.  Jutticet  (^tie 
Forett,  who  heard  and  determined  all  forest 
offences ;  Jutticet  of  Gaol-delivery,  or  such  u 
are  sent  with  commission  to  hear  and  deter- 
mine all  causes  appertaining  to  those,  who,  for 
any  offence  are  cast  into  gaol,  &c.  Tonlini 
Diet.  h.  t. 

Jnttice  of  the  Peace.  Justices  of  the 
peace  are  persons  appointed  by  royal  com- 
mission to  keep  the  peace  within  a  certain 
district.  Their  commission  is  in  the  follow- 
ing terms :  "  Victobi*,  by  the  Grace  of  God, 
of  the  United  Kingdom  of  Great  Britain  and 
Ireland,  Queen,  Defender  of  the  Faith,  To 
our  most  dear  and  faithful  counsellors,  {0» 
princet  of  the  blood,)  the  most  reverend  father 
in  God,  and  our  faithful  counsellor.  Arch- 
bishop of  Canterbury,  primate  and  metropo- 
litan of  all  England,  our  well  beloved  and 
faithful  counsellor,  our  Chancellor  of  that 
part  of  our  United  Kingdom  of  Great  Bri- 
tain and  Ireland  called  Great  Britain." 
Th«n  are  named  the  Archbishop  of  Tort,  the 
Archbithop  of  Armagh,  certain  of  the  membert  cf 
the  Privy  Council,  the  Lord  Justiee-Getterai, 
Justice-Clerk,  and  Committionert  of  Justiciary 
for  Scotland  for  tht  tipie  being,  the  Lord  Presi- 
dent and  Judget  of  the  Court  of  Session  for  thf 
time  being,  the  Lord  Advocate  and  SoUciler-Qe- 
neral  for  Scotland,  These  are  foUoviei  hy  ikt 
names  of  the  Gentlemen  of  the  counfy.—  ^  Osect- 
isa  : — Know  ye,  that  we  have  assigned  yoo, 
jointly  and  severally,  and  every  one  of  you, 
our  justices,  to  keep  our  peace,  in  our  county 
of  ,  and  to  keep,  and  cause  to 

be  kept,  all  the  ordinances  and  statutes  for 
the  good  of  our  peace,  and  for  the  preaerra* 


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tion  of  the  same,  and  for  the  quiet  rule  and 
gorernment  of  our  people,  made  in  all  and 
singular  their  articles  in  our  said  county  (as 
well  within  liberties  as  without),  according 
to  the  force,  form,  and  effect  of  the  same ; 
and  to  chastise  and  punish  all  persons  that 
offend  against  the  form  of  those  ordinances  or 
statutes,  or  any  one  of  them,  in  the  aforesaid 
county,  as  it  ought  to  be  done,  according  to 
the  form  of  those  ordinances  and  statutes; 
and  to  cause  to  come  before  you,  or  any  one 
of  you,  all  those  who,  to  any  one  or  more  of 
oor  people  concerning  their  bodies,  or  the 
firing  of  their  houses,  have  used  threats,  to 
find  sufficient  security  for  the  peace,  or  their 
good  behaviour  towards  us  and  our  people ; 
and  if  they  shall  refuse  to  find  such  security, 
then  them  in  our  prisons,  until  they  find  such 
aecnrity,  to  cause  to  be  safely  kept.  We  have 
also  assigned  yon,  and  every  two  or  more  of 
you,  of  whom  any  one  of  you,  the  aforesaid, 
(h«re  the  justices  before  named  are  again 
mentioned,)  we  will  shall  be  one,  our  justices, 
to  inquire  the  truth  more  fully,  according  to 
the  law  and  custom  of  the  land,  of  all  and  all 
manner  of  felonies  or  capital  crimes,  poison* 
ings,  enchantments,  sorceries,  arts,  magic, 
trespasses,  forestallings,  regratings,  ingross- 
inga  and  extortions  whatsover,  and  of  all  and 
singular  other  crimes  and  offences,  of  which 
the  justices  of  our  peace  may  or  ought  law- 
fully to  inquire,  by  whomsoever,  and  after 
what  manner  soever,  in  the  said  county,  done 
or  perpetrated,  or  which  shall  happen  to  be 
there  done  or  attempted.    And  also  of  all 
those  who,  in  the  aforesaid  county,  in  com- 
panies against  our  peace,  in  disturbance  of 
oar  people,  with  armed  force,  have  gone  or 
rode,  or  hereafter  shall  presume  to  go  or  ride ; 
and  also  of  all  those  who  have  there  lain  in 
wai  t,or  hereafter  shall  presume  to  lie  in  wait,  to 
maim,  or  cut  or  kill  our  people  ;  and  also  of  all 
Tictnallers,  and  all  and  singular  other  persons 
who,  in  the  abuse  of  weights  or  measures,  or 
in  selling  victuals,  against  the  form  of  the 
ordinances  and  statutes,  or  any  one  of  them, 
therefor  made,  for  the  common  benefit  of  our 
people,  have  offended,  or  attempted,  or  here- 
after shall  presume  to  offend  or  attempt ;  and 
also  of  all  sheriff,  bailiffs,  stewards,  con- 
stables, keepers  of  gaols  and  other  officers, 
who,  in  the  execution  of  their  offices  about  the 
premises,  or  any  of  them,  have  unduly  be- 
hared  themselves,  or  hereafter  shall  presume 
to  behave  themselves  unduly,  or  have  been, 
or  shall  happen  hereafter  to  be,  careless,  re- 
miss, or  negligent  in  our  aforesaid  county ; 
and  of  all  and  singular  articles  and  circum- 
Btances,  and  all  other  things  whatsoever  that 
concern  the  premises,  or  any  of  them,  by  whom- 
■oerer,  and  after  what  manner  soever,  in  our 
•foresaid  county,  done,  or  perpetrated,  or 


which  hereafter  shall  there  happen  to  be  done 
or  attempted  in  what  manner  soever  ;  and  to 
inspect  all  indictments  or  libels  whatsoever 
so  before  you,  or  any  of  you,  taken  or  to  be 
taken,  or  before  others  late  our  justices  of 
the  peace  in  the  aforesaid  county,  made  or 
taken,  and  not  yet  determined ;  and  to  make 
and  continue  processes  thereupon  against  all 
andsingular  the  persons  so  indicted  or  accused, 
or  who  before  you  hereafter  shall  happen  to  be 
indicted  or  accused,  until  they  can  be  taken, 
surrender  themselves,  or  be  outlawed,  or  de- 
clared rebels ;  and  to  hear  and  determine  all 
and  singular  the  felonies,  capital  crimes, 
poisonings,  enchantments,  sorceries,  arts,  ma- 
gic, trespasses,  forestallings,  regratings,  in- 
grossings,  extortions,  unlawful  assemblies,  in- 
dictments aforesaid,  and  all  and  singular  other 
the  premises,  according  to  the  laws  and  sta- 
tutes of  the  kingdom,  as  in  the  like  cases  it 
has  been  accustomed  or  ought  to  be  done ;  and 
the  same  offenders,  and  every  of  them,  for 
their  offences,  by  fines,  ransoms,  amercia- 
ments, forfeitures  and  other  moans,  as  accord- 
ing to  the  law  and  custom  of  the  land,  or 
form  of  the  ordinances  or  statutes  aforesaid, 
it  has  been  accustomed,  or  ought  to  be  done, 
to  chastise  and  punish.  Provided  always, 
that  if  a  case  of  difficulty,  upon  the  deter- 
mination of  any  of  the  premises  before  you, 
or  any  two  or  more  of  you,  shall  happen  to 
arise,  then  let  judgment  in  nowise  be  given 
thereon  before  you,  or  any  two  or  more  of 
you,  unless  in  the  presence  of  one  of  our  jus- 
tices, or  of  one  of  our  justices  appointed  to 
hold  courts  of  circuit,  in  the  aforesaid  county. 
And,therefore,we  command  you,  and  everyone 
of  you,  that  to  keeping  the  peace,  ordinances, 
statutes,  and  all  and  singular  other  the  pre- 
mises, you  diligently  apply  yourselves ;  and 
that  at  certain  days  and  places  which  you,  or 
any  such  two  or  more  of  you  (as  is  aforesaid) 
shall  appoint  for  these  purposes,  into  the  pre- 
mises you  make  inquiries,  and  all  and  singu- 
lar the  premises  hear  and  determine,  and 
perform  and  fulfil  them  in  the  aforesaid  form, 
doing  therein  what  to  justice  appertains,  ac- 
cording to  the  law  and  custom  of  the  land, 
saving  to  us  the  amerciaments,  and  other 
things  to  us  therefrom  belonging.  And  we 
command,  by  the  tenor  of  these  presents,  our 
sheriff  of  the  said  county  of  ,  that  at 

certain  days  and  places  which  you,  or  any 
such  two  or  more  of  yon  (as  is  aforesaid)  shall 
make  known  to  him,  he  cause  to  come  before 
you,  or  such  two  or  more  of  you,  as  afore- 
said, so  many,  and  such  good  and  lawful  men 
of  his  bailiwick,  (as  well  within  liberties  as 
without,)  by  whom  the  truth  of  the  matter  in 
the  premises  shall  be  the  better  known  and 
deteimined.  We  also  command  the  keepers 
of  the  rolls  of  our  peace  in  our  county  afore- 
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said  to  bring  before  yon,  at  the  days  and 
places  aforesaid,  the  writs,  precepts,  processes, 
and  indictments  aforesaid,  that  they  may  be 
inspected,  and  by  a  due  course  determined, 
as  is  aforesaid.  In  witness  whereof,  we  have 
caused  these  our  letters  to  be  made  patent. 
Witness  onrself,  at  Westminster,  the  day 
of  in  the  year  of  our  reign. 

(Signed  by  the  Secretary  of  State  for  the 
time.)" 

Annexed  to  the  commission  there  is  an 
oath  of  office,  which  is  now  invariably  taken 
by  justices  of  the  peace  in  Scotland,  before 
entering  on  their  office,  instead  of  the  oath 
contained  in  the  Scotch  acts.  The  oath  is  in 
these  terms :  "  Ye  shall  swear,  that  as  justice 
of  the  peace  in  the  county  of  ,  in  all 

articles  in  the  Queen's  commission  to  you  di- 
rected, you  shall  do  equal  right  to  the  poor 
and  to  the  rich,  after  your  cunning,  wit,  and 
power,  and  after  the  laws  and  customs  of  this 
realm  and  statutes  thereof  made :  And  ye 
shall  not  be  of  counsel  with  any  person  in  any 
quarrel  hanging  before  you :  And  that  ye 
hold  your  sessions  after  the  form  of  the  sta- 
tutes thereof  made :  And  the  issues,  fines, 
and  amerciaments  which  shall  happen  to  be 
made,  and  all  forfeitures  which  shall  fall  be- 
fore yoa,  you  shall  truly  cause  to  be  entered 
without  any  concealment  or  embezzling,  and 
truly  send  them  to  the  Queen's  Exchequer : 
Ye  shall  not  let  for  gift  or  other  cause,  but 
well  and  truly  ye  shall  do  your  office  of  jus- 
tice of  the  peace  in  that  behalf :  And  that  you 
take  nothing  for  your  office  of  justice  of  the 
peace  to  be  done,  but  of  the  Queen,  and  fees 
accustomed,  and  costs  limited  by  statute :  And 
ye  shall  not  direct,  nor  cause  to  be  direct- 
ed, any  warrant  by  you  to  be  made  to  the  par- 
ties, but  you  shall  direct  them  to  the  bailiffs 
of  the  said  county,  or  other  the  Queen's  offi- 
cers or  ministers,  or  other  indifferent  persons, 
to  do  execution  thereof.     So  help  you  Qod." 

The  office  of  justice  of  the  peace  was  at- 
tempted to  be  introduced  into  the  practice  of 
Scotland  by  the  Act  1587,  c.  82 ;  but  the 
state  of  manners,  as  exhibited  in  that  sta- 
tute, was  not  such  as  to  promise  success  to 
a  regulation  of  this  kind,  and  it  required  re- 
peated legislative  enactments  to  lay  the  foun- 
dation of  this  valuable  system.  Nor  does 
this  appear  to  have  been  fully  done  until  the 
time  of  the  Usurpation,  after  which,  the  Act 
1661,  c.  38,  prescribed  those  rules  which  have 
ever  since,  in  a  great  measure,  regulated  this 
important  branch  of  public  police.  By  the 
Articles  of  Union,  the  laws  for  regulating  the 
trade,  customs  and  excise,  are  declared  to  be 
the  same  in  Scotland  as  in  England ;  and, 
accordingly,  justices  of  the  peace  in  Scotland 
are  vested  with  the  same  powers  with  those 
in  England  in  matters  touching  the  customs 


and  excise ;  and,  by  the  Stat.  6  Anne,  e.  6, 
§  2,  the  same  powers  were  given  to  justices 
of  the  peace  in  Scotland  which  had  formerly 
been  enjoyed  by  justices  of  the  peace  in  Eng- 
land in  relation  to,  and  for  the  preservation 
of,  the  peace ;  leaving  the  trials  and  judgments 
to  be  regulated  by  Scotch  forms  and  customs. 
This  act  had  the  effect  of  doing  away  cer- 
tain restrictions  in  regard  to  the  persons  sub- 
ject to  the  jurisdiction  of  justices  of  the  peace, 
and  in  regard  to  the  time  within  which  they 
were  at  liberty  to  act,  and  placed  them  on 
the  same  footing  in  those  respects  with  the 
English  justices  of  the  peace.  In  Scotland, 
no  particular  qualification  in  rank  or  property 
is  required  to  entitle  a  person  to  act  as  a  jus- 
tice of  the  peace.  Whoever  is  named  in  the 
commission  may  accept  and  act.  Neither  is 
there  any  general  disqualification  preventing 
justices  from  acting,  except  that  introduced 
by  a  recent  statute,  which  declares,  that  no 
solicitor  or  procurator  before  any  inferior 
eourt  in  Scotland,  or  the  partner  of  such  per- 
son, shall  be  entitled  to  act  as  a  justice  of 
peace  while  he  or  his  partner  shall  continue 
to  practise  in  a  court  of  the  above  description ; 
6  Geo  IV.  c.  28,  §  27.  Even  this  restriction 
seems  not  to  affect  the  nomination  of  such  ao 
individual,  but  merely  to  suspend  his  pover 
of  acting  under  the  commission  of  the  peace. 
No  one  named  in  a  commission  of  the  peace, 
is  by  law  bound  to  accept  the  appointment 
If  he  widi  to  abstain  from  being  a  justice,  he 
may  omit  to  qualify  himself,  by  taking  the 
usual  oaths ;  and  there  is  no  reason  for  sup- 
posing, that  a  justice  of  the  peace  who  wishes 
to  be  relieved  of  his  office,  may  not  resign  as 
freely  as  any  other  public  servant.  Before 
acting,  it  is  necessary  to  take  the  oath  defideU 
adminittratione  in  the  above  terms.  The  oaths 
of  allegiance,  of  assurance,  of  abjuration,  and 
of  supremacy,  must  also  be  taken  by  the  jus- 
tices before  they  enter  upon  their  office. 

The  general  jurisdiction  of  justices  of  the 
peace  relates  only  to  the  preservation  of  the 
peace.  They  are  specially  intrusted  with  the 
execution  of  several  penal  statutes  concemiog 
rural  economy,  such  as  the  statutes  relating 
to  planting  and  inclosing,  and  the  like ;  and 
various  ministerial  duties  connected  with  the 
regulation  of  the  highways  are  in  like  man- 
ner committed  to  them.  They  also  judge  in 
many  important  questions  connected  with  the 
revenue  of  customs  aud  excise,  and  other 
branches  of  the  revenue,  as  to  which  the  spe- 
cial statute  imposing  the  duty  gives  justices 
of  the  peace  certain  powers ;  and,  by  special 
enactments  in  several  statutes,  certain  minis- 
terial or  judicial  powers  are  conferred  on  jm- 
tices.  Without  enumerating  those  statates, 
it  may  be  stated  as  a  general  proposition, 
that  no  justice  can  safely  act  in  virtue  of 


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statutory  poven  without  having  before  him 
the  particular  statute  conferring  those  powers. 
The  civil  jurisdiction  of  justices  of  the  peace 
has  been  greatly  enlarged  by  the  small  debt 
acts.  See  SmaM  DebU.  But,  independently 
of  those  acts,  justices  of  the  peace  judge  in 
questions  as  to  the  aliment  of  natural  child- 
ren, as  being  in  some  degree  connected  with 
the  public  peace ;  see  Bastard ;  and  also,  by 
usage,  resting  partly  on  statute,  they  judge 
in  questions  concerning  servants'  wages.  With 
these  exceptions,  however,  they  seem  to  have 
no  civil  jurisdiction  except  under  special 
statutes.  They  have  a  statutory  jurisdiction 
with  regard  to  the  expense  of  march  fences 
and  the  straighting  of  marches,  and  also  (al- 
though that  is  not  so  clear)  with  regard  to 
the  damage  done  by  cattle  who  have  trespas- 
sed, and  have  been  poinded  hrevi  manu  on  the 
grounds  of  another  person.  It  is  still  more 
doubtftil  whether  justices  can  competently 
judge  in  an  action  embracing  a  civil  claim  of 
damages  for  injury  done  by  the  offender,  as 
well  as  a  conclusion  for  fine  or  imprisonment 
ad  vindictam  publicam,  e.  g.  in  a  libel  at  the 
instance  of  the  public  prosecutor  and  the  pri- 
vate party  for  an  assault.  Under  the  small 
debt  acts,  a  person  who  has  been  injured  by 
assault  or  otherwise,  may,  no  doubt,  sue  be- 
fore the  justices  for  reparation  or  damages 
from  the  person  who  has  iigured  him,  as  a 
mere  civil  debt,  provided  he  limits  his  claim 
of  debt  on  that  account  to  L.5.  But  there 
is  an  obvious  and  broad  distinction  between 
such  a  claim  of  debt  under  those  statutes,  and 
an  action  concluding  for  fine  or  imprisonment 
against  the  offender,  on  account  of  his  offence 
against  the  public  peace,  and  at  the  same 
time  for  civil  reparation  to  the  injured  party. 
The  jurisdiction  of  justices  of  the  peace,  in 
such  mixed  actions,  may  be  warranted  in  some 
instances  by  custom,  but  it  seems  hardly  re- 
coneileable  with  sound  legal  principle.  See 
Damages. 

Although,  generally  speaking,  justices  can- 
not act  in  causes  in  which  they  are  person- 
ally interested,  they  may  act  in  all  questions 
about  the  poor,  vagrants,  highways  or  other 
laws  concerning  parochial  rates,  though  them- 
selves liable  in  the  burdens  imposed  for  those 
objects  ;  it  has  also  been  held  that  afiidavits 
may  be  made  before  a  justice  though  having 
an  interest;  Kerr,  12th  June  1852,  17  />., 
H.  L.,  p.  11.  A  justice  of  the  peace  may  also 
commit  a  person  who  assaults  or  violently 
interrupts  him  in  the  execution  of  his  office, 
until  the  offender  find  security  to  keep  the 
peace,  but  he  has  no  power  to  imprison  in 
order  to  enforce  his  decisions  in  ordinary  civil 
cages.  Justices  cannot  act  in  the  determina- 
tion of  any  appeal  to  the  quarter  sessions, 
from  anything  relating  to  the  parish  or  place 


in  which  they  are  subject  to  those  rates ;  16 
Geo.  II.  c.  18,  §§  1, 3.  By  special  enactments, 
commissioners  of  excise  and  customs,  and 
others  connected  with  those  branches  of  the 
revenue,  cannot  act  as  justices  in  revenue 
questions  cognisable  by  justices  of  the  peace ; 
and  similar  exceptions  apply  to  officers  of  the 
army,  and  to  coal-masters  in  questions  relat- 
ing to  soldiers  and  colliers.  See  Colliers. 
Enlistment.  There  are  various  other  exclu- 
sions under  special  statutes,  for  which  see 
Barclay's  Digest,  p.  657.  Unless  authorized 
by  special  statute,  justices  cannot  exercise  any 
judicial  or  coercive  power  as  justices  beyond 
the  county  to  which  they  belong ;  but  they 
may  perform  ministerial  acts,  such  as  receiv- 
ing the  statements  of  a  person  who  has  been 
robbed  or  assaulted ;  and  they  may  also 
exercise  voluntary  jurisdiction  beyond  their 
territory,  such  as  taking  affidavits  in  general, 
taking  the  judicial  ratifications  of  married 
women,  and  the  like.  Justices  are  liable  to 
criminal  prosecution  before  the  Court  of  Jus- 
ticiary ;  and  in  like  manner  to  civil  actions 
of  damages  before  the  civil  court,  on  account 
of  oppression  or  injustice,  or  other  illegal 
proceedings  in  their  official  capacity.  But 
in  such  cases  they  are  leniently  dealt  with, 
and  large  allowances  are  made  for  errors  and 
defects  in  judgment  and  capacity,  where  it 
appears  that  they  were  acting  honafde  for  the 
public  good.  And,  by  a  special  statute,  it  is 
provided  that,  in  actions  against  any  justice 
of  the  peace  in  Great  Britain  or  Ireland 
(which  statute  is  held  to  extend  to  Scotland), 
for  any  summary  conviction  under  any  act  of 
Parliament,  or  for  anything  done  by  him  to* 
wards  carrpng  such  conviction  into  effect,  if 
the  conviction  shall  be  quashed,  the  plaintiff 
(besides  any  penalty  levied)  shall  recover  only 
twopence  without  costs,  unless  malice  and 
want  of  probable  cause  be  expressly  alleged ; 
and  that  the  penalty,  damages  or  costs,  shall 
not  be  recovered  if  the  plaintiff  be  proved 
guilty  of  the  offence,  and  the  punishment  un- 
dergone did  not  exceed  that  assigned  by  law ; 
43  Qeo.  in.  c.  131,  §  1 ,  rf  seq.  This  act  has 
been  extended  by  9  Qeo.  IV.,  c  29,  §  26,  and 
1  Will.  IV.,  c.  87.  Justices  of  the  peace, 
however,  ought  to  act  with  exceeding  caution 
in  everything  relating  to  the  personal  liberty 
of  the  subject;  for,  in  such  cases,  the  plea  of 
good  intention  will  be  no  justification  of  an 
illegal  act.  This  is  particularly  the  case  un- 
der the  Liberation  Statute,  1701,  c.  6,  where- 
by justices  and  other  judges  are  subjected  to 
penalties  for  error,  whatever  their  intentions 
may  have  been.  See  Bail,  Commitment  for 
Trial.  Arrestment  of  Persons.  Backing  a 
Warrant.     Wrongous  Imprisonment. 

A  justice  of  the  peace  receives  no  pecuni- 
ary recompense ;  but  he  will  be  reimbursed 

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by  the  sheriff  of  the  connty  for  any  pecuniary 
advances  properly  made  for  the  public,  in  the 
execution  of  his  office ;  such  disbursements 
being  either  presented  in  Exchequer,  or  re- 
paid from  the  rogue  money  of  the  county.  A 
commission  of  the  peace  may  be  recalled  at 
any  time  by  the  Sovereign,  and  it  falls  by 
the  demise  of  the  Crown;  though,  by  1 
Anne,  st.  1,  c.  8,  $  2,  it  is  continued  for  six 
months  longer,  unless  it  shall  be  recalled  by 
the  successor.  The  clerk  of  the  justices,  or 
of  the  quarter  sessions,  is  named  by  the  Secre- 
tary of  State,  but  failing  his  attendance,  the 
justices  may  appoint  a  clerk  fro  re  nata  for  any 
particular  court.  It  is  by  the  clerk  that  the 
books  in  which  their  proceedings  are  recorded 
are  kept.  See  Clerk  of  the  Peace.  The  fiscal 
is  an  officer  who  gives  his  instance  or  concur- 
rence to  the  steps  necessary  to  be  taken  for 
the  apprehension  and  prosecution  of  delin- 
quents; and  this  officer  is  also  appointed 
collector  of  the  fines  and  penalties  which  the 
justices  of  the  peace  have  the  power  to  impose. 
The  procurators  of  the  sheriff-court  practise 
before  the  justices  (except  under  the  small 
debt  acts),  and  the  warrants  of  the  justices 
are  executed  by  constables,  who  are  officers 
appointed  by  the  justices  of  peace.  See  Con- 
stables. There  is  not  in  the  Scotch  commis- 
sion a  custos  rotuiorum,  as  in  England ;  and  the 
quorum,  or  a  certain  number  of  justices  with 
superior  powers,  on  account  of  their  superior 
knowledge,  formerly  named  by  the  English 
commissions,  has  never  been  introduced  into 
the  Scotch  ones.  See  Custos  Rotuiorum.  See, 
on  the  subject  of  this  article,  12  and  13  Vict., 
e.  34 ;  19  and  20  Vict.,  c.  48 ;  Hutch.  Justice 
of  the  Peace,  vol.  i.  p.  1,  et  seq.;  Taifs  Sum- 
mary, p.  180,  et  seq,;  harday's  Digest;  Bur- 
ton's Manual,  p,  24  ;  Ersk.  B.  i.  tit.  4,  §  13 ; 
et  seq.  See  also  Tomlins'  Diet.  h.  t. ;  Bank. 
vol.  ii.  p.  568,  et  seq.;  BeU's  Princ.  §  2206 ; 
Blair's  Compendium,  h.  t.;  Dunlop's  Parish 
Law,  p.  267. 

Justice  Ayret ;  means  the  circuits  through 
the  kingdom  made  for  the  distribution  of 
justice.  See  Justiciary  Court.  Ersk.  B.  i.  tit. 
3,  §  25. 

Justice-Clerk.    See  Lord  Justice-Clerk. 

Juitioe-OeneraL  The  Lord  Justice-Gene- 
ral, as  the  President  or  head  of  the  Court  of 
Justiciary,  was  formerly  an  officer  of  .high 
rank  and  consideration.  For  a  long  course 
of  years,  however,  the  office  had  been  a  sine- 
cure, usually  held  by  one  of  the  Scotch  nobi- 
lity, while  the  duties  of  President  of  the  Court 
of  Justiciary  were  almost  invariably  dis- 
charged by  the  Lord  Justice-Clerk.  Hence, 
it  was  deemed  expedient  in  effect  to  abolish 
the  office ;  and,  accordingly,  by  1  Will,  IV. 
r.  69,  §§18  and  19,  it  was  enacted,  that,  on 
^he  termination  of  the  then  existing  interest. 


the  office  should  devolve  upon,  and  remain 
united  with,  that  of  Lord  President  of  the 
Court  of  Session,  who  should  perform  the 
duties  of  presiding  Judge  in  the  Court  of 
Justiciary,  without  salary.  In  this  capacity 
the  Lord  President  may  also  be  present  at  any 
circuit  court,  and  may  dispatch  the  business 
there,  whether  any  other  judge  or  judges  of 
the  Court  of  Justiciary  be  present  or  not 
See  Justiciary  Court.    Circuit. 

Justiciary  Court  The  High  Court  of 
Justiciary  is  composed  of  five  of  the  Lords  of 
Session,  added  to  the  Lords  Justice-General 
and  Justice-Clerk,  of  whom  the  Lord  Justice- 
General,  and,  in  his  absence,  the  Lord  Jus- 
tice-Clerk, is  President  The  constitution  of 
this  Court  was  settled  by  the  Act  1672,  c  16. 
At  first,  the  judges  were  named  for  life,  and 
thereafter  they  seem  to  have  been  removable 
at  the  pleasure  of  the  Crown  ;  but,  at  the  Re- 
volution, it  was  made  an  article  of  the  claim 
of  right,  "  that  the  changing  the  nature  of 
the  judges'  gifts,  ad  vitam  aut  culpam,  into 
commissions  durante  bene  plaeito,  is  contrary 
to  law  ; "  and,  by  the  commission  in  1690,  no 
such  power  is  reserved  by  the  Crown.  The 
quorum  of  this  Court  consists  of  three  judges; 
1681,  c.  22 ;  23  Geo.  IIL  c  45 ;  Ersk.  B.  L 
tit.  3,  §24,  et  seq.;  Ivory's  edit,  note  58  ;  Hume, 
vol.  ii.  p.  1,  et  seq.  The  Court  of  Justiciary 
had  anciently  justice  ayres  or  circuits  for  dis- 
tributing justice  in  the  different  parts  of  the 
kingdom.  These,  however,  notwithstanding 
the  regulations  which  were  made  for  them, 
had  fallen  into  disuse ;  and,  in  1748,  by  the 
Sut.  20  Geo.  IL  c.  43,  it  was  directed  that 
circuit  courts  should  be  held  regularly  twice 
a-year,  on  which  footing  they  have  ever  since 
continued.  By  the  Stat.  30  Geo.  III.  c.  17, 
the  spring  circuit  must  be  held  between 
March  12  and  May  12.  By  the  23  Geo.  IIL 
c.  45,  the  Lords  of  Justiciary  are  directed  to 
continue  in  each  circuit  tdwn  at  least  three 
days;  by  11  and  12  Vict.,  c.  79,  §  8,  Uie 
Judges  on  circuit  in  Glasgow  are  authorized 
to  sit  separately  in  different  Courts — one 
Judge  may  proceed  to  business  in  the  absence 
of  his  colleague ;  and  when  necessary  the  eir^ 
cuit  Court  may  certify  a  case  commenced  be- 
fore it  to  the  whole  Court  of  Justiciary  for 
consideration.  There  are  three  circuits: — 
the  South,  consisting  of  the  burghs  of  Jed- 
burgh, Dumfries,  and  Ayr ;  the  West,  con- 
sisting of  Glasgow,  Inverary,  and  Stirling; 
and  the  North,  consisting  of  Perth,  Aberdeen, 
and  Inverness.  And  under  the  Stat  9  Geo. 
IV.  c.  29,  a  winter  circuit  court,  for  criminal 
business  merely,  is  held  at  Glasgow  during 
the  Christmas  recess  of  the  Court  of  Session. 
See  Circuit  Court. 

The  jurisdiction  of  the  Court  of  Justiciary, 
which  is  the  supreme  criminal  tribanal  of 

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Scotland,  extends  to  all  crimes,  and  includes 
the  whole  of  Scotland ;  and  it  is  superior  to 
that  of  all  criminal  judges,  whose  sentences 
it  is  entitled  to  advocate  or  suspend.  A  libel 
may  be  brought  before  the  Justiciary  Court, 
concluding,  not  only  for  the  pains  of  law,  but 
for  damages  to  the  suffering  party,  if  it 
arises  out  of  an  act  of  criminal  delinqnence ; 
bat  the  patrimonial  conclusions  alone  can- 
not be  brought,  though  the  loss  had  arisen 
from  a  criminal  act.  The  circuit  conrt, 
however,  has  a  civil  jurisdiction  "by  way 
of  appeal,  as  to  which,  see  Circuit  Covri 
Appeal.  All  persons,  whether  native  or 
foreigners,  are  amenable  to  the  Court  of  Jus- 
ticiary, if  the  offence  committed  be  one  against 
the  public  laws  of  the  realm  ;  and  this  rule 
comprehends  even  Peers,  in  regard  to  assaults 
and  inferior  crimes;  although,  for  treason  or 
any  other  felony,  they  can  only  be  tried  by  a 
coart  of  their  own  order,  assembled  by  the 
Jjord  High  Steward  of  Great  Britain.  See 
Peer.  Member  of  Parliament.  This  conrt  can- 
not try  crimes  of  a  military  nature,  such  as 
crimes  against  the  Mutiny  Act,  nor  offences 
of  soldiers  against  the  regulations  or  disci- 
pline of  the  royal  navy,  nor  of  ecclesiastics 
against  the  rules  and  discipline  of  their  body. 
But  in  offences,  not  included  in  the  above 
restriction,  committed  in  the  Scotch  or  high 
seas,  on  board  a  British  vessel,  belonging  to 
a  Scotch  port,  they  have  a  privative  juris- 
diction ;  and  in  inferior  maritime  crimes,  a 
jnrisdiction  cumulative  with  that  of  the  she- 
riflb ;  for,  although  a  statutory  court  may  have 
been  appointed  for  the  trial  of  special  offences, 
the  Conrt  of  Justiciary,  in  virtue  of  their 
original  and  inherent  jurisdiction  over  all 
offences,  have  a  cumulative  jurisdiction  in 
such  cases,  unless  the  jurisdiction  of  the  Court 
is  expressly  taken  away.  And  on  the  same 
principle,  where  new  offences  are  created  by 
statute,  it  requires  the  clearest  expressions  to 
limit  the  cognisance  of  such  offences  to  any 
other  court,  and  exclude  the  jurisdiction  of 
the  Justiciary  Court.  This  Court  has  a  pri- 
T&tive  jurisdiction  in  the  four  pleas  of  the 
Crown  (see  Pleat  of  the  Croum) ;  as  also  in 
falsehood  and  forgery,  when  remitted  from  the 
Court  of  Session ;  in  all  statutory  offences 
where  transportation  may  be  awarded ;  9 
Geo.  IV.,  c.  69,  §  II ;  in  all  capital  crimes 
newly  created;  and  in  offences  directed  against 
the  State,  or  the  administration  of  justice,  or 
the  execution  of  their  duty  by  its  own  officers. 


There  are  also  certain  statutes  creating  of- 
fences, and  limiting  their  cognisance  to  this 
Court;  but  these  are  almost  all  in  desuetude. 
The  Court  of  Justiciary  has  the  exclusive 
power  of  providing  a  remedy  for  all  extraor- 
dinary or  unforeseen  occurrences  in  the  coarse 
of  criminal  business,  whether  before  them- 
selves or  any  inferior  court.  They  have  also 
the  power  of  reviewing  the  sentences  of  all 
inferior  criminal  courts  in  Scotland;  the 
method  of  review  being  either  by  advocation, 
suspension,  or  appeal.  Ko  appeal  lies  from 
the  decisions  of  the  High  Court  of  Justiciary, 
whether  bterlocutory  or  final,  to  the  House 
of  Lords,  or  to  any  other  court.  See  Hume,  ii. 
l,etieq. ;  Ersk.  B.  i.  tit.  3,  §  24,  «<  seq. ;  BeWt 
Notes,  Alison's  Pract.  1,  et  seq.;  Bank.  ii.  522. 
See  Criminal  Prosecution.  AppeaL  Circuit 
Court.  Jury  Courts,  Judges.  Bill  of  Suspen- 
sion.   Bill  of  Advocation. 

Jiutifiable  Homicide ;  is  homicide  which 
the  killer  is  bound  or  entitled  to  commit,  on 
grounds  of  public  or  private  duty.  Public 
duty  will  excuse— lawful  sentence  of  death ; 
slaughter,  necessary  in  the  suppression  of  a 
riot ;  slaughter  of  a  criminal  by  an  officer, 
rendered  indispensable  by  his  violent  resist- 
ance ;  homicide,  on  resistance  of  a  civil  war- 
rant, when  the  resistance  is  such  that  the 
officer's  life  would  be  in  danger  if  he  were  to 
persist  in  executing  his  duty ;  homicide  by  a 
sailor  or  soldier  on  duty,  if  violently  invaded ; 
homicide  by  a  revenue  officer  on  seizing  run 
goods,  when  the  resistance  would  put  his  life 
in  danger  were  he  to  persist  in  making  the 
seizure.  Private  duty  will  excuse — ^homicide 
in  defence  against  an  attempt  to  commit  a 
felony;  (for  an  enumeration  of  cases,  see 
Hume,  i.  217 ;  Steele,  72) ;  homicide  in  defence 
of  life  on  a  sudden  quarrel,  the  motive  being 
nothing  less  than  that  of  saving  life.  The 
accused  party,  in  order  to  justify  the  act,  must 
show  that  he  confined  himself  to  the  just  mea- 
sure of  resistance,  and  that  be  entertained 
a  reasonable  apprehension  of  danger;  and 
he  must  not  have  been  in  any  degree  the  cause 
of  the  fatal  strife.  Hume,  i.  195,  et  seq,; 
Alison's  Princ.  105,  127 ;  Burnett,  40,  57 ; 
Syme,  188,  219 ;  Ste^,  71 ;  9  Geo.  II.,  c.  35. 
See  Homicide.    Moderamen  inculpates  iiitelce. 

Jutificatioil ;  according  to  the^English  law 
definition,  is  a  maintaining  or  showing  good 
reason  in  court  why  one  did  the  act  or  deed 
for  which  he  is  called  to  answer.  Tomlins' 
Diet.  h.  t. 


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Kain ;  derived  from  eatum,  a  word  used 
ia  ancient  grants  to  signify  the  fovls  or  ani- 
mals deliverable  by  the  vassal  to  the  superior, 
as  part  of  the  reddendo.  In  modem  practice, 
the  term  is  applied  to  the  poultry,  eggs,  &c., 
deliverable  by  a  tenant  to  his  landlord  in 
terms  of  his  lease.  Where  kain  forms  part 
of  the  rent,  the  Court,  in  estimating  the  value 
of  property,  sold  according  to  a  rental,  allow 
sacn  as  is  Convertible  into  money  at  the  op- 
tion of  the  lessor,  but  disallow  such  as  is  not 
convertible.  There  is  no  such  distinction, 
however,  as  between  the  lessee  and  a  singular 
successor.  Brsk.  B.  ii.  tit.  10,  §  32 ;  Hunter's 
Landlord  and  Tenant,  pp.  294,  330,  634  ;  Bell 
on  Leases,  i.  226 ;  ii.  40,  4th  edit. ;  JIuich. 
Justice  of  Peace,  vol.  ii.  p.  458  ;  Ross's  Lect. 
ii.  236, 405. 

Kelp.  The  introduction  of  the  use  of  this 
article  in  the  manufacture  of  glass  gave  rise 
to  several  questions  as  to  the  right  to  make 
it.  These  questions  are  either  as  between 
the  neighbouring  proprietors  and  the  Crown, 
or  as  between  landlord  and  tenant.  It  has 
been  found  that  the  taking  of  kelp  is  not  one 
of  the  uses  for  which  the  shore  is  held  by  the 
Crown  in  trust  forthe  public,and  consequently 
the  right  is  not  inalienable  by  the  Grown, 
but  is  transferred  to  the  grantee,  where  land  is 
granted  bounded  by  the  sea  or  sea-shore.  In 
the  case  of  the  Earl  of  Morton  v.  Covingtree, 
June  20,  1760,  M.  13,528,  the  defender's 
lands  lay  in  a  continued  stretch  along  the 
sea-shore  of  Orkney,  and  the  pursuer's  were 
behind  them,  a  little  farther  from  the  sea, 
except  a  small  part  which  touched  the  shore. 
On  the  introduction  of  kelp  as  a  manufacture, 
the  pursuer  claimed  right  to  the  ware  of  the 
whole  coast,  as  inter  regalia,  and  under  his 
charter  of  the  earldom  of  Orkney.  But  it  was 
held  that  he  had  no  right  to  the  ware  on  the 
shore  of  the  defender's  lands.  The  designation 
of  a  glebe  is  a  bounding  charter ;  and  where 
shores  are  not  mentioned,  although  the  glebe 
may  be  contiguous  to  the  shore,  the  minister 
has  no  right  to  kelp.  The  right  to  kelp-ware 
is  not  a  pertinent  of  an  agricultural  or  pasto- 
ral farm,  but  may  be  let  independently  of,  or 
along  with,  the  lands  upon  the  shores  of 
which  the  kelp  grows,  under  the  denomina- 
tion of  the  kelp-shores.  In  the  Highlands 
and  Islf^nds,  it  is  the  practice  for  the  proprie- 
tor to  retain  the  shores  in  his  own  possession, 
and  employ  the  tenants  and  cottars  in  manu- 
facturing the  kelp.  More's  Notes  on  Stair, 
clxxii ;  Bell's  Princ.  §  647,  1226 ;  lUust.  ib.; 
Connell  on  Tithes,  433 ;  Bell  on  Leases,  i.  357  ; 


Hunter's  Landlord  and  Tenant,  233, 573.  See 
Sea.     Sea-shore.    Sea-green. 

KOTTiing  to  a  Teroe.    The  kenning  of  s 
widow  to  her  terce  is  the  judicial  act  of  the 
sheriff  of  the  shire  within  which  the  lands 
lie.    The  widow  is  first  served  to  her  terce  by 
the  verdict  of  a  jury,  proceeding  on  a  briere 
from  Chancery.    By  this  verdict  it  is  ascer- 
tained that  the  claimant  is  the  widow  of  the 
deceased,  and  that  certain  lands  are  the  lands 
in  which  her  husband  died  infeft.    The  next 
step  is  for  the  sheriff  to  ascertain  the  jost 
proportion  of  the  husband's  lauds  which  belong 
to  the  widow  in  virtue  of  her  terce,  and  this 
is  what  is  termed  kenning  her  to  her  terce. 
It  is  done  by  the  sheriff  setting  off  two  acres 
for  the  heir,  and  one  for  the  widow  alter- 
nately, through  the  whole  property,  begin- 
ning on  the  east  or  west  of  the  property  by  lot. 
But  as  the  object  of  kenning  the  widow  to 
her  terce  is  to  separate  the  interests  of  the 
heir  and  of  the  widow,  in  order  that  each  msy 
possess  independently  of  the  other,  an  object 
not  likely  to  be  attained  by  this  mode  of  di- 
vision, it  often  happens  that,  in  place  of  ii, 
the  parties  agree  to  divide  the  estate  into 
farms,  or  larger  portions  of  the  property, 
which  division  is  then  judicially  authorized  by 
the  sheriff,  and  made  the  rule  of  his  division.. 
After  the  division  iamade  by  the  sheriff,  a  pro- 
curator appears  for  the  widow,  sasine  is  given 
by  delivery  of  earth  and  stone,  and  instmmenta 
are  taken  in  the  hands  of  a  notary-public,  on 
which  an  instrument  is  made  oat  The  widow 
being  thus  kenned  to  her  terce,  her  title 
to  her  legal  liferent  is  held  as  complete,  and 
she  may  remove  tenants  from  her  terce  lands, 
and  possess  them  by  herself  or  by  her  ten- 
ants.   She  may  recover  the  rent  of  the  lands, 
and  exercise  the  other  rights  and  privilege 
of  a  liferentrix.    In  this  respect  a  widow 
kenned  to  her  terce  ia  in  a  different  sitnation 
from  a  widow  entitled  to  a  jointure  from  the 
estate  of  her  deceased  husband.     Where  the 
jointure  has  not  been  recovered  out  of  certain 
lands  set  apart  to  her,  she  may  have  recoarse 
on  the  other  lands  of  her  husband.    Bats 
widow  kenned  to  her  terce  is  the  proprietor  of 
the  rents ;  and  if  they  are  lost,  they  are  lost 
to  herself,  without  any  recourse  on  the  sepa- 
rate estate  of  her  deceased  husband.    Ertk. 
B.  ii.  tit.  9,  §  50  ;  Bank.  i.  661 ;  Belfs  Com. 
i.  60  ;  Bell's  Princ.  §  1603.    See  Teres. 

Key,  delivery  of.  In  a  sale  of  merchandise 
deposited  in  a  cellar  or  wareroom,  the  de- 
livery of  the  key  of  the  place  in  which  the 
goods  are  deposited  is  held  to  be  equivalent 

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to  actaal  delivery  of  the  articles  to  the  pnr- 
chaser.  Nor  does  ic  seem  to  alter  the  case 
where  the  seller  possesses  a  master  key,  or 
vhere  the  particular  warehouse  of  which  the 
key  is  delivered  is  within  an  outer  gate,  the 
property  of  the  seller.  In  the  transference 
of  goods  in  a  bonded  warehouse,  certain  en- 
tries in  the  custom-house  books  are  directed 
to  be  made  by  special  statute  ;  6  Geo.  IV.,  c. 
112,  §  9.  But  it  has  been  found,  that  where 
there  are  no  goods  in  the  cellar  except  those 
transferred,  the  common  law  will  rule  the 
case,  and  the  seller,  by  delivering  the  key  to 
the  buyer,  will  transfer  the  goods  beyond  re- 
call. Maxwell,  2d  March,  1830,  8  S.  d;  D. 
618, 4th  April,  1831 ;  SWdS.  269.  See  also 
BeWt  Com.  i.  175, 181,  212  ;  ErsL  B.  ii.  tit. 
i,  §  19 ;  Bank.  i.  509 ;  Bell's  Priixe.  §  1302, 
1308.    SeeDeHvery. 

Keys.  In  executing  a  caption,  a  messen- 
ger may  break  open  doors.  This,  in  the  writ, 
IB  called  using  the  king's  keys.  Stair,  B.  iv. 
tit.  48,  §  40;  Bank.' ni.  7.  See  Caption. 
Dioelling-house.     Open  Doors. 

Eidnapping.  The  forcible  abduction  and 
conveying  away  of  a  person  from  his  own 
country,  and  sending  him  to  another,  is  an 
offeDce  at  common  law,  punishable  in  Eng- 
land with  fine,  imprisonment,  and  pillory. 
Tomiitu^  Did.  h.  t.  See  Abduction.  Child- 
stealing. 

Trilling ;  the  act  of  depriving  a  being  of 
life.  Where  a  human  being  is  killed,  the 
act  18,  by  the  law  of  Scotland,  justifiable,  ex- 
cusable, or  culpable,  according  to  the  circum- 
stances attending  it.  See  Homicide.  Mur- 
der.    Justifiable  Homicide. 

Kiln.  Although  a  kiln  be  let  as  part  of, 
or  along  with,  a  mill,  and  although  the  suck- 
eners  resort  to  the  kiln,  it  does  not  form 
part  of  the  thirl,  and  the  suckeners  are  not 
astricted  to  it.  A  proprietor  has  been  found 
entitled  to  build  a  draw-kiln  for  burning 
lime,  upon  the  very  extremity  of  his  grounds, 
although  it  made  his  neighbour's  dwelling 
very  unpleasant ;  Dewar,  20iA  Jan.  1767, 
M.  12,803 ;  HaOes,  177.  But  a  brick-kiln, 
gitnated  on  the  extremity  of  one's  property, 
having  done  real  damage  to  another  by  scorch- 
ing the  garden,  was  ordered  to  be  removed  so 
far  as  necessary  to  prevent  such  damage ; 
RaUtmi,  29th  July  1768,  M.  12,808.  Bell's 
Princ,  §  967  ;  Hunter's  Landlord  and  Tenant, 
219 ;  HuUA.  Justice  of  Peace,  ii.  95.  See 
Nuisance. 

Kindly  Tenant;  or  RentdUr.  A  rental 
right,  (which  is  now  almost  unknown  in  prac- 
tice,) was  a  lease  granted  by  the  landlord 
for  a  low  and  favourable  tack-duty,  to  those 
who  were  either  presumed  to  he  lineal  de- 
scendants of  the  ancient  possessors  of  the 
land,  or  who  were  persons  whom  the  landlord 


wished  to  favour.  Such  lessees  were  denomi- 
nated rentallers,  or  kindly  tenants.  Originally, 
the  entering  of  the  rentaller's  name  in  the 
landlord's,  or  the  King's  steward's  rental- 
l)ook,  was  held  to  be  a  sufficient  title  to  him 
in  all  questions  with  the  proprietors  or  his 
heirs ;  but  the  right  was  not  effectual  against 
singular  successors,  unless  the  rentaller  could 
show  a  rental  right,  followed  by  possession. 
Where  the  rental  right  specified  a  certain 
period  of  endurance,  it  received  effect  for  the 
specified  period.  If  no  period  of  endurance 
was  expressed,  it  was  held  to  create  a  liferent 
right  in  favour  of  the  tenant ;  or  where  it 
was  given  to  the  tenant  and  his  heirs,  it  cre- 
ated a  right  which  descended  to  the  first  heir 
of  the  tenant ;  Ersk.  B.  ii.  tit.  6,  §  37,  et  seq. 
The  rentallers  of  Lochmaben,  who  were  for- 
merly servants  to  the  Scottish  kings,  have 
rights  which  may  be  transferred  to  strangers, 
and  which  give  a  perpetual  right,  effectual 
against  the  person  in  whom  the  barony  of 
Lochmaben  is  vested.  And  although  these 
rights  have  not  been  feudalised,  yet  they  may 
be  feudalised  by  the  rentaller,  of  which  there 
is  an  example  in  a  case  where  an  heritable 
bond  by  one  of  those  rentallers  was  sustained 
as  a  good  title,  though  the  rentaller's  ownright 
had  not  been  feudalised.  Irvine  and  Jop  v. 
Collins,  Feb.  4,  1795;  Fac.  Coll.;  BelFs 
Cases ;  Mor.  p.  10,316  ;  and  Mounsey  v.  Ken- 
nedy, 30th  Nov.  1808,  Fac.  Coll.  See  BeU  on 
Leases,  i.  88 ;  Ersk.  B.  ii.  tit.  6,  §  37 ;  BeWs 
Princ,  §  1279 ;  Hunter's  Landlord  and  Ten- 
ant, 89,  330 ;  Ros^s  Led.  ii.  478.  See  Loch- 
mahen. 

Kin,  Hext  o£  See  Executors.  Confirmation. 
Inventory. 

Kindred,  or  Oonsangninity.  Consangui- 
nity is  either  lineal  or  collateral.  Lineal  is 
either  ascending,  as  to  the  father,  grand- 
father, and  so  upwards ;  or  descending,  as  to 
the  son,  grandson,  &c.  Collateral  consan- 
guinity includes  those  descending  from  the 
same  stock,  but  not  each  from  the  other,  as 
for  example,  brothers,  and  the  children  of 
different  brothers.  See  Consanguinity.  In 
reckoning  the  degrees  of  kindred,  the  rule  of 
the  canon  law  is  followed,  which  differs  from 
that  of  the  Roman  law.  In  both,  however, 
the  degrees  of  consanguinity  in  the  ascend- 
ing or  descending  lines  correspond ;  and  each 
generation  is  reckoned  a  degree,  as  father  and 
son  one  degree,  father  and  grandson  two  de- 
grees, and  the  same  in  the  ascending  line  of 
kindred.  But  in  reckoning  the  collateral  de- 
grees of  consanguinity,  the  rules  established 
in  the  two  laws  are  very  different.  In  the 
canon  law,  the  degree  of  consanguinity  be- 
tween two  persons  descended  from  the  same 
stock  is  reckoned  according  to  their  distance 
from  the  common  ancestor ;  or  where  one  is 

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farther  removed  from  the  common  ancestor 
than  the  other,  the  number  of  degrees  is  reck- 
oned by  the  distance  of  the  one  furthest  re- 
moved. Thus  brothers  and  sisters  are  re- 
lated in  the  first  degree,  because  from  their 
father,  the  common  ancestor,  there  is  only 
one  remove ;  a  nephevr  and  uncle  are  related 
in  the  second  degree,  because  there  are  two 
degrees  between  the  nephew  and  the  com- 
mon ancestor;  and  cousins-german  are  re- 
lated in  the  same  degree,  because  there  are 
two  degrees  between  them  and  the  grand- 
father, who  is  the  common  ancestor.  But,  in 
the  Boman  law,  one  degree  is  reckoned  for 
each  ascending  generation,  and  one  for  each 
descending  one,  in  the  connection  between 
collateral  kindred.  Thus  uncle  and  nephew 
are  counted  three  degrees,  the  ancle  being 
one  degree  removed  from  the  common  stock, 
and  the  nephew  two  degrees  removed  from 
the  same  common  ancestor,  making  together 
three  degrees.  In  the  same  way  cousins- 
german  stand  related  to  each  other  in  the 
fourth  degree,  the  grandfather,  who  is  the 
common  stock,  being  removed  two  degrees 
from  each  ;  and  the  degrees,  both  ascending 
and  descending,  being  reckoned,  they  are  held 
to  be  related  in  the  fourth  degree.  Ersk.  B. 
i.  tit.  6,  §  8,  et  teq. ;  BeWt  Pnne.  §  1587 ; 
Huteh.  Juttice  of  Peace,  ii.  204.  See  Execu- 
ior$.    Heir.    Succetsion.    Degree*  of  Kindred. 

Kiag;  the  person  in  whom  the  supreme 
executive  power  of  the  State  is  vested.  It  is 
not  the  object  of  this  work  to  do  more  than 
explain  the  rights  and  privileges  of  the  So- 
vereign as  recognised  in  the  municipal  law  of 
Scotland.  In  this  view,  these  rights  may  be 
considered  in  relation  to  property,  or  as  they 
come  in  competition  with  the  rights  of  snV- 
jects,  or  in  regard  to  the  Sovereign's  pater- 
nal power,  or  his  right  of  succession.  The 
public  right,  which,  as  applicable  to  Scotland, 
is  of  chief  importance,  relates  to  the  Sove- 
reign's connection  with  the  established  Church 
of  Scotland.  Under  the  articles  Church  Ju- 
dicatories — Church  of  Scotiand — Qeneral  At- 
tetnbly — and  Commissioner — the  constitution 
of  the  Church  of  Scotland  is  shortly  ex- 
plained ;  and  with  a  general  reference  to  these 
articles,  it  may  bo  observed,  that  as,  by  the 
constitution  of  the  Church,  no  change  can  be 
made  in  its  faith  or  doctrines  but  by  acts  of 
the  General  Assembly  ;  and  as  the  delibera- 
tions of  that  body  are,  to  a  certain  extent,  con- 
ducted under  the  superintendence  of  the  So- 
vereign, no  change  of  any  political  moment 
can  ever  be  effected  on  the  constitution  or 
principles  of  the  Chnreh  of  Scotland  without 
the  intervention  of  the  proper  and  constitu- 
tional guarantees  against  usurpation  on  either 
side. 

1.  The  King's  rights  in  relatim  to  property.— 


In  regard  to  landed  property  the  law  eons- 
ders  the  whole  land  rights  as  having  emsos- 
ted  from  the  Sovereign ;  and,  therefore,  a«  to 
laud  rights,  the  rule  is,  that  whatever  hss  do 
proprietor  belongs  to  the  King — Quod  n«^ 
est  fit  domini  regis.  The  possession  of  ^d 
confers  no  right  without  a  title  in  writing.  Id 
order  to  constitute  a  right  in  land,  there  most 
either  be  a  direct  title  in  writing,  or  the  pos- 
sessor must  bold  it  as  part  and  pertinent  of 
other  lands  which  have  been  conveyed  to  him, 
with  parts  and  pertinents,  in  the  title-deeds. 
Possession,  if  not  founded  on  one  or  other  <f 
those  titles,  confers  no  right  to  land;  and 
hence,  in  absence  of  such  a  written  title, 
the  land  may  be  claimed  by  the  King  or  bj 
bis  donatory.  So  also  moveables  which  have 
once  bad  an  owner,  who  is  now  unknown,  or 
treasures  which  have  been  hidden,  and  are 
discovered,  belong  to  the  King.  The  King's 
right  in  regard  to  land  is  constituted  jsre 
corona;  no  sasine  is  necessary,  nor  indeed 
competent,  since  a  sasine  implies  a  superior, 
by  whom  the  possession  may  be  given,  while, 
upon  feudal  principles,  the  King  has  no  sa- 
perior.  It  follows  that,  when  lands  which 
held  of  the  Crown  fall  to  the  King  by  for- 
feiture, they  become  virtually  consolidated 
with  the  superiority ;  and,  in  the  same  man- 
ner, when  the  King  succeeds  as  heir  to  one  of 
his  subjects,  although  a  service  as  heir  is  ne- 
cessary, vet  no  sasine  follows;  the  right  vests 
in  the  King  without  sasine.  The  propertj 
belonging  to  the  Crown  was  anciently  ve^ 
extensive,  and  constituted  the  principal  meau 
by  which  the  Sovereign  supported  the  expen- 
ses of  his  Court.  The  Act  1455,  c.  41,  may 
be  consulted  as  explanatory,  not  only  of  the 
extent  of  the  royal  domains  at  that  time,  hot 
as  descriptive  of  the  consequence  which 
flowed  from  the  liberality  or  profusion  of  our 
monarchs.  See  Annexation.  At  present  the 
Crown  lands  in  Scotland,  t. «.  the  lands  be- 
longing in  property  to  the  Crown,  are  of  very 
insignificant  extent ;  and  the  fen-duties  dne 
from  the  lands  formerly  granted  in  feu-farmi 
under  acts  of  Parliament ;  or  the  casualties 
of  the  Crown's  superiorities ;  or  the  rights 
arising  from  forfeiture,  or  under  the  right  of 
vUimus  hoeres ;  or  of  bastardy ;  are  all  that 
truly  constitute  the  revenue  of  the  Crown  io 
Scotland.  See  Grovm  Lands.  Lest  the  King, 
in  the  transference  of  the  property  thns  vested 
in  the  Crown,  might  be  involved  in  questions 
arising  from  the  inattention  of  his  officers,  in 
royal  grants,  warrandice  is  not  inferred,  and 
the  negative  prescription  does  not  run  ^iost 
the  Crown  ;  1600,  e.  14 ;  Ersk.  B.  iii.  Ut  7, 
§  31.  A  right  of  property  also  competent  to 
the  King  is  that  of  escheat.  See  Esdie^  Bat 
independently  of  the  property  enjoyed  by 
the  King,  there  are  certain  rights  which  he 

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holds,  termed  regcdia,  the  principal  of  which 
is  jurisdiction ;  and  there  are  other  regalia 
vhich  the  Crown  may  or  may  not  transfer  to 
indiriduals.  Thus,  1.  A  right  of  forestry 
may  be  conferred  on  an  individual ;  but 
where  lands  are  conveyed  within  which  a  fo- 
restry is  locally  situated,  the  property  of  it 
is  not  carried  without  a  special  clause  in  the 
grant.  See  Foratry.  2.  Salmon-fishings  fall 
onder  the  regalia,  and  may  be  conferred  on 
a  subject.  See  Salmm-fishing.  3.  Gold  and 
silver  mines  belong  to  the  King.  See  Mines. 
4«  Rivers,  ports,  and  highways,  are  inter  re- 
galia. A  ferry  or  free  port  must  be  the  sub- 
ject of  a  special  grant  from  the  King.  See 
Highways.  Rivers.  Ports  and  Harbours. 
Ferry.  5.  The  sea  and  sea-shores  are  in  like 
manner  held  to  be  inter  regalia.  See  Sea  and 
Sea^shore. 

2.  The  rights  of  ihe  King  in  con^etition  totU 
ike  subject.— Bj  the  SUtute  33  Henry  VIII., 
c  39,  §  74,  it  is  provided,  "  That  if  any  suit 
be  commenced  or  taken,  or  any  process  be 
hereafter  awarded  for  the  King,  for  the  re- 
covery of  any  of  the  King's  debts,  that  then 
the  said  suit  and  process  shall  be  preferred 
before  the  suit  of  any  person  or  persons ;  and 
that  our  Sovereign  Lord,  his  heirs  and  suc- 
cessors, shall  have  first  execution  against  any 
defendant  or  defendants,  of  and  for  his  said 
debts,  before  any  other  person  or  persons,  so 
always  that  the  King's  said  suit  be  taken  and 
commenced,  or  process  awarded  for  the  said 
debt,  at  the  suit  of  our  Sovereign  Lord  the 
King,  his  heirs  or  successors,  before  judgment 
waa  given  for  the  said  other  person  or  per- 
sons." And  this  act  was  extended  to  Scot- 
land by  the  Articles  of  Union.  Q^he  Crown's 
right  under  this  statute  has  been  held  to  be 
preferable  to  the  landlord's  right  of  hypothec, 
and  that  even  ailer  sequestration  of  the  efiects 
by  the  landlord,  and  at  any  time  prior  to  the 
completion  of  the  landlord's  right  by  a  sale  of 
the  hypothecated  effects  and  a  final  decree  in 
his  favour  for  the  proceeds.  See  £eU  on 
Leases,  i.  404.  See  also  Groivn  Debt.  Ex- 
tent. 

3.  The  King's  paternal  power. — In  virtue  of 
this  power,  and  as  pater  patrice,  where  no  tu- 
tors have  been  named  by  the  father,  or  where 
those  named  refuse  to  accept,  and  the  tutor- 
at-law  does  not  undertake  the  oflSce,  the  King 
may  appoint  a  tutor-dative.  This  appoint- 
ment may  be  obtained  by  presenting  a  sig- 
nature of  tutory  in  Exchequer,  after  calling 
the  nearest  of  kin  on  the  father  and  mother's 
side ;  and  if  such  nearest  of  kin  have  no  good 
objection  to  state  to  the  appointment,  a  gift  of 
tutory-dative  will  be  made.  The  gift  follow- 
ing on  this  signature  passes  the  quarter-seal. 
Sw  Tutor. 

4.  The  King's  right  as  ultimushceres, — Where 


lands  are  taken  to  a  person  and  his  heirs 
whomsover,  and  he  dies  without  having  made 
a  settlement  and  leaving  no  person  who  can 
legally  claim  the  succession,  the  lands  go  to 
the  King  as  ultimus  hares;  and  the  same  rule 
applies  to  the  defunct's  moveable  estate.  See 
Last  Heir.  As  to  the  powers  and  prerogatives 
of  the  King  as  connected  with  the  public  and 
constitutional  law  of  Great  Britain,  see  Black- 
stone,  vol.  i.  p.  190,  et  seq. ;  Tomlins'  Diet.  h.  t. ; 
and  generally,  on  the  subject  of  this  article, 
see  Ersk.  B.  iii.  tit.  7,  §  31 ;  Bank.  vol.  ii.  p. 
462,  et  seq. ;  BeU's  Princ.  §  638 ;  Hutch.  Jus- 
tice of  Peace,  vol.  i.  pp.  254,  348,  et  seq. 

King's  Advocate.    See  Advocate,  Lord. 

King's  fdneen's)  Bench;  the  Supreme 
Court  of  Common  Law  in  England.  It  is  ^o 
called  because  the  King  used  formerly  to  sit 
in  court  in  person.  During  the  reign  of  a 
Queen,  it  is  called  Queen's  Bench ;  and  dur- 
ing Cromwell's  Usurpation,  it  was  called  the 
Upper  Bench.  The  Court  consists  of  a  Chief- 
Justice,  and  four  j>t«sne  Judges.  It  was  for- 
merly ambulatory.  The  jurisdiction  of  the 
Court  is  very  high.  It  has  a  superintending 
control  over  all  inferior  jurisdictions ;  super- 
intends all  civil  corporations  ;  commands  ma- 
gistrates to  do  their  duty ;  protects  the  liberty 
of  the  subject  by  summary  interposition;  and 
takes  cognisance  of  criminal  as  well  as  civil 
causes ;  the  former,  in  what  is  called  the 
Crown  side  or  office ;  the  latter,  in  the  plea 
side  of  the  Court.  Its  criminal  jurisdiction 
extends  from  high  treason  to  the  most  trivial 
m  isdemeanour  or  breach  of  the  peace.  Indict- 
ments from  all  inferior  courts  may  also  be  re- 
moved into  the  Court  of  Queen's  Bench  by  cer- 
tiorari. The  Judges  of  this  Court  are  the  su- 
preme coroners  of  the  kingdom ;  and  the  Court 
itself  is  the  principal  court  of  criminal  juris- 
diction in  England.  Tomlins,  h.  t.  See  Bench. 

King's  Cellars.    See  Bonding. 

King's  Ease.    See  Teinds. 

King's  (Qneen's)  Evidence.  In  England, 
it  has  been  usual  with  justices  of  peace,  by 
whom  prisoners  are  committed,  to  admit  some 
one  of  their  accomplices  to  become  a  witness, 
or,  as  it  is  generally  termed.  King's  evidence, 
against  his  fellows,  upon  an  implied  confi- 
dence that,  if  such  accomplice  makes  a  full 
and  complete  discovery  of  that  and  of  all 
other  crimes  with  regard  to  which  he  is  exa- 
mined by  the  magistrate,  and  afterwards 
gives  his  evidence  without  prevarication  or 
fraud,  he  shall  not  be  punished  for  that  of- 
fence. This  discretionary  power  exercised 
by  justices  of  peace  is  founded  on  practice 
only,  and  cannot,  at  all  events,  exempt  the 
accomplice  from  being  prosecuted.  In  Eng- 
land, the  admission  of  an  accomplice  to  be  a 
witness  against  his  associates  amounts  to  a 
promise  of  a  recommendation  to  mercy,  upon 

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condition  of  his  making,  at  the  trial,  a  fall 
and  fair  disclosure  of  all  the  circumstances  of 
the  crime.  Upon  failure  on  his  part  to  fulfil 
this  condition,  he  forfeits  all  claim  to  protec- 
tion. In  Scotland,  such  bargains  have  seldom 
been  made  without  the  permission  of  the  pub- 
lic prosecutor,  even  by  sheriffs,  still  seldomer 
by  justices  of  peace.  And  it  seems  to  be  now 
established  in  Scotland  that  it  is  only  the 
public  prosecutor  who  is  invested  with  the 
uncontrolled  power  of  tying  up  the  hands  of 
justice,  by  calling  one  of  the  accomplices  in  a 
crime  as  a  witness  for  the  prosecution.  Infe- 
rior magistrates  or  jailors  have  no  power  to 
promise  pardon  to  certain  prisoners  in  the 
event  of  their  being  taken  as  King's  evidence  ; 
and  if  they  do  so  without  authority  from  the 
Crown  counsel,  they  exceed  the  limits  of  their 
duty ;  and  the  prisoner  from  whom  these  con- 
fessions have  been  thus  obtained  may,  never- 
theless, be  brought  to  trial.  A  declaration, 
'however,  emitted  by  the  culprit,  upon  the 
faith  of  his  being  admitted  to  be  King's  evi- 
dence, cannot  be  used  or  libelled  on  against 
him,  should  the  public  prosecutor  briag  him 
to  trial.  By  the  mere  act  of  calling  an  ac- 
complice as  a  witness,  the  prosecutor  dis- 
charges all  title  to  molest  him  for  the  future 
concerning  the  crime  in  question.  This  pri- 
vilege is  absolute,  and  is  not,  as  in  England, 
merely  a  right  to  a  recommendation  to  mercy, 
nor  is  it  at  all  dependent  on  the  witness 
making  a  full  and  fair  disclosure.  The  only 
remedy,  in  case  of  a  witness  retracting  his 
previous  disclosures,  or  refusing  to  make  any 
confession  after  he  is  put  into  the  box,  is 
committal  of  the  witness  for  contempt  or 
prevarication,  or  indicting  him  for  perjury, 
if  there  are  sufBcient  grounds  for  any  of  these 
proceedings.  Even  where  the  witness  was 
originally  called  by  the  Crown,  the  protection 
is  absolute  against  a  prosecution,  not  only  at 
the  instance  of  the  public  prosecutor,  but  also 
of  the  private  party  who  has  suffered  from 
the  offence.  Bell's  Notes  to  Hume,  p.  561 ; 
Blackst.  B.  iv.  c.  15,  note  by  Christian ;  Alison's 
Prac.  453;  Dickson's  Law  of  Evidence,  851. 
See  Accomplice.     Socius  Criminis. 

King's  (Queen's)  Freemen.  This  name  is 
applied  to  certain  persons  who,  on  account  of 
their  own  service,  or  that  of  their  fathers  or 
husbands,  in  the  army,  navy,  ice,  have  a  sta- 
tutory right  to  exercise  trades  as  freemen, 
without  entering  with  the  corporation  of  the 
particular  trade  which  they  exercise.  The 
exclusive  privileges  of  burgh  incorporations 
were,  however,  abolished  by  the  Act  9  Vict., 
c.  19, 1846.  See  Burgh.  Exclusive  Privilege. 
Soldier. 

King'8(Claeen'8)Tnidennen.  The  Queen's 
tradesmen,  holding  commissions  under  the 
Privy  Seal,  with  a  clause  of  exemption,  are 


not  liable  in  assessment  for  the  poor  or  other 
burghal  prestations ;  but  the  privilege  does 
not  extend  to  persons  holding  appointmeDts 
from  the  officers  of  the  household.  The  right 
of  the  Sovereign  to  appoint  tradesmen,  and 
thereby  to  exempt  them  from  taxation,  is 
limited  to  one  of  each  craft  or  occupation. 
1592,  c.  155;  1594,  c.  225;  1597,  c.  279; 
1681 ;  DwUop's  Earockial  Law,  248 ;  Skvis 
Digest,  99. 

^irk.    See  Churd. 

Kirk  Boad.    See  Churd  Road. 

Kirk  or  Market.    See  Deathbed.  * 

Kirk49l«sdon.  A  kirk-session  is  composed 
of  the  minister  and  elders  of  a  parish.  Be- 
fore the  Poor  Law  Act,  8  and  9  Vict.,  c.  93, 
the  kirk-session,  along  with  the  heritors,  had 
the  right  of  administering  the  funds  belong- 
ing to  the  poor  of  the  parish.  In  the  ease 
of  the  EaH  of  GaUowaif  v.  the  Minister  and  oOter 
Members  of  the  Kirk-Sessim  of  Dairy,  Feb.  22, 
1810,  it  was  observed  by  Lord  Meadowbank, 
and  assented  to  by  Lord  Robertson,  that,  by 
the  law  of  Scotland,  a  parish  was  a  corpora- 
tion to  certain  effects,  such  as  the  manage- 
ment of  funds  belonging  to  the  poor,  or  left 
for  pious  uses ;  that  the  minister,  the  elders, 
and  the  heritors  did  not  form  three  separate 
corporations,  but  that  the  whole  composed 
one  body,  in  which  each  individual  was  en- 
titled to  his  own  vote.  It  seems  doubtful,  how- 
ever, whether  a  kirk-session  can  sue  or  be  saed 
as  a  corporation.  In  the  case  of  the  Kirb- 
session  of  North  Berwick  v.  Sitne,  2  D.  23,  the 
summons  bore  to  be  at  the  instance  of  the  kirk- 
session  of  a  parish,  and  of  the  members  thereof 
individually.  The  libel  was  amended  at  the 
suggestion  of  the  Court,  to  the  effect  that  the 
summons  should  be  at  the  instance  of  the  in- 
dividual membera  of  the  session  nomitiatim, 
for  themselves,  and  as  composing  the  kirk- 
session,  the  kirk-session  not  being  a  corpora- 
tion. In  addition  to  the  dues,  kirk-sessions 
are,  in  some  parishes,  accustomed  to  exact 
fines  from  persons  convicted  of  breaches  of 
church  discipline.  Such  individuals  may,  if 
they  please,  pay  the  fines  in  commutAtioa  of 
church  censures,  or  other  spiritual  infliction ; 
but  kirk-sessions  have  no  power  to  impose 
fines  for  offences  of  this  nature,  and  eonld  nut 
enforce  payment  of  them.  A  kirk-session 
cannot  exact  the  payment  of  new  fees  not 
sanctioned  by  usage ;  nor  can  they  increase 
the  amount  of  such  as  are  exigible  by  custom. 
Dues  exacted  for  proclamation  of  marriage 
banns  do  not  fall  under  the  operation  of  tie 
Poor  Law  Act,  and  a  kirk-session  is  not 
bound  to  account  for  them  to  the  parochial 
board ;  Kirk-session  of  Ceres,  v.  Inspector  of 
Poor  for  parish  of  Crieff,  Feb.  9, 1854, 16 1>. 
511.  See  Heritors.  Ersk.  B.  i.  tit  5,  §  5; 
tit.  7,  §  63,  Notes  by  Ivory  ;  DutOop's  Parodutl 


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Law,  54,  71,  74,  121,  263;  Darling's  Prae. 
19, 109.    Se«  CAurcft  Judicatories.    Poor. 

Enaveship ;  is  one  of  the  sequels  of  thir- 
lage.  The  multure  is  the  quantity  of  grain 
piud  to  the  proprietor,  or  his  tacksman  of  the 
mill  to  which  the  lands  are  astricted.  The 
knaveship  is  that  quantity  of  the  grain  vhich, 
by  the  practice  of  the  particular  mill,  is  given 
to  the  mill  servant  by  whom  the  work  is  per- 
formed. Stair,  B.  ii.  tit.  7,  §  21 ;  Ersk.  B. 
ii.  tit.  9,  §  19 ;  Bank.  i.  684 ;  BeWs  Prine.  § 
1018 ;  Ross's  Lect.  ii.  170.    See  Thirlage. 

&iight;  a  title  of  dignity  next  in  order 
to  nobility.  Enightship  is  the  highest  rank 
of  a  commoner ;  but  a  knight  is  still  a  com- 
moner, and  may  sit  as  a  juryman  on  any 
commoner,  as  his  peer.  See  TonUin's  Diet.  h. 
L;  Bank.\.bZ.    ■ 

Knights  Bachelors;  Bos  Chevalier.  It  is 
a  personal  distinction,  not  hereditary.  Tom- 
lint,  h.  t. 


Knights  Bannerets ;  were  created  on  the 
field  of  battle  by  the  King  under  the  royal 
banner ;  now  in  desuetude.    Bank.  i.  54. 

Knights  Baronets ;  the  only  hereditary 
knights  in  Scotland.  They  were  first  created 
for  encouraging  settlements  in  Nova  Scotia ; 
now  without  regard  to  any  such  object.  Bank. 
i.  54.    See  Baronet. 

Knight's  Fee ;  in  England,  was  so  much 
inheritance  as  is  sufficient  yearly  to  maintain 
a  knight  with  convenient  revenue.  Tomlins' 
Diet.  h.  t.    See  Hide. 

Knights  of  the  Shire ;  two  knights  re- 
turned to  Parliament  from  every  county  in 
England.  Anciently,  they  were  required  to 
be  real  knights  girt  with  the  sword ;  but  now 
notable  esquires  may  be  chosen.  They  must 
possess,  as  a  qualification  to  be  elected,  not 
less  than  £600  per  annwm  of  freehold  estate. 
See  Tomlins'  Diet.  h.  (.;  Bank,  i,  54.  See 
Parliament. 


LabesKealis,  or  vitiwn  reaU;  an  inherent 
view  or  defect  in  a  right ;  in  the  title  by  which 
it  has  been  acquired ;  or  in  the  voucher,  or 
written  obligation  on  which  it  is  founded; 
the  effect  of  which  is,  that  the  right  or  voucher 
is  null  into  whose  hands  soever  it  may  come. 
Thas,  theft,  spuilzie,  forgery,  fraudulent  viti- 
ation of  a  bill,  or  the  like,  import  a  vt<«um 
reale.  It  has  been  now  clearly  established, 
that  fraud  is  not  an  inherent  vice,  and  that 
s  Ixma  fide  purchaser  from  a  fraudulent  ac- 
quirer of  a  right  is  entitled  to  maintain  his 
right  even  against  the  defrauded  party.  It 
has  been  made  a  question,  whether  or  not 
force  and  fear  constitute  lobes  realis.  See 
Fraud.  Foree  and  Fear.  But  a  distinction  is  to 
be  taken  between  rights  acquired  by  fraud, 
fear,  or  the  like,  in  which  the  disponer  has  a 
title  of  property  to  the  goods,  however  liable 
it  may  be  to  be  set  aside ;  and  another  class 
of  cases,  in  which  the  disponer  never  posses- 
sed any  title  to  the  property,  as,  for  exam- 
ple, where  the  goods  were  stolen,  or  were 
possessed  on  some  inferior  title,  as  pledge, 
loan,  or  deposit.  Here,  the  want  of  a  title  is  a 
vitium  reale,  since  no  one  can  transfer  to  ano- 
ther a  right  which  he  himself  does  not  pos- 
sess ;  Jfemo  plus  juris  ad  alium  transferre 
potest  quam  ipse  haieret.  The  true  owner  is 
entitled  to  follow  the  right  wherever  it  may 
he  taken,  and  to  plead  the  maxim,  Id  quoad 
nMtrum  est,  sine  facto  nostra  ad  alium  trans- 
ferri  rum  potest.  In  England,  indeed,  a  con- 
trary rnle  has  been  adopted  where  the  stolen 
goo^  have  been  sold  in  open  market;  but 
this  is  admitted  to  be  an  exception  to  the  or- 


dinary rule  even  of  the  English  law,  and  has 
no  place  in  the  law  of  Scotland.  See  Mar- 
ket overt.  Theft  does  not  attach  as  a  vitium 
reale  to  a  bill  of  exchange,  indorsation  car- 
rying the  bill  discharged  of  all  latent  excep- 
tions. Stair,  B.  i.  tit.  9,  §  15 ;  B.  ii.  tit.  1, 
§38;  B.  iv.  tit.  35,  §  20 ;  tit.  40,  §§  21  and 
28 ;  Jfwe'i  Notes,  pp.  xlviii.  cli. ;  Ersk.  B.  iii. 
tit.  iii.  §  8 ;  BaiJc.  i.  230  ;  BeWs  Com.  i.  281, 
noU;  Bell's  Prine.  §  1318;  Illust.  §  1320; 
Brown  on  Sale,  15,  418;  Thomson  on  Bills, 
280.  SeeZ/os<.  Vitiation.  Bill  of  Exchange. 
Fraud.    Theft.    Forgery. 

Lahores ;  a  term  applied  to  the  lands  culti- 
vated by  the  monks  themselves,  and  which 
were  exempted  from  payment  of  tithes.  This 
privilege  ceased  whenever  the  lands  were 
given  to  be  cultivated  by  others.  It  was  af- 
terwards confined  to  three  religious  orders, 
Cistertians,Hospitaller8,and Templars.  More?s 
Notes  on  Stair,  ccxxxix ;  Connell  on  Tithes, 
333,  et  seq.  See  Teinds.  Decimce  inelusce. 
Novdlice. 

Labour,  Statute.    See  Statute  Labour. 

Labourer.    See  WorkvMn, 

Laches ;  slackness  or  negligence.  In  Eng- 
land, laches  of  entry  means  neglect  in  the 
heir  to  enter.  A  person  is  said  to  be  guilty 
of  laches  when  he  has  unduly  delayed  any 
proceeding.  Thus,  in  the  case  of  a  bill  of 
exchange,  he  who  delays  notifying  the  dis- 
honour, is  guilty  of  laches,  and  loses  his  re- 
course. Tomlins'  Diet.  h.  t.;  Thomson  on  Bills, 
486.    See  Mora. 

Lading,  Bill  of.    See  Bill  of  Lading. 

Lady-Bay ;  the  25th  of  March. 

Digitized  byLjOOQlC 


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LAD 


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Lady'sOown;  the  present  gometimes  made 
by  the  purchaser  to  a  wife,  on  the  occasion 
of  her  renouncing  a  liferent  over  herhusband's 
lands.  The  lady's  gown  is  recognised  as  a 
peeulium  i^ratum,  part  of  the  paraphertuUia, 
and  not  attachable  by  the  husband's  credi- 
tors. Ertk.  B.  i.  tit.  6,  §  15 ;  BeWs  Prine. 
§  1560 ;  lUust.  ib.     See  Paraphernalia. 

LtBsio  ultra  Duplum.  In  the  Roman  law 
there  was  said  to  be  Ueiio  vltra  duplum  when 
the  price  of  a  thing  sold  was  more  than  doable 
its  value.  In  that  case,  fraud  was  presumed, 
and  the  buyer  was  held  entitled  to  set  aside  the 
sale,  and  to  demand  repetition  of  the  price. 
There  is  no  such  rule  in  the  law  of  Scotland, 
no  action  being  competent  for  setting  aside 
sales  on  account  of  the  disproportion,  how- 
ever great,  of  the  price  to  the  value  of  the 
commodity.  See  Provost  of  Queen't  ColUge, 
25th  May  1642,  Mor.  8021  and  7934.  See  L. 
2,  C.  de  reteind.  vend. ;  Stair,  B.  i.  tit.  9,  §  10 ; 
tit.  10.  §  14  ;  Ersk.  B.  iii.  tit.  3,  §  10,  note  by 
Ivory  {  Bank.  B.  i.  tit.  19,  §  3;  Kames' 
Equity,  167,  182,  363;  See  Sale.  Quanti 
Minorit.  Actio  rtdhihitoria.  Warrandice.  Fault. 

Laity ;  as  opposed  to  clergy,  comprehends 
all  persons  not  ecclesiastical.  Erdc.  fi.  i.  tit. 
6,11. 

Lakes.  In  infeftments  of  land,  woods  and 
lochs  are  frequently  specified ;  but  if  not  spe- 
cified, they  are  carried  by  the  expression 
"  parts  and  pertinents."  The  proprietor  has 
right  not  only  to  the  water  of  a  loch  entirely 
surrounded  by  his  land,  but  also  to  the  tolum, 
for  every  purpose  to  which  it  may  be  turned. 
If  the  loch  be  not  entirely  within  the  pro- 
perty disponed,  but  partly  within  or  adjacent 
to  another  property,  the  loch,  unless  it  be 
otherwise  provided  in  the  deed,  will  be  allo- 
cated among  the  proprietors  whose  lands  front 
or  surround  it.  Although,  however,  lochs 
surrounded  by  the  lands  of  different  proprie- 
tors are  thus  common  property,  they  are  not 
commonties  within  the  meaning  of  the  Act 
1695, 0. 38,  nor  can  they  be  divided  otherwise 
than  by  consent  or  by  special  act  of  Parlia- 
ment. Lakes,  which  are  the  permanent 
sources  to  rivers,  cannot  be  drained  by  the 
owner  of  the  ground  in  which  they  are  situ- 
ated. But  if  the  lake  do  not  supply  a  stream, 
it  is  entirely  within  the  power  of  the  owner  of 
the  ground,  provided  there  be  noservitude  over 
it  in  favour  of  water-gangs  for  mills  or  other 
works.  Lakes,  although  navigable,  are  not, 
generally  speaking,  inter  regalia,  like  navi- 
gable rivers.  But  it  becomes  a  doubtful  ques- 
tion when  such  lakes  form  great  channels  of 
communicatiun  in  a  district  of  country,  whe- 
ther their  navigable  character  does  not  in- 
volve a  trust  vested  in  the  Crown  for  the  pub- 
lic benefit,  which  cannot  be  defeated  by  any 
grant,  and  which  may  be  vindicated  the  mo- 


ment the  lake  is  laid  open  to  public  use.  This 
point  was  involved  in  a  case  lately  decided, 
but  was  not  purely  tried,  being  mixed  ap 
with  certain  specialities.  The  Commissiooen 
for  the  Caledonian  Canal  led  that  canal 
through  Loch  Oich,  which  was  surrounded 
on  every  part  by  the  lands  of  Glengarrj. 
The  owner  brought  an  action  to  have  it  de- 
clared, that  as  Loch  Oich  was  surrounded  on 
every  part  by  his  lands,  it  was  his  exclusire 
property,  with  the  salmon  therein,  and  the 
right  of  draining  it ;  and  that  the  occupation 
of  it  for  public  navigation  in  the  course  of 
the  Caledonian  Canal  was  a  trespass,  for 
which  damages  were  due.  It  was  found,  1. 
That  the  loch  and  its  salmon  were  the  exclu- 
sive property  of  the  pursuer ;  but,  2d.  That 
the  claim  for  damage  by  navigation,  to  the 
injury  of  the  privacy,  amenity,  &c.,  of  the  pur- 
suer's residence  and  grounds,  was  ineompeteni 
under  the  canal  acts;  M'DonneU  of  Glengarry  i. 
Caledonian  Caiud  Commiisioners,  J  une  5, 1^0, 
B  S.diD.  881.  See  Stair,  B.  ii.  tit.  3,  §  73 : 
Bank.  i.  593 ;  BelPt  Prine.  §  643, 1110 ;  tlkd. 
ib. ;  HutcK.  Justice  of  Peace,  ii.  449.  See 
Regalia.   Rivers.    Common  Property.    Sea. 

One  of  two  joint-proprietors  of  a  loch  msy 
communicate  to  a  disponee  of  a  portion  of  bis 
lands  adjoining  the  loch  a  right  in  the  loch, 
and  the  joint-proprietor  cannot  interfere  if 
the  disponee  and  his  author  do  not  exercise 
a  right  of  property  in  the  loch  beyond  the 
extent  of  the  disponer's  right.  See  the  case 
of  Menzies  v.  Macdonald,  March  10,  1854. 
16  D.  827;  affinned,  June  10,  1856.  2 
Macqueen,  413. 

Lammas-Day ;  the  1st  of  August.  To*- 
line'  Diet.  k.t. 

Landed  Men.  In  criminal  trials,  when  the 
panel  is  a  landed  proprietor,  he  is  entitled 
to  have  a  jury  the  majority  of  whom  are 
composed  of  landed  men.  The  eldest  son  or 
apparent  heir  of  a  landed  proprietor  cannot 
claim  this  privilege,  nor  any  one  infeft  in  se- 
curity or  relief  only,  or  on  any  inferior  titlo 
to  that  of  property.  If  the  panel  mean  to 
avail  himself  of  his  privilege,  he  most  allego 
and  prove  it  by  immediate  production  of  hii 
infeftment.  6  Geo.  IV.  c.  22,  §  12;  AUton't 
Prae.  387. 

Landlord;  in  reference  to  the  contract  «f 
lease,  is  the  proprietor  of  the  ground,  or 
granter  of  a  lease.  See  Lease. 
Landlord's  Hypothec.  See  Hypothec. 
Land-Tax.  The  land-tax  of  Scotland,  or 
cess,  is  a  permanent  tax  fixed  at  L.47,954p«r 
annum,  to  be  levied  out  of  the  land  rent  of 
Scotland  for  ever,  subject,  however,  to  u 
power  of  redemption.  This  burden  on  tho 
land  rent  is  payable  partly  from  burghs  and 
partly  from  shires ;  the  inhabitants  of  burghs 
being  assessed  according  to  their  rents  awl 


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income,  by  stentmasters ;  and  the  inhabitants 
of  counties,  according  to  the  yearly  revenue  of 
their  land  and  other  heritage,  by  the  com- 
missioners of  supply.  But  although  this  be 
a  tax  which  attaches  to  the  land  into  whose 
hands  soever  it  may  come,  it  is  still  no  more 
than  a  personal  claim  against  the  present  pro- 
prietor, not  properly  a  deUtvm fundi.  It  is  a 
tax,  however,  which  accompanies  the  land, 
the  owner  of  the  land  for  the  time  being 
liable  for  the  tax  as  it  falls  due.  But  the  ar- 
rears do  not  affect  singular  successors.  See 
the  tUauUi  38  Geo.  III.  c.  60 ;  39  Geo.  III.  c. 
6  and  21 ;  and  the  Consolidating  Act,  42  Geo. 
III.  c.  116.  See  also  Mi's  Com.  i.  700.  The 
eommissioners  of  supply,  by  whom  the  land- 
tax  Is  assessed,  are  empowered  to  do  every- 
thing for  adjusting  the  valuations  of  the  se- 
veral lands  within  their  respective  counties ; 
and  the  rent  fixed  by  those  valuations  is 
called  the  valued  rent,  in  contradistinction  to 
the  old  and  new  extent.  The  commissioners 
may  alter  the  valuation  of  lands  which  have 
been  overrated ;  but  they  are  not  permitted 
to  alter  the  total  sum  charged  upon  the  shire. 
The  valuation  of  the  county,  as  well  as  of  the 
particular  estates  thus  remaining  the  same, 
the  duty  of  the  commissioners  of  supply  now 
is  to  split  the  valuations  of  larger  proper- 
ties, where  parts  have  been  alienated.  In 
general,  the  valuation  is  put  upon  the  vassal 
in  possession.  The  proceedings  of  the  com- 
missioners of  supply  are  subject  to  the  review 
of  the  Court  of  Session ;  Wight  on  Elections, 
p.  182,  et  seq.  The  cess  bears  interest  after 
it  has  been  six  months  due,  though  no  horn- 
ing or  other  diligence  has  been  used  against 
the  debtor ;  1686,  c.  2.  The  collection  and 
management  of  the  land-tax  was  given  to  the 
commissioners  of  taxes  by  the  statute  3  and  4 
Will.  IV.  c.  13,  §  4.  The  collector  of  the 
land-tax  was  formerly  appointed  by  the  com- 
missioners of  supply  ;  but  this  appointment 
has  been  lately  transferred  to  the  treasury. 
See  Commissioners  of  Supply.  The  following 
are  the  steps  directed  to  be  taken  under  the 
statutes  for  the  redemption  of  the  land-tax. 
Application  must  be  made  to  two  commission- 
ers of  supply  to  have  the  proportion  of  land- 
tax  adjusted  to  the  lands  for  which  the  exemp- 
tion is  to  be  purchased,  and  a  certificate 
granted  to  thai  effect.  The  sale  is  then  bar- 
gained for,  and  when  it  is  completed,  the 
owner  of  the  land  is  exempt  from  payment  of 
land-tax  already  imposed,  but  subject  to  any 
fature  imposition.  The  commissioners  must 
continue,  even  after  the  exemption  of  any 
particular  lands,  to  state  in  the  certificate  of 
assessment  the  land-tax  charged  on  the  pa- 
rish, till  all  be  redeemed ;  and  they  receive 
from  the  commissioners  of  taxes  a  certificate 
of  the  redeemed  portion.  The  act  gives 
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power  to  sell  lands  under  entail,  or  to  borrow 
money  upon  the  security  of  the  lauds,  for  the 
purpose  of  redeeming  the  land-tax  of  the  en- 
tailed estate.  Unfairness,  such  as  a  collu- 
sive lease  affecting  the  price,  is  a  ground  for 
reducing  the  sale  ;  but  an  error  of  judgment 
in  the  Court  in  executing  the  act,  will  not 
annul  the  sale.  Land-tax,  when  paid  by  the 
tenant,  constitutes  a  part  of  the  rent  paid  by 
him  for  the  land,  and  is  to  be  considered 
part  of  the  income  for  which  the  owner  votes. 
See,  in  addition  to  the  acts  above  cited,  41 
Geo.  III.  c.  72 ;  63  Geo.  III.  c.  142 ;  57 
Geo.  III.  c.  100 ;  1  and  2  Geo.  IV.  c.  123 ; 
4  and  5  Will  IV.  c.  11  and  60 ;  7  WiU.  IV. 
and  1  Vict.  c.  17 ;  16  and  17  Vict.  c.  117, 
1853;  Ersk-B.  iii.  tit.  8,§  33;  BelPs  Com.  i. 
700  ;  BeU's  Prine.  §1123;  Illust.  ib. ;  Sandford 
on  Entails,  226 ;  Tait's  Justice  of  Peace,  h.  t. ; 
Blair's  do.,h.  t. ;  Chalmer's  Election  Law,  h.  L; 
Baird,  June  12, 1835, 13  S.  d;  D.  927.  See 
Commissioners  of  Supply.  Extent.  Election  Law. 
Tailzie. 

Lapsed  Legacy.  A  legacy  is  said  to  lapse, 
that  is,  to  fall,  and  not  to  be  demandable  by 
any  one,  where  the  legatee  has  predeceased 
the  testator.  In  that  case,  where  it  is  not 
otherwise  directed  in  the  testament  or  settle- 
ment, the  lapsed  legacy  falls  into,  and  be- 
comes part  of  the  residue  of  the  estate.  Ersk. 
B.  iii.  tit.  9,  §  9 ;  BeWs  Prine.  §1877 ;  Illust. 
ib. ;  Shaw's  Digest,  605.  See  Testament,  Le- 
g<m. 

Larceny;  in  English  law,  a  theft  or  felony 
of  another's  goods,  in  his  absence.  It  is  called 
grand  larceny  when  the  value  of  the  goods 
taken  exceeds,  and  petit  larceny  when  the 
value  does  not  exceed,  12d.  Simple  larceny  is 
plain  unaggravated  theft ;  compound  or  mixed 
is  theft,  aggravated  by  taking  the  article 
stolen  from  one's  house  or  person.  TomHus" 
Diet.  h.  t. 

Last  Heir.  The  Sovereign,  in  the  cha- 
racter of  last  heir,  is  entitled  to  the  property, 
both  heritable  and  moveable,  of  any  one  who 
dies  intestate,  and  without  lawful  heirs  entitled 
to  take  up  his  succession.  In  like  mauner, 
the  Sovereign  succeeds  to  a  bastard  who  dies 
intestate  and  without  lawful  heirs  of  his  body, 
since  a  bastard,  as  having  no  father  in  tiie 
eye  of  the  law,  can  have  no  heirs  but  his  own 
children.  In  either  case,  where  the  heritable 
property  holds  of  the  Crown,  there  is  an  ipso 
jure  consolidation ;  though,  where  it  is  given 
to  a  donatary,  he  must  obtain  a  decree  of  de- 
clarator of  ultimus  hares  or  of  bastardy,  and 
then  present  a  signature  to  Exchequer,  on 
which  he  obtains  a  warrant  of  iufeftment. 
Where  the  property  holds  of  a  subject  supe- 
rior, it  is  necessary  to  interpose  a  donatary, 
as  the  Crown  cannot  hold  of  a  subject.  The 
donatary  must  obtain  a  declarator,  and  corn- 
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?lete  his  title  holding  of  the  subject  superior, 
'he  declaratory  action  is  executed  against 
all  and  sundry ;  and  where  there  is  a  widow 
she  must  be  cited.  Then  a  letter  passes  the 
quarter  seal,  charging  the  superior  to  give 
infeftment  to  the  donatary,  to  be  held  in  the 
same  manner  and  for  the  same  duties  and 
services  as  the  deceased  held.  The  widow  of 
a  bastard  is  entitled  to  terce  and  to  her  jtt$ 
relictce.  As  the  Sovereign  succeeds  <m  heir,  a 
deed  done  on  deathbed  hurtful  to  the  Crown's 
right  may  be  reduced,  ex  eapUe  lecti.  When 
the  Crown  succeeds  as  tdtimus  hteret,  whether 
to  a  bastard  or  to  a  person  lawfully  born,  the 
Sovereign  or  the  donatary  must  pay  the  debts 
of  the  deceased  so  far  as  the  value  of  the 
estate  goes,  but  no  farther ;  and  the  creditors 
of  the  deceased  may  attach  the  estate  by  pro- 
per diligence,  calling  as  parties  the  Officers 
of  State  as  representing  the  Crown.  See 
Stair,  B.  iii.  tit.  3,  §  47  ;  More't  Notes,  xxxiii. ; 
Ersk.  B.  iii.  tit.  10,  §  1 ;  Bant.  B.  iii.  tit.  3, 
§91 ;  Bell's  Ptinc.  §§  1669, 1940 ;  lUuiL  ib. ; 
Kame^  Stat.  Law  abridg.  voce  Ultimut  Haeres ; 
Hunter's  Landlord  and  Tenant,  178, 344 ;  Jurid. 
iSfyI«(,iii.202,402.  Seo  Vltimus  Hceres.  Suc- 
cession. Bastard.  Bastardy,  Declarator  of.  King. 

Last  Will;  synonymous  with  testament. 
See  Testament. 

>  Latent.  Rights  which  remain  unknown 
and  concealed  are  ineffectual  against  credi- 
tors,  when  in  the  person  of  relatives  and  con- 
fidents. See  Conjunct  and  Confident.  Bankrupt. 
Reputed  Oionership. 

Latent  Fault.  See  FauU;  and  in  addition 
to  the  authorities  there  cited,  consult  Stair, 
B.  i.  tit.  9,  §  10 ;  tit.  10,  §  15 ;  tit.  14,  §  1 ; 
B.  iv.  tit.  40,  j  24 ;  More's  Notes,  xcii. ;  Ersk. 
B.  iii.  tit.  3,  §  10 ;  fames'  Equity,  147, 175 ; 
Brown  on  Sale,  296.    See  also  Warrandice. 

Latitat ;  in  English  law,  a  writ  by  which 
parties  are  originally  called  to  answer  in 
personal  actions  in  the  Queen's  Bench ;  so 
called  from  the  supposition  that  the  defendant 
is  hid,  and  cannot  be  found  in  the  county  of 
Middlesex  to  be  taken  by  bill,  but  is  gone 
into  some  other  county,  to  the  slieriff  of  which 
this  writ  is  directed,  to  apprehend  him  there. 
Tomlins'  Diet.  h.  t. 

LavlBh  Persons.    See  Interdiction. 

Law ;  in  the  sense  in  which  it  is  to  be  con- 
sidered here,  applies  to  the  different  systems 
of  rules  by  which  the  subjects  in  this  country 
are  associated ;  by  which  they  conduct  them- 
selves in  their  intercourse  with  other  nations ; 
or  by  which  the  conduct  of  individuals  is 
regulated,  or  their  rights  and  interests  in 
property  ascertained.  Hence,  law  is  subdi- 
vided into  departments,  little  connected  with 
each  other ;  and  a  change  in  one  department 
may  be  made  without  at  all  affecting  the 
others. 


Constitutional  law.— The  law  of  the  State  it 
that  by  which  the  reciprocal  obligationi  of 
the  governors  and  governed  to  each  otirar 
are  regulated. 

The  law  of  nations — regulates  the  inter- 
course of  one  nation  with  another.  This 
code  is  composed  of  written  as  well  as  of 
unwritten  law ;  the  one  depending  on  tb» 
principles  of  natural  reason  and  European 
usages ;  the  other  arising  out  of  the  snbsist. 
ing  treaties.  By  those  the  rights  of  the 
respective  nations  in  peace  and  war  are  regu- 
lated.    See  International  Law. 

The  municipal  law. — The  municipal  law  of 
a  country  is  divided  into  the  civil  and  crimi- 
nal departments;  the  former  ascertaining 
private  property,  and  regulating  the  rights 
and  interests  of  individuals ;  the  latter  pre- 
scribing a  rule  of  conduct  to  each  individual, 
in  relation  to  himself,  to  his  neighbour,  to 
the  public,  and  to  religion ;  these  rules  being 
fitted  for  all  stations,  adapted  to  all  circum- 
stances, and  enforced  by  punishment  propor- 
tioned to  the  extent  of  the  crime,  or  to  the 
nature  of  the  offence. 

The  criminal  law  of  Scotland. — I'he  criminsl 
law  of  Scotland  is  founded  on  ancient  usage, 
on  acts  of  Parliament,  on  the  Roman  law, 
and  also  on  the  Jewish  law ;  for  all  of  tbose 
have  contributed  to  the  completion  of  oar 
criminal  code.  Hence,  an  important  distioe- 
tion  has  arisen  between  the  criminal  law  of 
Scotland  and  that  of  England.  In  England, 
the  offence,  before  it  can  be  comprehended 
under  the  legal  description  of  a  crime,  most 
be  declared  to  be  so  by  statute,  and  the  de- 
gree of  punishment  prescribed.  In  Scotland, 
the  Supreme  Criminal  Court  has  an  inherent 
power  to  take  cognizance,  to  a  certain  exteut, 
of  new  offences,  and  is  authorized  by  usage  to 
inflict  an  arbitrary  puuishment;  that  is,  a 
punishment  not  affecting  the  life  of  the  of- 
fender ;  and,  generally  speaking,  and  in  the 
ordinary  state  of  society,  and  for  all  practical 
purposes,  this  system  is  attended  with  great 
advantages.  Hume,  i.  12.  We  have  differ- 
ences equally  remarkable  in  the  forms  of  our 
criminal  trials,  to  which  the  same  observa- 
tions are  applicable,  viz.,  that,  in  the  ordi- 
nary state  of  society,  and  for  the  repressing 
of  common  crimes,  our  forms  are  more  hu- 
mane, and  much  more  effective  than  those  of 
England.  Thus  the  law  of  Scotland  requires 
the  evidence  of  two  witnesses  to  prove  a  cri- 
minal act,  while  the  English  law  holds  the 
evidence  of  a  single  witness  sufficient.  In 
Scotland,  the  libel,  and  lists  of  the  names  of 
the  witnesses  and  of  the  jurors,  are  served 
upon  the  accused  fifteen  days  before  be  is 
brought  to  trial,  and  he  is  allowed  to  be 
heard  by  counsel ;  whereas,  in  England,  the 
accused  is  brought  to  the  bar  without  enjoy- 

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ing  the  same  advantages ;  and  until  the  pass- 
ing of  the  act  6  and  7  WiU.  IV.  c.  114, 
except  in  cases  of  treason,  the  accused  in 
England  were  not  allowed  to  be  heard  by 
counsel.  Eume,  i.  11.  See  Criminal  Prose- 
euiion.    Bail. 

The  civil  law  of  Scotland. — The  civil  or  mn> 
nieipal  law  includes  the  rules  bj  which  pro- 
perty is  preserved  or  vindicated,  and  the 
rights  and  interests  of  individuals  ascertained. 
Without  speculating  on  the  origin  of  the 
municipal  code  of  Scotland,  or  attempting  to 
trace  the  share  which  the  aboriginal  customs 
of  the  people,  or  the  canon  law,  under  the 
influence  of  the  clergy,  or  the  Roman  and 
feudal  laws,  respectively  had  in  producing 
the  complex  system  by  which  our  civil  rights 
are  now  regulated,  it  is  sufficient  for  all  the 
purposes  of  the  present  sketch  to  observe, 
that  institutional  writers  divide  the  existing 
law  of  Scotland  into  written  and  unwritten; 
the  former  consisting  of  the  rules  prescribed 
in  acts  of  Parliament ;  and  the  latter,  being 
the  consuetudinary  law,  either  founded  on 
immemorial  custom,  or  adopted  into  our  sys- 
tem from  the  Roman  law,  or  from  the  canon, 
or  from  the  feudal  law.     The  statutory  law 
of  Scotland  commences  with  the  acts  of  the 
Parliament  of  James  L  of  Scotland,  in  1424; 
one  peculiarity  of  the  acts  of  the  Scotch  Par- 
liantents  being,  that  they  may  fall  into  desue- 
tude, or  may  be  abrogated  by  a  contrary 
usage.     See  Deauetude.     In  this  way  it  has 
happened  that  the  Scotch  statutes  now  in 
observance  are  not  numerous.    The  Acts  of 
Sederunt,  which  are  the  acts  or  ordinances 
of  the  Court  of  Session,  have  no  proper  legis- 
lative force  beyond  what  relates  to  the  form 
of  administering  justice  in  that  Court.  Where 
they  go  farther,  as  they  do  in  some  instances, 
they  are  to  be  considered  rather  as  declara- 
tory judgments,  or  declarations  of  the  opinion 
of  the  Court  on  points  of  law,  and  a  certifica- 
tion to  the  public  of  the  judgment  which  will 
be  pronounced  when  the  case  provided  for 
occurs.    But  the  Court  may  decide  differently, 
or  the  House  of  Lords  may  disregard  such 
declaratory  acts,  except  when  (as  now  fre- 
quently happens)  a  special  enactment  in  a 
statute  confers  powei-s  on  the  Court  to  make 
effectual  and  binding  regulations  by  Act  of 
Sederunt.     See  Act  of  Sederunt     The  un- 
written law  consists  of  certain  legal  rules, 
aueb  as  the  law  of  primogeniture,  the  law  of 
deathbed,  the  teree,  the  courtesy,  the  legitim, 
and  some  others,  established  by  immemorial 
eastern.     The  decisions  of  the  Court  of  Ses- 
sion, or  of  the  House  of  Lords,  where  they 
have  been  uniform  on  the  same  point,  have 
been  held  as  proving  our  consuetudinary  law ; 
but  it  is  as  affording  evidence  of  the  custom, 
rather  than  as  po8se^ising  any  power  in  them- 


selves, that  with  us  adjudged  cases  have  been 
regarded  as  forming  part  of  the  law.  See 
Decition». 

The  private  law  of  a  country  may  be  re- 
garded in  two  aspects :  first.  As  it  operates 
on  those  living  under  it;  and,  tecondlt/.  As  it 
relates  to  foreigners.  In  regard  to  those 
under  it,  the  security  of  property  is  chiefly  to 
be  considered ;  and  in  no  country  is  property 
better  secured  than  in  Scotland.  Our  system 
of  records  gives  a  degree  of  security  to  the 
transmission  of  landed  property  which  is  pe- 
culiar to  Scotland.  The  law  of  deathbed, 
which  is  also  peculiar,  operates  for  the  bene- 
fit alike  of  the  heir  and  of  dying  persons; 
and  the  law  regulating  the  rights  of  debtor 
and  creditor  exposes  every  species  of  property 
belonging  to  the  debtor  to  the  attachment  of 
the  creditor;  while,  on  a  surrender  of  his 
property,  a  debtor  whose  misfortunes  have 
been  innocent  may  secure  his  personal  liberty. 
In  regard  to  strangers,  the  point  of  chief  im- 
portance relates  to  the  recovery  of  debts; 
with  respect  to  which  they  enjoy,  in  common 
with  domiciled  Scotchmen,  the  full  right  of 
attaching  every  species  of  property  belonging 
to  their  debtor;  while  those  laws  by  which 
diligence  is  equalized,  and  the  property  of  a 
debtor  fairly  distributed  amongst  his  credi- 
tors, give  an  opportunity  to  distant  creditors 
to  claim  and  draw  their  shares  along  with 
those  upon  the  spot.  In  particular,  the  Scot- 
tish system  of  mercantile  sequestration  is 
directed  to  the  distribution  of  the  whole 
estate  of  the  debtor,  and  to  the  fair  and  legal 
ranking  of  every  creditor,  foreign  or  domestic. 
In  fine,  the  law  of  Scotland,  whether  regard 
be  had  to  security  in  the  possession  and  trans- 
mission of  property,  or  to  the  ready  means 
afforded  for  the  recovery  of  debts,  or  to  the 
respect  uniformly  shown  for  the  personal  li- 
berty of  the  subject,  need  not  fear  a  compari- 
son with  any  existing  municipal  code.  The 
practical  application  of  its  principles  is  be- 
sides, generally  speaking,  rational  and  intel- 
ligible, and  peculiarly  free  from  the  fictions 
and  technicalities  which,  to  a  certain  extent, 
conceal  the  merits  of  other  systems  from  un- 
professional inquirers. 

Law  of  Arms ;  is  that  law  which  regulates 
the  proclamation  of  war;  the  making  and 
observing  of  leagues  and  treaties ;  assaults  on 
and  encounters  with  an  enemy ;  and  the  pun- 
ishment of  offenders  in  camp,  &c.  The  law 
of  arms,  when  in  force,  supersedes  the  civil 
law.  Tomlin*'  Did.  h.  t.  See  Intematiow^ 
Law. 

Lawburrows;  are  letters  passing  under 
the  signet,  running  in  the  Sovereign's  name, 
and  obtained  at  the  instance  of  one  who  has, 
or  thinks  he  has,  reason  to  apprehend  danger 
to  his  person  or  property  from  the  acts  of 

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another.  These  letters  command  the  person 
complained  of  to  give  security  that  the  per- 
son at  whose  instance  the  letters  issue  shall 
he  free  from  every  violence  to  he  done  hy  the 
person  against  whom  they  are  directed,  or 
those  depending  on  hiro,  under  a  penalty 
fixed  hy  the  act  1593,  c.  166.  That  sUtnte, 
in  the  ease  of  an  earl  or  lord,  imposes  a 
penalty  of  L.2000  Scots ;  for  a  great  baron, 
L.IOOO  Scots ;  for  a  freeholder,  1000  merks ; 
for  a  feuar,  500  merks ;  for  a  yeoman,  100 
merks;  for  every  gentleman  unlanded,  200 
merks ;  for  each  person  summoned  on  an  as- 
size, 100  merks.  These  penalties  are  now 
either  increased  or  diminished  by  the  judge 
at  passing  the  bill  ea  which  the  letters  pro- 
ceed, and  the  sum  is  always  specified  in  the 
judge's  deliverance.  The  person  at  whose 
instance  the  letters  are  obtained  must  bring 

Sroof  of  his  cause  of  alarm,  or  swear  that  he 
reads  harm ;  and  this  oath  is  administered 
by  the  messenger  before  he  executes  the  let- 
ters. Lawburrows  are  not  granted  to  one 
spouse  against  the  other,  nor  to  a  father 
against  his  child,  unless  on  proof  of  the  cause 
of  dread,  nor  until  application  has  been  first 
served  on  the  opposite  party.  In  such  cases 
of  family  quarrel,  it  has  been  suggested  as  a 
proper  course,  to  appoint  the  application  to 
be  made,  and  answers  to  he  lodged,  within  a 
limited  time,  under  certification  that  in  de- 
fault a  proof  will  he  allowed.  When  the  let- 
ters are  executed,  the  person  against  whom 
they  are  directed  must  find  caution  to  the 
extent  required,  within  the'days  specified  in 
the  letters ;  which  caution  is  lodged  with  the 
clerk  in  the  Bill-Chamber,  who  issues  a  cer- 
tificate of  the  fact.  When  these  letters  are 
taken  out  maliciously,  and  without  probable 
cause,  they  may  be  suspended,  and  damages 
awarded ;  but  where  there  is  reason  for  them, 
if  the  person  does  not  find  caution  within  the 
time  specified,  the  letters  may  be  denounced 
and  registered,  and  a  caption  raised  thereon, 
which  will  be  a  warrant  for  imprisoning  the 
person  who  has  neglected  to  find  caution. 
When  the  letters  have  been  taken  out,  and 
caution  found,  they  give  rise  (in  case  the 
person  shall  do  any  violence  to  the  complainer 
or  any  of  his  family)  to  an  action  of  coutra- 
vention  of  lawburrows,  which  follows  on  the 
letters  of  lawburrows  and  bond  of  caution ; 
and  of  course  decree  will  be  given  against 
both  the  offender  and  cautioner.  Contra- 
vention of  lawburrows  infers  liability  in  the 
party  complained  of,  whether  he  has  found 
security  or  not.  This  action  may  properly 
be  brought  before  the  justices  of  the  peace, 
when  one  of  them  has  exacted  the  security. 
The  fiscal  must  concur  with  the  private  com- 
plainer; but  cannot  prosecute  alone,  unless 
for  ordinary  punishment  of  the  act  as  a  breach 


of  the  peace ;  and,  in  such  a  case,  a  fise  im- 
posed on  the  offender  would  not  free  him  from 
an  action  of  contravention.  The  fiscal  may 
insist  criminally,  where  the  private  party's 
right  to  prosecute  for  contravention  is  barred, 
by  remission,  express  or  implied.  By  the 
tenor  of  the  bond  of  caution,  the  obligants 
bind  themselves  that  the  complainer,  hi$  wi/e, 
bainu,  servantt,  Sic,  shall  be  kept  skaithless; 
but,  unless  these  several  parties  have  con-  . 
curred  in  the  application,  an  action  of  con- 
travention for  injury  done  to  them  will  not 
lie  at  their  instance,  but  only  at  the  instance 
of  the  complainer  himself.  This  action,  being 
penal,  is  not  incurred  merely  by  the  uttering 
of  reproachful  words,  where  they  are  not  ac- 
companied with  violence,  or  at  least  with  a 
real  injury.  The  amount  of  the  penalty  ii 
properly  that  stated  on  the  bond ;  but  some- 
times, when  the  contravention  is  trifling,  leas 
is  awarded,  and  occasionally  no  more  is 
awarded  than  the  actual  damage.  In  this 
last  instance,  the  amount  levied  goes  to  the 
party  injured ;  but  in  other  cases  the  penalty 
IS  equally  divided  between  the  complainer 
and  the  fisk.  Ersk.  B.  iv.  tit.  1,  §  16 ;  Stair, 
B.  i.  tit.  9,  §  30 ;  B.  iv.  tit.  48 ;  Bank.  vol.  i. 
p.  282 ;  Kamet'  Stat.  Law  Ahridg.  h.  t ;  EtOek. 
Jutt.  of  Peace,  vol.  i.  pp.  39,  399,  2d  edit; 
Tail's  Just,  of  Peace,  k.  t. ;  Blair's  do.,  ww 
Surett/ ;  Barclay's  Digest,  h.  t. ;  Jvrii.  Styles, 
3d  edit.  vol.  ii.  pp.  91-2 ;  vol.  iii.  pp.  96, 298, 
768,  992 ;  Alexandei's  Ahridg.  of  A.  S.  3,  65; 
11  and  12  Vict.  c.  79,  §  3.  For  the  other 
kinds  of  surely,  see  the  articles  BaU.  Cis* 
tioner.    Surely. 

Lawful  duldren.    See  Children. 

Lawful  Day.    See  Day. 

Lay  Day.     See  Charter-Party. 

Lead  Muxes.     See  Jlfin«s  and  Minerals. 

Tiftading  a  Witueta.  It  is  a  general  rale 
that  leading  questions,  or  such  as  have  a  ten- 
dency to  suggest  to  the  witness  the  answer 
expected  from  him,  or  to  instruct  him  as  to 
the  answer  he  should  give,  are  not  allowed. 
Thus,  it  is  not  permitted,  with  the  view  of 
proving  a  conversation,  to  mention  to  the 
witness  a  particular  expression,  and  ask 
whether  it  was  used.  This  rule  is  not  so 
strictly  enforced  in  regard  to  cross-examina- 
tion. Maefarlane's  Jury  Prae.  131 ;  AUsm's 
Prac.  696 ;  Dickson's  Law  of  Evident,  pp. 
987-8. 

LeaM,  Contract  of;  it  is  a  mutual  con- 
tract between  the  proprietor  or  lessor  of  lands, 
houses,  mills,  fishings,  or  the  like,  and  a  ten- 
ant or  lessee  to  whom  the  temporary  posses- 
sion of  the  subject  and  its  fruits  or  profits  is 
given  for  a  certain  stipulated  rent,  or  annual 
payment,  in  money,  grain,  or  services.  The 
lease  was  originally  in  the  form  of  a  grant 
from  the  lessor ;  but  as  agriculture  improved. 


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it  became  necessary  to  introduce  a  variety  of 
conditions  obligatory  on  both  parties.  Hence 
it  assumed  the  form  of  a  mutual  contract. 
As  this  contract  affects  heritage,  the  right 
to  which  is  regulated  by  charter  and  sasine, 
and  by  a  system  of  records,  it  became  neces- 
sary for  the  Legislature  to  interfere,  and  to 
render  the  tenant's  right  real,  so  as  to  pre- 
vent him  from  being  dispossessed  by  a  pur- 
chaser or  other  singular  successor.  This  was 
done  by  the  act  1449,  c.  18,  which  declares, 
"  That  for  the  safety  and  favour  of  the  poor 
people  that  labours  the  ground,  that  they  and 
all  others  that  has  taken  or  shall  take  lands, 
in  time  to  come,  frae  lords,  and  has  terms 
and  years  thereof,  that  suppose  the  lords  sell 
or  anailzie  that  land  or  lands,  the  takers  shall 
remain  with  their  tacks  until  the  issue  of 
their  terms,  whose  hands  that  ever  the  lands 
come  to."  In  this  manner  has  the  lease  not 
only  of  lands,  but  of  houses,  fishings,  mills, 
Sec  been  secured  during  their  currency  against 
singular  successors ;  but  to  entitle  a  lease  to 
the  protection  of  the  act,  it  must  be  a  written 
lease — it  must  have  a  stipulated  rent — the 
term  of  its  endurance  must  be  specified — and 
possession  must  have  followed  on  the  lease. 
It  is  thus  that  a  lease,  though  properly  &per~ 
sonal  contract,  is  made  effectual  against  a  sin- 
galar  successor.  But  against  the  granter  and 
his  heirs,  a  perpetual  lease,  or  a  lease  where 
no  rent  is  stipulated,  or  where  the  accruing 
rents  are  appropciated  prospectively  to  the 
payment  of  ^a  debt  due  to  the  tenant,  will  be 
effectual. 

1.  Of  the  amttitution  and  effects  of  the  con- 
tract.— In  the  constitution  of  the  lease  there 
are  several  matters  worthy  of  attention ;  as, 
— 1.  By  whom  a  lease  may  be  granted.  2. 
The  powers  reserved  by  the  granter.  3.  To 
whom  it  may  be  given.  4.  The  powers  con- 
ferred on  the  tenant.  5.  The  conditions  of 
the  lease.  6.  The  forms  necessary  for  a  bind- 
ing lease. 

1.  By  whom  a  lease  may  le  granted. — To 
entitle  a  person  to  grant  a  formal  lease,  he 
ought  to  be  infeft  in  the  subject ;  for,  although 
the  subsequent  infeftment  of  the  lessor  will 
validate  the  lease  by  accretion,  provided  there 
be  no  mid-impediment,  yet,  should  he  die  un- 
infeft,  the  lease  may  be  defeated,  by  a  stranger 
eoming  into  the  feudal  right,  who  does  not 
represent  the  lessor,  such  as  a  purchaser,  a 
stranger  substitute  in  an  entail,  or  an  ad- 
judging creditor.  But  the  heir  of  the  granter 
of  the  lease,  taking  the  land  as  his  represen- 
tative, is  bound  by  the  contract.  When  the 
lessor  is  infeft,  although  he  may  be  married, 
or  even  have  given  a  locality  to  his  widow, 
there  is  nothing  to  prevent  him,  in  the  exer- 
cise of  his  right  of  administration,  from  grant- 
ing a  lease ;  nor  will  his  widow  be  permitted, 


on  the  right  opening  to  her,  Uf  set  aside  the 
lease.  During  the  pupillarity  of  the  pro- 
prietor, a  tutor  is  not  entitled  to  grant  a 
lease  for  a  longer  period  than  the  endurance 
of  his  office ;  but  a  minor  pxibes  may,  with  the 
consent  of  his  curator,  let  a  lease,  though  it 
will  be  liable  to  reduction  on  the  head  of 
lesion,  if  lesion  can  be  proved.  A  proprietor 
is  not  prevented  from  exercising  the  common 
acts  of  administration,  by  having  granted  an 
heritable  bond,  which,  as  being  merely  a  right 
in  security,  leaves  the  right  of  property  un- 
affected in  the  person  of  the  debtor.  A  pro- 
prietor, therefore,  after  granting  heritable 
securities,  may  grant  a  valid  lease ;  but  the 
effect  of  real  diligence  is,  to  circumscribe  the 
proprietor's  power  of  administration ;  and, 
accordingly,  our  law  has  introduced  what  has 
been  denominated  litigiosity,  by  which,  from 
the  time  that  a  summons  of  adjudication  or 
letters  of  inhibition  are  executed  and  pub- 
lished, a  lien  is  created  over  the  subject,  which 
exposes  to  challenge  a  sale  made  or  a  lease 
granted  by  a  party  against  whom  such  dili- 
gence has  been  commenced.  So  also,  a  mer- 
cantile sequestration,  which  deprives  the  pro- 
prietor of  the  power  of  administration,  will 
have  the  same  effect.  The  law  of  deathbed 
also  will  expose  to  challenge,  ex  capite  lecti,  a 
lease  to  the  prejudice  of  his  heir,  if  the  lease 
be  an  extraordinary  act  of  administration; 
but  not  where  it  is  a  lease  of  ordinary  endur- 
ance, and  at  an  adequate  rent ;  Semple,  1st 
June  1813,  Fac.  Coll.  An  entail,  in  like 
manner,  circumscribes  the  powers  of  a  pro- 
prietor ;  but  that  depends  on  the  terms  of  the 
entail.  See  Tailzie.  Ch-assum.  Where  a  life- 
renter  grants  a  lease,  it  can  endure  only  dur- 
ing his  lifetime. 

2.  The  powers  reserved  ly  the  granter  inde- 
pendently of  stipulation. — Under  this  implied 
reservation  are  included, — 1.  The  mines  and 
minerals,  and  the  power  of  working  them  on 
payment  of  surface  damage.  2.  The  trees 
and  wood  on  the  farm ;  the  tenant  having  a 
right  merely  to  the  annual  crops  which  the  soil 
produces.  3.  Where  the  subject  is  destroyed, 
the  landlord  is  not  bound  to  rebuild.  See 
the  case  of  Bayne  v.  Walker,  as  reversed  in 
the  House  of  Lords,  3  Dow,  p.  233.  In  vir- 
tue of  his  inherent  right  of  property,  he  may 
also  hunt  on  the  farm.  4.  The  landlord,  in- 
dependently of  stipulation,  has  a  right  of  hy- 
pothec, in  security  of  his  rent.  This  right 
gives  the  landlord  a  security  over  the  crop  of 
each  year,  for  the  rent  of  that  year  of  which 
it  is  the  crop  ;  and  over  the  cattle  and  stock- 
ing on  the  farm  for  the  current  year's  rent, 
which  last  right  endures  for  three  months 
after  the  last  conventional  term  of  payment 
of  the  year's  rent.    See  Hypothec. 

3.  To  whom  a  lease  may  be  given. — This  de- 

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pendsentirely  on  tbecoiivention  of  the  parties ;  ] 
and  all  that  is  to  be  considered  is,  the  extent 
of  the  right  conferred  by  the  terms  used  in 
describing  the  tenant.  Where  a  lease  is  given 
simply  to  a  tenant  by  name,  it  will  go  to  his 
heirs  on  his  death,  if  he  dies  before  the  ex- 
piration of  the  lease,  although  heirs  be  not 
mentioned.  Where  the  lease  ia  given  to  two 
persons,  or  to  joint  tenants,  as  they  are  termed, 
the  interest  of  one  of  the  tenants,  on  his 
death,  will  go  to  his  heirs,  and  not  to  the  sur- 
riring  tenant.  Where  the  lease  is  given  to 
two,  and  to  the  longest  liver,  and  to  their 
heirs,  each  of  the  original  tenants  has  a  joint 
right ;  but  on  the  death  of  any  one  of  them, 
the  heir  of  the  deceased  has  no  right,  the 
whole  belonging  to  the  surviving  tenant. 
Where,  again,  a  lease  is  given  to  a  company, 
it  becomes  a  difficult  question  to  say  what 
effect  is  produced  on  the  lease  by  a  dissolu- 
tion of  the  company.  This  point,  therefore, 
ought  to  be  settled  by  an  express  stipulation 
in  the  lease.  It  ought  to  be  declared,  whether 
the  lease  is  to  Ite  thereby  t«rmiDated,  or 
whether  a  power  of  assigning  or  of  subsetting 
U  intended  to  be  given ;  and  the  company 
ought  to  subscribe  and  to  bind  themselves, 
not  by  the  firm  of  the  company,  but  in  their 
individual  names,  and  as  taking  burden  for 
the  company.  When  a  lease  is  given  to  a 
tenant,  and  to  his  heirs,  it  is  the  heir-at-law 
who  is  understood  to  be  meant ;  and  there- 
fore care  ought  to  be  taken,  either  to  give  to 
the  tenant  a  power  of  assigning  or  of  sub- 
setting,  or  at  least  a  power  of  naming  a  suc- 
cessor in  place  of  the  heir-at-law ;  a  precau- 
tion useful  both  to  landlord  and  tenant,  as  the 
heir  may  be  unfit  or  disinclined  to  take  the 
management,  or  the  tenant  may  be  succeeded 
by  heirs-portioners.  Power  ought  also  to  be 
given  by  the  lease  to  the  tenant  to  appoint  a 
manager  of  the  farm  for  his  heir,  in  case  the 
tenant  should  die,  leaving  his  heir  in  mino- 
rity, or  otherwise  incapable  of  managing  for 
himself — the  manager  so  appointed  being 
taken  bound  to  perform  the  obligations  in- 
cumbent on  the  tenant  by  the  lease. 

4.  The  powers  am/erred  hy  the  lease. — ^Under 
the  lease,  the  tenant  has  a  right  to  the  an- 
nual fruits,  and  to  the  use  and  possession  of 
the  subject.  Hence,  where  the  subject  of  the 
lease  is  rendered  unfit  for  the  purposes  fur 
which  it  was  let,  overblown  with  sand,  Inun- 
dated, or  otherwise  destroyed,  there  must  be 
a  proportional  diminution,  and,  in  extreme 
cases,  a  total  discharge  of  the  rent.  Where, 
firom  the  inclemency  of  the  season,  a  degree 
of  sterility  has  been  produced,  such  as  to 
yield  the  tenant  no  more  than  seed  and  la- 
bour, cases  hare  occurred  in  which  the  rent 
has  been  held  not  to  e  demandable.  See 
BUrilUy. 


6.  The  eondition*  of  the  lease. — The  usual 
conditions  of  this  deed  are,  on  the  part  of  tli« 
landlord,  warrandice,  which,  whether  ex- 
pressed or  implied,  binds  him,  unless  the 
contrary  be  expressly  stipulated,  to  warrant 
to  the  tenant  undisturbed  possession  daring 
the  continuance  of  the  lease,  and  to  protect 
him  against  all  encroachments  on  his  right. 
On  the  part  of  the  tenant,  the  implied  obli- 
gations are,  that  he  shall  stock  and  labour 
his  farm  according  to  the  rules  of  good  hus- 
bandry; that  he  shall  regularly  pay  his  rent; 
shall  keep  and  leave  the  houses  and  inclosures 
on  the  farm  in  repair  ;  and  that  he  shall  re- 
move from  the  farm  at  the  expiration  of  the 
lease.  These,  with  obligations  on  the  parties 
to  perform  their  respective  parts  of  the  agree- 
ment under  a  certain  penalty,  are  the  com- 
mon and  ordinary  conditions  of  the  leate. 
But  there  may  be  an  infinite  variety  of 
others  applicable  to  the  special  circumstances 
of  the  particular  case  or  the  nature  of  the 
farm.  In  particular,  it  is  common  to  pre- 
scribe positive  rules  as  to  the  mode  of  Is- 
bouring  and  managing  the  farm;  though  that 
practice  is  not  now  so  prevalent  as  it  once 
was,  the  most  approved  course  being  to 
prohibit  an  injurious  rotation,  or  to  pre- 
scribe a  particular  rotation  for  the  last  four 
or  five  years  only  of  the  lease,  leaving  the 
choice  of  a  rotation  consistent  with  good 
husbandry  entirely  to  the  tenant.  Thew 
conditions  may  be  enforced,  by  exacting  or 
stipulating  for  a  higher  or  additional  rent 
for  such  parts  of  the  farm  as  shall  be  labour- 
ed differently. 

6.  The  forms  neeetsaryfor  a  binding  lease, — 
A  lease  merely  verbal,  to  endlire  for  more 
than  one  year,  will  not  bind  the  parties.  To 
produce  this  effect,  writing  tnust  intervene. 
Even  where  possession  has  followed  on  a  ver- 
bal lease,  that  is  not  sufl9cient ;  it  may  be 
resiled  from,  and  terminated  at  the  expira- 
tion of  the  current  year,  though  stipulated 
to  continue  for  a  tract  of  time.  In  the  case 
where  money  has  been  expended,  or  an  en- 
gagement come  under  on  the  faith  of  the 
lease,  although  a  breach  of  the  verbal  agree- 
ment may  found  a  claim  of  damages,  yet  the 
verbal  agreement  will  not  be  taken  as  a 
ground  for  giving  effect  to  the  lease.  A 
verbal  lease  may,  indeed,  be  made  effectnal 
against  the  granter  and  his  heirs,  by  nn  m- 
terventus,  provided  such  rei  intenientus  shall 
distinctly  apply  to  a  right  of  longer  duration 
than  a  single  year.  But  a  lease  established 
rei  interventu  has  no  effect  against  singular 
successors  without  possession  (see  Bei  inter- 
ventus) ;  and,  generally  speaking,  the  ternu 
of  a  verbal  lease  cannot  be  proved  by  oath  of 
party,  so  at  least  as  to  make  it  effectual  for 
more  than  one  year.     Bnt  a  writt«n  obliga- 

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tion  to  gnnt  a  lease  is  eqniralent  to  an  ac- 
toal  lease  ;  and  any  writing,  howerer  in- 
formal,  if  followed  by  possession,  will  be  as 
effectual  as  a  formal  written  lease,  not  only 
against  the  granter  and  his  heirs,  but  against 
singular  successors,  provided  such  writing 
contain  tn  grcemio,  the  essentials  of  a  lease 
under  the  statute  1449,  c  18,  viz.,  a  rent 
and  a  definite  period  of  endurance,  and  that 
the  writing  is  followed  by  possession  refer- 
able to  it.  In  order  to  be  effectual  to  ground 
an  action,  a  written  lease  must  be  on  stamped 
paper.  The  want  of  a  stamp  may  be  sup- 
plied at  any  time  on  payment  of  certain  pe- 
nalties ;  but  the  practice  of  sisting  process 
till  the  stamp  be  obtained  is  not  correct.  See 
Stamp  Laws. 

II.  Of  the  trantmisiion  of  the  lease. — The 
leaM  may  be  transmitted  by  assignation,  or 
the  right  of  possessing  under  the  principal 
tacksman  may  be  given  by  a  sub-lease.  A 
power  of  assigning  or  of  sub-setting,  however, 
is  not  impli^  in  a  lease  of  the  ordinary  en- 
durance of  nineteen  years.  In  such  leases, 
therefore,  an  express  authority  to  assign  or 
subset  must  be  given.  Where  the  lease  ex- 
ceeds nineteen  years'  endurance,  or  where  it 
is  given  for  a  liferent,  a  power  of  assigning 
and  subsetting  is  implied,  unless  expressly 
excluded  ;  and  in  the  case  of  an  urban  tene- 
ment, whether  the  lease  be  long  or  short,  the 
tenant  may  assign  or  subset,  if  not  prohibited 
by  the  lease.  When  a  sublease  is  given,  the 
principal  tenant,  in  the  ordinary  case,  re- 
mains bound ;  but  it  is  doubtful  whether  the 
same  holds  in  the  case  of  an  assignation. 
Both  the  sublease  and  assignation  are  com- 
pleted by  possession  ;  but  it  may  happen  that 
a  lease  is  assigned  which  has  been  previously 
sahset;  so  that  the  assignee  does  not  enter 
into  the  natural  possession  of  the  subject, 
but  draws  the  rents  only,  and  that  is  equiva- 
lent to  natural  possession.  Where,  again,  it 
is  necessary  to  complete  the  transference 
more  immediately  than  can  be  done  in  this 
way,  the  assignation  must  be  intimated  to  the 
subtenant  or  person  in  possession.  On  this 
point,  which  is  attended  with  many  practical 
difficulties,  the  following  authorities  may  be 
consulted :  BelPs  Com.  i.  66 ;  Ivory's  Ersk. 
B.  ii.  tit.  6,  §  26 ;  Hunter's  Landlord  and 
Tenant,  398 ;  Bell  on  Leases,  1.  451 ;  Russell, 
3d  Deo.  1822,  2  &  <f: i?.  62 ;  5  S.dsD.Qdl; 
1  S.dsD.  767  ;  1  PF.  <!:  S.  620  ;  9  5.  «t  D. 
App.  6 ;  Young,  14th  Dec.  1824,  3  6'.  *  D. 
388,  and  3  TF.  <fr  S.  404 ;  MarsUm,  16th  Jan. 
1827,  5  S.  d!  D.  200 ;  Kennedy,  19th  Feb. 
1829, 7  S.d!  D.  435 ;  InglU  db  Co.,  26th  Feb. 
1829,  7  S.diD.  469;  Brock,  5th  March  1830, 
8S.itD.  647,  affirmed  on  appeal,  SW.dbS. ; 
Hamilton' »  Trustee,  26th  May  1830,  8  &  d; 
D.  799.    See  also  supra,  voce  Assignation,  p. 


78.  But  although  an  express  power  of  as- 
signing or  subsetting  be  required,  in  order  to 
authorize  a  tenant  voluntarily  to  assign  or 
subset  a  lease  of  the  ordinary  endurance  of 
nineteen  years,  yet  such  a  lease  is  adjudgablo 
by  a  creditor  of  the  tenant,  unless  it  contain 
an  express  exclusion  of  assignees  and  sub- 
tenants, in  which  case  both  voluntary  and 
judicial  assignees  are  inadmissible.  As  to 
the  transmission  of  a  lease  on  the  death  of 
the  lessee,  see  supra,  p.  517. 

III.  Of  the  termination  of  the  lease. — When 
the  term  of  the  lease  is  expired,  it  is  in  the 
power  of  the  landlord  and  tenant  to  continue 
the  lease  from  year  to  year  by  tacit  reloca- 
tion;  that  is,  to  continue  the  possession  from 
year  to  year  on  the  old  terms.  The  conse- 
quence of  this  is,  that  a  warning  is  under- 
stood to  be  requisite  in  order  to  break  the 
implied  agreement.  See  Tacit  Relocation. 
Formerly,  this  warning  was  regulated  by  the 
act  1555',  c.  39,  under  which  removing  pro- 
ceeded on  a  precept  in  the  landlord's  name. 
But  the  Act  of  Sederunt,  Dec.  14,  1756, 
greatly  simplified  the  process,  by  requiring, 
in  place  of  the  statutory  and  cumbrous  form 
of  removing,  the  mere  calling  of  the  tenant 
in  an  action  of  removing  before  the  Judge 
Ordinary  forty  days  before  the  Whitsunday 
of  the  year  in  which  the  lease  is  to  expire. 
Where  there  is  a  regular  lease,  it  generally 
contains  an  obligation  to  remove  at  the  ex- 
piration of  the  term,  and  a  warrant  for  let- 
ters of  horning  is  given,  in  which  case  letters 
of  homing  may  be  raised  and  executed  forty 
days  before  the  Whitsunday  of  the  year  of 
removal — a  charge  on  which  the  Act  of  Se- 
derunt declares  to  be  sufficient  to  entitle  the 
landlord  to  obtain  a  warrant  of  ejection. 
The  lease  may  be  prematurely  terminated 
by  the  tenant  s  desertion.  In  such  a  case, 
the  safe  course  for  the  landlord  seems  to  be 
to  apply  to  the  Judge  Ordinary,  stating  the 
circumstances,  and  praying  for  judicial  au 
tbority  to  dispose  of  the  unexpired  period  of 
the  lease  by  public  roup,  under  a  reservation 
of  all  claims  against  the  tenant  who  has  de- 
serted. Where  a  subtenant  has  deserted,  the 
same  course  may  be  pursued  by  the  principal 
tacksman.  A  current  written  lease  may  ^so 
be  brought  to  a  close,  during  its  currency, 
by  a  voluntary  renunciation  by  the  tenant, 
provided  the  landlord  agrees  to  accept  of  it, 
and,  upon  principle,  it  would  seem  that  such 
a  renunciation  must  be  in  writing.  If  so, 
all  agreements  on  the  part  either  of  the 
landlord  or  of  the  tenant,  having  in  view  the 
termination  of  a  current  written  lease,  may 
be  resiled  from,  unless  writing  have  inter- 
vened. It  has  been  said  that  where  the  lease 
is  informal,  the  renunciation  may  be  so  like- 
wise ;   but  in  that  case  there  must  be  cir- 


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cnmstances  corroborative  of  the  renanciation 
to  counterbalance  the  r«t  interventus  on  the 
lease.  There  is  no  particular  form  of  renun- 
ciation required,  but  there  must  be  a  clear 
and  explicit  notice  to  the  right  party  forty 
days  before  Whitsunday.  See  Removing. 
Renunciation. 

A  summons  of  removing  may  now  be  raised 
at  any  time,  provided  there  is  an  interval 
of  40  days  between  the  date  of  the  execu- 
tion of  the  summons  and  the  term  of  re- 
moval, or  where  there  is  a  separate  ish  as 
regards  land  and  houses  or  other  subjects 
between  the  date  of  the  execution  of  the  sum- 
mons and  the  ith  which  is  first  in  date.  A 
lease  which  contains  an  obligation  to  re- 
move has  the  same  force  and  effect  as  an 
extract-decree  of  removing  obtained  by  the 
party  in  right  of  the  lease  against  the  party 
in  possession  under  the  lease,  whether  the 
original  lessor  or  not,  and  along  with  a  writ- 
ten authority  signed  by  the  landlord,  or  his 
factor  or  agent,  is  a  sufficient  authority  to 
any  sheriff-officer  or  messenger-at-arms  with- 
in the  county  within  which  the  lands  are  si- 
tuated, to  remove  the  party  in  possession. 
Previous  notice,  however,  must  be  given  to 
the  tenant,  at  least  40  days  before  the  expi- 
ration of  the  term  of  endurance  specified  in 
the  lease ;  or  where  there  is  a  separate  ish 
as  regards  land  and  houses  or  other'subjects, 
at  least  40  days  before  the  ish  which  is  first 
in  date.  The  notice  in  the  form  of  schedule 
I,  annexed  to  the  act,  must  be  delivered  to 
the  party  in  possession,  or  left  at  his  ordinary 
dwelling-house,  or  transmitted  to  his  known 
address  through  the  post-office  by  a  sheriff- 
officer  or  messenger-at-arms.  No  removal 
under  the  act  can  take  place  after  six  weeks 
have  elapsed  from  the  expiration  of  the  term 
of  endurance  specified  in  the  lease,  or  from 
the  ish  which  is  last  in  date  where  there  is  a 
separate  ish  as  regards  the  land  and  houses 
or  other  subjects.  -  A  letter  of  removal,  in 
the  form  given  in  schedule  E,  has  the  same 
effect  as  an  extract-decree  of  removal  ob- 
tained against  the  granter  of  the  letter,  or 
any  party  in  his  right ;  but  where  the  letter 
of  removal  bears  date  more  than  six  weeks 
before  the  term  of  removal  specified  in  it,  40 
days'  notice  must  be  given.  See  act  16  and 
17  Vict,  c  80, 1853. 

By  the  act  20  and  21  Viet.,  c.  26  (1857), 
leasesfor  thirty-one  years  andupwards  may  be 
recorded  in  the  Register  of  Sasines,  and  such 
leases  so  registered  are  effectual  against  all 
singular  successors  in  the  lands  let  whose  in- 
feftments  are  posterior  in  date  to  the  date  of 
registration  of  such  leases.  Such  leases, 
when  recorded,  may  be  assigned,  in  whole  or 
in  part,  in  the  form  given  in  schedule  A  an- 
nexed to  the  act,  and  the  recording  of  such 


assignation  effectually  Tests  the  assignee  with 
the  right  of  the  granter  of  the  assignation  in 
the  lease  to  the  extent  assigned.  Such  as- 
signation, however,  does  not  prejudice  the 
right  of  hypothec  or  other  rights  of  the  land- 
lord. A  party  in  right  of  any  such  recorded 
lease,  and  whose  right  to  the  lease  is  also  re- 
corded, may  assign  the  lease  in  whole  or  in 
part  in  security  for  the  payment  of  borrowed 
money,  or  of  annuities,  or  of  provisions  to  wives 
and  children,  or  in  security  of  cash-credits 
or  other  legal  debt  or  obligation  in  the  form 
given  in  schedule  £  annexed  to  the  act,  and 
the  recording  of  such  assignation  in  security 
completes  the  right  of  the  assignee,  and  a 
real  security  over  the  lease  is  thereby  con- 
stituted to  the  extent  assigned. 

Where  the  party  in  the  right  of  any  such 
lease  or  assignation  in  security  is  not  the 
original  lessee  in  the  lease,  or  the  original 
assignee  of  the  lease,  he  must,  before  pre- 
senting the  lease  or  assignation  in  security 
for  registration,  expede  a  notarial  instrument 
in  the  form  given  in  schedule  G,  and  the 
keeper  of  the  register  on  such  notarial  in- 
strument being  produced  to  him,  records  the 
lease  and  assignation  in  security  along  with 
the  instrument. 

A  recorded  assignation  in  security  is  trans- 
ferable in  whole  or  in  part  by  translation  in 
the  form  given  in  schedule  D,  and  the  party 
in  right  of  such  recorded  assignation  in  se- 
curity is  entitled,  in  default  of  payment  of 
the  capital  sum  for  which  the  assignation  in 
security  was  granted,  or  of  a  term's  interest 
thereof,  or  of  a  term's  annuity  for  six  months 
after  the  capital  sum  or  the  term's  interest  or 
annuity  shall  have  fallen  due,  may  apply  to 
the  sheriff  for  a  warrant  to  enter  to  posses- 
sion of  the  lands  leased,  and  the  sheriff,  after 
intimation  to  the  lessee  for  the  time  being 
and  to  the  landlord,  shall,  if  he  see  cause, 
grant  such  warrant.  The  warrant  so  granted 
is  a  sufficient  title  to  the  party  so  obtaining 
it  to  enter  into  possession  of  the  lands,  and  t« 
uplift  the  rents  from  the  subtenants,  and  to 
sublet  the  lands  as  freely  as  the  lessee  might 
have  done.  He  is  not,  however,  personally 
liable  to  the  landlord  in  any  of  the  obliga- 
tions and  prestations  of  the  lease  until  be  so 
enters  into  possession. 

The  heir  of  any  party  who  dies  vested  in 
right  of  any  such  recorded  lease  or  assigna- 
tion in  security  may  complete  his  title  thereto 
by  a  writ  of  acknowledgment  from  the  pro- 
prietor infeft  in  the  lands  held  by  such  lease, 
or  from  the  party  appearing  on  the  raster 
as  in  absolute  right  of  such  lease  of  or  over 
which  such  assignation  in  security  has  been 
granted.  The  form  of  such  writ  is  given  in 
schedule  E,  and  the  recording  of  such  writs 
in  the  register  in  which  such  lease  or  assigna- 


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tion  in  security  is  registered  completes  the 
title  of  the  lieir.  No  defect,  however,  in  the 
title  of  the  proprietor  or  grantor  of  snch 
writ  will  affect  the  writ  or  title  of  such  heir. 
The  heir  of  any  party  who  dies  fully  vested 
in  right  of  any  sach  recorded  lease  or  assigna- 
tion in  security,  who  obtains  a  general  or  spe- 
cial service  to  such  party,  or  the  general  dis- 
ponee  of  such  party,  may  complete  his  title  to 
such  lease  or  assignation  in  security  by  ex- 
peding  a  notarial  instrument  in  the  form 
given  in  schedule  F. 

Where  an  assignee  dies  without  recording 
the  assignation  in  his  favour,  his  heir  or  ge- 
neral disponee  may  complete  his  title  by  ex- 
peding  a  notarial  instrument  in  the  form 
given  in  schedule  F,  and  the  keeper  of  the 
register,  on  such  instrument  being  presented 
to  him,  records  the  assignation  along  with 
the  instrument. 

The  right  of  an  adjudger  of  any  recorded 
lease  or  assignation  in  security  from  the  party 
vested  in  the  right  thereof,  or  from  the  heir 
of  sach  party,  is  completed  by  recording  the 
abbreviate  of  adjudication  in  the  register  in 
which  the  lease  is  recorded.  A  trustee  on  a 
sequestrated  estate  of  any  party  in  right  of 
such  lease  or  assignation  in  security  may 
complete  his  title  by  expeding  a  notarial  in- 
strument in  the  form  given  in  schedule  P, 
and  recording  the  instrument  in  the  register 
in  which  the  lease  or  assignation  is  recorded. 
The  date  of  all  such  leases  and  assignations 
is  regulated  by  the  dates  of  recording.  Re- 
nunciations and  discliarges  of  such  leases  or 
assignations  may  be  in  the  form  given  in 
schedules  G-  and  H,  and  may  be  endorsed 
on  the  lease  or  assignation  in  security  and 
recorded.  Decrees  of  reduction  of  any  such 
lease,  or  any  assignation  thereto,  may  also 
be  recorded. 

Jjeases  containing  an  obligation  upon  the 
granter  to  renew  the  same  from  time  to  time 
at  fixed  periods,  or  upon  the  termination  of 
a  life  or  lives  or  otherwise,  are  deemed  leases 
in  the  meaning  of  the  act,  and  may  be  re- 
gistered, provided  such  leases  shall,  by  the 
terms  of  the  obligation,  be  renewable  from 
time  to  time,  so  as  to  endure  for  a  period  of 
thirty-one  years  or  upwards.  No  lease  of 
land  other  than  subjects  held  by  burgage  te- 
nure executed  after  the  passing  of  the  act, 
nnless  executed  in  terms  of  an  obligation  to 
renew,  contained  in  a  lease  granted  prior  to 
the  act,  caii  be  registered,  unless  the  name  of 
the  lands  of  which  the  subjects  let  consist  or 
form  a  part  are  set  forth  in  the  lease,  and  no 
lease  of  lands,  except  where  the  same  consist 
of  mines  and  minerals,  can  be  registered  un- 
less the  extent  of  the  land  bp  set  forth'  in  the 
lease,  and  shall  not  exceed  fifty  acres. 

On  the  subject  of  this  article,  see  Bdl  on 


Leates,  4th  edit. ;  Hwntei't  Landlord  and 
Tenant ;  Ersk.  B.  ii.  tit.  6,  §  20,  and  nu- 
merou&  wduable  notes  by  Ivory;  Stair,  B. 
ii.  tit.  9  ;  Mor^s  Notes,  pp.  Ixvi.,  Ixxx., 
cxxxviii.,  clxxx.,  ccxlviii. ;  BelPs  Com.  i.  65  ; 
Bank.  vol.  ii.  p.  94  ;  BelPs  Princ.  5  1177,  et 
seq. ;  Elust.  ib. ;  Hunter's  Landlord  and  Te- 
nant, passim ;  Sandford's  Herit.  Success,  i.  pp. 
34,  138 ;  Sand/ord  on  Entails,  pp.  69,  163, 
175, 180-4-5,  213  ;  Bdl  on  Purchaser's  Title, 
2d  edit.  pp.  107-111 ;  Ross's  Lect.  ii.  456, 
et  seq. ;  Wight,  Dow's  App.  Gases,  i.  141 ; 
Kerr,  ib.  ii.  212  ;  Henderson,  ib.  285 ;  Rox- 
burgh, Bligh's  App.  Gases,  ii.  156.  Consult 
also  the  following  articles  in  this  Dictionary: 
Arrears.  Assignation.  Bona  Fides.  GhdOdng 
the  Door.  Coal.  Crop.  Cropping.  Grount 
Lands.  Currente  Termino.  Damage.  Ddec- 
lus  Personte.  Discharge.  Dung.  Earnest. 
Ejection.  Ejection  and  Intrusion.  Factor.  Fal- 
low. Farm-Servants.  Fences.  Ferries.  Fire. 
Fisheries.  Fixtures.  Fodder.  Forehand  Rent, 
Furniture.  Game.  Grass.  Grassum.  Grow- 
ing Com.  Hypothec.  Improving  Lease.  In- 
veeta  et  Fllata.  Irritancy.  I$h.  Judici<d  Fac- 
tor. Kain.  Kelp.  Kindly  Tenants.  Land- 
lord. Lochmaben.  Machinery.  Marches.  Me- 
lioration. Mills.  Mines  and  Minerals.  Mul- 
tures. Plough  Goods.  Poinding.  Purgation 
of  Irritancy.  Rahbits.  Removing.  Rent.  Sal- 
mon Fishing.  Sequestration.  Steelbow.  Ste- 
rility. Stocking.  Straw.  Tenant.  Terms, 
legal  and  conventional.  Violent  Profits.  Warn- 
ing.    Warrandice.     Way-going  Crop. 

Lease  and  Belease;  in  English  law,  a 
conveyance  of  the  fee-simple,  right  or  interest 
in  lands  or  tenements,  under  the  statute  of 
uses,  27  Hen.  VIII.  c.  10 ;  giving  first  the 
possession,  and  afterwards  the  interest  in  the 
estate  conveyed.     Tomlins'  Diet,  h.  t. 

Leaseholders ;  as  to  their  right  of  voting 
under  tlie  Reform  Act,  see  Reform  Act. 

Leasing-Kakiiig ;  or  verbal  sedition,  as  it 
is  also  termed,  consists,  according  to  the 
language  of  the  old  statutes,  in  "  slanderous 
and  untrue  speeches,  to  the  disdain,  reproach, 
and  contempt  of  his  Majesty,  his  council  and 
proceedings,  or  to  the  dishonour,  hurt,  or 
prejudice  of  his  Highness,  his  parents  and 
progenitors,"  &c.;  1584,  c.  134.  By  this 
act,  and  by  the  act  1585,  c.  10,  and  others  of 
a  still  older  date,  this  crime  is  made  punish- 
able with  death.  But  this  having  been  de- 
clared a  grievance  in  the  claim  of  right,  the 
punishment  of  the  offenders  was,  by  the  act 
1703,  c.  4,  declared  to  be  an  arbitrary  one ; 
and  the  punishment  was  still  further  miti- 
gated by  6  Geo.  IV.  c.  47,  by  which  it  was 
provided,  that  persons  convicted  of  leasing- 
making,  sedition,  or  blasphemy,  should  be 
liable  to  be  punished  only  by  fine  and  im- 
prisonment, or  both,  at  the  discretion  of  the 

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court ;  or  on  a  second  conviction  in  the  lame 
way,  or  by  banishment.  So  much  of  this  ai;t 
as  regards  the  punishment  by  banishment  is 
repealed  by  7  Will,  IV.  c.  5.  See  Enk.  B. 
ir.  tit.  4,  §  29;  Hume,  i.  344,  2d  edit. ;  Kama' 
SkU.  Law  abridg.,  h.  t.;  Hutch.  Justice  of 
Peace,  i.  358 ;  Skaufs  Digat,  148.  See  Blat- 
phemy.     Sedition.    Libel. 

IiMtnres,  Pnblioation  of.  See  Literary 
Property. 

Lectns  iEgritadiniB.  The  weakness  oc- 
casioned by  extreme  illness,  such  as  child- 
birth pains,  is  a  relevant  ground  for  reducing 
a  bond  or  a  discharge.  Brown't  Syn.  950 ; 
Kama'  Equity,  69.  See  Imbecility.  Facility. 
Fraud.     Deathbed. 

LogMj ;  is  a  bequest  or  donation  of  a  sum 
of  money,  or  of  a  moveable  subject,  to  be  paid 
or  delivered  to  the  legatee  by  the  executor 
of  a  deceased  person,  ont  of  the  moveable 
estate  of  the  defunct.  Legacies  are  usually 
bequeathed  by  a  testament,  by  which  the 
testator  appoints  an  executor,  and  directs 
him,  against  a  certain  time  (usually  the  first 
term  of  Whitsunday  or  Martinmas  after  the 
testator's  death),  to  pay  the  legacies  to  the 
legatee.  Where  the  legacy  consists  of  an 
article  which  is  to  be  delivered,  it  is  under- 
stood, unless  otherwise  directed,  that  the  de- 
livery is  to  take  place  immediately  after  the 
testator's  death.  The  legacy  is  personal  to 
the  legatee  to  whom  it  is  given ;  and  were  he 
to  die  before  the  testator,  the  legacy  would 
lapse,  and  not  be  demandable  by  the  heir  of 
the  legatee.  If,  therefore,  it  be  meant  to 
give  a  legacy  to  a  person,  and,  in  the  event 
of  his  predeceasing  the  testator,  to  confer  it 
on  his  heir,  the  bequest  must  be  so  expressed; 
in  which  case  (should  the  legatee  predecease 
the  testator)  a  right  to  the  legacy  will  vest 
in  the  heir,  and,  in  the  event  of  bis  death, 
the  legacy  will  go  to  the  heir  of  the  testator, 
in  preference  to  any  other  heir  of  the  legatee. 
A  legacy  may  be  contained  in  a  general  dis- 
position as  well  as  in  a  testament.  The 
legacy  may  be  either  general,  or  special,  or 
universal.     See  Disposition  General, 

General  legacy. — A  general  legacy  is  that 
where  a  certain  sum  of  money,  as  Jj.lOO,  or  a 
certain  amount  of  property  of  any  kind,  is 
bequeathed  in  general  terms;  and  this  is 
payable  out  of  the  moveable  estate  of  the 
testator.  If  there  be  a  shortcoming  in  the 
moveable  estate,  or  any  subsequent  loss,  it 
falls  proportionally  on  all  the  general  legacies. 
But  if  a  sum  be  bequeathed  for  a  special  pur- 
pose, in  making  the  abatement  necessary  on 
account  of  the  shortcoming,  where  otherwise 
practicable,  enough  must  be  left  to  execute 
the  purpose  of  the  bequest. 

Special  legacy. — The  legacy  is  said  to  be 
special,  where  a  particular  subject  or  debt  is 


bequeathed  to  the  legatee;  in  which  case  the 
legatee  mnst  bear  any  loss  arising  from  the 
bankruptcy  or  inability  of  the  debtor.  But, 
on  the  other  hand,  he  gets  the  subject  or  debt 
such  as  it  is,  and  suffers  no  share  of  any  loss 
which  may  fall  upon  general  legatees  in  con- 
sequence of  a  shortcoming  in  the  testator's 
fund  for  general  legacies.  Neither  special 
nor  general  legacies,  however,  can  be  paid  to 
the  prejudice  of  the  righto  of  the  onerous 
creditors  of  the  deceased.  Where  a  parti- 
cular debt  is  bequeathed,  should  it  have  been 
paid  up  during  the  lifetime  of  the  testator, 
the  legacy,  is  at  an  end ;  or,  should  an  herit- 
able security  be  taken  for  the  debt,  that  also, 
by  converting  it  into  heritage,  operates  an 
extinction  of  the  legatee's  right  to  the  debt. 
But  where  creditors  take  a  particular  subject 
to  the  Oxclusion  of  a  special  legatee,  they 
must  assign  their  debts  to  him.  A  special 
legacy  has  the  effect  of  an  assignation  mortis 
causa  to  the  particular  thing,  the  right  to 
which  is  completed  by  the  testator's  death ; 
and,  consequently,  such  a  legatee  has  his 
action  directly  against  the  possessor  of  the 
fund  or  subject,  the  executor  being  called  as 
a  party ;  while  a  general  legacy  confers  on 
the  legatee  only  a  personal  right  of  action 
against  the  creditor.  A  universal  legacy  com- 
prehends all  the  testator's  estate,  or  the  re- 
version or  residue,  after  satisfying  expenses, 
debts,  and  other  legacies.  Verbal  Legacy. — 
A.  verbal  legacy  is  ineffectual  to  any  greater 
extent  than  to  the  sum  of  L.lOO  Scots  (L.8, 
6s.  8d.) 

If  no  term  be  appointed  for  the  payment 
of  a  legacy,  it  is  due  at  the  testator's  death, 
from  which  time  it  bears  interest ;  but  pay- 
ment cannot  be  enforced  till  six  months  there- 
after.    If  a  day  be  fixed,  or  if  an  event,  cer- 
tain to  arrive,  be  expressed,  on  the  arrival  of 
which  the  legacy  is  to  become  due,  the  legacy 
veste  from  the  testator's  death ;  but  is  not 
payable,  nor  does  interest  begin  to  run  upon 
it  until  the  arrival  of  the  specified  time  or 
event.    A  possible  condition  in  a  legacy  re- 
ceives effect ;  an  impossible  condition  is  held 
pro  nan  scriplo.    (See  Valing  of  Legades.) 
When  the  testator  bequeaths  a  subject  be- 
longing to  another,  which  he  believes  to  be 
his  own,  the  legacy  is  ineffectual ;  but  if  he 
knows  that  it  is  not  his  own,  the  subject  most 
be  purchased,  or  the  legatee  otherwise  8ati»- 
fied  out  of  theexecutry.     The  bequest  of  a 
thing  erroneously  supposed  to  be  moveable  is 
ineffectual.    See  Ersk.  B.  iii.  tit.  9,  §  6,  << 
seq.;    Stair,   B.    iii.    tit.  8,  §  20,  a  stq.; 
More's  Notes,  p.  cccxli.  et  seq. ;   BelFi  Con. 
i.  142;  Bank.  vol.  ii.  p.  388,  et  seq.;  Ms 
Princ.  §  1870,  «/  seq.;  lUust.  ib.;  Tlumsono*. 
Bills,  18,  390 ;  Tait  on  Evidence,  pp.  224, 305; 
Jurid.  Styles,  2d  edit.  vol.  ii.  pp.  307, 322, 


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338,  456-460,  App.  11 ;  Karnes'  Equity,  168. 
See  Tettament.  Conditional  Obligation.  Con- 
dition si  sine  liberis.  Dead's  Pari.  Evidence. 
Executor. 

Legacy  and  Beridoe  Duties.  For  pur- 
poses of  revenue,  legacies  are  subject  to  cer- 
tain duties,  the  rates  of  which  vary  from  one 
to  ten  per  cent,  on  the  sum  bequeathed ;  the 
duty  rising  in  amount  according  to  the  re- 
moteness of  the  relationship  of  the  legatee, 
and  reaching  its  maximum  where  he  is  not 
related  to  the  testator.  All  legacies  of  L.20 
and  upwards,  out  of  estates  above  L.lOO,  pay 
duty.  And  where  any  legatee  takes  two  or 
more  distinct  legacies  or  benefits  under  any 
testament,  which  together  amount  to  L.20, 
each  is  charged  with  duty,  although  each  or 
either  separately  may  be  under  that  value. 
A  donation  made  intuitu  mortis,  while  the  tes- 
tator is  still  in  life,  and  in  order  to  evade  the 
duty,  is  not  accounted  an  illegal  evasion.  The 
duty  is  payable  by  the  legatee,  unless  the 
will  shall  otherwise  direct ;  and  if  the  first 
legatee  is  exempted  from  the  duty,  his  sub- 
stitutes are  also,  in  dubio,  held  to  be  exempted. 
Before  executors  or  trustees  can  legally  retain 
the  residue  of  the  defunct's  personal  estate, 
or  any  part  of  it,  they  must  deliver  to  the 
Stamp  Office,  or  to  the  stamp  distributor  in 
whose  district  they  rfeside,  an  account  in  du- 
plicate of  the  particulars  of  such  residue,  with 
its  amount,  and  the  moneys  arising  from  the 
sale  or  burdening  of  real  estate,  or  the  value 
of  the  real  estate,  if  not  sold,  when  it  is  di- 
rected by  the  deceased  to  be  sold,  and  of  all 
payments  made  out  of  it.  The  duty  must  be 
paid  within  fourteen  days  after  the  commis- 
sioners have  assessed  it,  under  a  penalty  of 
treble  the  amount  of  duty.  The  duplicate 
accounts  must  also  be  accompanied  with  an 
extract  or  copy  of  any  will  or  testamentary 
instrument  executed  by  the  deceased,  and  all 
other  documents  necessary  for  ascertaining 
the  duties  exigible  from  the  estate.  The  du- 
ties on  legacies  must  be  paid  when  the  lega- 
cies are  discharged ;  but  if  the  legacies  are 
retained  by  the  executors  for  the  use  of  lega- 
tees, who  from  infancy,  absence,  or  any  other 
cause,  cannot  yet  receive  them,  the  duties 
must  be  accouuted  for  when  the  legacies  are 
ao  retained.  Where  the  legacy  is  payable  at 
a  future  period,  the  duty  must  be  paid  imme- 
diately, if  the  interest  of  the  legacy  is  di- 
rected by  the  will  to  be  applied  for  the  benefit 
of  the  legatee  until  that  peuod  arrive.  All 
rents  of  heritable  estates  directed  to  be  sold, 
and  all  dividends,  interests,  and  profits  arising 
from  the  personal  estate  of  the  deceased,  sub- 
sequent to  the  time  of  his  or  her  death,  with 
all  accumulations  of  such  profits  down  to  the 
time  of  the  executors  or  trustees  delivering 
th»  accounts,  and  ofiering  to  pay  the  duty  on 


the  residue,  are  considered  as  part  of  the  de- 
ceased's personal  estate,  and  must  be  accounted 
for  accordingly;  Attorney-General  v.  Cavendish, 
Trinity  Term,  1810.     Effects  not  consisting  of 
mduey,  or  securities  for  money,  are  valued  at 
the  time  the  account  is  rendered,  when  in- 
ventories and  proper  valuations  are  required 
to  be  produced.     Money  in  the  public  funds 
is  valued  at  the  medium  price  of  stocks  on  the 
day  on  which  the  account  is  dated.    The 
values  of  annuities  are  calculated  by  the  tables 
annexed  to  36  Geo.  III.  c.  52.    Special  cir- 
cumstances attending  a  case  may  be  intro- 
duced into  the  account,  or  stated  in  a  separate 
paper  annexed  to  it.    Where  the  residue  of 
the  personal  estate  is  given  to  one  for  life,  a 
distinct  account  must  be  given  of  the  profits 
which  have  accrued  subsequent  to  the  testa- 
tor's death,  and  of  the  payments  made  for  in- 
terest of  legacies  and  of  the  testator's  debts, 
so  that  the  balance  due  to  the  residuary  le- 
gatee for  life  may  appear.     Notwithstanding 
insolvency,  an  account  must  be  rendered,  to 
satisfy  the  commissioners  that  the  estate  is 
not  chargeable  with  duty.     Pei-sons  paying 
or  receiving  any  legacy  or  residue  liable  to 
duty,  without  taking  or  signing  a  proper  re- 
ceipt, in  which  the  duty  is  expressed  to  have 
been  deducted,  are  subject  to  a  penalty  of  ID 
per  cent,  on  the  amount  of  such  legacy  or  re- 
sidue.   Every  legacy  receipt  must  be  dated 
on  the  day  of  signing,  and  the  duty  paid 
within  twenty-one  days  from  the  date,  under 
a  penalty  of  10  per  cent,  on  the  amount  of  the 
duty  ;  and  if  the  duty  is  not  paid  within  three 
months  from  the  date  of  the  receipt,  a  penalty 
will  then  be  incurred  of  10  per  cent,  on  the 
amount  of  the  legacy.    As  above  stated,  the 
amount  of  the  duty  varies  according  to  the 
nearness  of  the  legatee's  consanguinity  to  the 
deceased.     The  husband  and  wife  are  not  sub- 
ject to  the  duty  on  legacies,  annuities,  and  re- 
sidues, bequeathed  to  each   other.     Lawful 
children  of  the  testator  and  their  descend- 
ants, the  father,  mother,  or  any  lineal  ances- 
tor of  the  testator,  pay  1  per  cent.    Brothers 
and  sisters,  and  their  descendants,  pay  3  per 
cent.    Brothers  and  sisters  of  a  father  or 
mother,  and  their  descendants,   pay  5  per 
cent.    Brothers'  and  sisters  of  a  grandfather 
or  grandmother,  and  their  descendants,  pay 
6  per  cent.     Strangers  in  blood,  persons  in 
any  other  degree  of  collateral  consanguinity, 
and  illegitimate  children,  pay  10  per  cent. 
Where  a  husband  and  wife  in  different  de- 
grees of  relationship  to  the  deceased  have 
been  named  as  joint  legatees,  the  rule  of  dif- 
ferent rates  is  held  to  apply,  and  duty  is  paid 
on  one-half  of  the  legacy  in  the  husband's, 
and  on  the  other  half  in  the  wife's  propor- 
tion.    The  rates  given  above  are  applicable 
only  to  the  estates  of  persons  who  have  died 

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since  5th  April  1805 ;  55  Geo.  III.  c.  184. 
The  preceding  summary  has  been  abridged  from 
the  printed  directions  issiwl  by  the  Solicitor  of 
Leaacy  Duties  in  Scotland,     See  Succession. 

Legal,  or  Legal  Berenion.  This  is  the 
period  within  which  a  debtor  whose  heritage 
has  been  adjudged  is  entitled  to  redeem  the 
subject ;  i.  e.,  to  disencumber  it  of  the  adjudi- 
cation, by  paying  the  debt  adjudged  for.  Or 
rather,  it  is  the  period  on  the  expiration  of 
which  the  adjudger  may  convert  his  judicial 
security  into  an  irredeemable  right  of  pro- 
perty, by  obtaining  decree  of  declarator  or 
expiry  of  the  legal.  For  the  debtor  may  re- 
deem the  lands  at  any  time  before  decree  of 
declarator  of  expiry,  or  before  forty  years' 
possession  has  run  on  charter  of  adjudication 
and  sasine.  The  legal  of  the  special  adjudi- 
cation is  five  years ;  1672,  c.  19 ;  of  the  ge- 
neral adjudicatiou,  ten  years ;  1661,  c.  62, 
and  1672,  c.  19  ;  and  of  the  adjudication  eoi»- 
tra  haireditatem  jacentem,  seven  years :  1621, 
c.  7.  Stair,  B.  iii.  tit.  2,  §  29  ;  B.  iv.  tit.  3, 
§  2 ;  tit.  23,  §  7 ;  tit.  36,  §  2 ;  More's  Notes, 
p.  cccv. ;  Ersk.  B.  ii.  tit.  12,  §§  10,  22,  39, 
49  ;  BelPs  Com.,  6th  edit.  ii.  943,  et  seq. ;  Bell's 
Prine.  §  829 ;  Shand's  Prae.  p.  731 ;  Jurid. 
Styles,  2d  edit.  vol.  iii.  p.  407  ;  Robertson, 
Dole's  Appeal  Cases,  iii.  108.  See  Adjudicch 
tion.     Expiry  of  Legal. 

Legate ;  an  ambassador  or  pope's  nuncio. 
TanXin's  Did.  h.  t. 

Legatee ;  is  the  person  to  whom  a  legacy 
is  payable. 

Jtegiim,  or  Bainia'  Part  of  Oear ;  is  the 
legal  share  of  the  father's  free  moveable 
property  due  on  his  death  to  his  children. 
Where  a  father  dies  leaving  a  widow  and 
children,  his  free  moveable  estate  suffers  a 
division  into  three  equal  parts;  one-third 
part  is  divided  equally  amongst  all  the  chil- 
dren, whether  of  his  last,  or  of  any  former 
marriage,  as  legitim;  another  third  goes  to 
his  widow,  as  her  jus  relictoe ;  and  the  remain- 
ing third  is  what  is  called  dead's  part,  which 
the  father  may  dispose  of  as  he  pleases,  by 
testament  or  otherwise.  Where  he  has  made 
no  testamentary  or  other  destination  of  the 
dead's  part,  it  goes  to  his  children,  as  his 
executors.  Where  the  father  leaves  children, 
but  no  widow,  or  where  the  widow,  in  her 
contract  of  marriage,  has  renounced  the  jus 
rdicUe,  one-half  of  his  free  moveable  property 
is  leyitim,  the  other  dead's  part ;  Ersk.  B.  iii. 
tit.  9,  §  20.  The  children  of  a  deceased  child 
are  not  entitled  to  claim  any  part  of  their 
grandfather's  moveable  estate,  as  the  legitim 
to  which  their  parent  would  have  been  en- 
titled. It  is  the  children  alive  at  the  time 
of  the  father's  death  to  whom  alone  the  right 
of  legitim  belongs.  The  claim  of  legitim  may 
be  excluded  by  giving  the  children  a  provi- 


sion in  an  antenuptial  contract  of  marriage, 
in  name  of  legitim.  But  where  this  has  not 
been  done,  the  right  is  not  directly  or  gra- 
tuitously defeasible ;  and  even  where  a  ton- 
ventional  provisioa  has  been  substituted  in 
an  antenuptial  contract  of  marriage  in  lien  of 
the  legitim,  it  would  seem  to  be  optional  to 
the  child  or  children  either  to  accept  the 
conventional  provision,  or  to  reject  it,  and 
insist  for  their  legitim.  Where,  however,  the 
conventional  provision  bears  expressly  to  be 
given  in  name  of  legitim,  the  children  can 
neither  take  the  provision  nor  any  other 
benefit  under  the  contract,  and  at  the  same 
time  insist  for  the  l^itim.  A  provision  in  s 
contract  of  marriage,  whether  antenuptial  or 
postnuptial,  whereby  the  legitim  of  the  chil- 
dren should  be  entirely  excluded,  without 
making  any  other  provision  for  the  chiMreB, 
would  be  inoperative  against  them.  The 
father,  no  doubt,  in  the  exercise  of  his  un- 
controlled power  of  administration  during  his 
life,  may,  by  converting  moveable  into  herit- 
able property,  or  even  hj  h  de  preesenti  and 
completed  conveyance  of  bis  whole  moveable 
property,  diminish  or  entirely  defeat  the  claim 
of  legitim;  Hog,  14th  May  1800,  Mor.  App.kt 
The  legitim  cannot  be  diminished  or  affected 
by  a  deathbed  deed,  or  by  a  testamentary,  or 
mortis  causa,  or  revocable  deed  of  any  kind, 
whether  deathbed  or  not;  the  dead's  part 
alone  being  disposable  in  this  way.  And  no 
deed  or  settlement  of  the  father,  regulating 
the  succession  to  the  legitim,  is  effectual,  even 
where  the  child  is  a  bankrupt,  a  pupil,  or  an 
idiot.  See  Ersk.  B.  iii.  tit.  9,  §  25;  Soidt. 
B.  iii.  tit.  8,  §  15.  Where  a  child  has  ex- 
pressly discharged  his  claim  of  legitim,  either 
gratuitously  or  on  receiving  an  equivalent, 
during  his  father's  life,  he  is  said  to  be  foris- 
familiated. But  the  discharge  most  be  ex- 
press. The  effect  of  a  discharge  of  this  kind 
is  not  to  augment  the  dead's  part ;  nor  does 
it  make  the  slightest  alteration  on  the  general 
amount  of  the  legitim,  which  still  continues  to 
be  a  half  or  a  third  of  the  free  moveables  at 
the  time  of  the  father's  death,  the  share  of 
the  forisfamiliated  child  going  merely  to  in- 
crease the  fund  for  division  amongst  the  re- 
maining children  entitled  to  legitim;  BrA. 
6.  iii.  tit.  9,  §  23.  A  discharge  of  the  legiti* 
by  all  the  children  leaves  the  moveable  estate 
to  be  equally  divided  between  the  husband 
and  wife ;  or,  if  the  wife  be  already  dead,  it 
converts  the  whole  into  dead's  part.  And  a 
discharge  by  one  or  all,  after  the  father's 
death,  makes  the  legitim  accrue  to  the  person 
entitled  to  the  residuary  right  of  succession. 
The  child  claiming  legitim  must  collate  any 
separate  provision  received  from  the  &ther, 
unless  such  separate  provision  shall  appear  to 
have  be^a  intended  by  the  father  as  a  prceci' 


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puum.  AU  sums  of  money  advanced  for  the 
child  must  also  be  collated ;  but  neither  the 
expense  of  education,  nor  inconsiderable  pre- 
sents, nor  any  advances  which  bear  to  be 
made  over  and  above  the  legitim,  are  to  be 
taken  into  computation.  And  in  the  Chandot 
case,  the  legitim  was  held  not  to  be  excluded 
by  a  child's  acceptance  from  her  father,  under 
an  English  marriage-contract,  of  a  provision 
declared  to  be  her  "  portion  or  foi'tune." 
This  provision  was  not  imputed  in  fixing  the 
amount  of  the  legilim;  BreadMane  v.  Ghandos, 
Jan.  20  and  Nov.  19, 1836,  D.  B.  <fc  M.  xiv. 
309 ;  XV.  48.  The  heir  in  heritage  is  ex- 
cluded from  a  share  of  the  legitim,  unless  he 
choose  to  collate  the  heritage  with  the  younger 
children.  The  heir-niale  and  of  line,  succeed- 
ing in  the  character  of  heir-male  to  an  en- 
tailed estate  in  which  the  deceased  had  been 
infeft  under  an  entail  executed  by  a  prede- 
cessor in  favour  of  heirs-male,  is  not  entitled 
to  claim  a  share  of  the  executry  without  ecl- 
ating his  life-interest  in  the  entailed  estates; 
AHstruiher,  Nov.  28, 1833,  S.  <fc  B.  lii.  140 ; 
Jan.  20,  1836,  S.  <fc  D.  xiv.  272 ;  Ghandos, 
ut  supra.  But  although  the  heir  is  excluded 
where  there  are  other  children,  yet  where  he 
is  an  only  child  he  will  be  entitled  to  legitim; 
Kennedy,  15th  July  1622,  Mor.  p..8163.  The 
legitim  vests  in  the  children  ipso  jure  without 
confirmation ;  but  it  does  not  constitute  a 
jtu  credili  in  them  sufficient  to  entitle  them 
to  claim,  or  to  rank  in  competition  with  the 
creditors  of  the  defunct.  Stair,  B.  iii.  tit.  8, 
§  44;  More's  Notes,  pp.  cccxlvii-li. ;  Ersk. 
B.  iii.  tit  9,  §  17 ;  Bank.  B.  iii.  tit.  8,  §  15; 
Bdtt  Com.  i.  632 ;  Bell's  Princ.  §  1582, 1949; 
JUutt.  §  1583;  Karnes'  Stat.  Lawabridg.h.  t; 
Butch.  Justice  of  Peace,  2d  edit.  vol.  ii.  p.  256; 
Jurid.  Stylet,  2d  edit.  vol.  ii.  p.  389.  See 
Foris/amiliation.  Jus  Relicke.  Bead's  Part. 
Executry.     Succession.     Collation. 

Legitimaoy.  A  child  is  said  to  be  legiti- 
mate which  has  been  lawfully  procreated  in 
marriage,  or  legitimated  by  the  subsequent 
intermai-riage  of  its  parents.  All  children 
born  of  a  mother  who,  at  the  time  of  concep- 
tion, was  lawfully  married,  are  presumed  to 
have  been  begotten  by  him  to  whom  at  the 
time  the  mother  was  married ;  nor  can  this 
presumption  be  defeated,  except  by  clear  evi- 
dence that  the  husband  of  the  mother  could 
not  have  been  the  father  of  the  child.  Where 
a  marriage  is  celebrated  between  parties,  one 
of  whom  is  already  married  to  a  person  still 
alive,  it  would  rather  appear  that  bona  fides 
on  the  part  of  one  or  both  the  parents  will 
make  the  issue  of  the  second  marriage  legiti- 
mate, but  the  point  is  not  by  any  means 
fixed.  The  only  case  in  which  the  question 
has  occnrred  was  compromised ;  but  the  opi- 
oions  of  the  Court  are  given  in  Bell's  Case  of 


a  pwtcUive  marriage.  Ersk.  B.  i.  tit.  6,  §  49 ; 
Bank.  vol.  i.  pp.  46, 133;  BelPs  Princ.  §  1624, 
etseq.;  Illust.  ib. ;  Hutch.  Justice  of  Peace,  2d 
edit.  vol.  ii.  p.  249 ;  Tait  on  Evidence,  3d  edit, 
p.  488-90;  Shaw's  Digest,  p.  320;  Routledge, 
Daw's  Appeal  Cases,  iv.  392.  See  Bastard. 
Filiation. 

Legitimatioii ;  is  the  act  whereby  chil- 
dren, born  bastards,  are  made  lawful  children, 
or  by  which  certain  of  the  privileges  of  lawful 
children  are  conferred  on  bastards.  This 
may  be  accomplished — 1.  By  the  subsequent 
intermarriage  of  the  parents.  If,  however, 
either  of  the  parents  was  married  to  another 
person  at  the  time  of  the  birth,  the  child  will 
not  be  legitimated  by  the  subsequent  mar- 
riage. When,  again,  another  marriage  has 
intervened  between  the  date  of  the  birth  and 
the  marriage  of  the  parent,  it  was  doubted 
whether  legitimation  took  place.  Voet  held 
that  it  did  so  to  all  eflects ;  while  Erskine 
lays  down  the  doctrine,  that  although  the 
second  marriage  may  legitimate  the  bastard 
iu  questions  with  his  brothers  of  the  full 
blood,  yet  the  intervening  marriage  is  so  far 
a  mid-impediment,  that  the  children  bom  of 
it  are  not  prejudiced  by  the  legitimation; 
Ersk.  B.  i.  tit.  6,  §  2.  It  has  now  been  de- 
cided that  legitimation  takes  place  even  al- 
though another  marriage  intervenes;  Kerr, 
6th  March,  1840,'  2  D.  752 ;  but  it  was  not 
decided  in  that  case  what  the  rights  of  the 
children  so  legitimated  were  in  competition 
with  the  children  of  the  intervening  marriage. 
The  effect  of  legitimation  seems  to  follow, 
although  the  bastard  should  have  died  before 
the  marriage,  so  as  to  confer  on  his  descen- 
dants all  the  rights  which  belong  to  the  chil- 
dren of  one  lawfully  born.  Parties  domiciled 
and  having  bastard  children  in-  a  country 
where  legitimation  per  subsequetis  malrimo- 
ntuffi  is  not  recognised,  cannot  legitimate  their 
children  by  marrying  in  that  country,  to  the 
effect  of  entitling  them  to  succeed  to  a  landed 
estate  in  Scotland ;  Sheddan,  1st  July  1803, 
Fac.  CoU.,  Mor.  App.  voce  Foreign,  No.  6, 
affirmed  on  appeal,  2d  March  1808.  2.  So 
far  as  the  rights  of  the  Crown  are  concerned, 
bastards  may  be  legitimated  by  letters  of 
legitimation  from  the  Sovereign,  which  gene- 
rally empower  the  bastard,  where  he  has  no 
lawful  children,  to  dispose  of  his  heritage  or 
moveables  at  any  time  during  his  life,  and  to 
make  a  testament.  These  privileges,  how- 
ever, he  now  enjoys  without  letters  of  legiti- 
mation. See  Bastard.  Letters  of  legitima- 
tion cannot  affect  the  rights  either  of  the 
bastard's  lawful  children  or  of  third  parties ; 
nor  can  they  give  the  bastard  any  right  to 
legitim,  or  any  other  legal  right  of  succession 
to  his  father  or  mother,  or  any  other  of  his 
relations,  as  if  ho  had  been  a  lawful  child. 

Digitized  byCjOOQlC 


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Bat  letters  of  lej^itimation  may  eonfer  a  right 
to  succeed  ab  intettato  to  the  bastard,  on  any 
one  who  would  have  been  his  heir,  had  the 
bastard  been  a  lawful  child ;  for,  by  confer- 
ring this  privilege,  the  Crown  only  gives  that 
which  would  otherwise  have  belonged  to  itself; 
Stair,  B.  iii.  tit.  3,  §  45 ;  Ersk.  B.  iii.  tit.  10, 
§7.  See  also  Ertk.  B.  i.  tit.  6,  §  52; 
More's  Note*  to  Stair,  p.  xxxii. ;  Bank.  vol.  i. 
p.  121 ;  vol.  ii.  p.  278;  Bell't  Princ.  §  1627, 
2064;  Illust.  §  1627;  Kamea'  Stat.  Law  ab- 
ridg.  voce  Bastard.  See  King.  Bastard.  Last 
Hetr.     Domicile. 

The  question  of  legitimation  per  subsequtnt 
matrimonium  depends  not  on  the  place  of  the 
child's  birth,  nor  on  the  domicile  of  the  pa- 
rents at  the  date  of  its  birth,  nor  on  the 
place  where  the  marriage  was  constituted, 
but  solely  on  the  domicile  of  the  parents  at 
the  date  of  the  marriage.  Consequently,  a 
child  born  in  England  of  parents  domiciled 
there  at  the  time  of  its  birth,  would  be  legi- 
timated by  the  subsequent  marriage  of  its 
parents  in  England,  if  at  the  date  of  the 
marriage  they  were  domiciled  in  Scotland,  or 
in  any  other  country  in  which  the  principle 
of  legitimation  per  subsequent  tnatrimonium 
was  recognised.  If,  however,  the  parents 
were  domiciled  in  England  at  the  date  of  the 
marriage,  the  fact  that  the  marriage  was 
constituted  in  Scotland  would  not  have  the 
effect  of  legitimation.  See  the  6ase  of  Rose 
V.  Monro,  loth  May  1827,  b  S.  ds  D.  605. 
Reversed  in  House  of  Lords,  16th  July  1830; 
4  W.AS.  289 ;  also  the  case  of  Mwro  v. 
Mtmro,  16tli  Nov.  1839 ;  16  S.  18.  Reversed 
in  House  of  Lords,  10th  August  1840.  1 
Rob.  492. 

A  child  legitimated  per  subsequens  matri- 
monium cannot  succeed  to  real  estate  in  Eng- 
land.  This  arises  from  the  law  in  England 
in  regard  to  the  descent  of  land  in  England 
from  father  to  son,  that  the  son  must  be 
born  after  actual  marriage  between  his  father 
and  mother.  This  is  held  to  have  been 
framed  for  the  direct  purpose  of  excluding  in 
the  descent  of  land  in  England  the  applica- 
tion of  the  rule  of  the  civil  and  canon  law, 
by  which  the  subsequent  marriage  between 
the  parents  was  held  to  make  the  son  born 
before  marriage  legitimate.  This  rnle  of 
descent  is  held  to  be  a  rule  of  positive  law 
annexed  to  the  land  itself,  and  is  not  allowed 
to  be  broken  in  upon  or  disturbed  by  the  law 
of  any  other  country.  See  the  case  of 
Birthioistle  v.  Vardell,  9;  Bligh.  32;  2  Clark 
and  Pinelk,  571 ;  and  August  10,  1840,  7 
Clark  and  'Finelly,  895. 

Lenoeininm ;  is  the  husband's  connivance 
at  his  wife's  adultery,  and  bis  participation 
iu  the  profits  of  her  prostitution,  or  his  lend- 
ing himself  in  any  way,  directly  or  indirectly. 


to  hit  own  and  her  disgrace.  It  affords  the 
wife  an  available  defence  against  an  actioD 
of  divorce  for  adultery.  The  plea  was  foond 
relevant  in  a  case  in  which  the  husband  had 
"  caused,  prompted,  or  hounded  "  the  party 
with  whom  his  wife  had  committed  adultery 
to  attempt  to  debauch  her,  although  the  pur- 
suer averred  that  he  merely  intended  a  trial 
of  her  chastity.  It  has  even  been  foand  a 
competent  defence  to  a  wife  that  her  husband 
committed  such  indecencies  towards  her  as 
invited  others  to  seduce  her.  Ersk.  B.  i.  tit 
6,  §  45;  Lothian's  Consistorial  Prac  p.  165; 
BeWs  Prine.  §  1534 ;  Jllust.  ib.  See  Divorte. 
Leonina  Sooietaa ;  a  partnership  in  whiek 
one  partner  has  all  the  loss,  and  another  all 
the  gain.  Stair,  B.  i.  til.  1,  §  3.  See  Part- 
nership. 
LeMllugMty.  See  Leasing  making. 
Leaon;  is  the  degree  of  harm  or  injorj 
sustained  by  a  minor,  or  by  a  person  of  weak 
capacity,  necessary  to  entitle  him  to  rednre 
the  deed  by  which  he  has  suffered.  Karnes' 
Equity,  66, 167,  182,  363;  Thomson  on  BSls, 
103,199.  SeeJfifwr.  Idiot.  Facility.  /Va«A 
Lessor  and  Lessee ;  the  parties  to  a  lease. 
The  former  is  the  landlord  or  granter  of  the 
lease ;  the  latter  the  tenant  in  whose  favoor 
it  is  granted.  Ersk.  B.  iii.  tit.  3,  §  15,  16. 
See  Lease. 

Lethal  Weapon.  In  ordinary  langnaire, 
this  term  seems  to  import  some  such  weapon 
as  a  sword,  knife,  or  pistol ;  but,  in  eases  of 
homicide,  the  law  holds  every  weapon  to  be 
lethal  by  which  a  human  being  has  died. 
Hume,  i.  260  ;  Steele,  82 ;  Alison's  Prine.  7. 

Letters.  Our  ancient  deeds  were  in  the 
form  of  letters  addressed  to  all  and  sundry,  or 
to  certain  descriptions  of  persons,  according 
to  the  nature  of  the  subject ;  and  more  for- 
mal deeds,  as  the  charter  and  judicial  writs 
under  the  Signet,  bear  still  the  form  of  letters. 
Signet  Letters;  are  writs  for  enforcing  the 
decrees  of  courts,  or  for  attaching  the  pro- 
perty of  debtors,  or  for  citing  defenders  or 
other  parties  in  actions  before  the  Court  of 
Session.  These  run  in  name  of  the  Sove- 
reign, and  are  authenticated  by  the  Signet. 
See  Homing,  Caption.  InhOnlion,  Ae.  Sum- 
mons.   Advocation,  <te. 

Letters  of  Four  Forms :  were  warrants  for 
successive  charges  to  debtors  to  pay  before 
the  penalty  of  rebellion  was  incurred ;  now 
abolished.  Stair,  B.  iii.  tit.  2,  §  22 :  BaiJc  ii. 
260 ;  Mensies'  Lectures,  278. 

Letters  of  Marque ;  are  warrants  for  repri- 
sal, where  British  subjects  are  injured  in  their 
persons  or  goods  by  the  subjects  of  foreign 
countries  who  refuse  redress.  Stair,  B.  ii.  tit. 
2,  5  1 ;  More's  Notes,  cliii. ;  Bank.  i.  520. 

Missive  Letters.  Whore  these  relate  t« 
mercantile  affairs,  they  will  bind  the  parties. 

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although  neither  holograph  nor  signed  in  the 
presence  of  witnesses.  But  wherever  the 
transaction  has  no  relation  to  mercantile 
transactions,  in  favour  of  which  there  is  a 
departure  from  the  established  formalities, 
the  letters  must  be  executed  agreeably  to  the 
statutory  requisites,  in  order  to  be  effectual 
to  produce  action ;  that  is,  the  writer  must 
be  named  and  designed,  and  there  must  be 
witnesses  to  the  subscription,  who  must  also 
subscribe,  and  be  named  and  designed ;  or  the 
writing  must  be  holograph  of  the  granter. 
Bank.  i.  333;  ii.  171 ;  Hunter's  Landlord  and 
Tenant,  327 ;  Bell  on  Deedt,  144 ;  Tait  on  Evi- 
dence, p.  120 ;  Bell's  Com.  6th  edit.  vol.  i.  p. 
53 ;  Dickson's  Late  of  Evidence,  p.  409 ;  Men- 
ties'  Lect.  828.     See  Deeds.    Evidence. 

Letters  Conform.  The  letters  issued  by 
the  Supreme  Court  in  aid  of  the  decrees  of 
inferior  judicatures,  and  authorizing  execu- 
tion in  terms  of  those  decrees,  were  anciently 
termed  letters  conform.  They  were  granted 
by  the  Court  of  Session  upon  second  sum- 
monses, calling  the  parties  to  the  Court  of 
Session  to  hear  and  see  the  letters  granted, 
or  show  cause  on  the  contrary ;  and  the  sen- 
tence pronounced  on  that  occasion  was  called 
a  decreet  conform.  The  same  object  is  now 
attained  by  bills  presented  in  the  Bill-Cham- 
ber, and  passed  of  course.  Ross's  Lect.  vol.  i. 
p.  237  ;  Karnes"  Stat.  Law  Abridg.  voce  Personal 
Execution.  See  this  subject  more  fully  ex- 
plained under  the  article  Decree  Conform.  See 
also  BiUs  of  Signet  Letters.    Diligence. 

Letter  of  Attorney;  in  English  law,  a 
writing,  authorizing  another  person,  who,  in 
such  case,  is  called  the  attorney  of  the  party 
appointing  him,  to  do  any  lawful  act  in  the 
stead  of  another;  as  to  give  sasine  of  lands, 
receive  debts,  or  sue  a  third  person,  &c.  Tom^- 
liw?  Diet.  h.  t.    See  Mandate. 

Letters  of  Correspondence.  In  criminal 
trials,  letters  of  correspondence  may  be  pro- 
'doced  in  evidence  against  the  panel.  A 
letter  of  a  third  party  found  in  the  panel's 
possession  is  not  of  itself  evidence  of  its  con- 
tents against  him,  since  it  may  have  been  sent 
through  mistake  or  malice.  But  a  letter  from 
the  panel  is  evidence  against  him.  Hume, 
ii.  396 ;  Steele,  26 ;  Alivm's  Prac.  611.  Such 
letters  may  also  be  given  in  evidence  in  civil 
causes.     !Jee  Production.    Evidence. 

Letter  of  Credit ;  a  letter  written  by  one 
merchant  or  correspondent  to  another,  re- 
questing him  to  credit  the  bearer,  or  a  par- 
ticular person  named,  with  a  certain  sum  of 
money,  or  to  furnish  him  with  goods.  It  was 
at  one  time  held  that  no  action  would  lie  on 
a  letter  of  credit,  unless  intimation  were  made 
of  the  furnishings,  or  advances  made  on  the 
faith  of  it ;  but  it  is  now  fixed  that  no  such 
intimation  is  necessary,  and  that  the  writer 


of  every  such  letter  is  bound  to  understand 
that  it  may  have  been  acted  npon  to  its  full 
extent.  The  terms  of  every  letter  of  credit 
must  be  strictly  complied  with,  otherwise  no 
claim  will  arise  against  the  writer;  and  a 
letter  of  credit  addressed  to  one  person  can- 
not be  transferred  to  another,  so  as  to  bind 
the  writer.  In  the  case  of  a  proper  or  sim- 
ple letter  of  credit,  the  debt  constituted  by 
its  being  complied  with  is  between  the  writer 
and  the  person  addressed ;  but  the  letter  may 
be  conceived  in  such  terms  as  to  raise  a  debt 
also  against  the  person  who  is  supplied  by 
the  mandatory.  Where  the  letter  is  pur- 
chased with  money,  or  for  some  other  onerons 
consideration,  by  a  person  wishing  for  credit 
on  a  merchant  at  a  distance  or  abroad,  the 
holder  of  the  letter  incurs  no  debt  by  the  let- 
ter being  complied  with.  Where,  again,  the 
letter  is  not  paid  for,  and  merely  contains  an 
engagement  to  see  the  advances  furnished  to 
the  holder  made  good,  it  becomes  a  written 
guarantee,  and  raises  a  debt  against  the  per- 
son accredited  in  the  first  instance,  and  then 
against  the  writer  of  the  letter,  as  his  cau- 
tioner. Stair,  B.  i.  tit.  11,  §  7 ;  More's  Notes, 
Ixxil.;  Bank,  i.  367;  BelVs  Com.  i.  370; 
Thomson  on  Bills,  28 ;  Tomlins'  Diet.  h.  t. 

In  the  case  of  Orr  and  Barber  v.  Union 
Bank,  Jan.  31, 1852,  14  D.  395,  a  clerk  of 
the  pursuers,  in  whose  favour  a  letter  of 
credit  had  been  granted  by  the  defenders, 
obtained  payment  of  the  amount  on  a  forged 
order.  The  Court  held  that  no  action  lay 
against  the  defenders  for  repayment  of  the 
sum  paid  to  them  for  the  letter  of  credit,  on 
the  ground  that  the  letter  itself  was  not  pro- 
duced, it  being  in  the  hands  of  the  defenders' 
correspondent.  This  judgment  was  reversed 
in  the  House  uf  Lords,  on  the  ground  that 
the  defenders  were  bound  to  show  that  the 
letter  of  credit  had  been  complied  with,  or 
pay  back  the  money  they  had  received,  and 
that  the  proper  evidence  that  the  letter  of 
credit  had  been  complied  with  was  a  draft 
by  the  party  in  whose  favour  it  had  been 
granted ;  August  7,  1854 ;  1  Macqueen,  613. 
By  the  act  16  and  17  Vict.  c.  69,  1863, 
letters  of  credit  are  liable  in  a  penny  stamp- 
duty,  and  the  stamp  may  be  either  impressed 
or  affixed.  By  the  same  act  (§  19)  bankers 
are  not  liable  to  pay  a  second  time  who  have 
paid  on  a  forged  indorsation  of  a  cheque. 

Letter  of  Guarantee ;  an  undertaking,  in 
writing,  to  answer  for  the  payment  of  a  debt, 
or  the  performa-ice  of  some  engagement,  in 
case  of  the  failure  of  another  person  liable  in 
the  first  instance.  See  Cautionary.  Guarantee. 
Letter  Stealing.  This  offence  was  formerly 
capital ;  but  by  5  and  6  Will.  IV.  c.  81,  ex- 
plained by  6  Will.  IV.  c.  4,  transportation  or 
imprisonment  was  substituted  as  the  punish- 

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ment.  Persons  in  Scotland  accused  of  letter 
stealing  are  not  entitled  to  insist  on  liberation 
on  bail.  But  it  is  discretionary  to  the  Court' 
of  Justiciary,  or  the  sheriff,  or  sheriff-substi- 
tute, to  admit  such  persons  to  bail.  6  WiU.  IV. 
c.  21.    See  Bail.    Post-Ofice  Ofenm. 

Letters,  Franking  of.    See  Franking. 

Levant  and  Coachant ;  in  English  lav,  a 
legal  term  for  cattle  that  have  been  so  long 
on  the  ground  of  another  as  to  have  lain  down 
and  risen  again  to  feed.     Tomlins'  Diet.  h.  t. 

Levari  Facias ;  in  English  law,  a  writ  of 
execution  directed  to  the  sheriff  for  levying  a 
sum  of  money  upon  a  man's  lands  and  tene- 
ments, goods  and  chattels,  who  has  forfeited 
his  recognisance.  Tomlins'  Diet.  h.  t. ;  Karnes' 
Equity,  390. 

Levity.    See  Imbecilitt/.    FacUity. 

Lewd,  indecent,  and  libidinous  practices 
and  behaviour  towards  females  under  the  age 
of  puberty,  constitute  an  offence  subject  to 
arbitrary  punishment.  Hume,  i.  309 ;  Beli's 
Notes,  85;  Alison,\.  225;  Philip,  2  /rw««,243. 

Lex  Apparens ;  according  to  the  definition 
of  Skene,  is  the  law  concerning  single  combat. 
Skene,  h.  t. 

Lex  Looi  Contractus.  In  questions  as  to 
obligations  contractod  in  one  country,  of  which 
implement  is  sued  for  in  another,  the  law  of 
the  country  where  the  obligation  was  con- 
tracted is  called  lex  loei  contractus,  and  governs 
everything  which  relates  to  the  nature  of  the 
obligation,  ad  valorem  contractus;  while  the 
lex  fori,  or  law  of  the  country  to  whose  courts 
the  application  is  made  for  performance,  or 
for  damages,  regulates  whatever  relates  to  the 
remedy,  by  suits,  to  compel  performance,  or 
by  action  for  a  breach  ad  decisionem  litis. 
Thomson  on  Bills,  157.  See  Foreign,  and 
anthorities  tiiere  cited. 

LexShodia.  SeeRhodiaLex.  Contribution. 

Lex  Talionis ;  a  rule  of  tho  judicial  law 
of  Moses,  directing  the  punishment  to  be 
analogous  to  the  crime ; — an  eye  for  an  eye, 
and  a  tooth  for  a  tooth.  Thus,  if  one  swore 
falsely  that  another  was  guilty  of  a  capital 
crime,  the  swearer  was  himself  punished 
capitally.  This  law  does  not  seem  ever  to 
have  been  established  in  any  civilized  state. 
It  was  at  one  time  attempted  to  introduce  the 
lex  talionis  into  England  in  the  case  of  mali- 
cious accusations;  it  being  enacted,  by  statute 
87  Ed.  III.  c.  18,  that  such  as  preferred  any 
suggestions  to  the  King's  Great  Council  should 
put  in  sureties  of  taliation.  But,  after  one 
year's  trial,  this  punishment  of  taliation  was 
rejected,  and  imprisonment  adopted  in  its 
stead.  Deut.  xix.  16,  et  seq. ;  Stair,  B.  i.  tit. 
9,  §  2 ;  Ersk.  B.  iv.  tit.  4,  §  75 ;  Tomlins' 
Diet.  h.  t. 

Libel.  This  term,  in  the  law  of  Scotland, 
is  used  in  different  significations;  it  is  applied 


to  the  form  of  the  complaint,  or  the  ground 
of  the  charge  on  which  either  a  civil  or  cri- 
minal prosecution  takes  place.  It  is  also  ap- 
plied to  scandal  reduced  into  writing. 

Criminal  Libel. — For  an  account  of  the  rri- 
minal  libel,  see  Indictment.  Criminal  Letter*. 
Criminal  Prosecution.    Amendment  of  the  Lihd. 

Libel  in  a  civil  action. — The  libel  in  lbs 
Supreme  Civil  Court  is  contained  in  letten 
passing  under  the  Signet,  called  a  summons, 
addressed  to  messengers-at-arms  as  sherifls  in 
that  part.  Sw  Summons.  Amendment  <^  At 
Libel. 

Libel. — Scandal  reduced  into  writing,  and 
published  or  circulated,  is,  of  all  others,  the 
most  public  and  permanent,  and  onght,  there- 
fore, to  be  punished  with  greater  severity 
than  where  the  scandal  is  merely  spoken ;  the 
animus  injuriandi  is  likewise  more  clearly 
evinced.  This  offence  may  be  the  foundation 
of  a  criminal  prosecution,  or  of  a  civil  action 
for  reparation,  or  of  a  combination  of  both 
actions.  The  offence  consists  either  in  turn- 
ing the  person  into  ridicule  or  in  blackenini; 
his  moral  character;  and  the  punishment  Till 
be  proportioned  to  the  nature  of  the  offence, 
and  the  malignity  of  the  disposition  which 
the  offender  may  have  discovered.  Er^.  B. 
iv.  tit.  4,  «  81 ;  Bank.  i.  250;  BdPs  Ptinc  § 
2043;  Shaw's  Digest,  510.  See  Injuries. 
Veritas  Convicii.     Defamation.     Damages. 

Liberation.  Where  a  debtor  is  imprisoned 
under  letters  of  homing  and  capticm  for  non- 
payment of  a  debt,  he  is  considered,  not  only 
as  indebted  to  his  creditor,  but  as  guilty  of 
civil  rebellion.  Hence,  formerly,  the  mere 
payment  of  the  debt  was  not  sufficient  t«  en- 
title the  debtor  to  his  release ;  it  was  further 
incumbent  on  him  to  present  a  bill  of  suspen- 
sion and  liberation,  stating  the  fact  that  he 
had  paid  the  debt,  and  praying  to  be  liberated 
from  prison.  The  expense  with  which  this 
was  attended  seems  to  have  moved  the  Conrt  to 
take  the  situation  of  debtors  into  considera- 
tion; and  accordingly,  by  Act  of  Sederunt,  5t)i 
December  1675,  they  authorized  jailors  to  set 
debtors  in  small  sums  at  liberty  without  the 
necessity  of  the  form  of  a  suspension  and  libe- 
ration. And,  by  the  present  practice,  the 
mere  payment  of  the  sum  for  which  the  debtor 
is  booked  in  the  jail  books  entitles  him  to  be 
immediately  liberated — a  suspension  and 
charge  to  set  at  liberty  being  in  no  ease 
necessary  where  a  person  incarcerated  for 
non-payment  of  a  civil  debt,  or  for  non-per- 
formance of  a  civil  obligation,  pays  the  debt 
or  performs  the  obligation. 

Under  the  statute  1701,  c  6,  any  person 
in  custody  for  trial  is  entitled  to  call  upon  the 
prosecutor  to  bring  him  to  trial  within  a  rea- 
sonable period ;  and  in  the  event  of  undue 
delay  on  the  prosecutor's  part>  to  obtain  ha 

Digitized  byCjOOQlC 


LIB 


Lie 


529 


liberty.  The  prisoner  may  rnn  bis  letters, 
that  is,  he  may  apply  in  writing  to  any  of 
the  Lords  of  Justiciary,  or  other  judges  or 
judicatory  competent  for  judging  the  crime  or 
offence  for  which  he  is  imprisoned  ;  and  with- 
in twenty-four  hours,  the  judge  must  issue 
precepts  to  intimate  to  the  public  prosecutor 
and  party  concerned,  if  there  be  such,  to  fix 
a  diet  for  trial, — under  certification,  that  the 
prisoner  shall  be  set  free  if  a  diet  for  trial 
be  not  fixed  within  sixty  days.  If  the  prose- 
cutor fail  to  fix  a  diet,  the  prisoner  may  ap- 
ply to  any  Lord  of  Justiciary  or  judge  com- 
petent, who,  on  the  matter  being  duly  in- 
structed, is  bound,  within  twenty-four  hours, 
to  grant  warrant  for  his  release.  The  diet 
for  trial  before  an  inferior  court  may  be  any 
time  within  thirty  days  after  the  expiration 
of  the  sixty  days ;  but  the  whole  proceedings 
must  be  brought  to  a  close  within  the  thirty 
days,  so  that  the  prisoner  may  not  be  de- 
tained beyond  ninety  days  in  all  from  the 
date  of  his  intimation,  unless  delay  has  taken 
place  on  the  prisoner's  own  account  and  re- 
quest. If  the  prosecutor  fixes  a  diet  within 
the  sixty  days,  the  additional  thirty  days  for 
completing  the  proceedings  begin  to  run  from 
that  date.  If  the  prosecutor  does  not  insist 
at  the  diet  appointed,  or  does  not  bring  the 
whole  proceedings  to  an  end  within  the  time 
allowed,  the  prisoner  may  apply  for  release, 
which  must  be  granted,  just  as  if  the  diet  had 
not  been  fixed  within  the  proper  time.  When 
the  trial  is  before  the  Court  of  Justiciary, 
instead  of  thirty  days,  the  period  within 
which  the  trial  requires  to  be  concluded. is 
forty  days.  A  prisoner  once  liberated  on  the 
ground  of  a  diet  not  having  been  fixed,  can- 
not be  recommitted  on  the  same  charge,  ex- 
cept upon  new  criminal  letters  from  the  Court 
of  Justiciary,  and  on  these  his  trial  must  be 
terminated  within  100  days  from  the  date 
of  intimation ;  or,  in  the  Court  of  Justiciary, 
within  forty  days  from  the  time  when  the 
criminal  letters  are  executed  on  the  prisoner. 
If  this  is  not  done,  he  is  entitled  to  a  com- 
plete and  final  discharge  for  the  ofience. 
Kefusal  or  delay  on  the  part  of  judges  or 
officers  to  give  effect  to  this  statute,  makes 
them  liable  to  penalties  for  wrongous  impri- 
sonment, which  are  recoverable  in  the  Court 
of  Session.  Gross  and  wilful  disregard  of  the 
law  exposes  the  offender  to  the  pains  of  loss 
of  office  and  incapacity  for  public  trust.  The 
act  does  not  apply  to  trials  for  forgery  or 
fraudulent  bankruptcy  before  the  Court  of 
Session ;  but  it  does  to  all  such  trials  before 
the  Justiciary  Court.  See  11  and  12  Vict., 
e.  79,  §  3 ;  Er$k.  B.  iv.  tit.  3,  §  15 ;  Bdl's 
Com.,  6th  edit.  1077,  et  seq. ;  Bank.  vol.  i.  p. 
64 ;  vol.  iii.  p.  8 ;  Eutch.  JutU  of  Peace,  2d 
edit.  Tol.  i.  p.  479 ;  Ros^s  Led.  i.  846,  et  seq. ; 
2ii 


Hume,  ii,  98 ;  Alison^e  Prae.  182.  See  Im- 
prisonment.  Booking  a  Prisoner.  Caption,  BaiL 
Criminal.  Prosecution.  Criminal  Letters.  Wrong' 
ous  Imprisonment. 

Liberatio ;  according  to  Skene,  is  a  livery 
or  fee  given  to  a  servant  or  officer.  Skene, 
h.t. 

Liberatorinm  Pactom.  See  Pactum  Li- 
beratorium. 

LibenunTenementniu;  accordingto  Skene, 
commonly  and  properly  called  frank  tenement 
or  liferent ;  sometimes  also  used  for  the  pro- 
perty, fee,  or  heritage.    Skene^  h.  t. 

Liberty.  Every  one  is  held  to  have  a  right 
to  the  enjoyment  of  absolute  personal  freedom, 
until  he  forfeits  that  right  by  committing 
crime  or  incurring  debt ;  and,  in  order  to 
prevent  the  abuse  of  these  legal  restraints  on 
freedom,  statutes  have  been  passed,  both  in 
England  and  Scotland,  for  the  purpose  of 
providing  against  illegal  imprisonment.  In 
England  there  is  the  habeas  corpus  act;  in 
Scotland,  the  act  of  1701,  c.  6,  "  for  prevent- 
ing wrongous  imprisonment."  See  Habeas 
Corpus.     Wrongous  Imprisonment. 

Libraries.  On  the  principle,  that  no  ef- 
fectual entail  can  be  made  of  property  upon 
which  infeftraent  cannot  follow,  a  library,  or 
paintings,  or  other  personal  effects,  though 
sometimes  included  in  deeds  of  entail,  are 
nevertheless  liable  to  bo  attached  by  the  di- 
li|ence  of  the  creditors  of  the  heir  in  posses- 
sion. Mor^s  Notes  on  Stair,  clxxx.  See  Heir- 
ship Moveables. 

License.    See  Attorney's  Certijieate. 

License ;  a  power  or  authority  given  to  a 
man  to  do  some  lawful  act.  It  is  personal  to 
the  party  on  whom  it  is  conferred ;  and  can- 
not be  assigned,  unless  it  bear  to  be  given  to 
a  man  and  his  assignees. 

License  to  Sell  Spirits.  No  person  is  en- 
titled, directly  or  indirectly,  to  keep  any  ale- 
house, tippling  house  or  victualling  house,  or 
to  sell  ale,  beer,  spirits,  strong  waters,  or  other 
exciseable  liquors,  by  retail,  unless  he  have 
received  a  certificate  from  the  local  magis- 
trates ;  and  no  one  can  actually  retail  excise- 
able  liquors  unless  he  possess  an  excise  license, 
which  cannot  be  granted  without  production 
of  the  previous  certifieato.  The  statutes  re- 
gulating this  matter  contain  provisions  rela- 
tive to  the  meetings  vf  justices,  the  appli- 
cations  for  certificates,  the  renewal  and  trans- 
ference in  the  event  of  the  death  or  removal 
of  the  person  licensed,  and  as  to  the  breach 
of  certificates,  appeals  against  decisions,  the 
penalties  to  be  exacted  and  the  like,  for  which 
reference  is  made  to  the  existing  act.  See 
Alehouses,  and  authorities  there  cited;  also  6 
Geo.  ir.,  c.  81 ;  iand  5  WM.  IV.,  c.  76  ;  5 
and  6  WiU.  IV.,  c.  39 ;  6  an4  7  WiU.  IV.,  e. 
72.    In  like  manner,  the  makers  and  distil- 

Digitized  byCjOOQlC 


530 


Lie 


LIB 


lers  of  spirits  require  what  are  called  gene- 
ral lic»nset,  without  which  they  are  not  au- 
thorised to  make  or  deal  in  spirits  and  other 
exciseable  commodities.  The  limits  of  this 
work,  however,  necessarily  preclude  any  ana- 
lysis of  the  varioos  statatory  regulations  on 
this  subject,  all  of  which  will  be  found  di- 
gested in  ffuie's  Excise  Laws,  voce  Licentet. 

By  the  act  16  and  17  Vict.,  c.  67,  1853, 
no  certificate  for  the  sale  of  spirits,  wine,  or 
other  exciseable  liquors  can  be  granted,  un- 
less on  the  express  condition  that  no  °:roceries 
or  other  provisions  to  be  consumed  elsewhere 
shall  be  sold  on  the  premises  to  which  the 
certificate  applies.  Grocers,  however,  may 
obtain  certificates  for  the  sale  of  porter,  ale, 
spirits,  &c.,  and  other  exciseable  liquors,  by 
retail,  but  not  to  be  consumed  on  the  premises, 
at  the  same  rate  as  is  exigible  for  a  certificate 
for  a  public-house.  No  certificate  can  be 
granted  to  blacksmiths,  tacksmen  of  tolls,  or 
toll-gatherers,  or  to  any  person  occupying  a 
house  not  hitherto  licensed,  situated  at  or 
near  any  toll-bar.  One  of  the  conditions  an- 
nexed to  the  certificate  is,  that  liquors  shall 
noi  be  sold  before  eight  o'clock  in  the  morning, 
and  after  eleven  o'clock  at  night;  nor  on  Sun- 
day, except  in  the  case  of  inns  and  hotels,  and 
then  only  for  the  accommodation  of  lodgers 
and  bona  fide  travellers.  The  police  are  em- 
powered to  enter  any  public-house,  or  any 
house  where  refreshments  are  sold  to  be  con- 
sumed on  the  premises.  A  Commission  has 
been  appointed  to  inquire  into  the  operation 
of  this  act,  and  evidence  is  now  (1859)  being 
taken  in  regard  to  it. 

License  to  Kill  Oame.    See  Game  Laws. 

Lieeiue  to  Preach.  After  the  applicant 
for  a  license  to  preach  has  been  subjected  to 
his  trials,  the  presbytery  pronounce  their 
judgment.  If  dissatisfied,  they  remand  the 
student  to  his  studies,  or  appoint  new  trials 
for  him  to  undergo,  or  refuse  altogether  to 
license  him.  If  their  judgment  is  favourable, 
certain  questions  are  put,  and  when  the  stu- 
dent has  given  satisfactory  answers,  he  sub- 
scribes the  formula  in  which  the  substance  of 
the  questions  is  embodied.  The  act  against 
simony  is  then  read  to  him  in  presence  of  the 

firesbytery ;  the  moderator  is  appointed  to 
icense  him  to  preach  the  gospel ;  and  the 
clerk  is  ordered  to  furnish  him  with  an  ex- 
tract of  his  license.  A  license  to  preach,  ob- 
tained without  the  bounds  of  the  Church  of 
Scotland,  disqualifies  a  presentee  to  a  parish. 
HiWt  Church  Prac.  44,  47,  64 ;  Gillan's  AcU 
of  Assembly,  vodbut  Probationer's  Ordination. 
See  Minister. 

License  to  Pnnne ;  is  an  authority  given 
by  the  commissaries  to  an  executor,  which 
entitles  him  to  pursue  the  debtors  of  the  de- 
ceased, but  not  to  take  decree.    Ersk.  B.  iii. 


tit.  9,  §  39 ;  Stair,  B.  iii.  tit  8,  §  56  ;  Baitk. 
ii.  395.    See  Confirmation.     Executor. 

Licking  of  Thumbs ;  a  symbolical  mode  of 
indicating  that  a  bargain  has  been  conekded. 
It  is  occasionally  practised  in  bargains  of 
minor  importance  amongst  the  lower  elasMS. 
Ersk.  B.  iii.  tit  3,  §  5. 

Lieg^.     The  Queen's  subjects. 

Liege  Ponstie;  is  that  state  of  health 
which  gives  a  person  full  power  to  dispose 
mortis  eausa,  or  otherwise,  of  his  heritable 
property.  The  torm,  according  to  our  insti- 
tutional writers,  is  derived  from  the  words 
legitima  potestas,  signifying  the  lawful  power 
of  disposing  of  property  at  pleasure.  It  is 
used  in  contradistinction  to  deathbed — a  lient 
poustio  conveyance  being  a  conveyance  not 
challengeable  on  the  head  of  deathbed  ;  see 
Ersk.  B.  iii.  tit  8,  §  95.  The  tests  of  % 
ponstie,  opposed  to  the  presumption  of  death- 
bed, are,  survivance  during  sixty  days,  and 
going  to  kirk  or  market  unsupported.  Stair, 
B.  iv.  tit.  20,  §  40  ;  Moris  Notes,  p.  cecxiii. ; 
Bell's  Com.  i.  85,  5th  edit. ;  Bant.  vol.  ii.  p. 
303 ;  Bell's  Prine.  3d  edit.  §  1788  ;  Shaw'i 
Digest,  p.  160.  See  Deathbed.  Morbus  to»- 
iicus. 

Lien ;  in  English  law,  an  obligation,  tie, 
or  claim  annexed  to,  or  attaching  upon,  sny 
property,  without  satisfying  which,  such  pro- 
perty cannot  be  demanded  by  its  owner.  Be- 
fore the  introduction  of  the  torm  lien  into 
Scoteh  legal  phraseology,  the  right  to  retain 
the  property  of  a  debtor  was  recognised  under 
the  name  of  the  right  of  retention;  bnt  of 
lato,  it  has  become  general  to  employ  the 
torras  lien  and  retention  indifferently  to  sig- 
nify the  same  right.  Mr  More,  indeed,  draws 
a  distinction  between  the  two,  holding  that 
the  right  of  retontion  was  originally  mneb 
wider  in  its  operation  than  lien,  being  bor- 
rowed from  the  Roman  law,  and  having  been 
recognised  and  actod  upon,  before  compensa- 
tion was  allowed  to  be  pleaded  by  way  of 
exception  or  defence.  The  right  of  retention 
he  holds  to  have  been  a  necessary  counter- 
part of  the  diligence  of  arrestment  in  security. 
It  would  be  a  strange  anomaly,  he  observes, 
if  a  third  party  could,  by  arrestment,  compel 
the  holder  of  any  fund  or  article  belonging 
to  their  common  debtor,  to  retain  it  in  seen- 
rity  of  his  debt,  while  the  holder  himself 
could  not  retain  it  in  security  of  a  similar 
debt  due  to  himself.  In  England,  no  right 
of  retontion  at  common  law  u  recognised; 
and  the  lien  of  the  English  law  is  rather  of 
the  nature  of  an  equitable  encroachment 
upon  the  common  law,  proceeding  upon 
the  principle  of  implied  agreement ;  More't 
Notes  on  Stair,  cxxxi.  Whatever  may  haw 
been  the  extont  to  which  retontion  ms  ori- 
ginally permitted  in  the  law  of  Scotland,  it 

Digitized  byCjOOQlC 


LIB 


LIP 


531 


would  rather  appear  that  each  a  ^neral 
right  as  that  here  spoken  of,  comprehending 
all  cases  where  there  is  legitimate  possession 
and  a  debt  due  to  the  possessor,  is  now  no 
longer  recognised ;  Bell's  Princ.  §  1431.  The 
practical  results  of  the  English  lien  and  the 
Scotch  retention  being  now  nearly  assimi- 
lated, they  will  both  be  considered  in  this 
Dictionary  under  the  general  head  Retention. 
Identenant ;  an  officer  who  supplies  the 
place  and  discharges  the  office  of  a  superior 
in  his  absence.  The  LordS'Lieutenant  of 
counties  are  officers  appointed  by  the  Crown, 
who,  upon  any  invasion  or  rebellion,  have 
power  to  raise  the  militia,  and  to  give  com- 
missions to  colonels  and  other  officers  of  that 
force,  and  to  arm  and  form  them  into  regi- 
ments, troops,  and  companies.  Under  the 
lords-lieutenant  are  deputy  lieutenants,  who 
are  appointed  by  the  lord-lieutenant,  and 
presented  to  the  Sovereign  for  approbation. 
A  deputy  lieutenant  must  be  seised  or  pos- 
sessed of  an  estate  in  property,  either  in  his 
own  right  or  in  right  of  his  wife,  of  four 
hundred  pounds  Scots  of  valued  rent  in  Scot- 
land, or  be  heir-apparent  of  some  person 
seised  or  possessed  of  a  like  estate.  And 
those  who,  being  unqualified,  or  who,  without 
delivering  in  their  qualifications,  act  as  de- 

£uty  lieutenants,  are  liable  to  a  penalty  of 
1.100.  The  duty  of  the  courts  of  lieutenancy 
is  to  superintend  the  balloting  for  the  militia, 
and  to  make  regulations  concerning  the  vo- 
lunteer forces.  Kegulations  have  been  en- 
acted by  various  statutes  for  the  granting 
commissions  in  the  militia  by  the  lord-lieu- 
tenant, and  carrying  on  the  other  business 
connected  with  the  militia.  The  militia  acts 
passed  previously  to  42  Geo.  III.  c.  91,  were 
consolidated  and  superseded  by  that  statute, 
which,  although  followed  by  other  enact- 
ments, continues  the  groundwork  of  our 
militia  law.  When  the  services  of  the  mi- 
litia are  not  required,  an  annual  act  is 
passed  suspending  the  operation  of  the  mi- 
litia statutes.  £ut  when  these  acts  are  in 
operation,  a  general  meeting  of  the  lieuten- 
ancy of  every  county,  stewartry,  city,  and 
place  is  directed  to  be  held  at  least  once  a 
year.  These  general  meetings  consist  of  the 
lieutenant,  together  with  two  deputy  lieu- 
tenants at  the  least ;  or  on  the  death  or  re- 
moval, or  in  the  absence  of  the  lieutenant, 
then  of  three  deputy  lieutenants  at  the  least. 
At  this  annual  meeting  the  lieutenant  and 
two  deputy  lieutenants,  or  the  three  deputy 
lieutenants,  may  summon  other  general  meet- 
ings on  any  days  they  may  fix  upon.  Sub- 
division meetings  consist  of  two  deputy  lieu- 
tenants at  the  least,  or  one  deputy  and  a 
justice  of  peace.  In  questions  arising  out  of 
the  proceedings  of  courts  of  lieutenancy  under 


the  militia  statutes,  the  Court  of  Session, 
before  holding  it  competent  to  interfere,  have 
required  very  strong  prima  facie  evidence  of 
excess  of  powers.  In  one  case,  a  bill  of  ad- 
vocation or  suspension  was  held  to  be  incom- 
petent, although  there  was  reason  for  think- 
ing that  the  commissioners  had  exceeded  their 
statutory  powers ;  and  in  another  case,  it  was 
held  to  be  settled  that  the  excess  of  power 
must  be  flagrant  before  the  Court  of  Session 
can  be  warranted  to  interfere,  and  stop  or 
impede  ministerial  acts,  conducted  under 
colour  at  least  of  parliamentary  authority, 
on  which  the  general  safety  may  depend. 
Ersk.  B.  i.  tit.  2,  §  7,  note  bt^  Mr  Ivory; 
Hutch.  Justice  of  Peace,  59,  et  seq.;  Karnes' 
Stat.  Law  aJbridg.  wee  Lord-Lieutemant.  See 
Militia. 

Life.  Life  is  presumed  in  law  to  extend 
to  the  age  of  100  years,  unless  death  be 
proved.  What  circumstances  and  presump- 
tions shall  be  proof  of  death  is  a  question  of 
evidence.  Several  cases  on  this  point  are 
cited  in  Tait  on  Evidence,  478.  See  also 
Stair,  B.  iv.  tit.  45,  §  17, 19thly ;  Ersk.  B.  iv. 
tit.  2,  §  36 ;  Bank.  ii.  668 ;  Brown's  Sytup. 
1727  ;  Bell's  Princ.  §  1640 ;  lUtut.  ib. 

Life  Estates ;  in  English  law,  estates  of 
freehold,  not  of  inheritance,  analogous  to  the 
Scotch  liferents.     Torrdin^  Diet.  h.  t. 

Liferent.  A  liferent  right  entitles  the 
liferenter  to  use  and  eiyoy  the  subject  of  the 
liferent  during  life,  without  destroying  or 
wasting  its  substance,  or  saiva  ret  substantia, 
according  to  the  expression  of  the  Roman 
law.  The  proprietor  of  the  subject  is  called 
the  fiar;  the  subject,  which  is  either  a  sum  of 
money  or  an  heritable  subject,  is  called  the 
fee;  and  the  person  in  possession  the  life- 
renter.  The  legal  liferents  of  the  Scotch 
law  are  the  terce  and  the  courtesy.  See 
Kenning  to  the  Teres.    Courtesy. 

Conventional  liferents  of  heritage  are 
divided  into  simple  liferents,  and  liferents  by 
reservation..  The  former  are  constituted  by 
a  grant  containing  a  precept  of  sasine,  in 
virtue  of  which  sasine  must  be  taken,  and 
recorded,  in  order  to  render  the  right  effectual 
against  the  creditors  and  singular  successors 
of  the  grantor.  This  right  is  regulated  by 
the  terms  of  the  grant;  and  although  the 
profits  of  it  may  be  conveyed  to  another  by 
assignation,  the  continuance  of  the  right  de- 
pends entirely  on  the  life  of  the  original 
grantee.  A  liferenter  by  reservation  is  more 
like  a  limited  fiar\than  a  mere  liferenter. 
Such  a  liferenter  must  have  originally  pos- 
sessed the  whole  property  under  his  own 
sasine ;  and  therefore,  when  he  conveys  the 
fee,  reserving  his  own  liferent,  that  reserved 
right  rests  on  his  original  sasine,  and  requires 
no  new  infeftment  for  its  constitution.  Ueoce 


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a  lifflreuter  by  reservation,  who  lias  previously 
been  infeft  in  the  lands,  is  permitted  to  enter 
vassals,  which  a  liferenter  by  constitution,  or 
a  liferenter  by  reservation,  whose  right  was 
merely  personal,  cannot  do;  Enk.  B.  ii.  tit.  9, 
§42. 

Liferenters  are  entitled  to  the  fruits  and 
annual  produce  of  the  subject  liferented ;  and 
they  may  possess  by  themselves,  their  servants 
or  tenants ;  but  the  trees  planted  for  orna- 
ment cannot  be  cut  down  by  the  fiar  during 
the  currency  of  the  liferent.    The  liferenter 
must  leave  the  subject  in  as  good  condition 
as  that  in  which  it  was  at  the  commencement 
of  the  liferent ;  hence  a  liferenter  has  no  right 
to  cut  timber  unless  it  grows  again  after 
being  cut,  or  has  been  divided  into  baggs  and 
laid  out  in  annual  cuttings.    But  a  conjunct 
fiar,  or  a  liferenter  by  reservation,  is  entitled 
to  cut  timber  come  to  maturity,  though  not 
laid  out  in  haggs,  which,  according  to  the 
practice  of  the  country,  is  accustomed  to  be 
cut  at  maturity.    Such  liferenters  are  also 
entitled  to  cut  wood  of  mature  growth,  for 
the  purpose  of  maintaining  the  houses,  &c.,  in 
tenantable  condition.     The  liferenter  is  en- 
titled to  windfalls  and  underwood.    A  life- 
renter  has  no  right  to  the  mines  or  minerals ; 
and  where  a  right  to  coal  is  given,  he  cannot 
increase  the  average  quantity  which  has  been 
usually  brought  up.    The  obligation  not  to 
waste  the  subject  exposes  a  liferenter  to  an 
-  action,  at  the  instance  of  those  interested  in 
the  estate,  to  find  caution  that  he  shall  pre- 
serve the  subject  in  the  same  condition  in 
which  it  stood  at  the  time  of  his  entry ;  1491 , 
c.  25  ;  and  should  he  refuse  to  find  caution, 
he  may,  under  the  act  1535,  c.  15,  be  ex- 
cluded from  possession  until  he  complies; 
Ersk.  ibid.  §  5d.    The  liferenter  of  a  house 
is  bound  to  make  the  usual  and  necessary  re- 
pairs ;  but  if  the  house,  from  natural  decay, 
becomes  untenantable  in  the  course  of  the 
liferent,  the  liferenter  is  not  bound  to  repair 
it,  neither  is  the  fiar.    But  should  the  life- 
renter  be  at  this  expense,  he  should  do  it 
under  warrant  of  the  judge  ordinary  ;  and, 
in  that  case,  the  expense  incurred  may  form 
a  burden  on  the  fiar  on  the  expiration  of  the 
liferent.    Or,  should  the  repair  be  made  by 
the  fiar,  he  will  be  entitled  to  claim  from  the 
liferenter  the  interest  of  the  money  expended 
in  repairing  the  subject.    See  Houtes.    As  to 
the  liferent  of  furniture,  see  Furniture.  Life- 
renters  are  liable  in  the  burdens  affecting  the 
subject  lifeiented,  as  feu-duties,  minister's 
stipends  and  taxations ;  but  not  to  occasional 
burdens,  such  as  the  building  or  repairing  of 
churches  or  manses.      The  liferenter  of  a 
landed  estate   is  also  said  by  institutional 
writers  to  be  burdened  with  the  support  of 
tho  heir,  when  he  has  no  other  fund  of  sub- 


sistence, though  this  does  not  take  place  in 
liferents  of  sums  of  money.    And  even  in  the 
case  of  a  landed  estate,  such  a  claim  would 
not  now  be  listened  to  with  much  favour,  snd 
would  not  in  any  view  be  extended  so  as  to 
deprive  a  liferentrix  under  a  marriage-con- 
tract of  any  part  of  what  is  requisite  for  her 
own  support.     Nor  does  this  claim  affect  the 
creditors  of  a  liferenter.     See  Aliment.   A 
liferent  right  is  extinguished  by  the  death  of 
the  liferenter  ;  and  the  interest  of  his  eieca- 
tors  in  competition  with  the  fiar  depends  on 
the  precise  time  of  his  death,  and  the  state  of 
the  liferented  subject.     Where  it  is  let  to 
tenants,  the  liferenter's  executors,  if  he  sur- 
vive the  terra  of  Whitsunday,  have  right  lo 
one-half  of  that  year's  rent ;  if  he  survive  the 
term  of  Martinmas,  his  executors  have  right 
to  the  whole  year's  rent ;  and  that  although 
the  conventional  terms  of  payment  of  the  rrut 
may  fall  much  later.   Where  a  liferenter  dies 
on  the  term-day  of  Martinmas  or  Whitsun- 
day, the  rent  of  that  term  is  transmitted  to 
his  executors.     For  this  purpose  it  was  at 
one  time  held  that  he  must  have  outlived  the 
noon  of  the  term-day ;  but  it  is  now  settled 
that  the  executors  are  entitled  to  the  pre- 
ceding term's  rent,  if  the  liferenter  lives  nntil 
the  morning  of  the  term-day.   The  execnton 
are  also  entitled,  under  the  Apportionment 
Act,  to  the  proportion  of  the  rent  accruing 
between  terms,  for  the  period  during  which 
the  liferenter  survived.     Where  the  snbjert 
of  the  liferent  is  in  the  natural  possession  of 
the  liferenter,  the  executors  have  right  to 
the  crop  of  such  parts  of  the  lands  as  have  been 
sown  by  the  liferenter,  but  to  no  more.   In  a 
liferent  of  money  due  on  a  personal  bond,  the 
executor  has  a  right  to  interest  down  to  the 
day  of  the  liferenter's  death.    Mills,  though 
their  profits  are  drawn  de  die  in  diem,  are  yet, 
from  their  connection  with  land,  regukted 
by  the  same  rules  which  apply  to  lands;  and 
so  also  is  a  liferent  annual  payment  in  grain. 
But  the  liferents  of  fishings,  collieries,  salt- 
works, and  other  subjects,  the  profits  of  which 
arise  from  continual  daily  lalwur,  are  com- 
puted d«  die  in  diem  until   the  liferenter's 
death,  and  do  not  depend  on  any  particular 
terms.    The  same  rules  which  regulate  the 
termination  of  a  liferent  right  regulate  also 
its  commencement,  where  that  depends  on  the 
death  of  a  person  in  possession.     A  liferenter 
of  a  superiority  has  right  to  the  fen-doties, 
but  not  to  the  casualties,  unless  he  be  a  life- 
renter  by  reservation.     The  liferenter  gets 
the  dividends  or  interest  of  bank  stock,  and 
the  interest  on  a  bonus,  but  not  the  bonus 
itself.    Liferenters  are  not  entitled,  in  the 
absence  of  express  stipulation,  to  grant  fens 
or  leases  effectual  beyond  the  liferent    A 
liferenter  is  entitled  to  exercise  the  right  of 

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patronage.  As  to  the  right  of  voting  for  a 
inember  of  Parliament,  see  Fiar ;  2  and  3 
WiU.  ir.,  c.  65,  §§  7,  8 ;  5  and  6  Will  IV.,  c. 
78,  §  10.  Liferent  is  extinguished  not  only 
1>y  the  death  of  the  liferenter,  but  also  by 
rentutciation  without  recording.  Ersk.  B.  ii. 
tit.  9,  §  40,  et  seq. ;  Stair,  B.  ii.  tit.  3,  §  74 ; 
tit.  6 ;  B.  iii.  tit.  1,  §  16 ;  Move's  Notes,  p. 
ccxii. ;  BelPs  Com.  i.  54  ;  Bank.  vol.  i.  p.  657  ; 
Bdl'a  Prine.  §  1037,  et  seq.  2198 ;  Illust.  § 
1037;  Karnes'  Stat.  LamAbridg.  h.  t.;  Hunter's 
Landlord  and  Tenant,  p.  95 ;  Bdl  on  Leases, 
4th  edit.  i.  186,  216,  223;  ii.  102,  et  seq.; 
Sandford's  Heritable  Succession,  vol.  ii.  pp.  117, 
1 20 ;  Bell  on  Purchaser's  Title,  2d  edit.  p.  92 ; 
Boss's  Led.  ii.  484 ;  Thomson,  Dole's  Appeal 
Vases,  i.  417.  See  Conjunct  Fee.  Fee  and  Life- 
rent.   Fiar.     Terms,  Legal  and  Conventional. 

Xiferent  Escheat.    See  Escheat. 

Tjigaatia ;  according  to  Skene,  is  a  league, 
bond,  or  obligation.  Homagium  ligium,  is  ho- 
mage without  any  exception ;  homagium  non 
ligium,  is  homage  made  to  an  overlord,  with 
reservation  of  the  fidelity  due  to  the  King  or 
an  elder  overlord.    Skme,  h.  t. 

Light.  The  servitudes  of  light  and  of  pro- 
spect are  servitudes  whereby  the  servient  pro- 
prietor is  restrained  from  building  or  plant- 
ing on  his  own  grounds,  or  from  otherwise 
exercising  his  right  of  property,  so  as  to  in- 
tercept the  light  or  prospect  of  the  dominant 
tenement.  There  is  no  such  implied  restraint 
on  the  use  of  property.  On  the  contrary, 
every  proprietor  is  entitled  to  make  any  use 
he  pleases  of  his  property,  however  detri- 
mental to  his  neighbour's  lights  or  prospect, 
provided  such  use  is  not  wanton  and  emulous, 
or  objectionable  under  the  law  of  nuisance. 
This  servitude  from  its  nature  seems  to  re- 
quire writing  towards  its  constitution;  the 
exercise  of  a  conterminous  proprietor's  right 
to  intercept,  being  what  is  called  res  mera 
faeuUatis,  «>.  a  right  which  he  may  exercise 
or  not  at  pleasure,  and  which  he  will  not  lose 
non  utendo  for  any  period,  however  long.  But 
A  restraint  on  the  free  exercise  of  this  right 
may  be  imposed  by  an  express  permission,  or 
tolerance,  of  a  certain  number  of  windows 
looking  into  the  adjoining  property.  It  would 
also  appear  that  a  servitude  of  light  does  not 
imply  a  servitude  of  prospect  also,  an  elPs  dis- 
tance having  in  one  case  been  held  sufficieut 
for  light,  where  there  was  no  servitude  of  pro- 
spect. In  connection  with  this  subject  it  may 
bo  observed,  that  although  a  conterminous 
proprietor  may  strike  out  windows,  so  as  to 
overlook  his  neighbour's  grounds  or  garden, 
yet  a  restraint  on  this  use  of  property,  of  the 
nature  of  a  servitude,  may  also  be  created  ;  or 
the  party  so  looked  in  upon  (if  his  neighbour 
have  no  servitude  non  officiendi  liminihis),  may 
raise  a  screen  or  wall  tor  the  express  purpose 


of  obstructing  the  view  from  such  windows, 
and  securing  his  privacy.  Glassford,  12th 
May  1808,  M.  App.  Property,  No.  7 ;  Forbes, 
1st  July  1724,  M.  14605 ;  Ogilvy,  5th  Feb. 
1678,  M.  14534 ;  Ersk.  B.  ii.  tit.  9,  §  10 ; 
Bell's  Prine.  §  1015,  and  authorities  there  cited; 
Stair,  B.  ii.  tit.  7,  §  9 ;  Hutch.  Justice  of 
Peace,  2d  edit.  vol.  ii.  p.  395  ;  Sltaw's  Digest, 
p.  565.    See  Emulatio  Vicini. 

Limitation;  in  English  law,  a  certain 
time,  assigned  by  statute,  within  which  an 
action  must  be  brought.  This  matter  is  re- 
gulated by  certain  acts  of  Parliament,  called 
statutes  of  limitation.  An  impression  has 
long  been  prevalent,  that  the  limitation  of 
the  English  corresponds  exactly  to  the  pre- 
scription of  the  Scotch  law.  But  this  seems 
to  bis  a  mistake,  arising  from  the  term  pre- 
scription being  applied  to  two  distinct  modes 
in  which  obligations  are  extinguished  by 
lapse  of  time.  In  some  cases  where  a  certain 
period  has  elapsed  from  the  time  when  the 
obligation  was  contracted,  the  jus  erediti  is 
presumed  to  be  abandoned,  or  the  obliga- 
tion is  presumed  to  be  satisfied,  and  so  extin-' 
guished.  In  other  cases,  after  the  lapse  of  a 
certain  time,  action  is  denied  on  an  instru- 
ment or  document  of  debt,  without  regard  to 
the  actual  subsistence  of  the  debt.  It  is  this 
latter  mode  Avhich  has  been  considered  ana- 
logous to  the  English  limitation ;  and,  ac- 
cordingly, recent  authors  have  applied  to  it 
the  term  limitation,  and  confined  the  term 
prescription  to  the  former  mode,  i.  e.  to  the 
absolute  extinction  of  the  debt.  In  this  senso 
bonds  of  caution  are  said  to  be  limited  to 
seven  years,  bills  and  notes  to  six,  and  holo- 
graph writings  to  twenty  ;  that  is  to  say,  they 
are,  on  the  lapse  of  these  respective  periods, 
of  themselves  incompetent  grounds  of  action 
or  of  summary  diligence ;  although  the  debt 
which  they  contain  may  be  established  by 
other  proof.  But  when  a  debt  is  extinguished 
by  the  lapse  of  forty  years,  the  obligation  is 
said  to  be  prescribed,  not  limited.  The  dis- 
tinction is  important,  and  recourse  is  fre- 
quently had  to  it  in  argument ;  but  the  cus- 
tom has  been  so  long  established  of  classing 
all  these  modes  of  dissolving  obligations  under 
one  name,  that  it  would  not  be  advisable,  in 
a  practical  work  like  the  present,  to  separate 
them.  They  are  therefore  all  treated  of  in 
the  article  Prescription. 

Linen  MannfiiotiiTe.  The  linen  manufac- 
ture was  the  object  of  several  statutes  before 
the  Union.  See  1693,  c.  29.  After  the 
Union,  a  new  system  of  regulations  was  adopt- 
ed. The  statute  13  Geo.  I.,  c.  26,  author- 
ised the  establishment  of  a  board  of  trustees ; 
and  afterwards  a  board  was  instituted  accord- 
ingly, which  has  been  since  considered  as  in 
some  measure  vested  with  the  functions  of  the 

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LIN 


LIT 


Scotch  Prirj  ConnciL  For  the  particulftr 
regulation  of  the  linen  manufacture,  see  13 
Geo.  I.,  c.  26 ;  18  Geo.  11.,  c.  24  and  25  ;  24 
Geo.  II.,  c  36 ;  22  Geo.  III.,  c.  36. 

Lining,  Brieve  of.  This  was  one  of  the 
brieves  not  retourable.  It  was  directed  to 
the  prorost  and  bailies  for  settling  the  boun- 
daries of  disputed  property  within  burgh, — 
"  lineari  facialis  Unementum  terrw  de  B." — 
"  et  sic  ut  dictum  tenementum  per  dictos  limi- 
iores  liniatumfuerU,  ita  illud  de  cceterit firmi- 
ter facialis  observari."  The  formal  issuing  of 
such  brieves  is  now  almost  entirely  in  desue- 
tude, the  dean  of  guild  and  his  council  being 
judges  in  all  snch  matters.    Stair,  B.  iv.  tit. 

3,  §13;  BdPsPrinc.  §  2241 ;  Jurid.  Styles,  i. 
419.   Sw  Dean  of  Gvtid.  Dean  of  Guild  Court. 

Lint.  Lint  is  prohibited  to  be  steeped  in 
lochs  and  burns  under  a  penalty  of  408.  toties 
quoties,  and  confiscation  of  the  lint  to  the  poor 
of  the  parish ;  because  it  infects  the  water, 
kills  the  fish,  is  prejudicial  to  the  cattle,  and 
noisome  to  the  neighbourhood ;  1606,  c.  13 ; 
1685,  c.  20.  By  a  later  statute,  lint  or  hemp 
may  not  be  steeped  in  any  bog-hole,  peat  or 
moss  or  tan-pit,  nor  watered  for  two  years 
successively  in  a  pool  or  hole  of  standing 
water,  unless  the  pool  be  near  a  running 
stream  where  fresh  water  may  be  often  let  in, 
under  pain  of  forfeiting  the  hemp  or  lint  for 
the  use  of  the  informer.    13  Geo.  I.,  c.  26,  §f 

4,  31,  32 ;  Ersk.  B.  iv.  tit.  4,  §  40 ;  Taifs 
Justice,  h.  t. ;  Blair's  Justice,  h.  t. 

Liqiiid.  A  liquid  debt  is  a  debt  the 
amount  of  which  is  ascertained  and  consti- 
tuted against  the  debtor,  either  by  a  written 
obligation  or  by  the  decree  of  a  court.  Stair, 
B.  i.  tit.  18,  §  6 ;  Ersk.  B.  iii.  tit.  4,  §  16  ; 
Bell's  Com.  i.  734 ;  Bank.  i.  492.  See  Com- 
pensation. 

Lit  Pendens ;  an  action  depending  in  court. 
It  is  a  defence  in  an  action  that  the  same 
claim  is  the  subject  of  a  lis  alibi  pendens.  It 
has  been  decided,  in  several  cases,  that  the 
defence  of  lis  pendens  between  the  parties,  in 
a  foreign  court  of  competent  jurisdiction,  is 
no  bar  to  a  similar  action  being  tried  in  Scot- 
land. A  recent  writer  draws  a  distinction 
between  the  case  where  the  defender  has  de- 
serted the  foreign  law-suit,  and  has  retired 
to  Scotland,  and  that  where  he  has  found 
caution  in  the  foreign  country,  and  is  going 
on  with  the  suit  there ;  and  observes,  that  in 
the  latter  case,  lis  alibi  pendens  is  a  good  de- 
fence, though  not  in  the  former.  The  Eng- 
lish courts  observe  the  same  rule  of  rejecting 
the  defence  of  lis  pendens  in  Scotch  courts. 
An  action  is  depending  whenever  the  sum- 
mons is  executed,  and  no  other  action  can  be 
raised  till  it  is  discharged  ;  but  the  lis  pen- 
dens must  be  regular,  and  the  very  same  mat- 
ter must  be  depending  before  another  court 


It  is  no  bar  to  an  action  of  reduction  and  de- 
clarator against  the  creditors  of  a  person  de- 
ceased, to  have  it  found  that  the  pursuers  do 
not  represent  their  parents,  that  an  action 
against  them,  on  the  ground  of  representa- 
tion, is  in  dependence  before  the  sheriff.  A 
party  cannot  resort  to  an  action  of  damages 
in  the  Supreme  Court,  after  having  instituted 
a  similar  action  on  the  same  species  facti  in 
another  court.  Where  an  action  is  depend- 
ing in  an  inferior  court,  and  one  on  similar 
grounds  is  brought  in  the  Court  of  Sesaon, 
the  plea  of  lis  alibi  cannot  he  competently  ob- 
viated by  advocating  the  former  ob  eotUingen- 
tiam.  It  has  been  held  competent  for  a  she- 
riff, in  vacation,  to  grant  warrant,  on  appli- 
cation, to  sell  grain,  and  consign  the  price  in 
Court,  where  delay  might  affect  the  value, 
although  the  grain  was  the  subject  of  an  ac- 
tion depending  before  the  Court  of  Session, 
the  pleas  of  parties  on  the  merits  being  re- 
served, BantuUyne,  iii.  D.  429  ;  More's  N<^ 
to  Stair,  p.  xi ;  BeWs  Com.  6th  edit.  935 ;  Bank 
vol.  ii.  p.  627  ;  Macfarlane's  Jury  Prac  p.  54; 
Maclaurin's  Sheriff  Process,  p.  78 ;  ^OiuPs 
Prac.  200 ;  Brown's  Synop.,  voce  Lis  alibi.  See 
Defences.    Exceptions. 

Literary  Property ;  or  copyright ;  is  the 
property  which  an  author  or  his  assignee  has 
in  any  literary  work.  The  question  has  been 
much  agitated  whether,  at  common  law,  and 
independently  of  statute,  the  copyright  vests 
in  the  author,  so  as  to  entitle  him  to  claim 
reparation  and  damages  from  those  who  m- 
fringe  his  right.  But  it  has  been  finally 
settled,  both  in  Scotland  and  England,  that 
the  copyright  of  published  works  is  protected 
by  statute  alone.  The  rule  is  different  vith 
respect  to  unpublished  works,  which  are  pro- 
perty at  common  law.  The  first  statute  on 
this  subject  was  8  Anne,  c  19,  by  which  it 
was  provided,  that  the  author  of  any  book 
should  in  future  have  the  sole  liberty  of 
printing  it  for  fourteen  years ;  and  if  alive 
at  the  end  of  that  term,  for  another  period 
of  fourteen  years ;  and  if  any  person  should, 
within  that  time,  print,  reprint,  or  import 
such  book,  without  the  consent  of  the  pro- 
prietor in  writing,  or  should  knowingly  pub- 
lish it  without  snch  consent,  he  should  forfeit 
the  books  and  sheets  to  the  proprietor,  and  one 
penny  for  every  sheet  found  in  his  custody,  one- 
half  to  the  Crown,  and  one-half  to  the  prose- 
cutor. But  to  entitle  the  author  to  the  benefit 
of  the  statute,  the  whole  book,  and  every  vo- 
lume thereof,  must,  under  the  act  15  Geo.  Ill-, 
c  53,  §  64,  have  been  entered  in  Stationers' 
Hall,  and  sixpence  paid  for  such  entry;  and 
nine  copies  'of  the  book  must  have  been  de- 
livered to  the  company's  warehouse-keeper, 
before  publication,  for  the  use  of  the  royal  li- 
brary, the  libraries  of  Oxford  and  Cambridge, 

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Sion  College  in  London,  the  four  Universi- 
ties in  Scotland,  and  the  Advocate's  Library ; 
and  also  (by  41  Geo.  III.,  c.  107,  §  6)  to 
Trinity  College  and  King's  Inns,  Dublin. 
The  regulations  as  to  the  delivery  of  copies 
to  the  public  libraries  fixed  by  54  Geo.  III., 
c  156,  were,  that  eleven  copies  of  all  works 
whatever,  pVinted  or  published,  should  be  de- 
livered to  the  several  universities,  Sic,  if  de- 
manded, within  twelve  months  after  publica- 
tion, but  not  copies  of  subsequent  or  second 
editions,  without  alteration,  and  that  amend- 
ments of  early  editions  might  be  printed  se- 
parately and  delivered.  By  the  same  statute, 
all  books  were  required  to  be  entered  (within 
one  month,  if  published  in  London,  and  three 
months,  if  published  elsewhere),  at  Stationers' 
Hall,  and  one  copy  on  the  best  paper  to  be 
then  delivered  for  the  British  Museum,  and  28. 
to  he  paid  for  each  entry,  under  a  penalty  of 
L^,  and  eleven  times  the  price  of  the  book ; 
the  warehouse-keeper  at  Stationers'  Hall  be- 
ing bound  to  transmit  lists  of  all  publications 
to  the  librarians  of  the  libraries  entitled  to 
copies,  of  the  publishers,  who  may  themselves, 
however,  if  they  pleased,  have  delivered  the 
copies  at  theseveral  libraries.  By  6and7  Will. 
IV.,  c.  110,  the  former  acts  requiring  copies 
to  be  delivered  for  the  libraries  of  Sion  Col- 
lege, of  the  Scotch  Universities,  and  the  King's 
Inn  Library  at  Dublin,  are  repealed.  Such 
an  annual  sum  as  may  be  equaJ  in  value  to, 
and  a  compensation  for,  the  loss  sustained,  is 
directed  to  be  paid  to  the  said  libraries  out  of 
the  consolidated  fund ;  to  be  ascertained  and 
determined  according  to  the  value  of  the 
books  actually  received  by  each  library,  in 
such  manner  as  the  Commissioners  of  the 
Treasury  shall  direct,  upon  an  average  of  the 
three  years  ending  30th  June  1836.  The 
compensation  must  be  applied  in  the  purchase 
of  books  of  literature,  science,  and  the  arts, 
for  the  use  of  the  library ;  and  no  issue  of 
money  can  be  made  until  sufficient  proof  have 
been  adduced  of  the  application  of  the  money 
last  issued. 

By  the  statute  54  Geo.  III.,  c.  156,  instead 
of  two  terms  of  fourteen  years  each,  the 
author's  right  was  extended  to  twenty-eight 
years  absolute,  and  to  the  end  of  the  author's 
life — the  privilege  being  extended  to  authors 
of  books  published  befdre  the  date  of  the 
sUtute  (1814).  The  statute  8  Anne,  c.  19, 
was,  by  41  Geo.  III.,  c.  107,  extended  to  all 
parts  of  the  united  kingdom  of  Great  Britain 
and  Ireland,  and  of  the  British  dominions  in 
Europe;  which  last  statute  also  increased  the 
penalty  to  threepence  per  sheet ;  and,  in  ad- 
dition, conferred  on  the  author  a  claim  of  da- 
mages against  transgressors.  The  four  Scotch 
Universities,  the  two  English  Universities, 
and  the  Colleges  of  Eton,  Westminster,  and 


Winchester,  as  also  the  Trinity  College  of  • 
Dublin,  are  enabled  to  hold  in  perpetuity 
(under  the  penalties  of  the  statute  8  Anne) 
their  copyright  in  books  given  or  bequeathed 
to  them  for  the  advancement  of  useful  learn- 
ing, and  other  purposes  of  education ;  15  Geo. 
III.,  c.  52 ;  41  Geo.  III.,  c  107. 

The  act  5  and  6  Vict.,  c.  45, 1842,  repeals 
the  acts  8  Anne,  c.  19,  41  Geo.  III.,  c.  107, 
and  54  Geo.  III.,  c.  156,  and  now  regulates 
the  law  of  copyright.  By  this  act,  the  copy- 
right of  every  book  endures  for  the  natural 
lifetime  of  the  author,  and  for  seven  years 
after  his  death.  If,  however,  the  term  of 
seven  years  shall  expire  before  the  end  of 
forty-two  years  from  the  first  publication  of 
the  book,  the  copyright  endures  for  the  term 
of  forty-two  years  from  its  first  publication. 
When  a  book  is  published  after  the  author's 
death,  the  copyright  endures  for  forty-two 
years.  When  the  proprietor  of  a  copyright 
of  a  book  refuses  to  republish  it  after  the 
author's  death,  the  Privy  Council,  on  com- 
plaint to  them,  may  grant  a  license  for  its 
republication.  Copies  of  every  book  must 
be  delivered  to  the  British  Museum,  and  also, 
on  demand  in  writing,  to  the  following  lib- 
raries:— The  Bodleian  Library  at  Oxford, 
the  Public  Library  at  Cambridge,  the  Library 
of  the  Faculty  of  Advocates  at  Edinburgh, 
and  the  Trinity  College  Library  at  Dublin. 
The  British  Museum  is  entitled  to  the  best 
copy  published  of  the  book,  and  the  other 
institutions  to  one  of  the  ordinary  copies  only. 
Importation  for  sale  or  hire  of  any  book 
published  in  the  United  Kingdom,  and  re- 
printed abroad,  is  prohibited,  except  by  the 
proprietor  of  the  copyright^  or  some  one 
authorised  by  him.  Copyright  is  declared 
to  be  personal  property ;  and  a  book  is  inter- 
preted to  mean  "  every  volume,  part  or  divi- 
sion of  a  volume,  pamphlet,  sheet  of  letterpress, 
sheet  of  music,  map,  chart,  or  plan,  separately 
published." 

The  property  of  prints  and  engravings, 
and  of  new  models  and  casts  of  busts,  &c.,  are 
secured  to  the  inventors  by  similar  statutory 
provisions;  see  8  Geo.  II.,  c.  13;  7  Geo.  III., 
c.  38  ;  17  Geo.  III.,  c.  67  ;  38  Geo.  III.,  c.  71 ; 
7  Will.  IV.,  c.  59,  and  15  and  16  Vict.,  c.  12, 
1852.  By  special  statute,  the  author  of  any 
tragedy  or  any  dramatic  piece  not  printed,  or 
of  any  such  printed  after  or  within  ten  years 
before  the  lUth  June  1833,  has  the  sole  right 
of  representing  it,  or  causing  it  to  be  repre- 
sented at  any  place  of  dramatic  entertainment 
for  twenty-eight  years.  Those  who  infringe  this 
right  forfeit  forty  shillings,  or  the  greatest 
benefit  gained,  or  the  greatest  loss  sustained, 
whichever  shidl  be  the  greatest  benefit  to  the 
author.  The  right  of  action  is  limited  to 
twelve  calendar  months  after  the  offence ;  3 


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WiU.  IV.,  c.  16.  The  copyright  statntea  pro- 
tect a  work  consisting  of  a  single  sheet,  printed 
separately ;  or  a  part  of  a  book,  as  a  tale  or 
a  soDg  in  a  book ;  and  notes  on  a  book ;  BeWt 
Princ.  §  1359 ;  IllusU  ib.  The  titU  of  a  book 
or  other  publication  is  also  protected. 

The  copyright  of  designs  is  now  regulated 
by  the  act  21  and  22  Vict.,  c.  90, 1858 ;  and 
international  copyright  by  the  acts  7  and  8 
Vict.,  c.  12, 1844,  and  15  and  16  Vict.,  c  12, 
1852.    See  Detignt. 

As  already  mentioned,  unpublished  docu- 
ments are  property  at  common  law  ;  and  the 
publication  of  them  is  an  invaiion  of  the 
owner's  right ;  and  even  when  a  manuscript 
has  been  given  away  or  sold,  the  donee  or 
buyer  is  not  entitled  to  publish  it,  although 
he  may  make  any  other  use  of  it.  Nor  is  one 
entitled  to  take  down  the  words  of  an  unpub* 
lished  play  and  afterwards  publish  it.  Doubts 
having  been  entertained  as  to  the  right  of  a 
lecturer  to  prevent  the  publication  of  his  lec- 
tures, this  case  has  been  provided  for  by 
statute.  The  author  of  lectures,  or  the  per- 
son to  whom  a  copy  of  lectures  has  been  sold 
or  conveyed  for  the  purpose  of  delivering  them 
in  any  schooli  institution,  or  other  place,  has 
the  sole  right  of  printing  and  publishing 
such  lectures.  The  penalty  on  others  pub- 
lishing such  lectures  without  leave,  is  the 
forfeiture  of  the  copies,  and  one  penny  for 
each  sheet.  Newspaper  printers  publishing 
lectures  without  leave,  are  liable  to  the  penal- 
ties. No  person  attending  lectures  for  a  fee  or 
reward,  is  held  to  have  leave  to  print,  copy,  or 
publish  them,  because  of  such  leave  to  attend. 
The  right  to  prevent  publication  ceases  after 
expiration  of  the  period  allowed  by  the  sta- 
tutes of  copyright.  The  protection  does  not 
extend  to  lectures,  of  the  delivery  of  which 
notice  has  not  been  given  in  writing  to  two 
justices,  living  within  five  miles  of  the  place 
of  lecture,  two  days  at  least  before  their  being 
delivered ;  nor  to  lectures  in  any  university, 
public  school,  or  college,  or  on  any  public 
foundation,  or  by  any  individual,  in  virtue, 
or  according  to  any  gift,  endowment  or  foun- 
dation. The  law  relating  to  such  lectures 
remains  the  same  as  if  the  act  had  not  been 
passed ;  5  and  6  Will.  IV.,  c.  65.  Private 
letters  cannot  be  published  without  leave  of 
the  writer.  This  rule  is  established  on  dif- 
ferent principles  in  the  law  of  England  and 
Scotland,  In  England,  it  is  held  that  the 
writer  of  the  letters  never  lost  the  property 
of  the  letters,  or,  at  all  events,  that  he  re- 
tains a  joint  property  in  them,  which  would 
be  infringed  by  their  being  published  with- 
out his  permission.  In  Scotland,  again,  the 
writer  or  his  representatives  have  a  right  to 
interfere,  chiefly  on  the  ground  that  his  re- 
putation may  be  injured  by  the  publication  of 


confidential  letters.  The  English  doctrine, 
that  the  right  of  property  is  the  only  ground 
on  which  one  is  entitled  to  interfere,  produces 
an  extraordinary  result  in  the  case  of  unpub- 
lished works  containing  libelloos  or  danger- 
ous matter.  Such  works  cannot  be  legally 
published,  and  they  are  therefore  held  not  to 
be  property  ;  so  that  when  they  fall  into  the 
hands  of  a  person  who  prints  and  publishes 
them,  the  author  cannot  obtain  an  injunction. 
Literary  property  may  be  assigned  either  be- 
fore or  after  publication,  provided  it  be  done 
in  writing.  In  all  actions  in  which  another 
than  the  author  is  prosecutor,  a  written  tide 
is  necessary  under  the  statute.  Ertk.  B.  ii. 
tit.  1,  §  16,  note  bt/  Ivory ;  Belt's  dm.  L 115 ; 
BeWs  Princ.  §  1355,  rf  uq. ;  lUust.  §  1356; 
Kama^  Princ.  of  Equity  (1825),  228;  Wti- 
ton's  Stat.  Law,  voce  CopyrighL  See  Cofjfri^ 
Patents.    Chamberlain.     Comedian. 

Litigiosity ;  is  a  tacit  legal  prohibition  of 
alienation,  to  the  disappointment  of  a  begun 
or  inchoate  action  or  diligence,  the  object  of 
which  is,  to  attain  the  possession,  or  to  acquire 
the  property  of  a  particular  subject,  or  to 
attach  it  in  security  of  debt.  Without  this, 
or  some  similar  legal  provison,  whenever  a 
creditor  proceeded  to  do  diligence  for  attach- 
ing or  securing  the  property  of  his  debtor  in 
payment  of  his  debt,  the  debtor  might  in- 
stantly, and  before  the  completion  of  the  dili- 
gence, dispose  of  his  property  and  defeat  the 
object  of  the  creditor.  Thus,  the  object  of 
the  diligence  of  iuhibition  is,  to  prevent  a 
proprietor  from  alienating  or  burdening  his 
heritable  property  to  the  prejudice  of  the  in- 
hibiting creditor ;  and  there,  litigiosity  com- 
mences from  the  time  that  the  diligence  is 
executed.  But,  for  that  purpose,  it  is  neces- 
sary not  only  that  the  diligence  should  be 
executed  against  the  debtors,  but  publidied 
against  the  lieges.  The  adjudication,  agaui, 
which  attaches  the  heritable  estate  of  the 
debtor  in  security  of  the  debt,  is  founded  <« 
a  summons ;  and  from  the  date  of  the  execn- 
tion  of  the  summons,  the  subject  becomes 
litigious.  Litigiosity  operates  even  against 
onerous  purchasers,  and  so  presents  a  strik- 
ing defect  in  the  records.  But,  1.  Litigi- 
osity does  not  affect  the  terce ;  2.  It  does  not 
operate  against  deeds  executed  in  virtue  of 
previous  obligations,  but  only  against  volun- 
tary deeds  ;  and,  lasUy,  Where  there  is  un- 
due delay  or  mora  in  proceeding  with  the  ac- 
tion, or  in  completing  the  diligence,  the  liti* 
giosity  ceases  to  operate  as  a  protection.  ErA. 
B.  ii.  tit.  11.  §  7.  and  tit  12,  §§  16,  41,  and 
B.  iv.  tit.  1,  §88  ;  Stair,  B.  iii.  tit.  1,  §  18, 
et  seq. ;  BeWs  Com.  6th  edit.  935,  975, 1138; 
Bank.  vol.  iii.  p.  41,  et  seq. ;  Kame^  Stat.  Law 
Abridg.  h.  t. ;  Hunter's  Landlord  and  Tenmt, 
2d  edit  vol.  ii.  633 ;  BeU  on  Least,  i.  Ill, 


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463-472 ;  BeU  m  Pwrchtuer's  TiOe,  368-70 ; 
Shand's  Prac.  276,  604,  692 ;  Kames"  Equity, 
807,  395.  S«e  Conjunct  and  Confident.  Ad- 
judication. Diligence.  And  for  some  remarks 
upon  the  nature  of  litigiosity,  and  the  defect 
of  the  records  in  this  respect,  see  Search  of 
Ineunwranceg. 

XitiBContestatioii ;  was  a  term  applied,  in 
the  Roman  law,  to  the  case  where  both  the 
parties  to  a  suit  had  stated  their  pleas  judi- 
cially.    It  was  held  as  a  species  of  contract 
between  them,  that  they  should  abide  by  the 
decision  of  the  jndge  on  the  facts  as  proved. 
By  the  earlier  practice  of  the  Court  of  Ses- 
sion, after  the  parties  had  stated  their  re- 
spective pleas,  the  Court,  after  settling  the 
relevancy,  granted  a  warrant  for  proving  the 
conflicting  allegations,  which  was  termed  an 
act  of  litiscontestation.    Before  litiscontesta- 
tion, and  while  no  peremptory  defence  has 
been  pleaded,  the  defender  may  withdraw, 
and  allow  decree  to  go  out  against  him,  which 
will  be  held  to  be  a  decree  in  absence  ;  but, 
after  litiscontestation,  the  defender   cannot 
pass  from  his  appearance,  and  the  decree  is 
held  to  be  a  decree  tn  foro  contentioto.    In 
virtue  of  the  judicial  contract  implied  in  litis- 
contestation, the  action,  even  ttiough  penal, 
is,   after    litiscontestation,  transmissible    to 
heirs;  for  the  parties,  by  an  act  of  litiscon- 
testation, are  held  bound,  as  if  by  a  contract 
{quasi  ex  contractu),  to  acquiesce  in  the  deci- 
sion founded  on  the  proof  that  may  be  brought 
of  the  points  stated  in  the  act  of  litiscontesta- 
tion.   Erdc.  B.  iv.  tit.  i.  §§  69,  70 ;  Stair,  B. 
iv.  tit.  39 ;  Bank.  ii.  625 ;  iii.  92 ;  Brown's 
Syncp.  1551;   Shand's  Prac.  ii.  542.     See 
Divorce.    Abandoning  an  Action. 

Livery;  in  English  law,  for  delivery  of 
sasine,  is  a  delivery  of  lands,  tenements,  and 
hereditaments,  unto  him  who  has  a  right  to 
the  same,  being  a  ceremony  in  the  common 
law,  used  in  the  conveyance  of  lands,  &c., 
where  an  estate  of  fee-simple,  fee-tail,  or 
other  freehold  passes ;  Tomlint'  Diet.  h.  t. 
The  corresponding  term  in  Scotch  law  is 
inf^ment,  or  sasine.  See  Exeeutry.  Infeft- 
meat.    Satine.    Precept. 

Loading.  Under  the  contract  of  affreight- 
ment, the  shipmaster  and  owners  are  bound 
to  see  that  due  preparation  is  made,  and  care 
taken  of  the  goods  in  loading  and  unloading. 
Tackling  must  be  supplied  sufScient  to  guard 
against  injury.  The  ship  must  be  cspable  of 
receiving  the  sort  of  cargo  for  which  she  is 
engaged,  and  must  not  be  overloaded,  but 
room  left  for  her  own  furniture,  and  the  pro- 
visions of  the  crew,  and  the  proper  working 
of  the  vessel.  A  failure  in  any  of  these  re- 
spects grounds  a  claim  against  the  estate  of 
the  owners  and  master.  Thus,  if  a  cask  be 
accidentally  staved  in  letting  it  down  into 


the  hold  of  the  ship,  a  claim  lies  for  the  loss ; 
or  if  a  ship  is  freighted  to  go  to  America  for 
timber,  and,  owing  to  the  small  size  of  her 
port-holes,  she  cannot  take  in  the  large  tim- 
ber of  that  country,  a  claim  of  damage  will 
arise  to  the  merchant,  on  the  warranty  that 
there  shall  be  no  obstruction  to  the  loading. 
In  receiving  goods  on  the  quay,  or  in  sending 
his  own  boats  for  them,  the  master  is  respon- 
sible for  them  from  the  moment  of  delivery^ 
In  the  timber  trade,  if  it  is  the  custom  to 
float  down  the  timber  in  rafts  by  the  mer- 
chant's servants,  the  responsibility  of  the 
shipowners  and  master  begins  only  with  deli- 
very into  the  ship.  But  if  the  master  send 
his  crew  to  float  down  the  timber,  he  incurs 
the  risk  from  the  moment  the  timber  is  de- 
livered to  them.  Bell's  Com.  i.  547 ;  Brodie't 
Supp.  to  Stair,  985 ;  Bell's  Princ.  §  408 ;  Illust. 
ib.  See  Ship.  Affreightment.  Charter-party. 
Warranty.    Stowage. 

Loan.  In  its  general  acceptation,  this 
word  signifies  the  agreement  by  which  the 
use  of  anything  is  given,  under  condition  of 
its  being  returned  to  the  owner.  But  as  some 
articles,  as  provisions,  must  be  destroyed  in 
their  use,  or  given  away,  as  money,  a  distinc- 
tion was  made  in  the.  Roman  law  between 
mutuum  and  commodate;  the  former  term  being 
applied  to  the  loan  of  fungibles,  or  such  ar- 
ticles as  perish  in  the  use ;  the  latter  to  the 
loan  of  those  subjects  which  must  be  indivi- 
dually returned  to  the  owner,  and  which  sub- 
jects must  therefore  be  of  a  nature  capable  of 
being  used  without  destruction  or  alienation. 
In  mutuum,  the  property  of  the  subject  is 
transferred ;  and  if  the  subject  be  destroyed, 
the  borrower  to  whom  the  property  is  trans- 
ferred suffers  the  loss ;  but  in  commodate,  as 
the  property  remains  with  the  lender,  and  the 
use  merely  is  given  to  the  borrower,  any  loss 
befalling  the  subject  must  be  borne  by  the 
lender.  Ersk.  B.  iii.  tit.  1,  §  18 ;  Bell's  Com. 
i.  256  ;  Bank.  vol.  i.  p.  354 ;  BeU's  Princ.  § 
194,  et  seq.;  Illust.  §  199 ;  Ross's  Lect.  i.  67. 
See  Borrowing.     Commodate.     Mutuum. 

Lobsters.  In  Scotland,  the  taking  of 
lobsters  is  forbidden  from  Ist  June  to  1st 
September,  under  a  penalty  of  L.5  for  each 
offence.  Two  justices  may  try  such  a  cause 
summarily,  and  the  penaltv  goes  to  the  pro- 
secutor ;  9  Geo.  I  J.,  c.  33,  §  4. 

Locality.  The  decree  of  the  Teind  Court, 
modifying  a  stipend  to  a  minister  from  the 
teinds  of  the  parish,  is  called  a  decree  of 
modification;  and  the  adjustment  or  apportion- 
ment of  the  aggregate  stipend  amongst  the 
several  heritors  liable  to  pay  it,  is  called  a 
locality.  This  allocation  of  the  stipend  is 
made  according  to  certain  rules ;  and  the  de- 
cree of  the  Court,  approving  of  the  allocation, 
is  called  a  decree  of  locality ;  and,  after  such 

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a  decree  has  been  pronoanced,  no  heritor  h 
liable  in  more  than  the  proportion  fixed  by 
the  decree.  After  the  stipend  is  modified, 
and  before  a  decree  of  locality  has  been  pro- 
noanced, the  minister  may  select  any  heritor 
he  pleases,  who  will  be  liable  in  the  first  in- 
stance for  the  whole  stipend,  or  at  least  as 
far  as  such  heritor's  teinds  extend,  although 
that  should  exceed  his  due  proportion — the 
heritor  so  selected  having,  however,  a  claim 
of  relief  pro  rata  against  the  other  heritors 
liable  in  the  stipend ;  Ersk.  B.  ii.  tit.  10,  § 
47.  According  to  the  present  form  of  pro- 
cess, after  an  augmentation  has  been  granted 
by  the  Teind  Court  (as  explained  voce  Aug- 
mentation), the  cause  is  remitted  to  the  Second 
Junior  Lord  Ordinary,  and  the  judicial  pro- 
cess of  locality  then  commences.  The  cause 
is  enrolled  before  the  Second  Junior  Lord 
Ordinary;  the  minister  selecting  the  Division 
of  the  Court  to  which  he  chooses  that  the 
process  shall  belong.  In  this  process,  one  of 
the  first  steps  is  to  have  a  common  agent  ap- 
pointed in  the  manner  described  voce  Common 
Agent;  and,  at  the  same  time,  the  heritors 
are  ordained  to  produce  their  rights  to  the 
teinds  within  a  time  limited  by  the  Lord 
Ordinary,  under  certification  that,  failing 
their  doing  so,  a  remit  will  be  made  to  the 
teind-clerk  to  prepare  a  scheme  of  locality, 
either  according  to  the  proven  rental  or  ac- 
cording to  the  rights  and  interests  produced. 
This  scheme,  when  prepared,  is  approved  of 
by  the  Lord  Ordinary  as  an  interim  scheme, 
according  to  which  the  stipend  is  paid,  until 
A  final  scheme  of  locality  is  settled ;  and,  in 
the  meantime,  the  minister  is  furnished  by 
the  common  agent,  at  the  expense  of  the  heri- 
tors, with  an  extracted  decree,  approving  of 
the  interim  scheme.  The  duty  of  the  common 
agent  is  to  obtain  a  full  production  of  the 
heritors'  rights  to  the  teinds,  and  their  de- 
creets of  valuation,  if  there  be  any;  and 
thereafter  to  prepare  a  State  of  the  teinds, 
classifying  and  arranging  the  various  rights 
of  the  heritors.  The  order  in  which  the  teinds 
of  the  parish  are  allocated  upon  is  explained 
voce  Teinds  ;  and,  in  practice,  the  final  scheme 
of  locality,  with  which  the  process  is  closed, 
as  well  as  the  interim  scheme,  is  framed 
by  the  teind-clerk  ;  the  parties  interested 
being  allowed  judicially  to  see  and  object  to 
the  scheme,  and  to  their  respective  rights 
and  valuations.  This  is,  in  general,  a  long 
protracted  process ;  and  during  its  depend- 
ence, the  interests  of  the  minister  are  regu- 
lated by  the  interim  decree  of  locality.  The 
judgment  of  the  Lord  Ordinary  on  the  ques- 
tions raised  in  the  course  of  the  process  of 
locality,  whether  between  the  minister  and 
heritors,  or  among  the  heritors  inter,  se,  is 
final  iu  the  Outer-House,  but  subject  to  the 


review  of  the  Division  to  which  the  cause  be- 
longs, by  reclaiming  note,  lodged  within 
twenty-one  days  after  the  date  of  the  jadg- 
ment.  The  decree  of  locality  is  enforced  by 
diligence,  passing  under  the  signet.  The 
Teind  Court  has  no  signet ;  but  the  extracted 
decree  of  that  Court  is  the  warrant  for  psffi- 
ing  a  bill  at  the  Bill-Chamber  for  a  homing 
on  ten  days'  charge ;  which  homing  is  signed 
by  a  writer  to  the  signet,  and  must  pass  tlie 
signet  of  the  Court  of  Session.  This  hom- 
ing is  a  sufficient  warrant  for  charging  the 
several  heritors,  or  their  succeKors,  or  other 
occupiers  of  the  lands,  and  intromitters  with 
the  rents  and  teinds.  And  if  the  incambent 
die,  or  is  translated,  his  successor,  on  produc- 
tion of  the  former  horning,  or  of  the  ex- 
tracted decree,  with  a  certificate  of  his  ordi- 
nation and  induction,  will,  on  passing  a  bill 
at  the  Bill-Chamber,  obtain  a  new  horning. 
Teinds  are  d^itafructuum  only :  and  the  ar- 
rears are  payable  by  the  actual  intromitter, 
or  his  heirs,  but  not  by  a  singular  successor. 
Hence,  teinds  not  being  debita  fundi,  the  de- 
cree is  not  a  warrant  for  poinding  the  ground ; 
but  the  minister  may  charge  the  tenants  for 
payment  of  the  sum  localled  on  the  lands 
possessed  by  them  ;  and  such  tenant  will  be 
liable  to  the  extent  of  his  rents,  crop,  and 
teind,  so  far  as  the  rent  is  in  his  hands.  Ob- 
serve, however,  that  the  claim  for  stipend 
prescribes  in  _/l«!  years.  The  decree  of  modi- 
fication and  locality  is  a  sufiicient  warrant  to 
poind  and  arrest  the  moveables  or  rents  of 
the  intromitter  for  the  time ;  and  if  the  party 
charged  be  mentioned  nominatim  in  the  horn- 
ing, and  if  the  precise  sum  charged  for  be 
there  specified,  he  may  be  denounced  rebel  in 
common  form.  But  this  is  not  usual;  the 
arrestment  or  poinding  being,  in  the  ordi- 
nary case,  sutficient  to  attain  the  minister's 
object ;  especially  as  charges  on  such  decrees 
cannot  be  suspended,  except  on  consignation. 
See  on  the  subject  of  this  article,  A.  S.  22J 
June  1687,  9th  July  1809,  and  12ttA>.1825; 
Ersk.  B.  ii.  tit.  10,  §  47 ;  Ivory's  Form  (f 
Process,  ii.  444,  «t  seq.;  Shand's  Erac.  68, 
294 ;  Mor<^s  Notes  on  Stair,  p.  ccxxxviii ; 
Bank.  ii.  60  ;  Bell's  Princ.  §  1162 ;  Conndl  on 
Tithes,\A&2,et seq.  &«% Augmentation.  Teinds. 
Proven  Rental.  Minister's  Rental.  Decree  Con- 
form.    Modification. 

Locality  of  a  Widow.  The  lands  life- 
rented  by  a  widow  under  a  contract  of  mar- 
riage are  called  her  locality  lands.  Where 
lands  are  given  in  this  way,  the  widow  has 
the  profits  of  the  lands,  whatever  they  may 
be ;  and  should  any  loss  arise  from  the  bank- 
ruptcy of  tenants  or' otherwise,  she  must  bear 
the  loss,  without  recourse  on  any  other  part  of 
the  husband's  estate.  Where  power  is  given 
by  deed  of  entail  to  provide  wive:,  by  way  of 


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locality,  to  a  certain  limited  amount  of  yearly 
rent,  it  has  been  held  that  the  rent  payable  at 
the  date  of  the  wife's  infeftment  is  the  rule, 
and  not  that  which  may  be  payable  from  the 
lands  given  in  locality  at  the  period  when 
the  wife  succeeds.  And  where  a  deed  of  en- 
tail allowed  the  heir  in  possession  to  provide 
his  widow  with  a  suitable  liferent,  "  by  way 
of  locality,  not  exceeding  the  half  of  the  pre- 
sent rent  for  the  time,"  it  was  decided,  that 
a  locality  which,  at  its  date,  did  not  exceed 
the  half  of  the  rent  then  payable,  could 
not  afterwards  be  restricted,  though  it  came 
greatly  to  exceed  the  half  of  the  free  rents, 
and  was  alleged  to  be  more  than  a  suitable 
provision.  Leases  of  lands,  over  which  a  lo- 
cality has  been  constituted  in  favour  of  a 
wife,  granted  ttante  matrimonio  by  her  hus- 
band in  the  fair  exercise  of  his  right  of  ad- 
ministration, are  effectual,  notwithstanding 
his  decease.  But  it  is  usual  in  marriage- 
contracts  to  insert  a  power  to  grant  leases  of 
BDch  lands.  Mor^s  Notes  on  Stair,  clxxxviii. ; 
BelPg  Com.  i.  55, 636 ;  BdPt  Prine.  §  1947  ; 
Hunter's  Landlord  and  Tenant,  95-7  ;  Jurid. 
Styles,  i.  184.  See  Jointure.  Contract  of  Mar- 
riage. 

LooaAon.    The  contract  of  location  is  that 
by  which  the  use  of  any  moveable  subject  is 
agreed  to  be  given  for  hire ;  or  by  which  a 
person  gives  his  work  or  services  on  the  same 
condition.    He  who  lets  his  work,  or  the  use 
of  his  property,  is  called  the  lessor  or  locator, 
and  the  hirer  is  called  the  conductor  or  lessee. 
The  lessee  is  entitled  to  the  mere  use  of  the 
subject  let,  which  subject  must  be  restored  to 
the  owner  at  the  stipulated  time.    The  lessor 
is  bound  to  procure  for,  and  to  continue  the 
use   and  enjoyment  of  the  subject  to,  the 
lessee  ;  but  if  by  some  fatality,  not  imputable 
to  himself,  he  shall  not  be  able  to  put  the 
lessee  into  possession,  he  cannot  be  sued  ex 
loeato  for  damages ;  and,  ou  the  other  hand, 
he  has  no  claim  for  hire.     But  if  the  lessee 
should  be  excluded  by  any  fault  or  act  of  the 
lessor,  the  implied  warrandice  of  the  contract 
would  render  him  liable  in  damages.     The 
lessee  is  bound  to  put  the  subject  to  no  other 
use  than  that  for  which  it  is  let — to  preserve 
it  in  good  condition  during  the  lease — and  to 
restore  it  to  the  lessor,  and  to  pay  the  rent 
or  hire  agreed  upon.     The  risk  of  the  pro- 
perty let  to  hire  remains  with  the  owner,  who 
is  at  all  times  liable  for  the  loss  or  injury  it 
may  sustain ;  unless  where  he  can  prove  that 
the  loss  has  occurred  through  the  negligence, 
fraud,  or  fault  of  the  lessee.    Where  a  work- 
man, who  lets  his  labour  for  hire,  from  care- 
lessness or  want  of  skill,  neglects  or  destroys 
the  work,  he  is  liable  to  his  employer  in 
damages ;  but  if  through  no  fault  of  his  the 
work  has  not  been  performed,  he  is  entitled  to 


the  full  stipulated  wages.  A  servant,  who  is 
hired  to  a  precise  day  or  time,  is  entitled  to 
his  full  wages,  though  he  should,  by  sickness, 
be  disabled  for  service  for  part  of  that  time. 
But  if  the  inability  should  continue  long,  and 
a  substitute  should  be  required,  the  master 
will  be  discharged  from  his  obligation  to  pay 
wages;  and  if  the  servant  die  before  the 
term  be  elapsed,  his  wages  are  due  only  for 
the  time  he  served.  If  the  master  8houlddie,or 
if  he  turn  off  a  servant  without  a  reasonable 
cause,  the  servant  has  a  right  to  full  wages, 
and  also  to  his  maintenance  for  the  term 
agreed  on.  But  should  the  servant  desert  his 
service,  he  forfeits  his  wages  and  mainten- 
ance, and  is  farther  liable  in  damages.  Ersk. 
B.  iii.  tit.  3,  §§  14, 15, 16  ;  Stair,  B.  i.  tit. 
15 ;  More's  Notes,  p.  xcv  ;  BeWs  Com.  i.  255, 
et  seq.,  451,  et  seq. ;  Bank.  vol.  i.  p.  429 ; 
BeU's  Princ.  §  133,  et  seq. ;  Illust.  §  137 ; 
Brown  on  Sale,  pp.  574-6 ;  Hutch.  Justice  of 
Peace,  ii.  158 ;  Tait  on  Evidence,  3d  edition, 
pp.  298-9,  453-6 ;  Blair's  Justice  of  Peace, 
h.  t. ;  Ross's  Lect.  ii.  456.  See  Artists  and  Ar- 
tificers.    Workman.    Lease. 

Loohmaben.  The  small  property  called 
the  four  towns  of  Lochmaben  is  held  by  a 
tenure  peculiar  to  itself.  The  proprietors 
are  enrolled  as  kindly  tenants  in  the  rental- 
book  of  the  proprietor  of  the  barony ;  and 
this  constitutes  a  title  of  property  which  has 
been  judicially  recognised.  And  although 
those  tenants  have  neither  charter  nor  sa- 
sine,  yet  it  has  been  held  that  they  are  not 
removeable  by  the  landlord ;  and  that  they 
may  dispone  or  burden  their  rights.  Kindly 
Tenants  of  Lochmaben  v.  Lord  Stormont,  24th 
November  1726,  Mor.  p.  15,195 ;  Irving,  4th 
Feb.  1795,  Mor.  p.  10,316,  and  Bell's  Folio 
Cases,  p.  145;  Mounsey,  30th  Nov.  1808, 
Fac.  Coll. ;  Ersk.  B.  ii.  tit.  6,  §38,  note  by 
Ivory ;  Hunter's  Landlord  and  Tenant,  383 ; 
BeU  on  Leases,  i.  89  ;  ConneU  on  Parishes,  389. 
See  Kindly  Tenants. 

Lochs.     See  Lakes. 

Look  or  Gowpin ;  is  the  perquisite  of  the 
servant  in  a  mill,  and  consists  of  a  small  quan- 
tity of  meal  regulated  by  the  custom  of  the 
mill.  This  is  one  of  the  sequels,  or  small 
services,  as  the  multure  is  the  payment  due 
to  the  proprietor  of  the  mill,  in  right  of  the 
thirlage.  Ersk.  B.  ii.  tit.  9,  §19;  Hunter's 
Landlord  and  Tenant,  212 ;  Ross's  Lect.  ii. 
171.    See  Thirlage. 

Lockfast  Places.  The  opening  of  lock- 
fast places  is  an  aggravation  of  theft,  and, 
when  combined  with  housebreaking,  is  of  a 
very  serious  nature;  It  is  immaterial  how 
the  security  has  been  overcome,  provided  the 
place  was  locked,  and  the  key  was  not  in 
the  lock.  Alison's  Princ.  296 ;  Steele,  123. 
As  to  the  mode  of  obtaining  access  to  lock- 
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fast  places  in  order  to  execute  diligence  or 
the  like,  see  Open  Doors ;  King's  Keys. 

LooQB  Delicti  It  is  necessary  in  criminal 
libels  to  specify  tlie  place  where  the  crime 
was  committed  with  as  much  precision  as  the 
circumstances  will  allow,  and  so  as  not  to  em- 
barrass or  perplex  the  panel.  But  in  crimes 
the  nature  of  which  makes  the  place  immate- 
rial, this  rule  is  relaxed ;  as  well  as  when  the 
place  cannot  be  known  to  the  prosecutor  with 
certainty.  To  warrant  conviction,  the  place 
roust  be  proved  as  set  forth  in  the  libel ;  but 
what  amounts  to  such  proof  will  depend  en- 
tirely on  the  specialties  of  the  case.  Ursk. 
B.  i.  tit.  2,  §  23 ;  Hume,  ii.  207,  et  seq. ; 
Alison's  Prac.  257.    See  Alibi.    Indictment. 

Locus  PoenitentisB ;  a  power  of  resiling 
from  a  bargain,  before  any  act  has  been  done 
to  confirm  it  in  law.  It  depends  entirely  upon 
the  nature  of  the  contract,  what  are  the  re- 
quisites of  final  and  conclusive  engagement  in 
the  particular  case ;  but  it  is  a  general  rule, 
that  until  sach  final  engagement,  there  is  al- 
ways a  privilege  to  either  party  to  retract 
his  intention  of  becoming  bound,  however 
strongly  expressed.'  Thus,  in  consensual  con- 
tracts, if  one  make  an  offer  of  such  a  nature 
that  an  express  acceptance  of  it  is  expected, 
he  may  withdraw  the  offer  at  any  time  before 
acceptance.  The  rule,  however,  is  different 
where  the  offer  is  of  a  gratuitous  nature,  and 
acceptance  being  presumed  is  not  expected  to 
be  expressed.  In  such  a  case  there  is  no 
locus  pwnitenti(B,  since,  as  soon  as  the  offer 
reaches  the  party  to  whom  it  is  made,  there 
is  a  consensus  in  idem  plaeilum.  There  may 
be  circumstances,  however,  in  which  even  a 
gratuitous  offer  may  be  withdrawn,  as  when 
the  person  making  it  has  intimated  his  de- 
sire that  he  should  be  informed  whether  or 
not  it  is  accepted.  Where  there  is  an  en- 
gagement among  several  individuals,  each  has 
lotus  paenitentiw  until  the  consent  of  the  last 
has  been  given.  The  parties  have  locus  pmni- 
tentioe  where  writing  is  legally  requisite,  or 
has  been  stipulated,  and  has  not  yet  been 
authentically  executed;  such  is  the  case  in  a 
verbal  agreement  about  heritage.  But  some- 
times the  parties  may  be  bound  by  a  present 
agreement,  although  it  is  their  intention  sub- 
sequently to  complete  the  transfer  in  a  more 
formal  manner.  And  whenever  there  has 
been  rei  interventus,  following  upon  an  infor- 
mal agreement,  the  locus  pwnilentiw  is  barred. 
Ersk.  B.  iii.  tit.  2,  §  2,  3 ;  -Stair,  B.  i,  tit.  10, 
§  9 ;  B.  ii.  tit.  9,  §  20  ;  Move's  Notes,  pp.  Ixv. 
xcv. ;  BeWs  Com.  i.  327  ;  BelVs  Princ.  §  25-6- 
7 ;  Illust.  ib. ;  Hunter's  Landlord  and  Tenant, 
pp.  277,  283;  Bull  on  Leases,  i.  281-5,  294 ; 
Karnes'  Equity,  132.  See  Lease.  Rei  Inter- 
ventus, Homologation.  Offer.  Promise.  Ob- 
ligation.    Ci/utracl. 


Lodgers.  In  England,  it  would  seem  thai 
lodgers,  though  possessing  the  principal  part 
of  a  house,  have  no  right  to  vote  in  virtue  of 
such  possession,  the  owner,  how  small  however 
the  part  reserved  for  himself,  being  the  tenant 
of  the  whole  in  the  eye  of  the  law ;  Cham- 
berif  Election  Law,  h.  t.  But  in  Scothmd,  if 
the  yearly  rent  paid  by  the  lodger  for  hi» 
apartments,  exclusive  of  board,  amonnts  to 
L.IO,  the  sheriffs  are  in  the  practice  of  en- 
rolling him  as  a  voter  on  this  qualification. 
See  Reform  Act. 

Lodging-Honses.  It  seems  formerly  to 
have  been  laid  down,  that  the  keepers  of 
lodging-houses  were,  like  innkeepers,  &&, 
liable  under  the  edict  Nautce,  cauponet,  for  the 
safety  of  goods  and  luggage  brought  into  the 
house  by  lodgers;  May,  16th  Feb.  and  lOth 
July  1694,  Mot.  9236.  But  there  has  been 
no  recent  decision  to  support  the  old  prece- 
dent. And  in  Wailing  v.  Macdougal,  10th 
June  1825,  S.  A  D.  83,  "  the  Lords  wished 
it  to  be  distinctly  understood  that  they  did 
not  mean  to  decide  the  question,  whether  or 
not  the  keepers  of  lodgings  feU  under  the 
edict."  The  landlord's  hypothec  does  not  ex- 
tend over  the  effects  of  lodgers  in  a  lodgin;;- 
house.  More's  Notes  on  Stair,  Ivii. ;  Bdi's 
Com.  i.  469;  Bell's  Princ.  §  236;  Huntei't 
Landlord  and  Tetiant,  685.  See  NauUt,  Cm- 
pones.     Innkeepers.     Furniture. 

Lodging  of  Papers.  See  Interlocutor.  Pro- 
rogation.   Process.     Record.    Fee-Fund. 

Log-Book.  The  log-book  of  a  ship  is  a 
book  into  which  the  contents  of  the  log- 
board  are  daily  copied  at  noon,  together  with 
every  circumstance  deserving  notice  which 
happens  to  the  ship,  either  at  sea  or  in  har- 
bour. In  the  contract  of  insurance,  as  proof 
of  loss,  the  log-book  and  protests  taken  on 
occasion  of  the  loss,  are  expected  to  be  fur- 
nished to  the  underwriters,  to  direct  their  in- 
quiries ;  but  they  are  not  proofs  on  which  the 
loss  can  be  rested,  unless  they  become  so  by 
the  inevitable  loss  of  other  evidence.  They 
may  be  used  to  contradict  the  evidence  of  the 
master  or  mate,  whose  statements  they  are; 
and  the  log-book,  unless  there  be  evidence  of 
its  loss,  must  be  produced,  as  a  check  on  the 
proceedings  of  the  voyage.  The  log-book  of 
a  ship  of  war  proves  the  time  when  her  con- 
voy sailed,  or  when  a  ship  became  part  of  her 
convoy.  BetPs  Com.  i.  612;  BelPs  PriM.\ 
498.     Tait  on  Evidence,  52.     See  Evidence. 

Loosing  of  Arrestment.  An  arrestment 
may  be  loosed  on  caution,  wherever  it  is  laid 
on  for  securing  an  illiquid  debt ;  but  in 
every  case  where  the  debt  is  constitnted  by 
the  decree  of  a  court,  or  where  there  is  a  de- 
cree of  registration,  it  can  be  loosed  only  on 
consignation  of  the  debt ;  and,  accordingly, 
there  is  a  distinction  in  the  form  of  the  let- 


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ters  of  arrestment  io  these  two  cases.    From 
this  rule,  however,  there  are  the  following 
exceptions:  1.  When  the  time  of  paying  of 
the  debt  is  not  arrived,  although  the  arrest- 
ment proceed  on  a  decree,  the  arrestment 
may  be  loosed  on  caution.    2.  An  arrest- 
ment founded  on  a  mutual  contract  may  be 
loosed  on  caution.    3.  So  may  an  arrestment 
on  a  decree  which  has  been  suspended  or 
tamed  into  a  libel.    Arrestments  adfundan- 
dam  jurisdictionem,  are  loosed  upon  the  debt- 
or's giving  security  jtdieio  sisti ;  and  where 
an  arrestment  appears  to  be  nimious  and  op- 
pressive, the  Court  of  Session  will  grant 
warrant    for    loosing   arrestment,    without 
caution  or  consignation.    A  letter  from  an 
arrester  passing  from  arrestment,  or  holding 
it  as  recalled,  is  equivalent  to  a  discharge,  or 
to  a  loosing  of  the  arrestment.    A  discharge 
granted  by  an  arresting  creditor  to  an  arres- 
tee does  not  discharge  the  common  debtor  of 
the  remainder  of  the  debt,  the  arrestee  having 
been  discharged  only  as  such.  See  1  and2  Vict., 
c  114,  §20;  and  A  5.,  June  8, 1850.  See  also 
Ersk.  B.  iii.  tit.  4,  §  12 ;  Stair,  B.  iii.  tit.  1, 
§  S4  ;  Morels  Notes,  p.  ccxci. ;  Bdfs  Com.  ii. 
69  ;     Bank.  vol.  ii.   p.   199 ;    Bell's  Princ. 
§  2361-2 ;  Maclaurin's  Sheriff-Court  Process, 
p.  245  ;  Tait's  Justice  of  Peace,  voce  Arrestment; 
Jurid.  Stt/l^,2d  edit.  vol.  ii.p.SO;  iii.  p.  556, 
et  seq. ;  Ross's  Lect.  i.  458.    See  Arrestment. 
Forthcoming. 

Lord's  Day.  See  Sunday. 
Lord ;  a  title  of  honoar  given  to  a  peer  of 
the  realm.  It  is  applied  also  by  courtesy  to 
all  the  sons  of  a  duke,  and  to  the  eldest  son 
of  an  earl.  It  is  also  used  to  the  judges  of 
the  Court  of  Session,  and  to  other  persons 
honourable  by  their  offices.  See  Tomlins' 
Diet.  h.  t. 

Lord  Advocate.    See  Advocate,  Lord. 
Lord  Jnstioe-Clerk.    The  Lord  Justice- 
Clerk,  in  absence  of  the  Lord  Justice-Gene- 
ral, is  the  presiding  judge  in  the  Court  of 
Justiciary.    He  is  also  one  of  the  Officers  of 
State  for  Scotland,  and  one  of  the  commis- 
sioners for  keeping  the  Scottish  regalia.  The 
Lord  Justice-Clerk  is  always  one  of  the  Sena- 
tors of  the  College   of  Justice,  and  Lord 
President  of  the  Second  Division  of  the  Court 
of  Session.     It  appears  that,  prior  to  1671, 
the  Justice-Clerk  was  not  one  of  the  judges 
of  the  Court  of  Justiciary,  but  merely  the 
clerk  and  assessor  of  Court ;  ^ume  ii.  17.  The 
office  of  Lord  Justice-Clerk  is  now,  in  point  of 
rank,  the  second  judicial  appointment  in  Scot- 
land.   See  Justiciary  Court.    Session,  Court  of. 
Lord  Justice-General.  See  Justice-General, 
Lord-Lieutenant.  See  Lieutenant. 
Lord  President ;  the  presiding  judge  in 
the  Court  of  Session.    See  Session,  Court  of. 
CoUege  of  Justice. 


Lords  of  the  Articles ;  a  committee  of  the 
Scottish  Parliament,  by  whom  the  laws  to  be 
proposed  in  Parliament  were  prepared.  See 
Articles,  Lords  of. 

"Loxii  of  Erection.  On  the  Reformation, 
the  King,  as  proprietor  of  the  benefices  for- 
merly held  by  the  abbots  and  priors,  gave 
them  out  in  temporal  lordships  to  those  whom 
he  chose  to  favour,  who  were  termed  Lords  of 
Erection.     See  Erection,  Lords  of. 

Lords  of  Justiciary;  the  judges  of  the 
Court  of  Justiciary,  or  Criminal  Court.  See 
Justiciary  Court. 

Lords  of  Begfality ;  were  persons  to  whom 
rights  of  regalities  were  given  by  the  Crown. 
Under  those  rights  they  possessed  a  civil  juris- 
diction equal  to  that  of  a  sheriff ;  and  their 
criminal  jurisdiction  extended  to  the  four 
pleas  of  the  Crown.  Persons  amenable  to  the 
jurisdiction  of  a  Lord  of  Regality  might  have 
been  repledged  from  the  Justiciary.  It  was 
on  account  of  this  extended  and  royal  juris- 
diction that  the  persons  to  whom  regalities 
were  given  received  the  titles  of  Lords  of 
Regality,  though  only  commoners.  The  Lord 
of  Regality  acted  by  a  steward  or  bailie  ap- 
pointed by  himself.  Ersk.  B.  i.  tit.  4,  §  7. 
See  Regality. 

Lords  of  Parliament.  The  House  of 
Lords  is  the  second  branch  of  the  Legislature, 
consisting  of  the  Lords  Spiritual  and  Tempo- 
ral, assembled  in  one  house.  The  nobility  of 
Scotland  in  the  Imperial  Parliament  is  repre- 
sented by  sixteen  noblemen,  chosen  from  the 
body  of  the  Scotch  nobility.  See  Election 
Laws.    Parliament. 

Lords  of  Session ;  the  judges  of  the  Court 
of  Session.     See  Session,  Court  of. 

Lost.  Things  lost  (other  than  strays  and 
waifs,  regarding  which  there  are  certain  pe- 
culiarities elsewhere  noticed)  may,  after  all 
means  have  been  taken  to  advertise  them,  be 
possessed  by  the  finder  without  fault ;  and  if 
not  claimed,  he  may  dispose  of  them  if  they 
cannot  be  conveniently  preserved  without 
hazard.  The  loser  has,  however,  a  right  to 
restitution  on  identifying  his  property,  at  any 
time  within  the  long  prescription;  and  if 
the  finder  sell  the  subject  to  a  third  party, 
that  third  party  must,  if  called  upon,  restore 
it  to  the  owner,  and  take  his  recourse  under 
the  warrandice  against  the  seller.  The  effect 
of  a  personal  exception  raised  against  the 
owner,  in  consequence  of  neglect  implying  de- 
reliction, must  depend  upon  specialties  and 
the  degree  of  care  with  which  the  finder  ad- 
vertised. The  possession  of  moveables  pre- 
sumes the  right  of  property,  and  when  the 
alleged  true  owner  comes  to  vindicate  his 
property,  from  a  person  in  whose  possession 
it  is  found,  it  is  not  sufficient  for  him  to  prove 
that  it  once  belonged  to  him ;  he  must  also 

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LOT 


prove  that  he  lost  the  poesession,  either  by  the 
fraud  of  some  other  party,  or  upon  some  foot- 
ing which  did  not  deprive  him  of  the  owner- 
ship. When  title-deeds  are  lost,  the  remedy 
provided  is  an  action  of  proving  the  tenor.  See 
Proving  the  Tenor,  Should  the  finder  of  a 
bill  transfer  it  to  another  party  for  value, 
the  acquirer  has,  under  certain  modifications, 
a  full  right  to  it.  But  an  action  lies  to  re- 
cover the  docoment  or  its  value  from  one 
proved  to  have  found  it.  Formerly,  in  Scot- 
land, the  holder  of  such  a  document,  though 
he  got  it  from  the  thief  or  the  finder,  was  not 
bound,  even  on  notice  by  the  former  owner, 
to  prove  that  he  gave  a  consideration  for  it ; 
but  the  other  party  required  to  prove  that 
the  holder  gave  no  value.  This,  however, 
was  altered  by  the  Mercantile  Law  Amend- 
ment Act,  19  and  20  Vict,  c  97, 1856,  and  the 
holder  of  a  lost  or  stolen  bill  must  now  prove 
that  value  was  given  for  it;  but  such  proof  may 
be  by  parole  evidence.  Bankers  incautiously 
changing  lost  or  stolen  notes  have,  in  several 
cases,  been  found  liable  for  the  amount ;  but 
this  is  a  question  necessarily  depending  upon 
specialties — the  suspicious  circumstances  in 
wh  ich  the  bank-note  was  offered — the  unusually 
large  amount — the  notices  given  of  the  loss  or 
robbery,  and  the  like.  Although  a  bill  ornote 
should  be  lost  or  destroyed,  even  while  in  the 
drawer's  hands,  the  creditor  must  protest  it 
for  non-acceptance  and  non-payment,  as  if 
it  were  extant,  and  must  give  due  notice  of 
its  dishonour  to  all  the  previous  parties, 
otherwise  he  will  lose  his  recourse  against 
them.  The  protest,  in  such  a  case,  may  be 
made  on  a  copy  of  the  bill  or  note.  In  Scot- 
land, the  tenor  of  a  lost  bill  may  be  esta- 
blished by  a  process  for  proving  the  tenor,  in 
which  the  pursuer  must  first  prove  the  casus 
amissionis,  and  he  will  then  be  entitled 
to  prove  the  tenor,  in  the  same  manner  as 
is  usually  done  in  sueh  processes.  The  action 
has  occasionally  been  dismissed,  on  the  ground, 
that  the  casus  amissionis  libeUed  was  not 
sufficient  to  warrant  a  proving  of  the  tenor. 
A  proving  of  the  tenor  may  be  pursued  by 
any  party  who  has  a  direct  interest  in  it. 
But,  although  the  loss  of  a  bill  and  its  con- 
tents be  thus  proved,  the  creditor  is  not,  in 
all  cases,  entitled,  unconditionally,  either  to 
have  a  new  instrument  from  the  drawer  in 
place  of  the  former  one,  if  it  has  been  lost  or 
destroyed  before  the  term  of  paynfent,  or  to 
enforce  payment  of  it  when  due.  If,  indeed, 
the  first  instrument  have  been  actually  de- 
stroyed, or  if  it  were  specially  indorsed  to  the 
loser,  the  drawer,  when  called  upon  for  a  new 
bill  or  note,  cannot  object  that  he  runs  the 
risk  of  a  claim  from  a  third  party  on  the 
formef  one.  It  is  thought,  however,  that  in 
Scotland,  it  would  be  necessary  for  one  claim- 


ing payment  of  a  lost  bill  not  indorsed,  or 
specially  indorsed  to  him,  or  requiring  the 
drawer  to  grant  a  new  bill  or  note  instead  of 
it,  to  find  caution  that  he  will  not  indorse  the 
first  bill,  if  found,  to  a  third  party.  If  the 
lost  bill  or  nqte  is  blank  indorsed,  or  payable 
to  the  bearer,  so  as  to  be  transferable  bj 
delivery,  the  creditor  cannot  maintun  ac- 
tion for  it,  without  finding  security  to  tbe 
debtor  against  his  being  made  liable  for  pay- 
ment to  some  other  holder.  See  the  subject 
of  lost  bills  fully  and  ably  treated  in  Tkm- 
son  on  Bills,  309,  et  seq.  See  also  Stair,  B.  i. 
tit.  7,J3 ;  tit  11,  §  2 ;  Mor^s  Notes,  xlriii, 
cli. ;  Ersk.  B.  ii.  tit.  1,  §  12;  Bank.  B.  i.  tit.  8, 
§  4.  See  VHium  Reale.  Proving  the  Tmer. 
Damage.    Risk.    Dereliction. 

Lottery.  State  lotteries  are  a  kind  of 
public  game  at  hazard,  resorted  to  by  Qovem- 
ment  in  order  to  raise  money  for  tbe  service 
of  tbe  State.  In  Britain,  these  lotteries 
were  sanctioned  by  Parliament;  and  managed 
by  Commissioners  named  by  the  Lords  of  the 
Treasury  for  that  purpose.  In  the  reign  of 
Queen  Anne,  it  was  thought  necessary  to  sop* 
press  lotteries  as  public  nuisances ;  but  i^r 
that  time,  they  were  licensed  by  act  of  Par- 
liament, under  various  regulations.  The  act 
passed  in  1778  restrains  any  person  from 
keeping  an  office  for  the  sale  of  tickets,  shares 
or  chances,  or  for  buying,  selling,  insuring  or 
registering,  without  a  license.  The  act  also 
contains  certain  regulations  for  tbe  preven- 
tion of  fraud,  prohibits  the  division  of  tickets 
into  more  than  sixteen  shares,  and  provides 
for  the  transacting  of  business  in  tbe  lottery 
offices.  A  supplementary  act  was  passed  in 
1793  to  prevent  the  frauds  committed  by  in- 
suring tickets ;  but  at  length,  state  lotteries, 
which  had  been  found  to  be  highly  prejudicial 
to  public  morals,  were  abated  by  a  Treasury 
minute,  which  provided,  that  ftx>m  and  after 
the  18th  of  October  1826,  they  should  cease 
and  determine ;  and  this  abolition  was  ac- 
companied with  a  prohibitory  declaration 
against  all. attempts  on  the  part  of  indivi- 
duals to-  revive  or  continue  them  in  any  mode 
or  form  whatsoever.  In  the  year  1831,  a  pri- 
vate act  of  Parliament  (1  and  2  Will.  IV.  c. 
8)  was  passed,  under  colour  of  which  certain 
street  property  in  Olasgow  was  disposed  of 
by  way  of  lottery  ;  but  it  is  now  well  under- 
stood that  this  act  was  passed  per  tncKTMiii,  and 
in  ignorance  of  its  true  purport,  and  that  any 
future  attempt  of  a  similar  description  would 
be  unsuccessful.  See  4  and  5  WUl.  IV.  c. 
37,  by  which  the  Glasgow  street-lottery  was 
brought  to  an  end.  It  would  rather  appear 
that  private  lotteries  may  be  removed  as  a 
nuisance  at  common  law  ;  but  tbe  point  has 
not  been  decided.  By  6  and  7  Will.  IV>  «■ 
66,  the  advertisement  in  Britain  of  foreign 

Digitized  byCjOOQlC 


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54S 


and  other  illegal  lotteries  is  prohibited,  under 
a  penalty  of  L.50.  Hutch.  Just.  ii.  353, 365 ; 
Tail's  Just.  h.  t. 

LncratiTe  Sticcessioii.  The  passive  title 
of  praceptio  h<Breditatis,  is  that  whereby  an 
heir-apparent  who  accepts  gratuitously  of  a 
grant  from  his  ancestor  of  any  part,  however 
small,  of  the  estate  to  which  he  is  to  succeed 
qua  heir,  is  thereby  subjected  to  the  payment 
of  all  the  debts  of  the  ancestor  contracted' 
prior  to  the  grant.  But  the  heir,  before  he 
incurs  this  passive  title,  must  be  successor 
titulo  lucrativa,  by  a  lucrative  title — ^that  is, 
he  mnst  have  received  the  grant  gratuitously ; 
for  wherever  an  heir  has  made  a  bona  fide 
purchase  from  his  ancestor,  not  struck  at  by 
any  of  the  bankrupt  statutes,  he  does  not  in- 
cur any  passive  representation.  Where,  how- 
ever, as  in  this  case,  the  transaction  is  inter 
eonjuncias  personas,  the  mere  recital  of  oner- 
ous causes  in  the  deed  will  not  be  held  suffi- 
cient proof  of  onerosity.  If  the  price  paid 
by  the  heir  comes  near  the  value  of  the  pro- 
perty which  he  has  thus  acquired,  he  will 
thus  escape  the  penal  consequences  of  pas- 
sive title;  but  prior  creditors  of  the  ances- 
tor may  set  aside  the  right  under  the  act 
1621,  c.  18,  in  so  far  as  it  appears  to  be  gra- 
toitous— the  heir  being  in  that  case  liable 
only  in  quantum  htcratus  est.  ^rsifc.  B.  iii.tit. 
8,  §  87-89;  Stair,  B.  iii.  tit.  7;  Mortis 
NoUs,  cccxxxviii. ;  Bank.  ii.  374.  See  also 
Conjunct  and  Confident.    Passive  Titles. 

As  a  special  service  no  longer  infers  a  gene- 
ral passive  representation,  it  may  be  doubted 
whether  the  representation  would  now  be 
held  to  extend  beyond  the  value  of  the  sub- 
ject acquired  by  the  heir  from  his  ancestor. 
The  acceptance  of  the  subject  is  held  to  be 
equivalent  to  an  entry  as  heir.  It  should, 
therefore,  be  attended  with  the  same  conse- 
quences, but  not  greater. 

Lnctna.    See  Imbecility. 

Luggage.  The  proprietors  of  a  stage- 
coach are  liable  for  the  safety  of  the  luggage 
of  passengers.  The  value  of  the  lost  article 
is  ascertained  in  the  manner  explained  in  the 
articles  Nautce  eaupones,  and  Innkeepers,  The 
coach-master  takes  his  risk  of  the  probable 
value  of  the  luggage,  including  such  a  sum  of 
money  as  may  reasonably  be  carried  in  the 
portmanteau  for  the  occasions  of  the  journey. 
But  if  the  luggage  be  of  extraordinary  value, 
this  ought  to  be  stated,  and,  if  demanded, 
additional  hire  paid  in  proportion  to  the 
additional  risk  incurred ;  otherwise  the  coach- 
master  will  not  be  liable  beyond  the  value  to 


be  reasonably  expected;  11  Geo.  IV.  audi 
Will.  IV.  c.  68.  There  is  a  lien  on  a  passen- 
ger's or  traveller's  luggage  for  his  passage 
money  or  fare.  Bell's  Com.  i.  471 ;  ii.  100. 
See  Public-  Carriages. 

Lunatic ;  is  one  who  is  seized  with  perio^ 
dical  fits  of  frenzy.  See  Idiot.  Insanity. 
Imbecility.  ,  Brieve  of  Furiosity. 

Limatio  Asyltiin.  The  act  20  and  21 
Vict.  c.  71, 1867,  now  regulates  the  care  and 
treatment  of  lunatics ;  and  the  previous  acts, 
55  Geo.  III.,  c.  69 ;  9  Geo.  IV.,  c.  34 ;  and  4 
and  5  Vict.,  c.  60,  are  repealed.  Under  this 
act,  the  term  lunatic  means  "  any  mad,  or 
furious,  or  fatuous  person,  or  person  so  dis- 
eased or  affected  in  mind  as  to  render  him 
unfit,  in  the  opinion  of  competent  medical 
persons,  to  be  at  large,  either  as  regards  his 
own  personal  safety  or  conduct,  or  the  safety 
of  the  pei-sons  and  property  of  others,  or  of 
the  public." 

Lyon-King-at-Amu.  This  officer  takes 
his  title  of  Lyon  from  the  armorial  bearing 
of  the  Scottish  kings,  the  lion  rampant.  The 
officers  serving  under  him  are  heralds,  pur- 
suivants, and  messengers.  The  ancient  duty 
of  this  officer  was  to  carry  public  messages  to 
foreign  states ;  and  it  is  still  the  practice  of 
the  heralds  to  make  all  royal  proclamations 
at  the  cross  of  Edinburgh.  The  jurisdiction 
given  to  the  Lyon-King-at-Arms  by  the  acts 
1592,  c.  127,  and  1672,  c.  21,  empowers  him 
to  inspect  the  arms  and  ensigns-armorial  of 
all  the  noblenen  and  gentlemen  in  the  king- 
dom, to  distinguish  the  arms  of  the  younger 
branches  of  families,  and  to  give  proper  arms 
to  virtuous  and  well-deserving  persons ;  to 
matriculate  such  arms ;  and  to  fine  those  who 
use  arms  which  are  not  matriculated,  in 
L.lOO  Scots,  with  the  forfeiture  of  the  goods 
and  furniture  on  which  the  arms  are  repre- 
sented. The  Lyon-King-at-Arms  may  de- 
prive or  suspend  messengers  by  the  advice  of 
the  Court  of  Session ;  and  he  may  fine  them 
to  the  extent  of  the  sum  for  which,  at  their 
admission  to  the  office,  they  found  caution. 
The  Court  of  Session  has  the  power  of  re- 
viewing the  decision  of  the  Lyon  Court  as  to 
the  matriculation  of  arms ;  but  a  reduction 
of  a  matriculation  of  arms  is  incompetent  at 
the  instance  of  a  party  who  does  not  claim 
right  to  the  arms  in  question.  Ersk.  B.  i.  tit. 
4,  §  32 ;  More's  Notes  on  Stair,  ccclxx. ;  Bank. 
ii.  607 ;  Karnes'  Equity,  316 ;  Shaufs  Prac. 
i.  20,  and  cases  there  cited.  See  Arms.  Mes- 
sengers-at-Arms. 


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Haeer.  The  mace-bearers  are  officers 
attending  ou  the  Courts  of  Session,  Teinds, 
Justiciary,  and  Exchequer.  They  are  nomi- 
Dated  by  the  Crown,  or  by  a  person  deriving 
right  from  the  Crown ;  and,  properly  speaking, 
they  are  the  servants  of  the  courts,  and  the 
attendants  on  the  judges  on  the  bench.  It  is 
the  duty  of  the  macers  to  preserve  silence  in 
the  court,  to  execute  the  orders  of  the  judges, 
to  call  the  rolls  of  court,  and  to  execute  such 
warrants  for  the  apprehension  of  delinquents, 
&c.,  as  are  addressed  to  them.  See  11  and 
12  Vict.  c.  79,  §  6.  When  processes,  after 
being  borrowed,  are  not  returned  in  proper 
time,  they,  as  well  as  messengers-at-arms, 
may  execute  the  captions  issued  against  the 
borrowers  to  force  them  back.  See  (k^tion, 
proeets.  The  fixed  salary  of  each  of  the 
seven  macers  of  the  Court  of  Session  and  of 
the  Teind  Court  is,  by  1  and  2  Vict  c.  118, 
§  25,  L.IOO  j)er  annum;  besides  certain  other 
gratuities,  variable  in  amount,  but  divisible 
equally  amongst  the  whole  macers  of  those 
courts.  They  hold  their  office  ad  vitam  aut 
eulpam.  There  were  three  macers  in  the 
Jury  Court  before  its  incorporation  with  the 
Court  of  Session;  and  it  was  enacted,  that 
the  macers  of  the  Jury  Court  should  continue, 
both  at  Edinburgh  and  on  the  circuits,  to 
discharge  the  duties  of  their  respective  offices 
in  the  Court  of  Session  after  the  uniou  of  the 
two  Courts;  and  that  as  vacancies  should 
occur,the  number  of  macers  should  be  reduced, 
80  that  they  should  not  exceed  the  number  of 
macers  formerly  officiating  exclusively  in  the 
Court  of  Session ;  1  WiU.  IV.  c.  69,  §§  12, 13. 
Brieves  for  serving  heirs,  where  the  Judge 
Ordinary  is  incompetent,  or  where  expediency 
renders  it  necessary,  were  formerly  directed 
to  the  macers  of  the  Court  of  Session,  as  she- 
riffs in  that  part,  under  a  special  commission 
from  the  Scotch  Chancery  Office.  The  prac- 
tice, however,  was  abolished  in  the  year  1821 ; 
and  by  1  and  2  Geo.  IV.  c.  38,  §  11*  those 
services  which  were  in  use  to  be  conducted 
before  the  macers,  are  directed  to  proceed 
before  the  Sheriff  depute  of  Edinburgh,  or  his 
substitute,  under  a  special  commission  from 
Chancery,  similar  to  that  in  virtue  of  which 
the  macers  formerly  acted.  Stair,  B.  iv.  tit. 
3,  §  18  ;  More't  Note*,  p.  ccclxxvi.;  Ersk.  B. 
i.  tit.  4,  §  33 ;  B.  iii.  tit.  6,  §  7 ;  tit.  8,  §  64, 
and  Notes  by  Ivory;  Bank.  vol.  ii,  pp.  607, 
471 ;  Kamet'  Stat.  Law  abridg.  A.  t. ;  Macfar- 
lane's  Jury  Prac.  p.  9 ;  Shand's  Prac.  i.  119. 
See  Brieves.     Service. 

Haehamiiim ;   according    to   Skene,    is 
mauzio,  hurt,  mutilation,  demembration,  or 


the  loss  or  tinsel  of  any  member  of  a  dud's 
body.    Skene,  h.  t. 

MacMnery.  Questions  sometimes  ooenr 
between  landlord  and  tenant,  or  between 
heir  and  executor,  as  to  the  property  of 
machinery  in  mills  and  manufactures;  iuid 
in  particular,  as  to  whether  certain  parts  of 
the  machinery  are  heritable  or  moveable. 
Such  questions  are  considered  in  the  article 
Fixture*.  In  addition  to  the  authorities  there 
cited,  see  Itore's  Notes  on  Stair,  cxlv. ;  Ertk.  B. 
ii.  tit.  2,  §  4,  note  by  Ivory.  And  as  to  leases 
of  machinery  in  manufactories  or  public 
works,  see  Manufactories. 

Magiatrate.  In  a  large  acceptation,  this 
term  comprehends  all  in  authority,  inclndiog 
even  the  Sovereign.  Magistrates,  therefore, 
are  either  supreme  or  subordinate.  The 
subordinate  magistrates  are  those  (as  judges) 
who  derive  from  the  head  of  tbe  State,  or 
first  magistrate,  all  their  authority,  and  are 
accountable. to  him  for  their  conduct  This 
term  is  colloquially  applied  to  tbe  provost 
and  bailies  of  burghs.  The  magistrates  of 
all  burghs  have  the  cognizance  of  debts  and 
questions  of  possession  between  the  inhabit- 
ants of  the  burgh  ;  and  it  is  generally  sap- 
posed  that  the  magistrates  of  royal  burghs 
have  as  extensive  a  civil  jurisdiction  within 
the  burgh  as  a  sheriff  has  in  his  territory, 
except  in  so  far  aa  particular  jurisdictions 
conferred  bv  statute  on  the  sheriff  are  ex- 
clusive. The  criminal  jurisdiction  of  the 
magistrates  of  burghs  is  now  very  limited, 
extending  merely  to  petty  riots  and  matters 
of  police  ;  but,  in  some  of  the  larger  burghs 
(as  Edinburgh,  Glasgow,  and  Aberdeen),  the 
magistrates  nave  a  right  of  sheriffship,  which 
gives  them  the  same  jurisdiction  within  their 
bounds  as  the  sheriff  possesses  in  the  county. 
The  magistrates  have  been  found  competent 
judges  concerning  debts  due  to  the  burgh, 
and  they  have  jurisdiction  in  a  cause  at  tiie 
instance  of  a  tacksman  of  their  customs; 
but  they  are  incompetent  to  judge  as  to  the 
power  of  levying  assessments  laid  on  by 
themselves  in  questions  between  the  collector 
of  the  assessments  appointed  by  them,  and 
the  parties  on  whom  they  are  imposed. 
They  have  also  been  found  incompetent  in 
a  question  between  their  own  treasurer  and 
other  parties  relative  to  an  alleged  violation 
of  the  right  of  the  burgh.  Stair,  B.  iv. 
tit.  47,  §  19 ;  Morels  Notes,  p.  ccocxxxiL ; 
Ersk.  B.  i.  tit  4;  §  21 ;  Dickson  on  Evidence, 
ii.  801 ;  Roxs's  Lett.  i.  90,  324,  343;  AUion's 
Prac.  61 ;  Mada*rin's  Sherif  Process,  U  edit. 
40.    As  to  the  election  of  magistrates,  see 


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Bnrgh  Royal.  •  Election  Law ;  and  as  to  their 
obligation  to  maintain  sufficient  prisons,  see 
Prison. 

Xag^  Charta ;  tbe  great  charter  of 
English  liberties,  granted  in  the  ninth  year 
of  King  Henry  III.,  and  repeatedly  confirmed 
during  tho  reign  of  that  monarch  and  of  his 
successors.  It  relates  to  the  freedom  of  the 
church  ;  the  nobility ;  the  guardianship  and 
marriage  of  heirs  ;  the  dowers  of  women ; 
the  duties  of  sheriffs ;  the  liberties  of  towns 
and  corporations;  the  appointment  of  courts ; 
remedies  for  oppression,  and  appeals  against 
nnjust  judgments  :  and  contains  other  the 
liko  provisions  calculated  to  preserve  the 
liberty  of  the  subject  and  promote  the  wel- 
fare of  the  country.  Magna  Charta  is  the 
most  ancient  written  law  of  England.  Tom- 
tins'  Diet  ft.  t. ;  4  Blackst.  c  33,  p.  423.  See 
Liberty.    Habeas  Corpus. 

Xalhem  or  Mayhem ;  in  English  law,  the 
Tiolently  depriving  another  of  the  use  of 
such  of  his  members  as  may  render  him  the 
less  able,  in  fighting,  either  to  defend  himself 
or  to  annoy  his  adversary.  A  person  who 
maims  himself,  that  he  may  have  the  more 
colour  to  beg,  or  that  he  may  not  be  impressed 
for  a  soldier,  may  be  indicted  and  fined.  Tom- 
Uhs'  Diet.  h.  i.    See  Maiming. 

Mail ;  is  an  old  Scotch  law  term  signifying 
rent.  Grass-mail  is  the  rent  payable  for  cattle 
sent  to  graze  on  the  pasture  of  another.  The 
proprietor  or  principal  tenant  of  the  pasture 
has  a  lien  or  right  of  retention  of  the  cattle 
in  security  of  the  grass-mail.  Where  the 
cattle  of  others  are  admitted  to  graze  by  a 
principal  tacksman,  his  landlord's  right  of 
hypothec  does  not  extend  over  such  cattle, 
but  only  over  the  grass-mail  payable  for 
them.  Bell's  Com.  ii.  29  and  104,  and  Bell 
on  Tjeases,  i.  398.    See  Grass. 

MaiL  It  is  an  indictable  offence  for  a 
servant  of  the  Post-Ofllce  to  open  a  mail-bag 
with  an  intent  to  steal ;  Alison's  Princ.  342 ; 
and  whoever  detains  letters  or  mail-bags  in 
course  of  conveyance  by  post,  which  have 
been  dropped  and  found  on  the  highway  or 
elsewhere,  is  guilty  of  a  misdemeanor ;  4 
Geo.  III.,  c.  81,  §  1 ;  Steele,  131.  For  the 
provisions  of  7  Will.  IV.,  c.  36,  relative  to 
robbery  from  the  mail,  and  other  Post-Office 
offences,  see  Post-Office  Offences. 

Hail-CoaclLes.  The  proprietors  of  mail- 
coaches  are,  like  other  public  carriers,  liable 
under  the  edict  Nantoe,  caupones,  and  are 
responsible  for  the  negligence  of  their  drivers. 
But  there  are  statutory  restrictions  of  the 
liability  of  public  carriers  for  certain  goods 
above  the  value  of  L.IO,  unless  certain  speci- 
fied conditions  are  complied  with;  11  Geo. 
IV.  and  1  WiU.  IV.,  c.  68.  See  Nauke,  cau- 
pones. Carriers.  Public  Carriages,  Luggage. 
2ic 


Maills  and  Duties ;  are  the  rents  of  an 
estate,  whether  in  money  or  grain ;  hence, 
an  action  for  the  rents  of  an  estate,  competent 
either  to  a  proprietor  or  to  one  claiming 
right  under  a  conveyance,  legal  or  voluntary, 
or  even  an  assignation  to  the  rents  is  termed 
an  action  of  maills  and  duties.  This  action 
is  either  petitory  or  possessory.  The  petitory 
action  is  founded  on  a  right  in  the  pursuer 
on  which  no  possession  has  followed ;  and  in 
such  an  action  it  is  necessary  to  call  not  only 
the  tenants,  but  also  the  proprietor  or  life- 
renter,  and  the  pursuer  must  support  his 
right  of  action  by  the  production  of  titles 
preferable  or  superior  to  theirs.  In  the 
possessory  action  there  is  no  occasion  to  call 
any  other  than  the  parties  in  the  natural 

rssession  of  the  ground  ;  Ersk.  B.  iv.  tit.  1, 
49.  In  the  action  of  maills  and  duties 
there  is  an  exception  in  favour  of  the  tenant, 
who  is  not  liable  for  arrears  of  rent  after 
five  years  from  the  time  of  his  removing  from 
the  lands.  This  quinquennial  prescription 
was  introduced  by  the  act  1669,  c.  9.  Stair, 
B.  ii.  tit.  12,  §  32 ;  B.  iv.  tit.  22,  §§  7  and 
15;  tit.  26,  §  4;  More's  Notes,  p.  cclxxiii.; 
Bank.  vol.  ii.  p.  170 ;  BeWs  Princ.  §  634 ; 
Illust.  ih. ;  Hunter's  Landlord  and  Tenant,  pp. 
663-8 ;  Jurid.  Styles,  2d  edit.  vol.  iii.  pp.  7, 
126,  652 ;  Bell  on  Leases,  ii.  51 ;  Ross's 
Lect.  ii.  235,  381,  431-9;  Earns'  Equity, 
390.    See  Prescription,  Quinquennial. 

Maiming.  Shooting,  stabbing,  or  throw- 
ing of  sulphuric  acid  with  intent  to  maim  or 
disfigure,  is  a  capital  offence ;  6  Geo.  IV.,  c 
126;  Alison's  Princ.  l&Q.  See  Shooting  and 
Stabbing. 

Mainprise ;  in  English  law  the  taking  or 
receiving  into  friendly  custody  a  person  who 
otherwise  might  be  committed  to  prison,  upon 
security  given  that  he  shall  be  forthcoming 
at  a  time  and  place  assigned.  It  differs  from 
bail  in  this,  that  a  person  mainprised  is  said 
to  be  at  large  until  the  day  of  his  appearance. 
A  man  let  to  bail  is  still  within  the  judge's 
ward  of  time.    Tomlin^  Diet.  h.  t. 

Haintenanoe ;  in  English  law  the  nnlaw- 
M  taking  in  hand  or  upholding  of  a  cause 
or  person ;  an  officious  intermeddling  in  a 
suit  that  no  way  belongs  to  one,  by  main- 
taining or  assisting  either  party,  with  money 
or  otherwise,  to  prosecute  or  defend  it.  It 
also  signifies  the  buying  or  obtaining  of  pre- 
tended rights  to  land,  for  the  purpose  of 
raising  actions  upon  them ;  or  entering  into 
an  agreement  by  which  a  stranger  gets  the 
benefit  of  a  suit,  on  condition  of  his  conduct- 
ing and  prosecuting  it.  An  attorney  is 
guilty  of  maintenance  who  undertakes  a  suit 
upon  the  understanding  that  he  is  to  bear  all 
the  costs  out  of  his  own  pocket,  and  that  his 
client  will  be  free  from  all  loss ;  or  who 

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offers  to  reoorer  a  doubtful  claim,  on  eoodi- 
tion  of  getting  part  of  the  product  of  the 
suit.  At  common  law,  persona  guilty  of  main- 
tenance may  be  prosecuted  by  indictment, 
and  be  fined  or  imprisoned,  or  be  compelled 
to  make  satisfaction  by  action.  Ttmlitu^ 
Diet,  h,  t.  See  Pactum  hltcitum.  Buying  of 
Plea$.     Champerty. 

Kiunteiuuioe.    See  Aliment. 

M^jettatU  Crimen ;  or  treason ;  a  crime 
aimed  against  the  Sovereign  or  the  State,  and 
intended  to  subvert  the  constitution.  See 
Treaton. 

Xigor;  a  person  of  full  legal  age,  which, 
both  in  male  and  female,  is  the  age  of  twenty- 
one  years  complete.  See  Minor.  Curatory. 
PupO.     Tutor. 

Miyor  and  Minor  tn  a  libd.  The  major 
proposition  in  a  criminal  libel  names  the 
crime  to  be  charged,  or,  if  it  have  no  pro- 
per name,  describes  it  at  large,  and  charac- 
terizes it  as  a  crime  severely  punishable.  The 
minor  proposition  avers  the  panel's  guilt  of 
this  crime,  and  supports  the  averment  by  a 
narrative  of  the  fact  alleged  to  have  been 
committed ;  it  being  necessary  that  the  minor 
agree  with  the  major.  And  the  conclusion 
infers  that,  on  conviction,  he  ought  to  be 
punished  with  the  pains  of  law  applicable  to 
nis  offence.  ^ufn«,ii.  155, 164, 181 ;  Steele, 
188 ;  Alison's  Prac.  228,  246. 

Majority;  the  major  or  greater  number 
of  persons  intrusted  with  the  performance 
of  a  certain  act  or  duty.  Independently  of 
special  statute,  or  covenant,  or  of  inveterate 
consuetude  (as  in  the  case  of  public  assem- 
blies, courts  of  justice,  &c.),  there  seems  to  be 
no  sound  principle  under  which  the  majority 
can  bind  the  minority.  But  under  various 
statutes,  of  which  the  Bankrupt  Statute  is  one, 
as  well  as  under  contracts  of  copartnership, 
DominationB  of  trustees,  the  constitutions  or 
charters  of  joint-stock  companies,  and  other 
analogous  associations,  special  enactments, 
conditions,  or  articles  are  usually  inserted, 
declaring  that  the  majority  shall  decide.  Un- 
der the  Bankrupt  Statute,  the  majority  of  cre- 
ditors in  value  or  extent  of  debt  determines 
the  election  of  trustee  or  commissioners,  or 
gives  directions  as  to  the  mauagement  of  the 
estate.  More  than  a  mere  mtgority,  however, 
is  required  to  discharge  the  bankrupt  or  to 
accept  of  a  statutory  composition.  See  Bdl's 
Com.  ii.  357,  et  »eq.  See  also  Quorum.  Sine 
quo  non.    Composition,     Discharge. 

Mala  Fides ;  bad  faith.  A  malafde  pos- 
sessor is  a  person  who  possesses  a  subject  not 
his  own,  upon  a  title  which  he  knows  to  be 
bad,  or  which  he  has  reasonable  ground  for 
believing  to  be  so.  A  mala  fide  possessor,  who 
retains  possession  to  the  prejudice  of  the  true 
owner,  is  obliged  to  restore  to  the  proprietor 


all  the  fimits  and  profits,  natural,  indastrid, 
or  civil,  accruing  during  his  mala  fide  poeset- 
sion ;  and  that  whether  he  has  actually  reaped 
the  fruits  and  profits,  or  might,  by  proper 
care  and  diligence,  have  done  so ;  or  whether 
he  has  consumed  them  or  not.  It  is  often 
diflScult  to  determine  when  bona  fides  eesMS 
and  mala  fides  begins,  since  this  depends  nrj 
much  upon  the  circumstances  of  the  particulsr 
case.  Sometimes  mala  fides  commences  from 
the  date  of  citation  in  the  action  of  rettitn- 
tion;  sometimes  from  litiscontestation;  sod 
sometimes,  in  very  doubtful  cases,  Imafia 
has  been  held  to  continue  till  the  judgment 
of  the  House  of  Lords.  Ersk.  B.  ii.  tit.  1, 
§  25  ;  Stair,  B.  ii.  tit.  1,  §  24. 

Male  A^etiata.     See  Omissa.    Cmfir- 
motion.    Inventory. 

Malice;    a  deliberate,  preconceived  de- 
sign of  doing  mischief  or  iqjury  to  another. 
There  can  be  no  proper  crime  without  the 
ingredient  of  malice ;  crimen  dolo  contrakitur. 
But  if  a  man,  having  a  malicious  intention  to 
kill  one  person,  in  putting  his  intention  in 
execution,  kills   another,  the    malice  vill 
attach  to  this  slaughter,  and  he  will  be  ad- 
judged a  murderer.  And  although  the  maxim 
Culpa  lata  dolo  ajuiparatur  does  not  apply  to 
crimes  in  its  full  extent,  yet  gross  n^ligence 
frequently  subjects  the  person  guilty  of  it  to 
punishment.    In  actions  of  damages,  it  i> 
sometimes  necessary  to  allege  and  prove  ms- 
lice.    In  actions  for  wrongous  imprisonmeiit, 
this  is  not  necessary,  since  such  actions  will 
lie  against  an  individual  merely  for  the  im- 
proper use  of  diligence.    Malice  is  an  ingre- 
dient in  the  action  for  defamation ;  bnt  in 
ordinary  cases  it  is  not  necessary  to  svtr 
malice,  since  it  is  implied  in  every  insult  and 
injury.    There  are,  however,   certain  esses 
cidled  privileged,  in  which  the  law  presones 
that  the  act  complained  of  was  done  in  the 
discharge  of  a  duty,  and  requires  that  malice 
should  be  averred  and  proved.    Such  in 
injurious  words  written  or  spoken  by  judges 
or    magistrates  in  the  discharge  of  their 
duties;  by  parties, or  witnesses,  or  counsel  in  a 
cause ;  by  reporters  of  judicial  proceedings; 
by  authors  or  critics  in  the  fair  conne  <^ 
literary  criticism  or  observation,  and  other 
the  like  cases.    Hume,  ii.  254 ;  Erst.  K  iv. 
tit  4,  J§  6  and  8 ;   Alum's  Princ  2,  49, 
434;  Proc.  150;  J?(mt.ii.«45;  BeiTsPrinc. 
§§  2039,  2044;  Shand's  Prac.  219;  5#rtt- 
wick's  Law  of  Libd,  117,  e<  seq. ;  Ma^arUn^t 
Jury  Prac.  33,  61,  72,  221 ;  Karnes'  Equity, 
36.     See  Issue.     Crime.    Enmity  to  PaneL 

Malidou  Misohief.  Any  serious  damage, 
wilfully  occasioned  to  another's  property,  is 
an  indictable  offence,  whether  it  has  proceeded 
from  malice  or  gross  misapprehension  of  right. 
But  inconsiderable  damage,  done  throogh 


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manifest  ignorance,  is  not  punishable  as  a  cri- 
minal offence,  unless  aggravated  by  circum- 
stances of  tumnlt  or  outrage.  The  punishment 
of  malicious  mischief  is  arbitrary.  Hume,  i. 
122  ;  Alison's  Princ.  448,  631.    Stede,  157. 

Iblnm  in  se — Malum  l^ohibitnm.  An 
aet  is  called  malum  in  se  the  culpability  of 
which  does  not  arise  from  special  enactment, 
bat  from  its  being  contrary  to  the  law  of  na- 
ture and  the  rules  of  morality.  An  act  is 
called  malum  prohibitum  which,  although  in- 
nocent in  itself,  has  been  prohibited  by  sta- 
tute. It  was  at  one  time  thought  that  there 
was  a  distinction  between  them ;  that  a  party 
could  not  violate  the  natural  law  without 
criminality ;  but  that  the  fine  or  other  penalty 
attached  to  an  act  forbidden  by  statute  was 
merely  the  price  at  which  liberty  to  commit 
the  prohibited  act  might  be  purchased.  This 
fallacy,  however,  is  now  exploded ;  and  it  is 
settled  that,  where  an  act  otherwise  innocent 
has  been  lawfully  prohibited,  no  one  can  dis- 
regard the  prohibition  without  incurring 
guilt.  Blackst.  Introd.  §  2,  and  Christian's 
Notes;  Tomlms'  Diet.  h.  t.  See  Penalties. 
Crime. 

Xalvenatioii ;  misconduct  in  the  dis- 
charge of  a  duty  or  trust.  Malversation  is  a 
ground  on  which  tutors  may  be  removed  as 
suspect  It  has  been  held  malversation  that 
a  tutor  did  not  make  up  an  inventory.  Mal- 
versation in  office  subjects  an  officer  to  the 
punishment  of  fine,  and  sometimes  of  depriva- 
tion, as  most  public  offices  are  held  ad  vitam 
out  eulpam.  See  Brown's  Synop.  p.  532,  for 
several  cases  in  which  agents,  officers,  &c., 
were  deprived  or  otherwise  punished  for  un- 
faithful discharge  of  their  duty.  Stair,  B.  i. 
Ut.  6,  §  26 ;  BanL  i.  171 ;  ii.  474. 

Kandamiu.  In  English  law,  a  writ  of 
»a»damus  is  a  command  issuing  in  the  So- 
rereign's  name  from  the  Court  of  Queen's 
Bench,  and  directed  to  any  person,  corpora- 
tioo,  or  inferior  court  of  judicature ;  requir- 
ing to  do  some  particular  thing  therein  speci- 
fled,  which  appertains  to  their  office  and  duty, 
and  which  the  Court  of  Queen's  Bench  has 
prerionsly  determined,  or  at  least  supposes  to 
be  consonant  to  right  and  justice.  Tomlins' 
DieL  h.  t. 

Kamdate ;  is  a  contract  by  which  one  em- 
ploy! another  to  act  for  him  in  the  manage- 
ment of  his  affairs,  or  in  some  particular  de- 
partment of  them,  of  which  employment  the 
person  accepts,  and  agrees  to  act.  The  per- 
son giving  the  employment  is  called  the  man- 
dant — the  person  undertaking  it  is  called  the 
oiandatary.  This  contract  is  not  binding  on 
the  mandatary  until  it  has  been  accepted  of. 
A  mandate,  generally  speaking,  is  presumed 
to  be  gpratuitous ;  and  no  commission  is  de- 
mandable  unless  it  has  been  promised,  or  is 


pi^umed  to  be  due  from  the  nature  of  the 
employment  or  the  business  of  the  manda- 
tary. A  mandate  may  be  constituted  by 
writing,  or  it  may  be  constituted  even  tacitly. 
Thus,  when  a  person,  in  the  presence  and 
with  the  knowledge  of  another,  acts  for  him, 
this  will  be  considered  as  a  mandate,  and 
have  the  effect  of  binding  him  for  whom  the 
other  acts.  The  appearance  of  an  advocate 
in  court  implies  a  mandate  from  the  party  for 
whom  he  appears,  unless  the  party  be  out  of 
the  kingdom,  in  which  case  there  must  be  a 
written  mandate.  The  mandatary  is  bound 
to  execute  the  mandate  in  conformity  with  its 
terms ;  and  whatever  is  done  beyond  his  in- 
structions does  not  bind  the  mandant.  But 
where  no  instructions  are  given,  the  manda^ 
tary  may  act  according  to  his  own  discretion, 
and  his  constituent  will  be  bound.  Where 
the  mandatary  purchases  at  a  lower  price  than 
he  is  authorized  to  give,  this  is  not  inconsist- 
ent with  his  powers,  since  the  less  is  included 
in  the  greater  sum.  Even  where  it  exceeds 
the  sum,  he  may  still  render  his  constituent 
liable,  by  restricting  his  demand  to  the  sum 
which  he  was  authorized  to  give.  A  general 
mandate  implies  no  power  of  gifting — it  does 
not  imply  a  power  to  sell,  nor  to  enter  the 
mandant  heir,  nor  to  enter  into  a  submission ; 
and  where  a  general  mandate  specifies  certain 
particulars,  the  general  words  must  be  re- 
stricted to  particulars  of  the  same  kind  with 
those  specified.  The  mandatary,  in  a  proper 
mandate,  where  he  has  no  claim  to  any  re- 
compense, is  not  held  to  be  liable  farther  than 
for  his  actual  intromissions,  and  for  such  dili- 
gence as  a  person  employs  in  his  own  affairs. 
But  where  a  recompense  is  due,  he  must  act 
with  that  care  which  a  man  of  prudence  be- 
stows on  his  own  affairs,  and  must  repair  the 
damage  arising  from  his  neglect ;  and  where 
a  mandatary  exceeds  his  commission,  he  is 
liable  for  all  the  consequences  of  such  excess 
of  power.  &M  Culpa.  Diligence.  Mandates  ex- 
pire by  the  revocation  of  the  mandate,  or  even 
by  the  nomination  of  a  new  mandatary ;  they 
expire  also  by  the  resignation  of  the  manda- 
tary ;  and  they  expire  by  the  death  either  of 
the  one  party  or  of  the  other.  Although  a 
mandate  expires  on  the  death  of  the  mandant, 
yet,  if  the  mandatary  be  ignorant  of  his 
death,  his  actings  will  bind  the  heirs  of  the 
mandant.  Even  after  he  comes  to  know  of 
the  death  of  the  mandant,  the  mandatary  may 
proceed  to  complete  transactions  previously 
begun,  and  which  require  to  be  completed. 
After  the  death  of  the  mandatary,  his  heir 
may  finish  what  was  left  undone  by  the  man- 
datory, if  it  requires  dispatch,  and  there  be  no 
time  to  receive  the  directions  of  the  mandant. 
See  generally,  on  the  subject  of  this  article. 
Stair,  B.  i.  tit.  12 ;  More's  Notes,  p.  Ixxi.,  et 


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leq. :  Etik,  B.  iii.  tit.  3,  §  31,  «( uq. ;  Bank. 
tol.  i.  p.  392 ;  BelPs  Com.  ii.  318,  349,  445, 
463,674 ;  BeU't  Prine.  §§  216-231 ;  Illutt.  § 
217  ;  Tait'B  Justice  of  Peace,  h.  t. ;  Blair's  do. 
k.  t.;  Tail  on  Evidence,  pp.  299,  302,  338-9  ; 
Eosfs  Lett.  ii.  228 ;  Thomon  on  Bills,  220, 
371 ;  Davidson,  July  14,  1815,  3  Dow,  229. 
See  Bailment. 

TKanisLtaxy,  in  judicial  proeeedinys.  When 
a  party,  pursuer  or  defender  in  a  cause,  is 
resident  out  of  Scotland,  bis  opponent  is 
entitled  to  insist  that  a  mandatary  for  the 
absentee  be  sisted,  who  will  be  liable  for 
costs,  if  they  should  be  awarded  against  his 
principal.  Such  a  mandatary  is  unobjection- 
able if  he  be  in  the  same  condition  of  life 
with  his  constituent,  and  not  bankrupt,  nor 
liring  in  the  Abbey  for  the  benefit  of  the 
Sanctuary.  It  is  no  good  objection  that  he 
may  be  thought  insufficient  for  the  costs; 
Duncan,  4th  March  1830,  8  S.  d  D.  641 ; 
Tumbull  V.  Paul,  26th  Nov.  1829,  8  S.  <t  D. 
124.  If  the  pursuer  go  abroad  during  the 
dependence  of  the  process,  the  action  cannot 
proceed  unless  a  mandatary  be  sisted.  A 
Scotchman,  proprietor  of  lands  in  Scotland, 
does  not  require  a  mandatary  while  abroad, 
where  the  property  is  sufficient  to  meet  the 
expenses  of  the  process.  Id  the  case  of 
Sandilands  t.  Sandilands,  May  31, 1848,  10 
D.  1091,  an  absent  proprietor  was  held 
bound  to  sist  a  mandatary,  his  title  being 
under  reduction.  See  the  cases  there  cited. 
See  also  the  case  of  The  Caledonian  and  Dum- 
bartonshire Railway  Company  r.  Turner,  Dec 
21, 1849, 12  D.  406.  It  would  appear  that 
a  pursuer  who  has  a  domicile  in  Scotland 
must  appoint  a  mandatary  when  he  goes 
abroad,  though  on  business;  but  on  this 
point  the  decisions  have  not  been  uniformi 
A  mandate,  qualified  with  the  condition  that 
the  mandatary  is  not  to  be  liable  for  past  or 
future  expenses,  will  not  be  received  unless 
the  party  be  upon  the  poor's  roll ;  and  the 
mandatary  will  not  be  liable  for  expenses  if 
the  party  be  upon  the  poor's  roll,  even  al- 
though the  mandate  be  not  so  qualified.  The 
mandate  must  apply  to  the  action  in  court, 
and  should  be  probative  or  holograph.  A 
mandate  to  carry  on  a  process  in  the  sheriCf- 
eourt  is  not  sufficient  to  authorize  an  advoca- 
tion to  the  Court  of  Session.  The  mandatary 
of  a  pursuer  is  liable  in  expenses,  but  not  in 
damages,  if  he  act  bona  fide.  The  summons 
should  be  raised  in  name  of  the  pursuer  uid 
his  mandatary.  The  validity  of  proceedings 
in  court  is  not  affected  by  the  want  of  a  man- 
datary, it  being  the  duty  of  the  opposite 
party  to  state  the  objection  if  he  mean  to 
found  on  it.  In  the  case,  however,  of  statu- 
tory complaints  against  the  resolutions  of 
freeholders  under  the  old  election  law,  where 


the  eomplainer  was  forth  of  Scotland,  hit 
petition  and  complaint  was  held  incompetent 
if  not  presented  by  himself  along  with  a  man- 
datary, within  the  statutory  period ;  Siemmi, 
14th  June  1831,  9  S.dt  D.  727,  and  authori- 
ties  there  cited.  But  in  ordinary  cases  it 
would  seem  that  the  want  of  a  mandatary 
can  be  remedied  cum  process*  on  the  ol>- 
jection  being  stated.  See,  on  this  snbJMt, 
Arhuckle,  2d  March  1827,  b  S.  <t  D.  605; 
affirmed  in  House  of  Lords.  Diligence  at 
the  instance  of  a  party  forth  of  Scotland  does 
not  require  the  intervention  of  a  mandatary. 
See  the  case  of  Ross  v.  Shaw,  Mar.  8, 1849, 
11  D.  984.  A  pursuer  has  a  right  to  require 
that  a  defender  who  is  abroad  should  East  a 
mandatary.  When  a  mandatary  intends  to 
withdraw,  it  is  not  enough  that  his  name  is 
omitted  in  the  proceedings ;  he  must  lodge  a 
minute,  withdrawing  from  the  process ;  and 
in  that  case,  if  no  other  mandatary  be  named 
within  a  reasonable  time,  the  Court  will  pro- 
nounce decree  of  absolvitor,  or  in  terns  of 
the  libel,  as  the  case  may  be,  and  find  the 
party  and  mandatary,  conjunctly  and  seve- 
rally, liable  in  expenses.  And  after  such  a 
judgment,  the  mandatary  who  has  withdrawn 
is  not  entitled  to  resume  and  carry  on  the 
action,  in  order  to  show  that  no  expenses 
should  have  been  awarded ;  Gordon  and  Gih- 
son-Craig,  11th  Dec.  1823, 2  S.  d;  D.  572.  It 
has  been  said  that  a  mandatary  has  no  posi- 
tive, but  merely  a  relative  existence,  and  that 
he  is  liable  in  costs  only  in  the  event  of  his 
principal  being  found  liable ;  Reoch,  14th 
May  1831,  9  S.  d  D.  588.  And  a  question 
of  some  nicety  has  arisen,  whether,  where  the 
mandant  has  died  abroad,  and  where  bs 
representative  has  not  sisted  himself,  or 
authorized  a  mandatary  to  be  sisted  for  biai, 
the  process  can  proceed  to  the  effect  of  taking 
decree  for  expenses  against  the  mandatary  of 
the  defunct.  The  difficulty  is  that,  as  re- 
gards the  principal,  there  is  no  process,  since 
it  has  fallen  by  his  death,  and  hence  no  de- 
cree can  be  obtained  against  him ;  while,  ss 
regards  the  mandatary,  the  condition  of  his 
obligation  is,  that  he  shall  be  liable  in  costs 
only  in  the  event  of  their  being  found  due  by 
his  constituent.  See  the  case  of  Cairns  v.  is- 
siruther,  16th  March  1841,  2  Rob.  App.  29; 
also  the  case  of  Marshall  r.  Connon,  Dee.  16, 
1848,  21  Jurist,  63. 

In  the  inferior  courte,  even  when  the  de- 
fender is  within  Scotland,  his  procurator, 
upon  stating  defences,  must  either  produce  a 
written  mandate  from  the  defender,  or  tiie 
service-copy  of  the  summons  or  citation, 
which  is  held  equivalent  to  one.  A  mandate 
of  this  description,  however,  does  not  make 
the  mandatary  liable,  for  expenses,  as  in  the 
case  where  the  mandant  is  abroad.    The 


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rule,  that  a  mandatary  must  be  sisted  for  a 
person  abroad,  ig  the  same  in  the  inferior  as 
in  the  Supreme  Court.  iShand's  Prae.  154 ; 
Mcdaw-in's  Sheriff  Process,  73,  291 ;  Thornton 
m  Bills,  574.    See  Agent.    Mandate. 

Maneleta ;  in  old  la«r  language,  a  kind  of 
pestilent  herb  which  grows  amongst  corn, 
called  gM.  The  law  of  maneleta  was  insti- 
tuted by  King  Kenneth,  who  ordained  that 
he  who  through  negligence  suffered  noisome 
herbs  to  spring  up  in  sown  land  should  for 
the  first  fault  pay  one  ox,  for  the  second,  ten, 
and  for  the  third  be  removed  from  the  pos- 
session and  labouring  of  the  land.    Skene,  h.  t, 

Manerinm ;  lands  laboured  with  the  hands. 
Skeiu,  h.  t. 

Maimer;  or  Mainour;  from  the  French 
fMnier.  To  be  taken  with  the  manner,  is  an 
English  law  phrase,  used  where  a  thief  is 
taken  with  the  stolen  article  about  hitn ;  as 
it  were  in  his  hands,  or  flagrante  delicto.  Tom- 
Un^  Diet.  h.  t.     See  Fang. 

Kanor;  in  English  law,  jurisdiction  or 
right  over  a  certain  district  of  land.  This 
vas  a  noble  sort  of  fee,  granted  partly  to 
tenants  for  certain  services  to  be  performed, 
and  partly  reserved  for  the  use  of  the  lord's 
family,  with  jurisdiction  over  his  tenants  for 
their  farms.  Lords  of  manors  were  formerly 
in  use  to  grant  large  parcels  of  land,  which 
became  manors  themselves ;  the  chief  manor 
being  called  an  Honour.    Tondins'  Diet.  h.  t. 

Manrent ;  signifies  personal  service  or  at- 
tendance. It  was  the  token  of  a  species  of 
bondage,  whereby  free  persons  became  bond- 
men or  followers  of  those  who  were  their 
patrons  or  defenders.  See  Hope's  Minor 
Praeticks,  p.  68,  in  Notes,  edit.  1734.  Stair, 
B.  i.  tit.  2,  §  12 ;  Bank.  vol.  i.  p.  69 ;  Ross's 
Lett.  ii.  157.  See  also  "  Summary  of  Feudal 
Law,"  anon.1710. 

Manse.  The  term  was  originally  applied 
to  a  portion  of  ground  set  apart  for  the 
clergyman ;  but  now,  in  Scotland,  it  is  used 
to  signify  the  dwelling-house  of  the  clergy- 
man, the  ground  to  which  he  is  entitled 
being  termed  bis  glebe.  Every  rural  parish 
minister  is  entitled  to  a  manse,  and  to  have 
it  upheld  by  the  heritors ;  and  where  there 
is  no  manse,  the  minister  is  entitled  to  have 
half  an  acre  of  ground  designed  to  him  by 
the  presbytery  for  a  manse,  offices,  and  garden, 
and  to  have  the  heritors  ordained  to  erect  a 
manse  and  offices  thereon.  The  heritors  on 
whom  this  burden  lies  are  the  proprietors  of 
lands  within  the  parish.  Titulars  or  tacks- 
men of  teinds  are  not  liable  ;  nor  superiors  in 
respect  of  the  feu-duties  of  lands  in  the  parish ; 
nor  liferenters.  In  the  allocation  of  the  ex- 
penses the  general  rule  is,  that  each  heritor 
pays  in  proportion  to  his  valued  rent,  al- 
though this  rule  is  not  invariable ;  and  in 


Shetland,  whete  there  is  no  valued  rent,  the 
real  rent  is  taken  as  the  criterion.  Singular 
successors  and  creditors  are  not  liable  for  ar- 
rears ;  but  they  are  subject  to  this  burden,  in 
so  far  as  it  falls  on  the  lands,  for  the  yeara  of 
their  possession. 

The  statutes  on  the  subject  require  that 
the  manse  should  be  near  the  church,  and, 
except  in  special  circumstances,  this  rule  is 
observed.  The  leading  statute  is  1663,  c.  21, 
which  provides  that  where  competent  manses 
are  not  already  built,  the  heritors  shall  build 
them,  at  an  expense  not  exceeding  £1000 
Scots  (£83,  6s.  8d.  sterling),  and  not  under 
500  merks;  and  it  has  been  questioned 
whether  the  heritors  can  be  compelled  to  ex- 
pend more  than  the  statutory  maximum.  But 
this  doubt  is  now  confined  to  the  case  where 
a  manse  is  proposed  to  be  built  in  a  parish 
where  there  has  not  been  one  previously ;  for 
where  a  manse  has  been  once  built,  and  the 
question  is  as  to  the  rebuilding,  adding  to,  or 
repairing  it,  the  rule  is,  that  the  heritors 
must  expend  such  a  sum  as  may  be  necessary 
to  render  the  manse  a  "competent "  residence 
for  the  clergyman.  In  this  respect,  however, 
while  in  repairing,  adding  to,  or  rebuilding 
the  manse,  a  style  and  size  consistent  with 
the  mode  of  living  of  the  day  will  be  adopted, 
regard  must  also  be  had  to  the  extent  of  the 
parish,  to  the  amount  of  the  stipend,  and  to 
other  circnmstances ;  and  above  all,  modera- 
tion in  dimension  and  simplicity  in  ornament 
must  be  rigidly  observed.  Acting  on  this 
principle,  the  sum  most  commonly  allowed  of 
late  years,  for  rebuilding  a  manse,  has  been 
£1000  sterling ;  although  a  larger  sum  has 
often  been  voluntarily  expended  by  the  heri- 
tors in  rendering  the  manse  and  offices  suit- 
able and  comfortable. 

It  is  frequently  made  a  question  whether 
the  minister  is  entitled  to  have  the  manse 
rebuilt,  or  merely  repaired  and  added  to ; 
but  on  this  point  it  is  impossible  to  lay  down 
any  invariable  rule.  Every  case  must  depend 
less  or  more  on  its  peculiar  circumstances ; 
and  in  reference  to  the  circumstances  of  one 
of  the  latest  cases,  the  law,  so  far  as  general, 
has  been  thus  stated  by  Lord  Moncreiff :  "  It 
appears  to  be  settled  on  the  one  hand,  that 
where  a  manse  has  been  built,  and  accepted 
of  and  approved  of  by  the  presbytery,  the 
minister  is  not  entitled,  simply  on  the  ground 
that  the  accommodation  is  not  such  as  may 
have  been  generally  provided  in  other  eases, 
or  because  the  sizes  and  forms  of  the  apart- 
ments may  not  be  according  to  the  fashion  of 
the  times,  to  require  the  heritors  to  make 
extensive  alterations  on  it,  or  additions  there- 
to ;  and  that,  even  although  some  repairs 
may  be  necessary  of  a  small  or  inconsiderable 
nature,  such  a  necessity  will  not  make  way 

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for  a  demand  for  re-modelling- and  adding  to 
the  house,  so  as  to  render  it  in  all  respects 
a  suitable  manse,  according  to  the  riews 
entertained  at  the  time.  But,  on  the  other 
hand,  he  (Lord  Moncreiff)  holds  it  to  be 
equally  settled,  that  where  a  manse  has, 
either  from  original  insufficiency  or  by  the 
lapse  of  time,  come  to  be  in  such  a  state 
that  it  requires  extensive  repairs  to  render  it 
even  habitable,  it  is  then  competent  for  the 
presbytery,  and  for  this  Court  in  reviewing 
their  sentence,  to  consider  not  merely  what  is 
absolutely  essential  to  render  the  old  build- 
ing habitable,  but  what  ought  reasonably  to 
be  done,  by  alterations  and  additions,  to 
render  the  manse  a  suitable  residence  for  the 
minister  in  the  circumstances  of  the  parish." 
Symington,  infra  ciU 

The  manse  includes  a  dwelling-bonse, 
stable,  bam,  and  byre ;  and  the  usual  oc- 
casion for  settling  the  matter  between  the 
minister  and  the  heritors  is  the  induction  of 
a  new  incumbent.  The  manse  is  then  either 
re-built,  added  to,  or  repaired,  as  circum- 
stances may  require  ;  and  when  these  opera- 
tions are  completed,  the  manse  is,  in  the 
ordinary  case,  declared  a,  free  manse  ;  that  is, 
the  presbytery,  after  due  inspection,  take  the 
manse,  as  it  were,  off  the  hands  of  the  heri- 
tors. This  is  a  form  introduced  by  practice 
for  ascertaining  that  a  competent  manse  has 
been  provided.  Its  effect  is  to  lay  the  burden 
of  all  ordinary  repairs  on  the  minister  during 
his  incumbency;  and  the  heritors  are  en- 
titled to  hare  the  manse  declared  free, 
whether  it  has  been  built  or  repaired  volun- 
tarily or  under  a  decree  of  the  presbytery. 
But  this  declaration  will  not  bar  the  same 
incumbent  from  insisting  for  such  repairs  or 
additions  as  may  be  rendered  necessary  by 
the  decay  occasioned  by  time,  or  by  the 
manifest  incompetency  of  the  manse  as  a 
suitable  residence. 

Where  a  manse  stands  in  need  of  repairs 
or  additions,  or  where  a  new  manse  is  neces- 
sary, the  course  is  for  the  clergyman,  either 
on'  his  induction  or  when  the  necessity  occurs, 
to  apply  to  the  presbytery  by  petition  to  hold 
a  meeting  for  the  purpose  of  inspecting  the 
manse.  On  this  petition  a  deliverance  is 
proDonnced,  appointing  a  visitation  on  a  day 
fixed,  of  which  edictal  notice  is  directed  to 
be  given  from  the  pulpit,  and  also  by  letters 
addressed  by  the  minister  to  the  non-resident 
heritors.  At  the  same  time,  skilful  trades- 
men are  directed  to  attend  the  presbytery  on 
the  appointed  day,  the  expense  of  the  trades- 
men's attendance  being  borne  by  the  heritors. 
At  this  diet  the  tradesmen  make  a  report  on 
oath,  which  is  the  ground  for  a  finding  by 
the  presbytery,  which  is  followed  by  an  order 
for  plans,  estimates,   and   a  contract,  and 


finally  by  a  decree  of  the  presbytery  against 
the  heritors  for  the  sum  necessary  to  defrtj 
the  expense  of  the  building  and  other  inci- 
dental expense.  The  presbytery  may  pro- 
ceed in  alnence  of  the  heritors ;  but,  in  the 
ordinary  ease,  the  matter  is  otherwise  ma- 
naged : — The  subject  is  taken  into  considera- 
tion at  successive  meetings  of  presbytery, 
and  it  is  only  in  comparatively  rare  eases 
that  compulsory  measures  are  requisite 
i^inst  the  heritors ;  but  where  that  hap- 
pens, and  where  the  parties  insist  on  having 
their  respective  rights  judicially  determined, 
the  decree  of  the  presbytery  may  be  brought 
under  the  review  of  the  Court  of  Session  by 
suspension.  The  higher  church-courts  hare 
no  jurisdiction  in  this  matter.  While  the 
re-bnilding  or  repairs  are  in  progress,  or 
during  the  time  that  the  minister  is  excluded 
from  his  manse,  either  by  those  operations  or 
by  a  relative  litigation,  he  is  entitled  to  sn 
allowance  from  the  heritors  as  manse-reni 
This  allowance  must  be  claimed  in  a  separate 
process  at  the  instance  of  the  minister  against 
the  heritors,  unless  they  consent  to  the  Court 
awarding  a  sura  as  rent,  in  the  snspensiim 
of  the  decree  of  the  presbytery.  If  so 
action  be  raised  for  manae-rent,  the  sommoDt 
must  conclude  against  each  heritor  for  hii 
proportion  of  the  rent,  not  against  the  whole 
heritors  as  jointly  and  severally  liable ;  sod 
where  a  difficulty  had  arisen  as  to  the  jwMiMi 
of  rent,  the  Court,  in  one  case,  remitted  to 
the  sheriff  to  report  as  to  what  would  be  a 
reasonable  allowance. 

It  has  been  said  by  some  authorities,  thst 
all  ministers  are  entitled  either  to  manses  or 
to  a  pecuniary  allowance  in  lieu  of  a  maon; 
but  this  is  a  mistake.  The  ministers  of 
royal  burghs  proper  have  no  such  right; 
although,  where  the  royal  burgh  has  a  Isod- 
ward  district  attached,  and  forming  part  of 
the  parish,  it  is  now  settled  that  the  fint 
minister  is  entitled  to  a  manse  ;  AM,  IGth 
June  1825,  4  S.  «*  i?.  99  ;  House  of  Lords,  2 
W.  *  S.  600.  The  second  minister  of  a 
parish,  whether  landward  or  burghal,  seems 
to  have  no  legal  claim  to  a  manse ;  although, 
where  a  mamse  has  been  once  provided  by  the 
heritors,  they  may  be  bound  to  keep  it  op. 
Dunlop,  88. 

By  6  Geo.  IV.,  c.  72,  a  statutory  provision 
is  made  for  an  allowance  or  additional  stipend 
in  lieu  of  manse  and  glebe  to  clergymen  whose 
stipend  is  under  L.200,  and  who  hare  do 
manse  or  glebe.  The  regulation  of  that 
statute  is,  that  a  payment  shall  be  msde 
from  the  public  revenue,  so  as  to  raise  the 
stipend  to  L.200  where  there  is  neither 
manse  nor  glebe,  and  to  L.180  where  either 
the  manse  or  the  glebe  is  awanting.  See 
Small  Stipend,    And  the  ttat.  6  Geo.  IV.,  e. 

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90,  regDlating  the  erection  of  governmeot 
ehnrches  in  the  Highlands  and  Islands  of 
Scotland,  also  provides  for  the  erection  of 
dwelling-houses  for  the  clergymen  of  such 
ehnrches.  Those  dwelling-houses  are  on  a 
very  moderate  scale,  the  statutory  sum  at  the 
disposal  of  the  commissioners  for  the  erection 
both  of  church  and  dwelling-house  not  ex- 
ceeding L.1500  sterling. 

Numerous  questions  have  occurred  con- 
nected with  the  subject  of  this  article,  as  to 
which  see  Stair,  B.  ii.  tit.  3,  §  40 ; 
Mor^t  Notes,  clxx. ;  Bmtk.  i.  p.  667  ;  ii.  29, 
46 ;  Ersk.  B.  ii.  tit.  10,  §  65,  et  seq. ;  BelPs 
Prmc.  §  1165,  et  seq.;  lUust.  ibid.;  Belfs 
Cm.  i.  701 ;  Karnes'  Stat.  Law,  h.  t.;  Hunter's 
Landlord  and  Tenant,  105-7,  432,  490  ; 
Connell  on  Parishes,  240,  et  seq. ;  Dutdop's 
Tarith  Law,  pp.  7, 10, 11,  27, 45,  75,  et  seq.; 
BUes  Prae.  of  Church  Courts,  139,  et  seq. ;  2 
Dow,  433.  And  the  following  cases  may 
be  also  particularly  consulted:  Strathblane, 
10th  July  1827,  6  S.  <t  D.  913 ;  Lochcarron, 
30th  June  1835, 13  S.  <t  D.  1014;  Straih. 
mm.  House  rf  Lords,  1  Dow,  393 ;  Channd- 
tirk,  18th  June  1818,  13  S.  <t  D.  1018 ; 
Symington,  25th  May  1837, 15  S.  d  D.  1020. 
8ee<?^ 

Kannoil-Hoiue.  The  heir  in  possession 
nnder  a  deed  of  entail  is  not  entitled  to  grant 
a  lease  of  the  family  mansion-house  or  plea- 
sure-grounds to  endure  beyond  the  period  of 
his  own  lifetime.  If  he  should  do  so,  how- 
ever, the  lease  does  not  expire  eo  ipso  on  his 
death,  but  must  be  set  aside  by  reduction. 
By  the  Montgomery  Act,  as  it  is  called,  this 
prohibition  is  extended  to  the  manor-place, 
offices,  gardens,  and  adjacent  inclosures,  which 
hare  been  usually  in  the  natural  possession  of 
the  proprietor ;  and  building  leases  cannot  be 
granted  of  any  lands  within  300  yards  of  the 
manor-place ;  10  Geo.  IIL,  c.  51,  §  6.  By  the 
same  statute  it  is  provided,  that  if  the  heir  of 
entail  expends  money  in  building  or  repairing 
the  mansion-bouse,  he  may  become  a  creditor 
for  three-fourths  of  the  money  expended  to 
the  next  succeeding  and  subsequent  heirs  of 
entail,  provided  he  take  the  steps  prescribed 
by  the  statutes  for  preserving  evidence  of  the 
expenditure,  and  making  it  a  proper  charge 
against  the  succeeding  heirs.  See  the  form 
of  a  summons  for  the  expense  of  building  a 
mansion-house  on  an  entailed  estate,  Jurid. 
Styles,  iii.  60.  If  there  are  more  entailed 
estates  than  one,  the  right  to  build  a  mansion- 
house  is  not  barred  by  the  existence  of  a  man- 
sion-house already  on  another  estate.  The 
mansion-house  is  one  of  the  rights  to  which 
the  eldest  of  two  or  more  heirs-portioners  is 
entitled  as  a  prcKipuum.  Moris  Notes  on 
Stair,  dxxxv. ;  BeWs  Com.  i.  53-8;  BeWs 
Pme,  §  1762^  1770;  lUust.  ib.;    BeU  on 


Leases,  i.  123 ;  Hunter's  Landlord  and  Tenant, 
94,  353 ;  Sandford  on  Heritable  Succession,  i. 
8;  Entails,  163-5,  248;  Queensberry  Leases, 
July2, 1819, 1£%A,  340.  See  Tailzie.  Metio^ 
rations,    Heirs-Portioners.     Terce. 

Xanalaiighter.    See  Homicide. 

llajuas ;  according  to  Skene,  a  habitation, 
dwelling-place,  or  bothie ;  also,  so  much  land 
as  will  sustain  a  man  and  his  family  honestly, 
andpay  the  duty  to  his  master.    Skene,  h.  t. 

MannfEtetories  and  MaoMnery.  Several 
statutes  have  been  passed  relative  to  the  con- 
duct of  various  manufactures,  and  the  mutual 
rights  and  duties  of  master  and  workman. 
The  health  of  young  persons  in  factories  has 
been  provided  for  in  certain  salutary  acts. 
See  Factories.  In  some  manufactories,  justices 
of  peace  are  empowered  to  settle  differences 
between  masters  and  operatives,  by  reference 
to  persons  of  skill,  or  in  other  summary  ways. 
The  seducing  of  workmen  to  go  abroaxl  is  an 
indictable  offence ;  and  the  exporting  of  tools 
used  in  certain  manufactures  may  be  pre- 
vented by  justices  of  peace,,who  are  authorized 
to  seize  such  tools  when  destined  for  exporta- 
tion. A  contract  is  beginning  to  come  into 
use,  by  which  the  proprietor  of  a  manufac- 
tory lets  it  for  hire,  along  with  the  machinery 
which  it  contains,  and  sometimes  with  steam- 
power.  When  let  without  steam-power,  there 
is  no  difference  between  such  a  lease  and  an 
ordinary  lease  of  a  shop, — the  machinery  or 
other  articles  being  let  according  to  inventory. 
When  steam-power  is  included,  the  landlord 
lets  the  mill  or  building  in  whole  or  in  part, 
with  a  right  to  each  of  the  tenants  to  a  pro- 
portionate share  of  the  machinery,  or  of  the 
chief  mechanical  power;  and  it  is  usually 
stipulated  that  the  lessor  shall  keep  the  build- 
ing and  steam-engine,  and  the  "  great  gear- 
ing" connected  with  the  engine  on  the  out- 
side of  the  building,  in  proper  repair  ;  while 
the  lessees  are  taken  bound  to  keep  the  small 
machinery  within  their  respective  portions  in 
repair.  If  the  engine  be  not  kept  going  re- 
gularly, the  lessee  may,  upon  notice  in  writ- 
ing, appoint  an  engineer  to  superintend  it, 
and  to  keep  it  going  at  the  stipulated  rate, 
and  deduct  the  expense  from  the  rent.  A 
stipulation  to  make  up  stoppages,  either  by 
extra  work  or  a  deduction  of  rent,  does  not 
include  extraordinary  stoppages :  the  lessor  is 
held  to  warrant  the  condition  of  his  engine, 
and  the  lessee  is  entitled  to  damages  to  the 
extent  of  the  loss  sustained  by  any  imperfec- 
tion or  fault  in  the  engine.  But  although 
such  is  the  general  doctrine  laid  down  by  text 
writers  on  this  subject  (see  Hunter  on  the 
Law  of  Landlord  and  Tenant,  ut  infra),  yet 
the  result  of  some  decisions  renders  it  at 
least  questionable  whether  this  contract  is  to 
be  regarded  as  properly  of  the  nature  of  a  - 


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lease.  Thns,  where  the  question  was  whether, 
in  a  contract  with  the  proprietor  of  a  steam- 
englDe  for  a  supply  of  power,  failure  to  pay 
rent  for  a  single  year  entitled  the  lessor  to 
stop  the  supply,  the  contract  was  held  to  be 
locatio  operie,  not  lease,  and  the  stipulated 
consideration  to  be  hire,  not  rent;  Auld,  Jan. 
31, 1827,  5  S.d;  D.  264.  In  a  subsequent 
case  it  was  found  in  the  House  of  Lords  (re- 
Tersing  the  judgment  of  the  Court  of  Session), 
that  the  price  to  be  paid  for  a  supply  of 
steam-power  and  water  is  not  rent,  and  that 
although  the  lease  of  a  tenement  and  the  hire 
of  a  steam-engine  may  be  combined,  yet  they 
are  separate  stipulations;  Cattems,  June  6, 

1834,  12  S.  d:  D.  686,  reversed  15th  May 

1835.  Earned  Stat.  Law  Abridg.  h.  i. ;  Swint. 
Ahridg.  h.  t, ;  Hunter's  Landlord  and  Tenant, 
233,  306, 473, 584,  689, 852 ;  Butch.  Justice, 
ii.  178;  iii.  210;  Taifs  Justice,  k.  t.;  Blair's 
Justice,  h.  t.  See  Workman.  Factories.  Fix- 
tures.    Combination.    Artisans. 

Mannmiuion ;  in  the  Roman  law,  was  the 
act  by  which  a  master  gave  liberty  to  his 
slave,  or  freed  his  son  from  the  palria  potestas. 
The  slave,  when  made  free,  became  his  mas- 
ter's freedman,  and  owed  him  certain  duties 
as  patron ;  and  if  he  failed  in  these,  be  re- 
turned to  servitude.  By  the  old  law  of  Eng- 
land, while  villanage  subsisted,  a  lord  might 
manumit  his  bondmen  in  various  ways.  Some 
were  freed  by  delivery  to  the  sheriff,  and  pro- 
clamation in  the  county ;  others  by  charter : 
one  way  was  for  the  lord  to  take  the  bond- 
man by  the  head,  and  say,  "  I  will  that  this 
man^  may  be  free,"  and  then  push  him  for- 
ward out  of  his  hands ;  and  manumission  was 
implied  when  the  lord  made  an  obligation  for 

Sayment  of  money  to  the  bondman,  or  sued 
im  where  he  might  enter  without  suit. 
Stair,  B,  i.  tit,  2,  §  13 ;  BanL  i.  67 ;  Ross's 
Led.  ii.  465 ;  Tomlins'  Diet.  h.  t. 
Manure.    See  Dung. 

Maniu  Xortna.  Dimittere  terras  ad  ma- 
•turn  mortuum,  signifies  to  mortify  lands,  to 
dispone  them  to  a  kirk  or  university,  the 
term  being  so  used  either  because  all  casual- 
ties must  necessarily  be  lost  to  the  proprietor, 
where  the  vassal  is  a  corporation  which  never 
dies,  or  because  the  property  of  those  sub- 
jects is  made  over  to  a  dead  hand,  which  can- 
not, contrary  to  the  donor's  intention,  trans- 
fer it  to  another.  ErsJc.  B.  ii.  tit.  4,  §  10 ; 
Skene,  h.  t.    See  Mortijkalion. 

Maps ;  may  be  founded  on,  when  distinctly 
authenticated  and  sworn  to.  But  a  map  is 
not  evidence  of  itself;  it  is  rather  an  ad- 
minicle, explanatory  of  other  proper  evidence. 
Macfarlan^s  Jury  Prac.  183.    See  Plan. 

Marohe*.  By  the  act  1661,  c.  41,  rati- 
fied by  1685,  c.  39,  the  proprietor  of  land  may 
compel  the  conterminous  proprietor  to  bear 


with  him  half  the  expense  of  a  mntnal  fence 
or  indosure ;  and,  in  the  same  manner,  fences 
once  made  may  be  kept  in  repair  at  the 
mutual  expense  of  the  parties.  Where  the 
march  is  a  rivulet,  which  is  not  a  sufficient 
fence,  a  proper  fence  may  be  built  upon  the 
spot,  if  it  be  practicable.  The  fence  may  run 
along  one  side  of  the  stream ;  but  if  it  b«  de- 
sired, the  stream  ought  to  run  a  space  within 
the  fence  and  a  space  without,  that  both 
parties  may  have  the  benefit  of  watering.  A 
tenant,  contrary  to  the  general  rule,  is  bound, 
independently  of  stipulation,  to  maintain 
march-fences  erected  by  the  landlord  during 
the  lease.  See  Fences.  By  the  act  1669,  c. 
17,  landholders  may  apply  for  a  streightieg 
of  marches,  and  the  judge  ordinary  may 
streight  them,  and  order  a  compensation  for 
what  is  taken  from  the  one  and  given  to  the 
other.  Considerable  portions  of  land  may  be 
exchanged.  Entailed  lands  are  comprehended 
under  these  regulations,  provided  the  ex- 
cambion  be  regulated  by  the  entail  statutes. 
See  Excamhion.  Tlie  conterminous  proprietor 
ought  to  be  called  as  a  party.  The  obliga- 
tion to  bear  the  expense  of  half-march  does 
not  take  place  in  small  properties ;  and  prac- 
tice has  excluded  it  where  the  property  does 
not  exceed  five  or  six  acres.  See  Kilkemn, 
Planting  and  Inclosing,  No.  1;  Ersk.  B.  ii.  tit. 
6,  §  4 ;  Stair,  B.  ii.  tit.  3,  §  73 ;  B.  iv,  tit.  27 ; 
tit.  43,  §  7 ;  Bank.  vol.  i.  p.  282 ;  BeO^s  Prine. 
§  958;  Hunter's  Landlord  and  Tenant,  pp. 
576-82;  Hutch.  Justice  of  Peace,  2d  edit.  vol. 
ii.  p.  250;  Taifs  do.,  voce  Planting;  Bell  on 
Leases,  i.  206 ;  Karnes'  Equity,  1 14. 

Maroheta  Mulieris ;  the  "  raide  of  a  wo. 
man,  or  the  first  carnal  copulation  with  her. 
King  Evenus  ordained  that  the  lord  of  the 
ground  should  have  the  first  night  of  each 
married  woman  within  the  same ;  but  Mal- 
colm III.  abrogated  this  ordinance,  and  ap- 
poiuted  each  bridegroom  to  pay  a  piece  of 
money,  called  marca,  as  a  compensation," 
Skoie,  h.  t.  Banktoa  doubts  the  infamous 
origin  of  this  casualty,  i.  p.  595;  and  Hailes, 
in  a  treatise  on  this  subject,  annexed  to  his 
Annals,  attempts  to  show  that  no  such  cus- 
tom ever  existed  in  Scotland.  He  explains 
the  term  marcheta  to  mean,  a  fine  paid  to  the 
lord  by  a  sokeman  or  villain,  when  his  on- 
married  daughter  chanced  to  be  debauched; 
or  a  composition  by  the  sokeman  for  the  lord's 
permission  to  give  his  daughter  in  marriage 
to  a  person  not  subject  to  the  lord's  jurisdic- 
tion; or  the  fine  for  giving  her  away  without 
such  permission.     Hailes^  Annals. 

Haj^inal  Addition,  or  Kote.  A  marginal 
addition  to,  or  alteration  on  a  deed,  must  b« 
made  before  the  final  execution  of  the  deed, 
by  ito  being  signed  in  presence  of  the  wit- 
nesses.   Marginal  notes,  being  parts  of  the 


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d«ed,  require  subscription.  The  practice  is 
to  comprehend  them  within  the  subscription ; 
«'.«.,  to  write  the  Christian  name  upon  the  left 
side,  and  the  surname  upon  the  other,  which 
must  be  done  before  the  subscribing  witnesses. 
The  marginal  note  or  addition  ought  to  he 
mentioned  in  the  testing  clause  of  the  deed : 
it  ought  to  be  there  stated  by  whom  the  note 
or  addition  is  written,  and  that  the  witnesses 
were  also  witnesses  to  the  party's  having  sub- 
scribed the  marginal  note;  otherwise  it  will 
be  held  fro  non  scripto.  Such  notes  are  pre* 
sumed  to  have  been  added  after  the  execution 
of  the  deed,  unless  the  contrary  is  stated  in 
the  testing  clause.  Ersk.  £.  iii.  tit.  2,  §  20 ; 
Stair,  B.  iv.  tit.  42,  §  19 ;  Jfore's  Notes,  p. 
tcccii. ;  Bank.  vol.  i.  p.  336 ;  ii.  636  ;  Hun- 
ter" t  Landlord  and  Tenant,  pp.  310-12;  Tail  on 
Evidenet,  p.  74,  75 ;  Ross's  Led.  i.  143,  158. 

Kaiine  Stores.  Dealers  in  marine  stores 
are  bound  to  keep  books,  in  which  they  are  to 
enter  the  name  and  address  of  all  with  whom 
they  deal,  together  with  the  price  of  the  ar- 
ticles purchased  by  them.    Tomlins'  Diet.  h.  t. 

Huinera.     See  Seamen. 

HaiischaL  This  officer,  along  with  the 
Lord  High  Constable  of  Scotland,  formerly 
possessed  a  supreme  itinerant  jurisdiction  in 
all  crimes  committed  within  a  certain  distance 
of  the  court,  wherever  it  might  happen  to  be. 
Ersh.  B.  i.  tit.  3,  §  37.  See  Constable.  Marshal, 

Kaiitaginm ;  "  tocher  gude."    Skene,  h.  t. 

Haritagium  Hseredis;  according  to  Skene, 
is  the  casualty  of  marriage  which  falls  to  the 
superior.  Skene,  h.  t.  See  Marriage,  Casu- 
dtyof.  ^  _ 

lUritime  Law.  The  maritime  law  par- 
takes more  of  the  character  of  international 
law  than  any  other  branch  of  jurisprudence ; 
and  both  English  and  continental  collections 
and  treatises  are  received  as  authority  in  our 
courts.  Formerly,  the  Judge-Admiral  was 
judge  in  the  first  instance  in  all  maritime 
causes ;  but  his  jurisdiction  has  been  trans- 
ferred partly  to  the  Sheriff,  and  partly  to  the 
Court  of  Session.  See  Admiralty.  The  doc- 
trines of  maritime  law  are  considered  undor 
the  following  heads  in  this  Dictionary :. — 
Charter-Parti).  Letters  of  Marque.  Bill  of 
Lading.  Freight.  Salvage.  Wrecks.  Bot- 
tomry. Respondentia.  Insurance.  Loading. 
Seauiorthiness.  Stranding.  Barratry.  Con- 
tribution. Jactus  Mercium.  Voyage.  Demur- 
rage. Lay-Days.  Reprisals.  Deviation.  Col- 
lision.   Pilots.    Stowage.    Ship,  d;e. 

Kark ;  an  ounce,  or  half  a  pound,  trhereof 
the  dram  is  the  eighth  part.    Skene,  h.  t. 

Murk;  an  old  English  coin.  The  mark  of 
silver  is  now  13s.  4d. ;  although  in  the  reign 
of  Henry  I.  it  was  only  6s.  and  a  penny  in 
weight.  Tomlin^  Diet.  A.  t.  See  Merk.  Scots 
Money, 


Mark.  A  subscription  by  a  mark,  and  the 
name  written  around  it  in  presence  of  wit- 
nesses, may,  on  a  proof  by  the  instrumentary 
witnesses,  be  the  ground  of  an  obligatioii ;  but 
it  requires  the  evidence  of  the  witnesses  to 
give  it  validity ;  Ersk.  B.  iii.  tit.  2,  §  8.  In 
England  the  personating  of  a  person,  and 
putting  down  his  mark,  has  been  held  to  be 
forgery.  This  form  of  accepting  a  bill  is 
irregular,  and  contrary  to  the  nature  of  bills, 
which  are  intended  for  summary  execution. 
In  certain  circumstances,  however,  a  bill  so 
subscribed  may  be  the  ground  of  an  action 
for  the  debt.  Stair,  B.  i.  tit.  11 ,  §  7  ;  More't 
Notes,  p.  cocci. ;  Hunter's  Landlord  and  Tenant, 
p.  309 ;  Thomson  on  Bills,  48 ;  Tait  on  Evi- 
dence,  pp.  68-9, 117 ;  Bell  on  Leases,  i.  275. 
See  Bill  of  Exchange.  Initials,  Subscription  Ly, 
and  authorities  there  cited. 

Market  Overt.  The  law  of  Scotland 
differs  from  that  of  England  as  to  the  legal 
effect  of  a  sale  in  open  market.  For  the 
security  of  purchasers,  the  English  law 
recognises  the  principle  that  property  may 
in  some  cases  be  transferred  by  sale,  al- 
though the  seller  has  no  right  of  property 
in  the  goods.  Thus,  if  one  steal  an  article, 
or  retain  in  his  possession  goods  which  he 
has  already  sold  ;  and  if  he  sell  these  goods 
in  open  market,  the  buyer  is  secure  of  his 
purchase,  it  being  held  that  a  sale  of  any- 
thing vendible  in  market  overt  is  not  only 
good  between  the  parties,  but  also  binding 
on  all  (except  the  Crown)  having  any  right 
or  property  therein.  Market  overt  in  the 
country  is  only  held  on  the  special  days  pro- 
vided for  particular  towns  by  charter  or  pre- 
scription ;  but  in  the  city  of  London  every 
day  except  Sunday  is  market-day.  The 
market,  place,  or  spot  of  ground  set  apart  by 
custom  for  the  sale  of  particular  goods,  is 
also  the  only  market  overt  in  the  country. 
In  the  city  of  London,  however,  every  shop 
in  which  goods  are  publicly  exposed  to  sale  is 
market  overt,  but  only  for  such  tilings  as  the 
owner  professes  to  trade  in.  But  there  are 
certain  exceptions  to  the  general  rule ;  such 
as,  that  the  property  is  not  changed  by  a 
sale  in  a  covert  place  in  a  fair  or  market — e.g, 
in  a  back  room  or  warehouse,  behind  a  hang- 
ing or  cupboard,  or  where  the  windows  of  the 
shop  are  shut.  In  Scotland,  again,  no  such 
privilege  is  attached  to  sales  in  open  market ; 
and  the  owner  of  goods,  sold  by  one  who  has 
stolen  them,  or  to  whom  they  have  been  lent, 
may  reclaim  them  from  the  purchaser.  It 
is  true  that  a  second  sale  with  delivery  is 
effectual  against  the  first  sale  without  de- 
livery ;  but  this  is  not  from  any  privilege  of 
market,  but  from  the  universal  doctrine  of 
the  law  of  Scotland,  that  the  property  of  a 
thing  sold  is  not  transferred  without  delivery. 


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Althongh  some  doubt  existed  on  the  point  in 
the  earlier  law,  it  is  nov  assumed  as  quite 
fixed,  that  when  com,  subject  to  the  landlord's 
hypothec,  has  been  sold  by  bulk  in  open  mar- 
ket, the  parchasers  are  safe  against  the 
operation  of  the  hypothec.  There  are  two 
exceptions  to  this  rule  :  purchasers  by  sample 
in  open  market  and  purchasers  at  a  public 
sale,  who  have  been  warned  that  the  rent 
has  not  been  paid,  are  subject  to  the  opera- 
tion of  the  hypothec.  Earl  of  DaUumne  v. 
Dunlop,  Feb.  17, 1828,  6  S.  626,— affirmed, 
Dec.  9, 1830,  4  W.  tt  S.  420 ;  Stair,  B.  ii. 
tit.  1,  §  42 ;  B.  iv.  tit.  25,  §  6 ;  More's 
Notes,  p.  xlviii.,  cli. ;  BdFs  Com.  i.  281,  287 ; 
Add.  No.  XIII. ;  BeU't  Prine.  §  527,  665, 
1242;  niust.  ib.;  Broum  on  Sale,  16,  29, 
420  ;  Blackst.  ii.  449 ;  Bdl  on  Leases,  i.  S75 ; 
Hunter's  Landlord  and  Tenant,  705 ;  Tomlins' 
Diet.  h.  t.    See  Sale.    Lobes  Realis.   Hypothec. 

Marlring  of  Goods.  The  marking  of 
goods  is  one  of  those  forms  of  constructive 
delivery  by  which  the  property  of  a  thing 
sold  is  transferred,  while  the  seller  retains 
possession.  It  cannot  be  said  to  be  a  general 
rule  that  marking  goods  is  equivalent  to 
delivery — Belfs  Com.  i.  181 ;  but  in  the 
special  case  where  there  is  some  difficulty  in 
the  way  of  immediate  delivery,  marking  ap- 
pears to  be  equivalent.  Thus,  where  the 
thing  sold  is  not  yet  separated  from  the  soil, 
and  cannot  instantly  be  separated  and  de- 
livered, it  is  held  as  delivered  when  marked 
for  the  buyer ;  and  the  property  of  cattle 
sold  while  grazing  seems  to  be  transferred  by 
their  being  marked  for  the  buyer.  Goods 
sold  and  sent  to  the  buyer  at  a  distance  are 
not  held  as  delivered  while  in  the  bands  of 
a  wharfinger  or  public  warehouseman  for  the 
carrier's  convenience ;  but  if,  in  such  circum- 
stances, the  buyer  claim  the  goods  and  mark 
them  as  his,  the  delivery  is  completed.  Bell's 
Com.  i.  181,  201 ;  Bell's  Princ.  §  1303 ; 
Brodi^s  Sup.  to  Stair,  897,  note  9.  See 
Delivery,  and  authorities  there  cited. 

Marie-Pit  The  landlord  has  the  sole 
right  to  shell  marie  found  within  the  farm  ; 
and  he  may  work  it,  and  make  roads,  &c., 
on  paying  surface  damage.  A  minister  has 
been  found  entitled  to  sell  the  produce  of  a 
marle-pit  discovered  in  his  glebe,  upon  apply- 
ing the  price  to  the  use  of  the  benefice. 
More's  Notes  on  Stair,  p.  elxxii. ;  Bell's  Princ. 
§  1226 ;  Hutch.  Justice  of  Peace,  ii.  420,  450  ; 
Bdl  on  Leases,  i.  344 ;  Hunter's  Landlord  and 
Tenant,  570.  See  Lease.  Mines  and  Minerals, 
Olebe. 

Marquis  ;  is  a  title  of  honour  below  a 
dnke,  but  above  an  earl. 

Marriage ;  is  a  civil  and  solemn  contract 
between  a  man  and  a  woman,  whereby  they 
unite  themselves  for  life  in  a  domestic  society, 


for  the  mutual  solace  and  comfort  of  eaelt 
other,  and  having  in  view  chiefly  the  propa- 
gation of  the  species  and  the  rearing  of  a 
family.  This  contract  is  indissoluble,  except 
by  the  death  of  one  or  other  of  the  parties, 
or  decree  of  divorce  founded  on  adultery  or 
desertion  ;  for,  although  impoteney  or  a 
natural  incapacity  on  either  side  for  pro- 
creation is  a  ground  on  which  the  marriage 
may  be  annulled,  yet  it  is  not  so  mneh  a 
ground  for  divorce  as  an  essential  nullity, 
in  respect  of  which  the  contract  may  be  de- 
clared to  have  been  void  from  the  first.  The 
subject  will  be  briefly  considered  in  the  fal- 
lowing order : 

I.  Of  the  constitution  of  marriage. 
II.  Of  the  rights  consequent  on  marriage. 
III.  Of&e  manner  and  ejects  of  its  ditsohitiim. 

I.  Ot  thb  coifsnTmoK  or  karsiaok. — 
Marriage  is  a  contract  completed  by  consent 
alone.    The  parties  must  have  arrived  at  the 
age  of  puberty ;  that  is,  the  male  at  the  age 
of  fourteen,  the  female  at  the  age  of  twelve, 
before  they  are  held  legally  capable  of  the 
requisite  consent ;  but  after  that  age  parties^ 
where  there  is  no  disqualification,  may  validly 
intermarry.    A  marriage  entered  into  even 
before  the  age  of  puberty,  if  the  parties 
after  arriving  at  that  age  cohabit  as  man 
and  wife,  is  effectual ;  Ersk.  B.  i.  tit.  6,  §  2, 
A  marriage,  as  regards  the  ceremony,  may 
be  either  regular,  clandestine,  or  by  mere 
consent,  without  the  intervention  of  a  clergy- 
man.   A  regular  marriage  is  performed  by 
a  clergyman  in  presence  of  at  least  two  wit- 
nesses, and  is  preceded  by  the  proclamation 
of  banns  according  to  the  rules  of  the  church. 
A  certificate  of  the  session-clerk  is  received 
as  evidence  of  proclamation  of  banns.    See 
Banns.    The  consent  of  parents  or  of  curatOTS 
is  not  required  in  order  to  constitute  a  legal 
marriage  by  the  law  of  Scotland.    Clandes- 
tine marriages  are  also  performed  by  clergy- 
men, and  are  equally  effectual  with  regular 
marriages ;  but  they  expose  the  clergymaa 
and  the  parties  to  certain  penalties.    They 
differ  from  regular  marriages  in  this,  that 
they  are  not  preceded  by  the  publication  of 
banns.     See  Clandestine  Marriage.    Marriage 
being  a  civil  contract,  may  be  completed  by 
consent    alone,    solemnly    and    deliberately 
given  deproesenti.    In  l^e  case  of  an  ante- 
nuptial  contract  of  marriage,  where  the 
parties,  according  to  the  expression  in  the 
deed,  agree  to  take  each  other  as  husband 
and  wife,  the  effect  of  this  agreement  as  a  & 
proesenti  acceptance  is  counteracted  by  the 
subsequent  obligation  which  the  deed  also 
contains,  to  enter  de  futuro  into  a  regular 
marriage;  thus  indicating  the  understanding 

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of  the  parties  that  the  written  contract  im- 
ports a  raere  engagement  to  enter  into  the 
marriage  hereafter.  See  Espousals.  Con- 
tract of  Marriage.  Deliberate  consent  de 
prcBsenti,  without  a  copula,  completes  a  mar- 
riage ;  for,  according  to  the  law  of  Scotland, 
conteMus  non  coitus  facit  matrimonium.  So, 
also,  a  promise  or  engagement  to  marry, 
followed  by  a  eopuk,  constitutes  a  marriage ; 
for,  prtEsumptione  juris  et  de  jure,  consent  de 
prasenti  is  presumed  to  have  been  adhibited 
at  the  time  of  the  copula.  In  marriage  thus 
constituted,  the  copula  mnst  be  proved  to 
have  taken  place.  See  Dalrymple  v.  Ddlrymple, 
16th  July  1811,  Ckmsistorial  Court,  London, 
Haggarfs  Reports,  ii.  54.  It  must  be  dis- 
tinctly shown  that  the  promise  preceded  the 
copula,  for  a  promise  after  copula  does  not 
eonstitnte  marriage,  unless  the  intercourse  be 
renewed  in  such  a  way  as  to  show  that  the 
new  copula  follows  upon  and  is  connected  with 
the  promise.  The  question  has  been  raised 
whether  promise  subseguente  copula  consti- 
tutes a  marriage  ipso  jure  ?  or  whether  it 
requires  a  declarator  or  subsequent  comple- 
tion of  the  marriage,  which  may  be  barred 
by  another  marriage  intervening?  It  was 
held,  but  with  some  division  on  the  bench, 
that  the  marriage  is  constituted  ipso  jure ; 
Pmnycook,  Dec.  15,  1762,  M.  12,677.  A 
promise  or  engagement  to  marry,  however 
formal,  where  no  copvia  has  followed,  may  be 
resiled  from ;  the  party  so  resiling,  however, 
being  liable  in  damages  for  breach  of  promise. 
Marriage  may  be  constituted  by  an  acknow- 
ledgment in  writing,  or  by  an  acknowledgment 
made  to  the  midwife  who  delivered,  or  to  the 
clergyman  who  christened,  a  child  bom  to  the 
spouses.  But  in  order  to  fix  the  status,  it  is 
necessary  that  the  written  acknowledgment 
should  have  been  produced  and  acted  upon 
during  the  lifetime  of  both  parties.  It  is 
not  sufficient  that,  after  a  man's  death,  an 
acknowledgment  by  him  is  produced  certify- 
ing that  he  was  married  to  a  certain  person. 
This  will  not  give  the  woman  the  status  of  his 
widow.  Marriage  also  may  be  inferred  from 
cohabitation,  and  from  the  parties  living 
together  at  bed  and  board,  and  being  habit 
and  repute  husband  and  wife ;  1503,  c.  77. 
But  if  the  habit  and  repute  have  begun  in 
avowed  concubinage,  a  palpable  change  of 
purpose  must  be  shown  in  onler  to  establish 
a  marriage  by  habit  and  repute.  This 
statute  gives  the  terce  to  a  woman  who  has 
been  reputed  the  wife  of  a  man  till  his 
death.  With  regard  to  the  evidence  of  a 
marriage  having  been  contracted,  the  ex- 
change of  mutual  consent  de  prcesenti,  or  co- 
habitation, or  habit  and  repute,  may  be 
proved  by  parole  evidence ;  but  a  promise  of 
marriage  can,  like  other  promises,  be  com- 


petently proved  in  the  ordinary  case  only  by 
writ  or  oath  of  party.  When  a  marriage  is 
once  fairly  constituted,  no  subsequent  acts  of 
the  parties  (except  such  as  warrant  divorce) 
can  dissolve  it ;  but  in  the  case  of  an  irre- 
gular marriage,  it  is  competent  to  found  on 
subsequent  facts  and  circumstances  as  quali- 
fying  the  previous  apparent  consent,  so  as  to 
show  that  the  parties  never  had  any  deli- 
berate or  serious  purpose  of  marriage.  See 
Evidence. 

The  legal  disqualifications  for  marriage 
are,  1.  Pupillarity,  since  a  person  before  ar- 
riving at  the  age  of  puberty  is  not  legally 
capable  of  giving  consent.  2.  Defect  of 
judgment,  as  in  the  case  of  idiocy,  Wanse  an 
idiot  cannot  give  that  consent  which  is  re- 
quisite to  complete  the  contract  of  marriage. 
3.  Impotency ;  but  it  is  »tw  tertii  in  any  other 
than  the  parties  to  plead  impotency  as  a  nul- 
lity. 4.  The  having  entered  into  a  previous 
marriage  which  still  subsists.  5.  By  the  act 
1600,  c.  20,  a  marriage  between  a  divorced 
person  and  his-  or  her  paramour,  mentioned 
as  such  in  the  decree  of  divorce,  is  declared 
illegal.  See  Divorce.  AduUery.  6.  Propin- 
quity within  the  forbidden  degrees  is  a 
ground  for  dissolving  a  marriage ;  and  the 
act  1567,  c.  15,  adopts  the  Jewish  law,  by 
declaring  that  marriage  shall  be  as  free  as 
Q-od  has  permitted  it,  and  that  seconds  in  the 
degrees  of  consanguinity  and  affinity,  and  all 
degrees  further  removed,  contained  in  the 
Word  of  God,  may  lawfully  intermarry.  By 
Leviticus,  c.  xviii.,  the  following  rules  are 
laid  down :  1.  Intermarriages  between  as- 
cendants and  descendants  in  infinitum,  are 
prohibited.  2.  Marriage  in  the  collateral 
line  *»  injinitum,  is  forbidden ;  ,that  is,  where 
the  one  party  is  brother  or  sister  to  the  direct 
ascendant  of  the  other  party.  3.  In  every 
instance  not  falling  under  those  rules,  mar- 
riage is  lawful  in  the  second  degree,  accord- 
ing to  the  canon  law,  or  in  the  fourth  degree, 
according  t«  the  Roman  law.  See  Kin,  Con- 
sequently, cousins-germau,  and  all  more  re- 
mote relations,  may  intermarry.  4.  The 
degrees  in  consanguinity  which  are  prohibited 
are  equally  prohibited  in  affinity ;  and  the 
rules  are  the  same  whether  the  parties  are 
related  by  full  or  only  by  half-blood ;  Ersk. 
B.  i.  tit.  6,  §  3,  et.  seq. 

By  the  act  19  and  20  Yict.,  c.  96, 1856,  no 
irregular  marriage  contracted  in  Scotland,  by 
declaration,  acknowledgment,  or  ceremony,  is 
valid,  unless  one  of  the  parties  had,  at  the 
date  of  the  marriage,  his  or  her  usual  place 
of  residence  in  Scotland,  or  had  lived  there 
for  twenty-one  days  preceding  the  marriage, 

II.   Ol*  THE  BIGHTS  G0NSE(itrENT  OK  XAB- 

BIA8X. — The  first  effect  of  marriage  is  to 
I  produce  a  communion  of  goods,  which  extends 

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to  all  sabjects  not  heritable,  excepting  per- 
sonal bonds  bearing  interest.  (See  Bmd.) 
Though  the  goods  of  the  married  pair  are  in 
communion,  yet  the  management  of  them  is 
vested  by  law  in  the  husband,  and  this  power 
of  management  is  termed  the  jus  mariti.  See 
Jug  Mariii.  Goods  in  Communion.  The  hus- 
band is  the  proper  curator  of  his  wife ;  and 
immediately  on  the  marriage,  the  ofSce  of  her 
curator,  where  she  happens  to  be  in  minority 
and  to  have  a  curator,  expires;  the  whole  of 
his  powers  and  duties  being  devolved  on  the 
husband.  Hence,  in  every  action  brought 
against  a  wife,  the  husband  must  be  called 
for  his  interest ;  and,  in  virtue  of  the  hus- 
band's power  over  the  person  of  his  wife,  she 
cannot  be  imprisoned  for  debt.  He  is  im- 
prisoned in  place  of  her  for  the  non-payment 
of  her  debts,  or  the  non-performance  of  her 
obligations,  unless  where  the  diligence  issues 
agaiust  the  wife  on  account  of  her  failure  to 
perform  an  act  within  her  power,  or  where 
she  is  imprisoned  in  modum  panie  for  a  delict. 
See  Delict.  Another  consequence  of  the  cura- 
torial power  of  the  husband  is,  that  he  must 
sign  as  conscnter  to  the  wife's  deeds;  and 
where  he  does  sign  as  such,  the  deed  is  not 
reducible  on  the  head  of  lesion,  as  in  the 
common  case  of  a  deed  consented  to  by  a 
curator.  But  all  personal  obligations  on  the 
wifo  are  null,  though  signed  by  tlie  husband 
as  consenter,  excepting  in  the  case  where  she 
has  a  separate  stock,  exclusive  of  the  hus- 
band's jus  mariti,  which  the  wife  may  assi<!;n 
or  burden  ;  or  where  a  separation  has  taken 
place  between  the  husband  and  wife ;  or 
where  the  wifo  is  intrusted  with  the  manage- 
ment of  a  particular  branch  of  business,  as 
praposita,  or  with  the  affairs  of  her  husband; 
and  there,  her  acts  bind  her  husband.  Under 
this  pra;/;o«t<ura  are  included  furnishings  made 
to  the  family,  for  which  the  husband  is  liable, 
unless  he  see  reason  to  inhibit  his  wife.  See 
Frcepositura.  Inhibition  of  a  Wife.  The  wife 
may,  without  her  husband's  consent,  execute 
a  testament  or  a  mortis  causa  conveyance  of 
her  landed  estate,  provided  she  be  of  age  at 
the  time  of  executing  the  deed.  These  are 
the  rights  consequent  on  marriage  during  its 
subsistence.  The  other  rights  arising  to 
either  party  do  not  emerge  until  the  disso- 
lution of  the  marriage.  See  Terce.  Jus  Re- 
lictce.  Courtesy.  Goods  in  Communion.  Legitim, 
dtc.  Where  either  party,  daring  the  subsist- 
ence of  the  marriage,  makes  a  gift  or  dona- 
tion to  the  other,  it  is  in  the  power  of  the 
donor  to  retract  it,  either  by  an  express  re- 
vocation, or  by  implication,  as  by  making  a 
subsequent  donation  of  the  same  subject,  or 
even  by  contracting  debt,  in  satisfaction  of 
which  the  subject  may  be  taken  notwith- 
standing the  donation.    But  this  does  not 


apply  to  mutual  remuneratory  grants;  hence, 
postnuptial  contracts,  where  there  have  been 
no  previous  provisions  for  the  spouses,  are 
not,  so  far  as  they  are  rational,  revocable.  It 
is  to  be  observed,  however,  that  a  deed  by 
the  husband,  proceeding  on  the  narrative  of 
his  having  value  of  the  wife's  in  his  hands,  ii 
not  revocable,  unless  on  evidence  of  its  false- 
hood. See  Donatio  inter  Virum  et  Uxorem. 
Contract  of  Marriage.  All  deeds  executed  by 
a  wife,  or  to  which  she  consents,  ought  to  be 
ratified  by  her  in  presence  of  a  judge,  and 
out  of  the  presence  of  her  husband.  Tbii 
ratification  is  a  declaration  by  the  wife,  npon 
oath,  emitted  before  a  magistrate,  that  she 
has  acted  freely  and  voluntarily  in  execntin; 
the  deed ;  and,  if  regularly  done,  it  precludes 
her  from  challenging  the  deed.  The  ratifi- 
cation, however,  has  no  effect  in  preventing 
lier  from  recalling  a  donation  to  her  husband. 
Ersk.  B.  i.  tit.  6,  §  1,  28,  et  seq.  See  RaUfi- 
cation. 

III.  Or  TUK  XANKEB  AITD  EFFECTS  OF  TBB 

DISSOLUTION  OF  It  ABBiAOE. — Marriage  is  dis- 
solved by  the  death  of  either  of  the  parties, 
or  by  a  sentence  of  divorce.  Divorce  is  the 
sentence  of  the  Court  of  Session  (as  coming 
in  place  of  the  late  Commissary  Court),  de> 
daring  the  marriage  to  be  dissolved;  and 
the  divorce  may  proceed  either  on  the  gronnd 
of  adultery,  or  of  wilful  desertion.  &e  Di- 
vorce.    Desertion. 

Effects  of  the  dissolvtior  of  mi 
MARRIAGE. — Formerly,  where  the  marriage 
was  dissolved  by  death  within  year  and  dsj 
of  the  marriage,  without  the  birth  of  a  living 
child,  and  where  the  matter  was  not  other- 
wise regulated  in  the  contract  of  marriage, 
all  grants  made  in  consideration  of  the  mar- 
riage became  void;  the  tocher  returned  t« 
the  wife,  or  to  ber  executors,  or  to  the  giver; 
and  every  interest  in  the  estate  of  the  hus- 
band returned  to  the  husband.  But  this  re- 
lated only  to  the  provisions  as  between  the 
parties ;  for  a  provision  to  one  of  them,  bjs 
grant,  for  example,  and  not  given  to  the 
other,  was  effectual  notwithstanding  the  dis- 
solution of  the  mairiage.  It  was  therefore 
provisions  by  the  one  to  the  other,  or  pro- 
visions made  intuitu  matrimonii,  which  fell  by 
the  dissolution  within  year  and  day  without  a 
living  child.  In  accounting  for  the  tocher  in 
the  event  of  such  premature  dissolution,  the 
husband  was  entitled  to  deduct  the  funeral 
expenses  of  the  wife ;  and  where  matters 
could  not  be  restored  on  either  side,  the  rule 
as  to  restitution  did  not  hold,  as  it  would 
have  been  unjust  to  restore  to  one  party  and 
not  to  the  other.  Gifts  by  the  friends  of  the 
new  married  pair  did  not  fall  under  the  rnle, 
but  are  divided  ;  Waugh,  Jan.  14, 1679,  M. 
6179.     But  the  case  of  such  a  prematnr* 

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dissolution  was  usually  regulated  by  a  special 
clause  ia  the  contract  of  marriage,  modifying 
or  altering  the  legal  rule.  See  Ertk.  B.  i. 
tit  6,  §  38,  etseq. 

By  the  act  18  Vict.,  c.  23, 1855,it  is  enacted, 
that  vhen  a  marriage  is  dissolved  before  the 
lapse  of  a  year  and  day  from  its  date  by  the 
death  of  one  of  the  spouses,  the  whole  rights 
of  the  survivor,  and  of  the  representatives  of 
the  predecessor,  shall  be  the  same  as  if  the 
marriage  had  subsisted  for  a  year  and  day. 

1.  By  the  death  of  the  wife. — If  there  has 
been  a  living  child  born  of  the  marriage,  and 
if  the  wife  has  left  no  heir  to  her  heritage 
by  a  former  marriage,  the  surviving  husband 
has  a  liferent  right  to  the  rents  and  profits  of 
the  wife's  heritable  estate,  which  is  called  the 
courtesy.  On  the  death  of  the  wife,  the 
goods  in  communion  also  suffer  a  division. 
Formerly,  where  there  were  no  children,  the 
free  goods  in  communion,  after  deduction  of 
debts,  were  divided  into  two  equal  parts,  one 
of  which  belonged  to  the  husband,  the  other 
k>  the  next  of  kin  of  the  wife,  unless  she  had 
destined  it  otherwise  by  a  testamentary  or 
other  deed.  Where  there  were  children  of 
the  marriage,  or  children  of  the  husband  by 
a  former  marriage  not  forisfamiliated,  one- 
third  only  was  the  wife's  share.  {Stair,  B.  i. 
tit.  4,  §  21.) 

By  the  act  18  Viot.,  c.  23, 1855,  where 
a  wife  predeceases  her  husband,  her  next 
of  kin,  executors,  or  other  representatives, 
whether  testate  or  intestate,  have  no  right 
to  any  share  of  the  goods  in  communion; 
and  no  legacy,  or  bequest,  or  testamentary 
disposition  thereof  by  the  wife,  will  affect 
the  goods  in  communion.  On  the  death 
of  the  wife,  the  children  have  no  claim 
to  legitim,  that  being  a  claim  which  arises 
only  on  the  death  of  the  father ;  but  for- 
merly,  if  they  were  of  age,  they  might 
have  insisted  for  an  immediate  dbtribution 
of  their  deceased  mother's  share  of  the 
goods  in  communion.  Where  the  chil- 
dren of  the  last  marriage  were  under  age, 
the  father,  as  their  administrator,  was 
entitled  to  the  management  of  this  share ; 
and  if,  in  the  course  of  such  management,  he 
became  insolvent,  before  having  accounted  to 
the  children  for  their  mother's  share,  they 
had  a  jut  crediti  to  the  extent  of  that  share, 
which  entitled  them  to  rank  on  their  father's 
bankrupt  estate.  But  before  they  could  so 
rank,  it  must  have  appeared  that  at  the  date 
of  the  dissolution  of  the  marriage  the  husband 
was  solvent,  and  that  the  sum  for  which 
they  claimed  to  be  ranked  was  no  more  than 
the  free  third  of  the  goods  in  communion. 
The  children  of  the  wife  by  a  former  mar- 
riage, who,  along  with  the  children  of  her 
last  marriage,  are  her  next  in  kin,  might  also 


have  insisted  for  their  proportron  of  their 
mother's  share  of  the  goods  in  communion 
immediately  on  the  dissolution  of  the  mar- 
riage ;  and  where  the  wife  had  no  children 
by  either  marriage,  her  next  in  kin  of  more 
remote  degrees  might  also  have  insisted  for 
an  immediate  distribution.  See  Brsk.  B.  i. 
tit.  6,  §  41.  See  also  Courtesy.  Jus  Retictce. 
Exeeutry.    Executors. 

2.  By  the  death  of  the  husband. — Where  the 
wife  has  no  conventional  provision,  she  has  a 
right  to  the  terce,  which  is  a  liferent  of  a 
third  of  the  heritage  in  which  the  husband 
died  infeft ;  1681,  c.  10.  She  has  abo  the 
jus  relict<e,  which  is  a  share  of  the  free  move- 
able estate,  or  goods  in  communion,  amount- 
ing to  one-half  where  there  are  no  children  of 
the  marriage,  or  where  the  husband  has  left 
no  children  by  a  former  marriage — and  to 
one-third  only  where  there  are  children.  The 
widow  has  also  a  claim  for  aliment,  from  the 
time  of  her  husband's  death  to  the  first  term 
of  payment  of  her  provision.  She  has  like- 
wise a  claim  to  mournings',  and  where  she 
is  delivered  of  a  posthumous  child,  she  is  en- 
titled to  the  expenses  attending  the  birth, 
&c.;  Ersk.  B.  i.  tit.  6,  §  41,  noU;  see  Mr 
Ivory's  edition,  note  172.  The  children,  on 
their  father's  death,  have  a  right  to  legitim, 
which  is  a  third  part  of  the  free  goods  in 
communion.  But  although  such  are  the  legal 
rules,  it  generally  happens  that  the  parties, 
instead  of  leaving  the  law  to  operate,  regulate 
their  own  rights  and  those  of  their  children 
by  special  contracts  of  marriage  or  other  set- 
tlements. In  that  case,  the  particular  con- 
tract or  deed  will  afford  the  rule,  where  it  is 
not  ultra  vires  of  the  contracting  parties ;  as 
to  which,  see  Contract  of  Marriage.  Legitim, 
Jus  Rdictce.     Terce. 

II.  Effects  of  dissolution  by  divorce. — The 
effects  of  the  dissolution  of  a  marriage  by 
divorce,  whether  on  the  ground  of  adultery  or 
of  wilful  desertion,  are  fully  explained  under 
the  article  Divorce.  See  also  Desertion.  The 
legal  or  conventional  rights  of  the  children  of 
the  marriage  are  not  altered  or  affected  by 
this  method  of  dissolving  the  marriage. 

Sefaratioit. — A  wife,  on  account  of  harsh 
usage,  may  sue  for  a  separate  maintenance ; 
which,  on  proving  the  husband's  misconduct, 
she  will  be  allowed ;  or  the  parties,  on  ac- 
count of  mutual  dissatisfaction,  or  from  other 
causes,  may  agree  to  live  apart.  The  amount 
of  the  allowance  made  on  these  occasions  is 
regulated  by  the  rank  and  fortune  of  the 
parties,  and  by  the  other  circumstances  of  the 
particular  case.  Where  the  terms  on  which 
the  spouses  are  to  separate  are  reduced  into 
writing,  the  deed  is  called  a  contract  of  sepa- 
ration. But  such  Tolnntary  separations  ar» 
revocable  at  any  time ;  for  no  snch  separation, 

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whether  judicial  or  rolnntary,  amonnts  to  s 
dissolution  of  the  marriage ;  and,  while  the 
marriage  subsists,  the  law  looks  unfavourably 
on  any  arrangement  adverse  to  the  inherent 
nature  of  the  institution.  See  Separation. 
And  see,  on  the  subject  of  this  article  gene- 
rally, Stair,  B.  i.  tit.  4;  Mare's  Notes,  p. 
xiii ;  Bank,  voL  i.  p.  105, 140 ;  BelPs  Princ. 
§  1506,  et  seq. ;  Illust.  ib. ;  Tov^,  May  14, 
1813, 1  Dow,  117 ;  Macadam,  May  17, 1813, 
1  Dow,  148.    See  Contract  of  Marriage. 

Maniage ;  was  a  casualty  in  wardholding, 
which  entitled  the  ward  superior  to  demand 
a  certain  sum  from  the  heir  of  his  former 
vassal,  on  the  heir's  marriage,  or  on  his 
becoming  marriageable.  Wardholding  was 
abolished  by  the  statute  20  Geo.  II.  c.  50 ; 
and  as  it  had  been  customary  for  superiors  in 
feu-rights  to  insert  a  clause,  declaring  that 
the  vassal  should  be  liable  in  the  casnalty  of 
marriage,  the  same  Btatute>  §  10,  prohibits 
such  a  clause,  and  declares  it  to  be  of  no 
force,  even  although  inserted  in  deeds  prior  in 
date  to  the  statute.  The  compensation  to 
superiors  who  may  suffer  by  the  retrospective 
operation  of  the  statuto  is  the  same  as  that 
provided  for  superiors  who  have  lost  by 
the  abolition  of  clauses  de  non  alienando. 
Stair,  B.  ii.  tit.  4,  §§  37-61 ;  More's  Notes,  p. 
ocviii. ;  Brsk.  B.  ii.  tit  5,  §§  18, 20,  21 ;  Bank. 
Tol.  i.  p.  637 ;  Karnes'  Stat.  Law  Abridg.  h.  t. ; 
BrovnCs  Synop.  h.  t.    See  Avail  of  Marriage. 

Marriage,  Claodeitiiie.  See  Clandestine 
Marriage. 

lEanruge-Contraot.    See  Contract  of  Mar- 


[arriage,  English,  Originally,  the  con- 
tract of  marriage  seems  to  have  been  as  little 
encumbered  with  forms  in  England  as  in 
Scotland.  But  by  the  Marriage  Act  of  1757, 
it  was  required,  under  pain  of  annulling  the 
marriage,  that  the  consent  of  parents  or 
guardians  should  be  given  to  the  marriage  of 
minors ;  and  that  there  should  be  publi- 
cation by  banns,  and  open  celebration  in  the 
parish  church,  or  in  a  chapel  in  which  mar- 
riage was  wont  to  be  celebrated.  The  rules 
have,  however,  been  considerably  relaxed  by 
recent  statutes ;  and  now  the  marriages  of 
diuentors,  such  as  Jews,  Quakers,  Roman 
Catholics,  and  other  sects  and  persuasions, 
may  be  legally  and  adequately  solemnized  in 
their  own  synagogues,  tabernacles,  chapels  or 
meeting-houses,  subject  to  certain  restrictions. 
It  is  now  the  law,  that  marritiges  may  be 
solemnized  not  only  in  churches  and  licensed 
Episcopal  chapels,  but  also  atplaces  of  worship 
registered  according  to  52  Geo.  III.,  c.  155, 
in  the  presence  of  a  registrar,  or  his  deputy, 
and  two  credible  witnesses,  or  at  the  oflBce  of 
a  superintendant-registrar,  in  his  presence, 
aad  in  the  presence  of  a  registrar  of  the  dis- 


^  ^ 


trict,  or  his  deputy,  and  of  two  credible  wit- 
nesses. The  parties,  solemnizing  marriage  in 
a  registered  building,  may  adopt  any  form  or 
ceremony  they  may  think  fit,  provided  that  in 
some  part  of  the  ceremony,  and  in  presence  of 
the  registrar  and  witnesses,  each  of  the  parties 
declares  as  follows:  "  I  do  solemnly  declare. 
That  I  know  not  of  any  lawful  impediment 
why  I,  A.  B.,  may  not  be  joined  in  matri- 
mony to  C.  D. ;"  and  each  of  the  parties  must 
say  to  the  other,  "  I  call  upon  these  persons 
here  present  to  witness  that  I,  A.  B.,  do  take 
thee,  C.  D.,  to  be  my  lawful  wedded  wife,  or 
hnsband."  Provision  is  also  made  for  the 
giving  of  notice  in  lieu  of  banns.  See  4  and  5 
WiU.  IV.,c  28;  6  and  7  WiU.  ir.,e.  85; 
1  VicU,  c.  22 ;  and  3  and  4  Via.,  c.  72. 

Marriages,  Segittratioii  o£— The  regis- 
tration of  births,  deaths,  and  marriages  is 
regulated  by  the  acts  17  and  18  Vict,  c.  80, 
1854 ;  18  Vict.,  c.  29, 1855 ;  and  19  and  20 
Vict.,c.  119, 1856. 

Martial  Law ;  that  branch  of  the  laws  (rf^ 
war  which  respects  military  discipline,  or  the 
government  and  control  of  persons  employed 
in  the  operations  or  for  the  purposes  of  war. 
Military  law  is  not  exclusive  of  the  eommoa 
law,  for  a  man,  by  becoming  a  soldier,  does 
not  cease  to  be  a  citizen ;  he  is  still  answer- 
able in  the  ordinary  courts  of  law  for  his  con- 
duct in  that  capacity.  Acts  are  passed  aonn- 
ally  for  the  government  of  the  forces,  naval 
and  military.  See  Court- Martial,  and  autho- 
rities there  cited.  Law  of  Arms.  See  Mutiny 
Act. 

Martinmat;  the  11th  of  November.  See 
Terms,  Legal  and  Conventional.     Whiistmdey. 

Mason  Lodges.  The  acts  37  Geo.  III.,  c 
123,  and  39  Geo.  III.,c  79,  against  unlawful 
societies,  were  declared  not  to  extend  to 
regular  lodges  of  Freemasons  which  were  in 
use  to  be  held  before  these  acts  were  passed. 
But  this  exemption  is  not  to  be  enjoyed  unless 
two  members  of  each  lodge  claiming  it  cer- 
tified, upon  oath,  before  any  justice  of  peace, 
or  other  magistrate,  that  such  lodge  had, 
before  passing  the  act,  been  usually  held  as  a 
lodge  of  Freemasons,  and  according  to  tiie 
rules  prevailing  among  such  lodges  in  this 
kingdom  ;  which  certificate,  attested  by  the 
magistrate,  and  subscribed  by  the  persons  cer- 
tifying, must,  within  two  months  after  iiie 
act  passed,  have  been  deposited  with  the  derk 
of  the  peace  for  the  plaM  where  such  lodge  is 
usually  held.  It  was  also  necessary  that  the 
name  of  the  lodge,  the  places  and  times  of  its 
meetings,  and  the  names  and  descriptions  of  all 
its  members,  should  be  registered  with  the 
clerk  of  the  peace  within  two  months  after 
passing  the  acts ;  and  this  must  still  be  done 
on  or  before  25th  March,  yearly.  The  clerk 
of  the  peace  is  directed  to  uy  such  cer- 


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tificate  and  registry  once  a  year  before  the  i 
general  Bessions,  who  may  order  any  lodge  to 
be  discontinued,  if  likely  to  be  injurious  to  the 
public  peace.  Like  most  other  societies  con- 
stitnted.  for  other  purposes  than  trade,  mason 
lodges  can  neither  sue  nor  be  sued  by  their 
office-bearers ;  Lodge  of  Lanark  v.  Hamilton, 
11th  June  1730,  Diet.  14,554.  Move's  Notes 
on  Slair,  ciii. ;  Bvtch.  Justice,  i.  303 ;  Taifs 
Justice,  341 ;  Blait's  Justice,  291 ;  Broum's 
Synop.  2264. 

■Alter  and  Servant  A  servant  may 
agree  to  serre  either  for  wages,  or  for  bed, 
board,  and  clothing,  &c.,  for  a  determinate 
time.  Where  this  engagement  is  to  continue 
for  one  year,  it  may  be  proved  by  witnesses ; 
where  it  is  meant  to  exceed  that  period,  it 
moat  be  established  by  writing.  A  servant, 
nndertaking  any  particular  work,  ought  to 
be  acquainted  with  ^the  work,  and  capable  of 
performing  it,  and  is  liable  for  any  loss  arismg 
from  his  want  of  skill,  or  carelessness.  But  if 
the  loss  or  delay  is  not  imputable  to  him,  he 
ia  entitled  to  his  full  wages.  A  servant  hired 
for  a  period  of  time  is  entitled  to  his  wages, 
thoagh  he  should  be  disabled  for  part  of  the 
time  through  sickness  or  accident.  This  has 
been  carried  the  length  of  one-fifth  part  of 
the  time,  in  an  agreement  for  a  year ;  Nov. 
29,  1794,  White.  If  he  dies  during  his  ser- 
vice, his  wages  are  due  only  to  the  day  of  his 
death.  W  here  the  master  dies,  the  servant  is 
entitled  towages  and  board-wages  to  the  next 
term.  The  same  happens  where  the  master 
turns  off  a  servant  between  terms,  or  without 
giving  the  servant  due  time  to  provide  himself 
with  a  place ;  but  in  these  cases,  as  the  ser- 
vant is  at  liberty  to  employ  his  time,  some 
allowance  ought  to  be  made,  according  to  cir- 
eomstances.  A  servant,  on  the  other  hand, 
who  deserts  his  service,  forfeits  his  wages,  and 
is  liable  in  damages,  as  well  as  to  a  fine. 
Servants'  wages  fall  under  the  triennial  pre- 
scription ;  and  when  it  appears  that  a  claim 
for  remuneration  is  substantially  a  claim  for 
wages  as  a  servant,  this  rule  holds,  although 
there  have  been  no  agpreement  as  to  the  remu- 
neration ;  Sneaie,  Feb.  25, 1835, 13  <S.  d;  D. 
644,  and  Nov.  17,  1835,  14  S.  db  D.  12. 
iSitotr,  B.  i.  tit.  9,  §  5 ;  Itor^s  Notes,  p.  Iviii. ; 
Ersk.  B.  iii.  tit.  3,  §  16 ;  BeWs  Com.  ii.  138 ; 
BMt  Princ  §  172,  a  seq.  ia  193,  630-2, 
2031 ;  lUust.  §  173,  et  seq.,  630 ;  Hutch. 
Just,  of  Peace,  vol.  ii.  p.  158 ;  Tait's  do.,  voce 
Servant;  Blair's  do.,  voce  Servant.  See  also 
'  Privileged  Debt.  Executor.  Locatum.  Work- 
man. Character  to  a  Servant.  Apprentice.  Pre- 
tcriptitm.  Triennial.     Warning  of  Servants. 

Masters  and  Worlcinen.    See  Worknum. 

Xaster  of  a  Ship.  The  shipmaster  is  the 
person  who  has  the  sole  direction  of  the  course 
and  conduct  of  the  ship.    The  shipmaster  of 


a  British  ship  most  be  a  British  subject,  but 
there  is  no  other  limitation ;  and  whoever 
holds  the  appointment  may  bind  the  owners  in 
relation  to  third  parties,  even  where  he  has 
not  been  appointed  by  the  owners  of  the  ship. 
While  at  home,  the  ship's-hnsband  has  the 
management  of  the  outfit ;  but  if  there  be  no 
ship's-husband  appointed,  and  the  owners  do  - 
not  take  the  management  into  their  own 
hands,  the  master  has  an  implied  power  to 
order  the  outfit.  While  at  home,  he  has  no 
power  to  freight  the  ship ;  but  when  the  ship 
is  advertised  for  general  freight,  he  has  full 
authority  to  receive  goods  on  board.  When 
abroad,  he  may  freight  the  ship,  and  take  the 
management  of  the  fitting  out,  victualling,  and 
manning  of  the  ship,  and  ordering  of  neces- 
saries. He  may  even  borrow  money  for  those 
purposes,  provided  the  bond  or  voucher  specify 
the  purpose  to  which  the  loan  has  been 
applied.  But  this  dangerous  power  is  not 
extended  beyond  what  falls  within  the  proper 
province  of  the  shipmaster.  He  may  hypothe- 
cate the  ship  for  necessaries.  His  fault  or 
neglect  binds  the  owners  to  the  extent  of  the 
value  of  the  ship;  and  he  himselfis  also  bound. 
He  may  be  dismissed  by  his  owners  at  once,  his 
only  remedy  being  an  action.  Ersk.  B.  iii. 
tit.  3,  §  43 ;  Stair,  B.  i.  tit.  13,  §  18  ;  Brodie's 
Sup.  953,  970 ;  Bank.  vol.  i.  p.  397,  et  seq.; 
BdPs  Com.  i.  505 ;  Hutch.  Just,  of  Peace,  iii. 
p.  194 ;  Jurid.  Sticks,  2d  edit.  vol.  ii.  p.  559 ; 
Bell's  Princ.  §  450;  lUust.  ib.  See  Ship. 
Nautce,  Caupones.  Exereitor.  Ship's-husband. 
Insurance. 

Master  of  the  Soils.    See  Rolls,  Master  of. 

Matertera ;  the  mother's  sister,  but  some- 
times improperly  taken  for  the  father's  sister. 
Skene,  h.  t. 

Maxims.  The  maxima,  particularly  of  the 
Roman  law,  are  of  great  value,  as  embodying 
important  legal  principles  in  concise  and  ap- 
posite language.  In  the  investigation  of 
legal  questions  involving  much  nicety,  and 
obscured,  it  may  be,  by  perplexing  details,  it 
not  unfrequently  happens  that  a  single  legal 
maxim  solves  the  difficulty,  and  enables  the 
lawyer  to  systematize  and  arrange  conflicting 
principles,  and  apparently  inextricable  invo- 
lutions of  fact.  In  the  present  work,  many 
law  maxims  have  been  included  in  the  alpha- 
betical arrangement;  but  at  the  hazard  of 
repetition,  the  principal  maxims  are  here 
brought  into  one  view, — referring  to  the 
separate  articles  for  full  expositions,  where 
such  have  appeared  to  be  necessary.  Observe, 
however,  that  several  of  these  maxims  have 
not  been  adopted  in  the  law  of  Scotland. 

Accessorium  sequitnr  principale. 

Accessorinm  sequitur  naturam  rei  cni  ae- 
oidit. 

Actio  personalis  moritnr  cum  persona. 

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Actio  pcenalis  in  hseredem  non  datnr  nisi 
ex  damno  locupletior  hsres  factus  sit. 

Actor  sequitur  forum  rei. 

Affirmanti,  non  neganti,  incumbit  probatio. 

Assij^natus  utitur  jure  anctoris. 

^dificatum  solo,  solo  cedit. 

Bona  fides  noo  patitur  ut  idem  bis  exigatur. 

Bona  fide  possessor  facit  fructus  consump- 
tos  sues. 

Casus  omissus  habetar  pro  amisso. 

Caveat  emptor. 

Certum  est  quod  certnm  reddi  potest. 

Ciiirographum  apud  debitorem  repertum 
prrosumitur  solutum. 

Cogitationis  poenam  nemo  patitur. 

Communis  error  facit  jus. 

Conditio  illicita  habetur  pro  non  adjecta. 

Consensus  non  concubitus  facit  matrimo- 
nium. 

Consensus  tollit  errorem. 

Consuetude  est  optima  legum  interpres. 

Contra  non  valentem  agere  non  currit  pne- 
scriptio. 

Corpus  humannm  non  recipitiestimationem. 

Crimina  morte  extingunntur. 

Cuilibet  in  arte  sua  credendum. 

Cuique  licit  juri  pro  se  introducto  rennn- 
ciare. 

Cujns  est  commodum,  ejus  debet  esse  in- 
eomroodum. 

Cujus  est  solum,  ejus  est  usque  ad  coelum. 

Cujus  est  dare,  ejus  est  ordiaare. 

Culpa  lata  dole  tequiparatur. 

Culpa  tenet  sues  auctores. 

Dans  et  retincns  nihil  dat. 

De  minimis  non  curat  Praetor. 

De  non  apparentibus,  et  non  existeutibns, 
eadem  est  ratio. 

Debitor  non  praesumitur  donare. 

Decimte  debentur  parocho. 

Delegatus  non  potest  delegare. 

Dies  incoeptus  pro  complete  habetar. 

Dies  incertus  pro  conditione  habetur. 

Dies  interpellat  pro  homine. 

Dolus  auctoris  non  noeet  successor!. 

Dominium  not  potest  esse  in  pendenti. 

Dominus  aliqnando  non  potest  alienare. 

Donatio  non  praesumitur. 

Ejus  est  periculum  cujus  est  dominium — 
ant  commodum. 

Ex  facto  oritur  jus. 

Exceptio  falsi  est  omnium  ultima. 
Exceptio  probat  regulam  in  casibus  non  ex- 
ceptis. 
Exceptio  quie  firmat  legem,  exponit  legem. 
Fiat  justitia,  mat  ceelum. 
Fraus  auctoris  non  nocet  snccessori. 
•   Fraus  latet  in  generalibus. 

Frostra  petis  quod  mox  es  restitntnras. 
Frustra  probator  quod  probatum  non  rele- 
yat. 
Qeneralibns  per  specialia  derogatur. 


Hffires  est  eadem  persona  oum  defnaeto— 
pars  antecessoris. 

Hteres  hteredis  mei  est  mens  hsres. 

Haeres  succedit  in  nniversnm  jus  quod  de- 
functus  habuit. 

Id  nostrum  solum  quod  debitis  dedactis  est 
nostrum. 

Id  tantnm  possumos  quod  de  jure  possmnuL 
Ignorantia  juris  ncminem  excusat. 

In  altemativis  electio  est  debitoris. 

In  Claris  non  est  locus  conjecturis. 

In  commercio  licet  decipere. 

lu  dubio  parsmitior  est  sequenda. 

In  dubio  pro  dote, — libertato — innoeentis 
— possessore,  debitore — reo— respondendum 
est. 

In  dubio  sequendum  qnod  tntius  est 

In  favorabilibus,  annus  incceptus  pro  com- 
pleto  habetur. 

Inturpi  causa  potiorestconditio  possidentis. 

Incommodnm  non  solvit  argnmentum. 

Jura  eodem  mode  destituuntur  quo  consti- 
tuuntur. 

Juris  execntio  non  habet  injuriam. 

Jus  publicum  priratorum  pactis  mutari  nob 
potest. 

Jus  in  re  inhaeret  ossibus  nsufruetnariL 

Jus  non  patitur  ut  idem  bis  solratar. 

Jus  Buperveniens  auctori  accrescit  succes- 
sor!. 

Legatum  generis  perlt  hseredi ;  — legatnia 
speciei  perit  legatario. 

Liber!  corporis  nulla  est  aestimatio. 

Locum  fact!  impnestabilis  aubit  damnui 
et  entcresse. 

Major!  incst  minus. 

Malitia  supplet  aetatem. 

Matrimonia  debent  esse  libera. 

Mcssis  sementem  sequitur. 

Minor  non  tenetur  placitare  super  hsredi- 
tate  paterna. 

Mortuus  snsit  virnm. 

Multa  impediunt  matrimoniuro  contrahen- 
dum  quae  non  dirimunt  contractum. 

Malta  non  retat  lex  quae  tamen  tseite 
damnavit. 

Nemo  cog!  potest  praecise  ad  factum,  sed  in 
id  tantum  quod  interest. 

Nemo  debet  ex  aliena  jactara  lucrari. 

Nemo  ex  suo  delicto  meliorem  suam  eondi- 
tionem  facere  potest. 

Nemo  mor!  potest  pro  parte  testatos,  pro 
parte  intestatus. 

Nemo  praesumitur  donare. 

Nemo  praesumitur  malus. 

Nemo  praesumitur  Indere  in  extremis. 

Nemo  tenetur  jurare  in  suam  turpitadi- 
nem. 

Non  oreditar  referent!  nisi  eonstet  de  re- 
late. 

Non  exemplis,  sed  legibus,  jodicandam. 

Noratio  non  prasumitur. 


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Nulla  sasina,  nulla  terra. 
Nanqiiam  concluditnr  in  falso. 
Nanqaam  prtescribitur  in  falso. 
Offioium  nemiui  debet  esse  damnosam. 
Omne  majus  in  se  continet  minus. 
Omnia  prtesumuntur  solenniter  acta. 
Pactis  privatis  publico  jurl  derogare  ne- 
quit. 

Pactum  de  assedatione  facienda  et  ipsa  as- 
sedatio  parificantur — prtecipue  si   possessio 
sequatur. 
Partes  rei  sunt  favorabiliores. 
Partus  seqnitur  ventrem. 
Pater  est  quern  nnptise  demonstrant. 
Paterna  patemis,  materna  mateniis. 
Patrem  sequitur  sua  proles. 
Patronum  faciunt  dos,  sdificatio,  fundus. 
Pendente  lite  nihil  innovaudum. 
Periculum  rei  venditse,  nondum  tradita;, 
est  emptoris. 

Plus  valet  quod  agitur  quam  quod  simulate 
concipitur. 

Posteriora  derogant  prioribus. 
Potior  est  conditio  possidentis — prohibentis 
— defendentis. 

Primus  actus  judicii  est  judicis  approbato- 
rius. 

Prior  tempore  potior  jure. 
Probatis  extremis  praesumuntur  media. 
Pro  possessore  habetur  qui  dolo  desiit  pos- 
sidere. 

Prorisio  faominis  tollit  provisionem  legis. 
Quae  temporalia  ad  agendum,  sunt  per- 
petua  ad  excipiendum. 

Quem  sequitur  commodum,  eum  etiam  se- 
qnitur incommodnm. 

Qui  approbat  non  reprobat. 
Qui  cum  alio  contrahit,  vel  est,  vel  debet 
esse  conditionis  ejus  non  ignarus. 
Qui  facit  per  alium  facit  per  se. 
Qui  in  utero  est,  pro  jam  nato  habetur, 
qnoties  de  ejus  commodo  quaeritur. 
Qui  non  habet  in  sere  luat  in  corpore. 
Qui  providet  sibi  providet  hseredibus. 
Qui  Buum  recepit,  licet  a  non  sue  debitore, 
non  tenetur  restituere. 

Qui  tacet,  consentire  videtnr. 
Quisquis  est  rei  suae  moderator  et  arbiter. 
Quod  fieri  debet  facile  praesumitur. 
Quod  fieri  non  debet  quandocunque  factum 
valet. 

Quod  inesse  debet  inesse  praesumitur. 
Quod  meum  est,  sine  me  alienum  fieri  ne- 
qnit. 

Quod  nullius  est,  fit  domini  regis. 
Quod  nullius  est,  fit  occupantis. 
Qnod  statim  liquidari  potest,  pro  jam  li- 
quido  habetur. 

Reipublicae  interest  voluntates  defunctorum 
effectum  sortiri. 

Res  inter  alios  acta,  aliis  neque  nocet, 
neque  prodest. 
2h 


Res  Judicata  pro  veritate  ac^ipitur. 

Resolute  jure  dantis,  resolvitur  jus  acci- 
pientis. 

Res  perit  domino. 

Res  sua  nemiui  servit. 

Scire  debes  cum  quo  contrabis. 

Scire  et  scire  debere  asquiparantur  injure. 

Semel  baro,  semper  baro. 

Si  ingratum  dixeris  omnia  dixeris. 

Socius  mei  socii  non  est  meus  socius. 

Spoliatus  ante  omnia  restituendus. 

Summum  jus,  summa  injuria 

Surrogatum  sapit  naturam  surrogate 

Testimonia  ponderanda  sunt,  non  numer- 
anda. 

Traditionibus  et  usucapionibns,  non  nudis 
pactis  dominia  rerum  transferuntur. 

Tutor  in  rem  suam  auctor  fieri  non  potest. 

Tutor  datur  personie — curator  rei. 

Tutor  prsesumitur  intus  habere,  ante  red- 
ditas  rationes. 

Unumquodque  eodem  modo  dissolvitur  quo 
coUigatur. 

Utile  per  inutile  non  vitiatnr. 

Uxor  sequitur  domicilium  viri. 

Venditor  nominis  tenetur  prsestare  debi- 
turn  subesse,  non  vero  debitorem  locupletem 
esse. 

Verba  interpretanda  sunt  contra  proferen- 
tem. 

Veritas  convicii  non  excusat  a  calumnia. 

Vigiiantibus,  non  dormientibus,  jura  sub- 
veniunt. 

Volenti  non  fit  injuria. 

Voluntas  est  ambulatoria  usque  ad  mor- 
tem. 

Hayor ;  the  chief  magistrate  of  a  city  or 
town-corporate  in  England.  Tomlins'  Diet, 
h.t. 

KeasiiTemeiit  The  effect  of  a  sale  of 
laud  by  measurement  depends  upon  the  ques* 
tion,  whether  the  measurement  is  taxativeor 
exegetical  in  its  terms.  Whenever  it  appears 
that  the  measurement  forms  part  of  the  con- 
tract, and  is  looked  upon  by  the  parties  as  au 
essential  condition,  the  purchaser's  right  is 
confined  by  that  measurement  as  by  a  bound- 
ing description ;  but  if  the  measurement  is 
merely  spoken  of  in  advertisements,  or  ap- 
pears upon  a  plan  or  survey  of  the  estate,  as 
giving  a  general  idea  of  the  extent  of  the 
estate,  the  purchaser  is  not  bound  or  entitled 
to  consider  it  as  a  condition,  or  as  relieving 
him  of  his  obligation  to  satisfy  himself  by  his 
own  inquiries.  In  one  case  it  was  held  that 
infeftment  in  a  mill  and  four  acres  of  land 
was  demonstrative  and  not  taxative,  and  en- 
titled the  holder,  with  immemorial  possession, 
to  resist  a  removing  from  land  beyond  the 
four  acres ;  Douglas,  Feb.  2, 1630,  M.  2262. 
In  leases,  it  is  often  a  difficult  question, 
whether  or  not  the  measurement  given  of  the 

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farm  ia  intended  to  be  taxativo ;  and  it  has 
been  recommended  that  a  measurement  onght 
never  to  be  admitted  into  the  description 
without  some  qualifying  words,  to  show  that 
the  contents  are  expressed  in  a  demonstrative 
sense  only.  It  is  not  settled  what  would  be 
the  effect  of  a  false  measurement, — whether 
it  would  invalidate  the  lease  or  give  a  ground 
for  abatement  of  the  rent ;  Bdmer  r.  Hogarth, 
March  11, 1830,  8  S.dtD.  716;  considered 
in  the  Honse  of  Lords  in  1832— see  lOS.ttD. 
862.  See  Quanti  minoris.  The  measurement 
of  a  commodity  sold  is  often  an  important 
element  in  the  question  of  the  delivery  of  the 
commodity,  and  consequent  transfer  of  the 
property.  BeWt  Com.  \.\8l;  ii.  284;  Broum 
on  SaU,  44  et  $eq. ;  Bell  on  Leates,  i.  201 ; 
Hunter't  Landlord  and  Tenant,  290.  See 
WeighU  and  Meaturet. 

Medioal  Certifleate.    See  Certificak. 

Mtdioal  Juriipnidenee ;  is  the  applica- 
tion of  the  principles  of  medical  science  to 
the  administration  of  justice  and  the  preser- 
vation of  the  public  health.  The  subjects 
with  which  chiefly  it  is  conversant  are,  the 
development  of  the  human  frame  ;  the  dura- 
tion of  life  ;  personal  identity ;  marriage ; 
impotency ;  pregnancy ;  paternity ;  presump- 
tion of  survivorship  ;  mental  alienation  ; 
nuisances ;  detection  of  forgery  and  coining 
by  chemical  tests ;  rape ;  murder ;  poison, 
and  the  like.  See  a  full  article  on  this  sub- 
ject, Enc.  BriL  See  also  Paris  and  Fonblanque, 
London,  1823 ;  Beck  on  Medical  Jurisprudence, 
by  Dvnlop,  7th  edit.,  1842  ;  Chrittiton  on 
Poitont,  4th  edit.,  1845 ;  Wharton  and  StilU 
on  Med,  Jur.,  1855 ;  Taylor's  Med.  Jur.,  6th 
edit.,  1858;  Taylor  on  Poisons,  2d  edit., 
1859. 

KedietM  Lingns ;  in  Knglish  law,  a  jnry, 
half  natives,  half  foreigners,  used  in  pleas 
between  a  foreigner  and  a  denizen.  Tomlins^ 
Diet.h.t. 

Mtditatio  FngSB.  When  a  creditor  is  in 
circumstances  to  make  oath  that  his  debtor, 
whether  native  or  foreigner,  is  <»  meditations 
fttgce  in  order  to  avoid  the  payment  of  his 
debt,  or  where  be  has  reasonable  ground  for 
apprehending  that  the  debtor  has  such  an 
intention,  it  is  competent  for  the  creditor  to 
apply  to  a  magii>trate,  who,  on  inquiring  into 
the  circumstances,  and  finding  reason  to  be- 
lieve that  the  creditor's  application  is  well 
founded,  will  grant  a  warrant  for  apprehend- 
ing the  debtor  for  examination ;  and  may 
afterwards  grant  warrant  to  imprison  him 
until  he  find  caution  jvdicio  sisti.  But  should 
the  creditor  have  proceeded  without  sufficient 
grounds  for  his  application,  he  will  be  liable 
in  damages ;  and  even  the  judge  who  incau- 
tiously and  illegally  grants  such  a  warrant 
incurs  a  similar  responsibility.   See  Ersk.  B.  i. 


tit.  2,  §  21.  This  application  is  of  a  mm- 
mary  nature,  and  may  be  presented  to  any 
magistrate  or  judge  ordinary  ;  to  the  Court 
of  Session, —  the  sheriff, — magistrates  of 
burghs, — justices  of  peace,  and  when  tbe 
debtor  is  in  the  Sanctuary,  to  the  bailie  of 
the  Abbey.  The  last  reported  case  of  an 
application  made  to  the  Court  of  Session  in 
the  first  instance  was  in  the  year  1700 ;  but 
Hutcheson  mentions  a  case  which  occurred  in 
1795 ;  Hutch,  i.  432.  In  general,  the  appli- 
cation is  made  to  a  magistrate  exercisisg 
authority  within  thebounck  wheVe  the  debtor 
resides.  If  he  has  left  that  jorisdictioo,  he 
may  be  apprehended  in  any  other  place,  on 
the  warrant  being  indorsed  by  a  magistrate 
exercising  jurisdiction  in  the  new  territory; 
and,  on  being  apprehended,  he  may  be  trans- 
mitted to  the  first  magistrate  for  examination. 
The  concurring  magistrate  cannot  commit  the 
debtor :  to  give  him  that  power,  there  most 
be  an  original  application  to  himself.  When 
the  creditor  is  a  company,  one  of  the  partners 
of  the  company  must  mtJie  oath.  W  hen  the 
creditor  resides  out  of  Scotland,  the  applica- 
tion is  made  in  his  name ;  but  he  must  hsre 
a  mandatary  in  Scotland.  (See  Ma*iaimj.) 
The  creditor  must  make  an  aiBdavit  before 
a  qualified  person,  and  the  mandatary  ooght 
to  make  a  corroborative  affidavit  before  tbe 
magistrate  in  Scotland.  There  ia  no  neces- 
sity to  produce  a  ground  of  debt — a  claim  of 
debt  attested  by  the  affidavit  of  the  creditor 
is  sufficient.  It  is  not  necessary  that  tlie 
debt  be  constituted  by  bill  or  decree,  or  that 
it  be  past  due  and  payable.  The  Court  has 
allowed  this  remedy  even  in  cases  in  which 
the  debt  was  contingent ;  but  an  application 
for  warrant  to  incarcerate  a  person  as  »» 
meditations  fugoe,  till  he  found  security  not 
only  for  certain  arrears  and  current  rents, 
but  for  the  prospective  rents  under  a  lease 
having  filteen  years  to  run,  was  held  to  be 
irregular,  and  damages  were  awarded;  if'Gti/, 
March  17, 1837, 16  S.  882.  The  debt  must 
in  all  cases  be  specific,  that  the  cautioner  may 
know  the  extent  of  his  obligation.  The  cir- 
cumstances which  led  the  creditor  to  believe 
that  the  debtor  means  to  fly  the  country 
must  be  stated,  and  the  creditor's  oath  mast 
bear  this  out.  Without  this  statement  and 
oath,  both  the  creditor  and  judge  wonid  be 
exposed  to  a  claim  of  damages  at  the  instance 
of  the  debtor,  were  imprisonment  to  take 
place.  But  in  the  special  case,  where  the 
debtor  on  examination  admitted  the  debt  and 
his  intention  to  leave  the  country,  the  war- 
rant of  committal  was  supported  without  the 
creditor's  oath.  It  is  improper  for  the 
magistrate  to  delegate  to  any  one  the  taking 
of  the  creditor's  oath,  or  the  examination  of 
the  debtor.    The  reasons  of  belief  must  be 

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8ii6Scient  to  satisfy  the  judge.  Immediately 
on  the  application  to  the  judge,  if  the  grounds 
of  suspicion  be  pregnant,  he  grants  a  sum- 
mary warrant  for  apprehending  the  debtor; 
and,  on  his  apprehension,  he  ought  to  be 
examined  by  the  judge  ;  and  it  is  from  the 
circumstances  as  appearing  on  that  examina- 
tion that  the  judge  will  be  enabled  to  deter- 
mine as  to  the  propriety  of  granting  a  warrant 
of  imprisonment.  The  creditor's  oath  is 
taken  as  prima  facie  evidence  of  the  ex,istencp 
of  the  debt.  But  when  the  debtor  denies  his 
Intention  to  leave  the  country,  and  admit-s  no 
suspicious  circumstances,  the  magistrate  ought 
not  to  commit  without  further  evidence. 
Where  the  debtor  has  not  sufficiently  ex- 
plained himself  on  his  first  examination, 
he  may  apply  for  another.  When  a  proof 
is  to  be  taken,  the  debtor  may  be  detained 
on  a  warrant  during  the  time  of  prov- 
ing ;  and  he  is  sometimes  committed  till  he 
find  caution  to  abide  the  i^ue.  In  either 
case,  he  must  he  liberated  on  finding  cau- 
tion to  abide  the  issue.  It  is  not  a  suffi- 
cient ground  for  this  warrant  that  the 
debtor  means  to  remove  from  one  place'  of 
the  country  to  another;  he  must  have  in- 
tended to  leave  Scotland.  But  it  may  be 
granted  wherever  there  is  a  real  intention  to 
leave  the  country,  even  although  the  debtor 
should  have  a  good  reason  for  going,  and  no 
fraudulent  design.  So  far,  indeed,  has  this 
been  carried,  that  an  officer  proceeding  to 
join  his  regiment  abroad  was  found  liable  to 
be  arrested  on  a  mediiatio/uga  warrant.  But 
the  Court  hare  more  recently  disapproved  of 
that  extension  of  the  doctrine  ;  Bryton,  10th 
March  1812,  Fac.  CoU.  and  App.  to  Mot.  A 
meditatio  /ug(e  warrant  cannot  be  granted 
upon  a  debt  below  the  statutory  sum  for 
which  a  debtor  can  be  incarcerated  ;  Mar^ll 
r.  Dobson,  Dec.  18,  1844,  7  D.  232. 

The  meditatio  fugcBvaxTtint  is  given  equally 
against  a  foreigner  as  a  native.  There  has 
been  considerable  fluctuation  in  the  decisions 
as  to  what  will  be  sufficient  to  expose  a  for- 
eigner to  this  warrant.  But  there  must  at 
all  events  exist  the  grounds  of  jurisdiction  for 
an  ordinary  action  at  law.  The  cases  relative 
to  the  application  against  a  foreigner  are  col- 
lected by  Mr  Barclay,  in  his  treatise  on  medi- 
tatio fvgoi;  and  the  conclusions  at  which  he 
arrives  on  a  review  of  these  cases  are,  That 
a  foreigner  is  subject  to  the  operation  of  this 
warrant — \it.  Where  he  has  acquired  a  legal 
domicile  by  forty  days'  fixed  residence  in 
Scotland,  whether  the  debt  be  foreign  or  not ; 
2<{,  He  is  liable  to  be  attached  for  Scotch 
debts,  even  where  he  has  not  acquired  a 
domicile ;  and  this  rule  is  strengthened  if 
the  debts  have  been  contracted  since  his  last 
arrival ;    3i,   Where  he  has  left  another 


country  to  avoid  his  creditors,  and  is  in  this 
country  not  with  the  intention  of  fixing  his 
residence  here,  but  with  the  view  of  avoiding 
his  creditors;  and  in  this  case  he  may  be 
attached  by  foreign  as  well  as  by  Scotch 
creditors.  The  possession  of  a  landed  estate 
in  Scotland  has  no  effect  upon  his  liability. 
It  would  appear  that  a,  mediialio  fugoe  vtir- 
rant  cannot  be  competently  taken  out  against 
a  foreigner  not  resident  in  this  country,  but 
on  a  journey  of  pleasure  or  of  business,  with 
no  intention  of  defrauding  his  creditors; 
BeWs  Com.  ii.  563;  Barclay,  57.  This  war- 
rant differs  from  the  ordinary  personal  dili- 
gence of  the  law,  in  so  far  that,  being  qvo- 
dammodo  criminal,  it  may  be  executed  on 
Sunday  as  well  as  on  any  ordinary  day.  It 
may  also  be  executed  within  the  Sanctuary  of 
Holyroodhouse,  in  which  case  the  concurrence 
of  the  bailie  of  the  Abbey  is  necessary.  Nor 
will  a  personal  protection  under  the  Bankrupt 
Statute  be  any  safeguard.  Those,  however, 
who  are  exempted  from  imprisonment  by 
privilege,  are  free  from  the  effects  of  the 
warrant ;  because  it  is  a  mere  auxiliary  to 
the  right  of  imprisoning  the  debtor.  When 
a  debtor  is  imprisoned  on  a  meditatio  fugoe 
warrant,  he  is  imprisoned  for  custody  only, 
not  that  he  may  be  compelled  to  pay  by  the 
squalor  carcerit ;  and  therefore,  although  the 
magistrates  should  suffer  him  to  escape,  yet, 
if  they  recover  his  person  in  time  to  produce 
him  at  the  requisite  diets  of  court,  they  will 
not  be  liable  to  the  creditor  in  any  damages, 
or  for  the  debt.  This  distinction  between  in- 
carceration for  debt  and  on  a  meditatio  fug<8 
warrant  was  fixed  in  the  case  Broum,  Nov. 
16, 1792,  Mor.  11,763.  Relief  from  the  im- 
prisonment on  this  warrant  is  obtained  by 
the  debtor  finding  caution  judido  sisti.  See 
Caution  judicio  sisti.  The  law  upon  this  sub- 
ject has  been  very  ably  digested  by  Mr  Bar- 
clay in  his  treatise  on  meditatio  fugoe  warrants, 
in  the  appendix  to  which  styles  are  given  of 
the  petition  and  other  procedure.  See  also 
BeWs  Com.  ii.  557,  et  teq. ;  Ersk.  B.  ii.  tit.  1, 
§  21,  and  notes  by  Mr  Ivory ;  Stair,  B.  iv.  tit. 
47,  §23;  Bell's  Princ.  §2309  ;  Shand'sPrac. 
p.  604 ;  Macfarlane't  Jury  Court  Practice, 
p.  69  ;  Eutch.  Justice  of  Peace,  i.  424 ;  Taie$ 
do.,  h.  t. ;  Blair's  do.,  h.  t. ;  Ross's  Led.,  i.  346 ; 
Kamef^  Equity,  289 ;  Thomson  on  BiUs,  577. 
See  Arrestment  of  Persons.  Cautionary.  Dili- 
gence. Imprisonment.  Prison. 
Medium  Impedimentiun.    See  Mid-Im- 


Helioratioiu.     Questions  as  to  a  claim  for 
the  expense  of  improvements  upon  land  may 

be  raised  in  three  different  situations :  when 
the  improvements  have  been  made  under  a 
lease;  when  they  have  been  made  under  a 
deed  of  entail ;    and  when  they  have  been 

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mftde  on  a  liferented  estate.  1.  Mdioratiotu 
undsr  a  lease. — When  a  tenant,  of  his  own  ac- 
cord, expends  money  and  labour  in  the  im- 
provement of  his  farm,  this  is  presumed  to  he 
done  not  for  the  permanent  benefit  of  the 
farm,  but  for  his  own  use  during  the  re- 
mainder of  his  lease.  A  tenant  therefore  is, 
in  general,  held  not  entitled  to  any  recom- 
pense for  such  improvements.  (See  Fences. 
Fixtures.  Houses.)  Where,  however,  a  ten- 
ant makes  improvements  in  contemplation  of 
his  lease  subsisting  for  the  full  period,  and  it 
happens  to  be  terminated  abruptly,  he  is  in 
equity  entitled  to  recompense,  when  the  land- 
lord can  be  proved  lucratus  by  the  transaction. 
In  urban  subjects,  a  distinction  is  taken 
between  the  expense  of  ornaments  or  mere 
conveniences,  and  of  necessary  repairs.  The 
tenant  has  no  claim  for  the  former  without 
express  stipulation ;  but  be  is  entitled  to  be 
compensated  for  the  latter.  (See  RqMirs.) 
These  are  the  rules  when  there  has  been  no 
stipulation ;  but  it  is  usual  to  make  repairs 
and  meliorations  the  subject  of  express  agree- 
ment. A  clause  binding  the  landlord  to 
make  the  necessary  meliorations  is  binding 
on  the  heir  in  the  first  instance  ;  but  the  les- 
see will  have  a  claim  against  the  executors,  if 
he  cannot  obtain  implement  from  the  heir. 
An  heir  of  entail  succeeding  is  not  liable  at 
common  law  to  implement  stipulations  fur 
improvements  entered  into  by  the  heir  in  pos- 
session ;  but  he  may  be  made  liable  to  a  certain 
extent,  by  the  exercise  of  the  statutory  powers 
(see  infra.  No.  2).  A  clause  in  a  lease  oblig- 
ing the  lessor  to  make  meliorations,  or  to 
allow  the  lessee  a  sum  for  that  purpose,  or  to 
reimburse  him  for  outlay,  will  be  binding 
upon  singular  successors;  Arbuthnoi,  Feb.  5, 
1772,  M.  10,424 ;  StoUs,Veh.  20, 1817,  F.C. 
See  also  Stewart  v.  M'Ra,  Nov.  12,  1834, 
1.3  S.  4.  An  obligation  upon  the  tenant  to 
nphold,  with  a  right  to  indemnification  of 
any  excess  of  value  in  additions,  limits  the 
tenant  to  the  mere  rebuilding  or  reparation 
of  what  becomes  ruinous,  and  to  the  making 
of  necessary  or  suitable  improvements,  but 
gives  no  right  to  pull  down  old  houses  or 
erect  new  ones,  not  necessary  or  suitable  to 
the  farm.  Express  clauses  supersede  local 
customs,  as  to  indemnification  for  meliorations. 
An  obligation  on  the  tenant  to  meliorate  or 
repair,  if  not  implemented  by  himself,  falls 
upon  his  representatives.  But  the  burden 
falls  upon  an  assignee  or  a  sub-lessee,  whether 
acknowledged  by  the  landlord  or  not. 

2.  Mdiorations  by  an  heir  in  possession. — 
Certain  statutory  powers  have  been  conferred 
upon  heirs  of  entail  in  possession,  by  the  exer- 
cise of  which  they  may  throw  a  proportion  of 
the  expense  of  improvements  upon  the  sub- 
stitutes ;  10  Gm.  in.,  c.  51,  §§  9-26.    But  the 


heir  in  possession  under  a  strict  entail  has  no 
means  of  burdening  succeeding  heirs  with  the 
price  of  meliorations,  except  by  complianoe 
with  the  terms  of  this  statute.  The  act  pro- 
vides, tha.t  any  heir  of  entail,  laying  oat 
money  in  improvements,  shall  be  a  creditor  to 
the  succeeding  and  subsequent  heirs  of  entail 
for  three-fourths  of  the  money  expended,  to 
the  extent  of  four  years'  free  rent  of  the  en- 
tailed estate,  after  deducting  liferents,  and 
public  burdens,  and  interest  of  debts,  provided 
he  give  notice  in  writing  to  the  heir  of  entail 
next  after  his  own  issue,  three  months  before 
commencing  his  improvement,  of  the  kind  of 
improvement  intended ;  and  lodge  a  copy 
with  the  sherifF-clerk  ;  and  annually,  within 
four  months  after  Martinmas,  lodge  with  the 
sheriff-clerk  an  account  signed  by  him,  with 
the  vouchers  of  the  money  expended  that 
year.  The  Rutherfurd  Act  provides  for  im- 
provements not  executed  in  terms  of  the 
Montgomery  Act;  see  act  11  and  12  Viet., 
c.  36,  §  16,  1848.  See  Tailxie.  Mansioih 
House. 

3.  Mdiorations  on  a  liferent  estate, — A  life- 
renter  is  bound  to  pay  the  interest  of  money 
laid  out  on  necessary  repairs  of  the  liferented 
tenement.  If  the  subject  fall  into  decay  or  be 
destroyed  by  accident,  neither  the  liferenternor 
the  flar  will  be  bound  to  repair  or  rebaild;  and 
the  liferenter  may  continue  to  draw  the  rent 
of  the  subject  such  as  it  remains.  If,  how- 
ever, the  fiar  should  repair  or  rebuild  the 
house,  the  liferenter  cannot  possess  it  without 
paying  the  interest  of  the  money  expended. 
Laird  v.  Fenwick,  Feb.  10,  1807  ;  J^.  Aff. 
voce  Liferenter.  See  Liferent.  See  generally, 
on  the  subject  of  this  article,  Stair^  B.  i.  tit 
15,  §  6 ;  B.  ji.  tit.  1,  §  40 ;  More's  Notet, 
p.  clxxx. ;  Ersk.  B.  ii.  tit.  9,  §  60,  notes  by  Mr 
Ivory :  Bdl's  Com.  i.  74,  82 ;  Addenda,  No. 
vi. ;  Bdl's  Princ.  §§  1253, 1062,  1768 ;  lUM. 
ib. ;  Hunter's  Landlord  and  Tenant,  579 ; 
Karnes'  Equity,  111.  See  Lease.  Taihie. 
Fixtures.    Fences.     Improving  Lease. 

Melletum;  strife,  dissension,  debate.  SteM, 
h.i. 

Members  of  Parliament.  The  members 
of  the  House  of  Commons  are  usually  so  styled, 
although,  strictly  speaking,  the  Peers,  as  well 
as  the  representatives  of  the  Commons,  are 
members  of  Parliament.  Ersk.  B.  i.  tit  2,  § 
24 ;  tit.  3.  §  7  :  B.  iii.  tit.  1,  §29,  and  notes 
by  Mr  Ivory ;  Bdl's  Com.  ii.  166, 175, 569; 
Bdl's  Princ.  §§  2150,  2194-5,  2201;  Kame)^ 
Stat.  Law  Abndff.  h.  U  ;  Watson's  Stat.  Law, 
voce  Parliament;  Taifs  Justice  of  Peace,  voce 
Imprisonment;  Brown's  Synop.  h.  t,  and  p. 
2168.  As  to  the  qualifications  for  electing 
or  being  elected,  a  representative  of  either  the 
Peerage  or  Commons  of  Scotland  in  the 
British  Parliament,  see  Election  Law.   Rtfem 


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MES 


565 


Act.  As  to  the  privileges  and  usages  of  Par- 
liament, see  Parliament.    Privilege. 

Memoraadiim.  It  appears  to  be  settled  in 
the  law  of  England,  that  a  memorandum, 
written  either  on  a  bill  or  note,  or  on  a  sepa- 
i^te  paper,  with  the  consent  of  parties  before 
they  subscribe,  may  limit  or  do  away  with 
the  effect  of  the  instrument  in  questions 
between  the  original  parties,  but  not  against 
a  bona  fide  onerous  indorsee.  The  memoran- 
dum has  this  effect  only  when  proved  to  have 
been  written  before  the  subscription  of  the 
bill  or  note  ;  and  a  memorandum  annexed  to 
a  promissory-note,  specifyiug  a  particular 
place  of  payment,  is  not  in  any  case  to  be 
held  as  part  of  the  note,  or  as  limiting  its 
operation.  See  this  subject  fully  discussed  in 
Thotmon  on  Bills,  12,  384.  As  to  the  memo- 
randum in  a  policy  of  insurance,  see  7n- 
turanee. 

Kenemiun ;  "the  timmer  of  a  house." 
Scene,  h.  t. 

Henetmn ;  a  stock  horn.    iSiib«n«,  h.  t. 

Kensal  CliiircL  This  was  a  term  applied, 
daring  the  times  of  Episcopacy,  to  a  church 
that  had  been  appropriated  by  the  patron  to 
the  bishop,  and  made  thenceforth  part  of  his 
own  benefice.  Mensalia;  livings  united  to 
the  tables  of  religious  houses.  These  terms 
were  derived  from  mensa,  which  signified 
everything  necessary  for  living.  Ersk,  B.  ii. 
tit.  10,  §  11 ;  Stair,  B.  ii.  tit,  8,  §§  27  and  35  ; 
Hutch.  Justice  of  Peace,  ii.  426. 

Mercantile  Contracts ;  are  excepted  from 
the  solemnities  required  by  law  in  other  deeds. 
See  Evidence.  Re  Mercatoria. 

Hercantile  Writings.  See  Deeds.  Evi- 
dence. Privileged  Deeds.  Writings  in  Re  Mer- 
catoria, 

Merchant  Company.  SeeGuildry.  Dean  of 
Guild. 

Merchant  Seamen.  The  statutes  relating 
to  merchant  seamen  are  the  7  and  8  Vict., 
c.  112, 1844 ;  13  and  14  Vict,  c.  93,  1850 ; 
14  and  15  Vict,  c.  96, 1851.  The  Merchant 
Seamen's  Relief  Act  is  the  4  and  6  Will.  IV., 
c.  52,  1834 ;  and  the  Mercantile  Marine  Pas- 
$engers  Act  is  the  15  and  16  Vict.,  c.  44, 1852. 
The  act  relating  to  the  regulating  of  steam 
navigation  is  the  14  and  15  Vict.,c.  79, 1851. 

Merchants'  Accounts.  See  Accounts.  Pre- 
tartptiou.  Triennial.    Evidence. 

Mexcj,  Recommendation  to.  A  jury  is  not 
entitled,  in  those  cases  in  which  the  law 
seems  to  be  rigorous,  to  return  a  verdict  of 
acquittal  in  opposition  to  law.  Their  only 
course  is  to  point  out,  in  a  recommendation  to 
mercy,  the  circumstances  which  make  the 
legal  punishment  of  the  panel  severe  in 
some  peculiar  case,  and  which  therefore  call 
for  equitable  consideration.  Hume,  i.  496  ; 
Steele,  223. 


Merk ;  an  old  Scotch  coin  of  the  value  ot 
thirteen  shillings  and  fourpence  Scotch,  or 
one  shilling  and  one  penny  and  four-twelfths 
of  a  peuny  sterling.    See  Scotch  Money. 

Herk  per  Ton ;  one  of  the  sources  of  emo* 
lument  of  the  eighteen  endowed  ministers 
of  the  city  of  Edinburgh.  This  assessment 
is  levied  in  virtue  of  an  act  of  Parlia- 
ment, dated  22d  March  1661.  See  Annuity- 
Tax. 

Mese ;  of  herring,  contains  five  hundred. 
Skene,  h.  t. 

Messenger-at-Arms ;  an  o£Scer  appointed 
by  and  under  the  control  of  the  Lyon  King- 
at-Arms.  (See  Lyon.)  Messengers-at-arms 
are  said  to  be  subservient  to  the  Supreme 
Courts  of  Session  and  Justiciary,  and  they 
are  employed  in  executing  all  summonses  and 
letters  of  diligence,  both  in  civil  and  criminal 
matters.  Our  signet  letters  seem  to  have 
been  devised  by  the  judges  of  the  King's 
Court  to  supply  the  ancient  writs  of  the  law, 
and  they  were  constantly  directed  to  mes- 
sengei-s-at-arms,  as  sheriff's  in  that  part  It  is 
the  character,  therefore,  of  sheriff  in  that 
part  which  has  placed  this  duty  in  the  hands 
of  messengers-at-arms.  Messengera  and  their 
cautioners  are  liable  for  damage  occasioned 
by  their  undue  or  defective  execution  of  dili- 
gence ;  but  they  are  not  liable  for  the  loss  uf 
the  debt  until  it  has  been  constituted  against 
the  debtor.  It  is  incompetent  for  a  mes- 
senger to  execute  diligence  for  his  own  behoof 
and  that  of  another  party,  on  a  bill  which  he 
has  indorsed ;  Dalgleish,  June  18,  1822,  1  S. 
&  D.  506.  A  messenger  cannot  be  a  procu- 
rator before  a  sheriff-court;  Bowhill,  June  2, 
1825,  i  S,  d;  D.  61.  In  a  simple  reduction 
of  a  decree  of  suspension,  the  party  who  had, 
as  messenger,  signed  the  execution  of  inti- 
mation of  sist,  but  was  subsequently  deprived 
of  his  office,  was  allowed  to  be  called  as  a 
witness  to  disprove  his  own  execution,  and 
these  circumstances  were  held  only  to  affect 
his  credibility;  ^«M»«o»,Dec.  28, 1836, 15  S. 
360.  -Stair,  B.  iv.  tit  47,  §  15 ;  Ersk,  B.  i. 
tit  4,  §  33 ;  Bank.  vol.  ii.  pp.  503-7  ;  B^s 
Com.  ii.  170-2,  643;  Bell's  Princ.  §«  296-7  ; 
Illust.  ib. ;  Kames'  Stat.  Law  Abridg.  h.  t.  ; 
Shand's  Prac.  pp.  32, 232 ;  Ross's  Lect.  i.  286, 
302,  et.  seq.,  338,  429,  446  ;  Kames'  Equity, 
212 ;  Thomson  on  Bills,  576.  Darling's  Mes- 
sengers-at-Arms.  See  Execution.  Deforcement. 
Lyon.    Cautionary. 

Messis  Sementem  Seqnitnr ;  the  crop  he« 
longs  to  the  possessor  by  whom  it  was  sown ; 
is  a  maxim  applied  to  the  case  of  bona  fide 
possession,  and  also  in  questions  between  heir 
and  executor.  Where  a  person  is  in  pos- 
session of  land  which  he  has  reason  to  be- 
lieve to  be  his  own,  and  sows  that  land,  he 
has  right  to  reap  the  crop  sown  by  him,  al- 

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though,  before  it  be  cat  down,  it  should  be 
discovered  that  another  has  a  preferable  title 
to  the  land.  Ertk.  6.  ii.  tit.  1,  §  26 ;  Connet 
on  Parishes,  435.    See  Bona  Fides. 

Keunage ;  signifies  the  principal  dvelling- 
house  of  a  barony,  in  which  sense  it  is  syno- 
nymous with  the  English  expression  manor- 
houst.  In  the  law  of  England,  messuage  sig- 
nifies a  dwelling-house  with  some  laud  ad- 
joining, assigned  for  its  use.  Under  this 
name  may  be  included  a  garden,  shop,  mill, 
cottage,  chamber,  cellar,  or  the  like.  See 
Skene,  h.  t. ;  Ross's  Lect.  ii.  137 ;  Tomlins' 
Diet.h.t. 

Hetn*.    See  Force  and  Fear. 

Kiohaelmaa  Head-Court;  the  annual  meet- 
ing of  the  freeholders  and  commissioners  of 
supply  of  a  county,  held  at  Michaelmas  for 
various  county  purposes.  This  was  formerly 
one  of  those  meetings  at  which  the  presence 
of  the  heritors  was  required  under  a  fine ;  but, 
by  20  Geo.  II.,  c.  50,  abolishing  ward-hold- 
ing, no  heritor  can  now  be  fined  for  absence, 
unless  he  shall  have  been  summoned  as  a 
juryman,  or  for  some  other  legal  purpose.  It 
was  at  this  meeting  that,  under  the  old  elec- 
tion law,  the  roll  of  iVeeholders  was  revised, 
applications  for  enrolment  disposed  of,  and 
freeholders  put  upon  the  roll,  and  the  roll 
purged  of  those  who  had  died,  or  disposed 
of  the  property  on  which  they  formerly  stood 
enrolled ;  Ersk.  B.  i.  tit.  4,  §  5.  The  du- 
ties formerly  discharged  by  the  freeholders 
were  transferred  to  the  commissioners  of 
supply  by  2  and  3  Will.  IV.,  c  65.  See 
Election  Laws.  Reform  Act.  Commissioners  of 
Supply. 

Kid-Couples.  Where  an  heir,  assignee, 
or  adjudger  takes  infeftment  in  virtue  of  a 
precept  of  sasine  granted  in  favour  of  his  pre- 
decessor or  author,  it  is 'necessary  to  deduce 
in  the  instrument  of  sasine  the  writings  by 
which  he  is  connected  with  the  precept;  1693, 
c.  5.  These  writings  are  called  the  mid- 
couples.    More's  Notes  on  Stair,  clix. 

Mid-Impediment ;  the  Roman  law  medium 
impedimentum ;  is  anything  which  intervenes 
between  two  events,  and  prevents,  quoad  the 
former  event,  the  retrospective  operation  of 
the  latter.  Thus,  anything  occurring  be- 
tween the  date  of  a  sasine  on  a  precept  a  me 
and  the  charter  of  confirmation,  to  prevent 
the  superior  from  granting  a  charter  of  con- 
firmation, is  called  a  mid-impediment.  If 
the  former  proprietor  have  granted  a  convey- 
ance to  another  person,  on  the  procuratory  of 
which  that  person  has  resigned  and  obtained 
a  charter  of  resignation  on  which  sasine  has 
followed,  the  right  will  be  completely  trans- 
ferred, and  the  superior's  confirmation  of  the 
other  conveyance  will  be  unavailing.  Ersk. 
B.  i.  tit.  6,  §  52;  B.  ii,  tit.  7,  §  15;  fitWs 


Com.  1.  682 ;  BeWs  Prine.  §  812 ;  Jliust.  ih. 
See  Conjlrmation.  As  to  the  mid-impediment 
of  an  intervening  marriage,  in  questions  of 
legitimation  per  subsequens  matrimoniuM,  see 
LwUmation. 

military  Law.  See  Martial  Law.  Court- 
Martial. 

Military  Testament  Among  the  Romans, 
certain  ceremonies  necessary  in  testaments 
were  dispensed  with  in  the  testaments  of  sol- 
diers, on  account  of  their  ignorance,  or  ci 
imminens  vitce  periculum.  In  like  manner,  in 
this  country,  soldiers  may  make  nuncupative 
wills,  and  dispose  of  their  goods,  arrears  of 
pay  and  other  personal  property,  without  the 
forms  and  solemnities  required  in  other  cases. 
Heineceii  Elementa,  p.  167  ;  Tomlins'  Did.k.t. 

Milites ;  in  old  law  language,  freeholders 
holding  their  lands  of  barons  in  chief.  Scene, 
h.t. 

Kilitia ;  as  distinguished  from  the  r^ular 
forces,  means  the  body  of  men  who  may  le 
annually  called  out  for  a  limited  time,  and 
armed  and  embodied  for  military  service  on 
occasions  of  emergency.  After  much  uncer- 
tainty and  change,  the  militia  laws  of  Eng- 
land and  Scotland  were  consolidated  by  42 
Geo.  III.,  c  90  and  91 ;  and  these  statutes, 
with  that  of  49  Geo.  III.,  c.  120,  applicable 
to  Ireland,  contain,  with  some  partial  amend- 
ments made  by  later  acts,  the  law  applicable 
to  the  militia  of  the  United  Kingdom.  The 
Sovereign  appoints  lords-lieutenant  in  Eng- 
land and  Scotland  (see  Lieutenant),  and  gover- 
nors in  Ireland,  to  each  county  and  province, 
with  power  to  call  out  and  train  the  militia 
annually,  and  to  appoint  twenty  or  more  de- 
puty lieutenants  or  governors,  or  other  offi- 
cers, subject  to  the  royal  approval.  The  qua- 
lifications for  holding  commissions  are  the 
possession  of  a  certain  amount  of  property, 
varying  according  to  the  rank.  At' the  an- 
nual general  meeting  of  the  lieutenancy  of 
each  county,  the  next  subdivision  meeting  is 
appointed,  to  which  chief  constables,  or  other 
ofiicers,  are  required  to  direct  constables  or 
schoolmasters  to  return  lists  of  all  males,  be- 
tween the  ages  of  eighteen  and  forty-five,  in 
their  respective  parishes.  By  this  means  lists 
are  obtained,  which  are  transmitted  to  the 
Privy  Council,  distinguishing  those  liable  to 
serve  from  those  exempt.  The  men  to  be  en- 
rolled are  chosen  by  ballot  from  every  parish; 
all  who  are  not  above  four  feet  and  five  inches 
in  height,  or  are  not  approved  of  on  exami- 
tion  by  a  surgeon,  being  discharged,  and 
others  balloted  for  in  their  place.  Those 
who  do  not  personally  appear,  or  send  an  ap- 
proved substitute  to  take  the  oath,  are  liable 
in  a  penalty  of  L.IO.  There  are  arrange- 
ments by  which,  with  the  consent  of  the  in- 
habitants, volunteers,  remunerated  by  parish 

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assessments,  may  be  substituted  for  balloted 
men.  The  following  persons  are  exempted 
fromserving : — ^Peers;  Commissioned  officersof 
the  other  forces,  whether  on  full  or  half  pay ; 
non-commissioned  officers  and  privates  of  the 
other  forces ;  persons  serving,  or  who  have 
served  for  four  years,  as  commissioned  officers 
in  the  militia ;  persons  serving  in  the  yeo- 
manry or  volunteers ;  persons  serving,  or  who 
have  served  at  any  time  within  a  year  past, 
in  the  local  militia ;  resident  members  of  the 
several  universities ;  clergymen  of  the  estab- 
lishments, and  registered  dissenting  clergy- 
men ;  parish  schoolmasters ;  articled  clerks ; 
apprentices;  seafaring  men;  persons  employed 
in  the  Royal  Bocks,  the  Tower,  Woolwich 
Warren,  the  gun-wharfs  of  Portsmouth,  and 
the  stores  under  the  diraction  of  the  Board  of 
Ordnance;  persons  free  of  the  Company  of 
Watermen  of  the  Thames;  any  poor  man  with 
more  than  one  child  born  in  wedlock,  in  Eng- 
land ;  any  man  with  more  than  two  lawful 
children,  and  not  possessing  property  to  the 
value  of  L.50,  in  Scotland ;  and  in  Ireland, 
any  poor  man  not  worth  L.IO,  or  who  does 
not  pay  L.5  a  year  of  rent,  and  has  more  than 
three  ^wful  children  under  the  age  of  four- 
teen. The  Military  Act  and  the  Articles  of 
War  apply  to  the  militia  when  called  out, 
with  the  limitation  that  no  punishment  can 
extend  to  life  or  limb.  There  are  separate 
provisions  for  recovering  deserters,  &c.  In 
addition  to  the  general  militia,  who  are  liable 
to  be  marched  to  any  part  of  the  United 
Kingdom,  there  was,  during  the  late  war, 
what  was  called  the  local  militia,  embodied 
under  48  Geo.  III.,  c.  Ill  and  150,  and  com- 
pleted by  several  acts  since  passed,  by  which 
the  men  are  apportioned  to  the  respective  shires 
in  England  and  Scotland.  The  balloting, 
enrolling,  and  exercising  of  the  militia  takes 
place  at  present  only  occasionally,  an  act 
being  generally  passed  each  session  of  Par- 
liament suspending  the  operation  of  the  mi- 
litia statutes.  When  the  balloting  is  going 
on,  it  is  a  common  thing  to  insure  against 
being  drawn.  In  one  case,  where  a  militia 
ballot  waa  illegally  conducted,  it  was  held 
that  an  insurance  against  the  consequences  of 
mUitia  ballots  did  not  bind  the  insurers  to 
protect  the  insured  against  any  consequences 
of  such  irregular  btdlot;  Scott,  25th  May 
1814,  2  Daw's  Reports,  822.  Those  who  have 
served  in  the  militia  acquire  certain  privi- 
leges of  trade,  which  they  transmit  to  their 
chUdren.  See  King's  Freemen.  Swinton's 
Abridg.  h.  t. ;  Kames'  Stat.  Lam,  h.  t. ;  Hutch. 
Jtutiee  of  Peace,  iii.  59 ;  Taifs  Justice,  h.  t. ; 
TomUnt'  Diet.  k.  t. ;  Enc.  Brit.  h.  t. 

The  militia  in  Scotland  is  now  regulated  by 
the  act  17  and  18  Vict.,  c.  106, 1854. 

XilL    There  is  not  an  invariable  rule  as 


to  the  question,  whether  or  not  a  charter  or 
conveyance  of  lands  carries  a  mill  previously 
erected  upon  them,  without  express  mention 
of  it.  The  right  of  thirlage  attaching  to 
mills  formerly  made  them  of  such  importance, 
that  they  were  frequently  taken  to  be  dis- 
tinct tenements,  and  conveyed  by  charter 
and  infeftment  per  se.  In  such  circumstances 
the  general  rule  is,  that  a  mill  does  not  pass 
as  part  and  pertinent ;  but  this  is  always  a 
gucestio  vohtntaiis;  and  wherever  it  appears 
that  the  mill  never  had  been  considered  or 
transferred  as  a  separate  subject,  and  where 
the  proprietor  conveys  all  which  is  in  his  own 
titles,  the  mill  is  carried.  From  the  inde- 
terminate state  of  this  matter,  it  is  advisable 
that  the  deed  of  conveyance  should  expressly 
bear  whether  the  mill  is  intended  to  be  re- 
served, or  to  pass  with  the  rest  of  the  pro- 
perty. Where  a  mill  already  exists,  with  a 
thirlage  in  favour  of  another  than  the  pro- 
prietor of  the  land,  he  is  not  entitled  to 
build  another  mill,  capable  of  grinding  the 
astricted  corn,  since  that  might  afford  a  temp- 
tation to  defeat  the  thirlage.  And  iu  cer- 
tain cases  in  which  this  had  been  done,  the 
mill  was  either  destroyed  or  ordered  to  be 
altered,  so  as  to  be  incapable  of  grinding  the 
astricted  corK  The  symbol  for  giving  sasine 
in  a  mill  is  tie  clap  and  happcr.  Stair,  B. 
ii.  tit.  3,  §  75 ;  Ersk.  B.  ii.  tit.  6,§  6 ;  Bank. 
vol.  i.  pp.  505, 669,  689 ;  BeU'sPrinc.  §  743, 
1017,  1034-6 ;  lUusL  §  743 ;  Kames'  Stat. 
Law  Ahridg.  h.  t. ;  Hunter's  Landlord  and 
Tenant,  pp.  205,  217,  253-6,  302-3,  839; 
Hutch.  Justice  of  Peace,  ii.  pp.  393, 566 ;  Bdl 
on  Leases,  i.  249;  Ross's  Lect.  ii.  169,  196. 
See  Thirlage,  Part  and  Pertinent.  And  for 
the  regulations  respecting  the  hours  during 
which  children  may  be  required  to  work  ip 
mills  and  factories,  see  Factories, 

Minerals;  in  a  limited  acceptation,  are 
those  fossils,  as  coal,  lime,  chalk,  marie,  &c., 
which  belong  in  property  to  the  owner  of  the 
ground,  and  which  are  not  included  under  an 
agricultural  lease,  unless  expressly  conveyed 
to  the  tenant.  Neither  do  minerals  fall  un- 
der a  liferent,  unless  specially  given  to  the 
liferenter,  whose  right  being  ei^joyed  salva 
rei  substantia,  does  not  extend  to  minerals. 
But  where  the  minerab  have  been  let  on 
lease,  and  it  plainly  appears  to  have  been  the 
intention  of  the  grantor  of  the  liferent  that 
the  liferenter  should  have  the  rents  drawn 
from  the  lease  of  the  minerals,  that  intention 
will  receive  effect ;  and  a  liferenter,  although 
not  entitled  to  dispose  of  the  minerals,  may 
yet  use  as  much  of  the  coal  as  is  required  in 
his  own  household.  Ersk.  B.  ii.  tit.  6,  §  1 ; 
tit.  9,  §  67 ;  BeU  on  Leases,  i.  348 ;  MPs 
Com.  i.  62 ;  Stair,  B.  ii.  tit.  9,  §  39 ;  More't 
Notes,  pp.  clxxxv.,  ccliv.,  cccciv. ;  BdPt  Print. 


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§§  740,  1034-51,  1226;  lUust.  §  669;  Hun- 
Ur's  Landlord  and  Tenant.  See  Goal.  Clay. 
Marie-pit. 

Mines ;  are  inter  regalia.  By  1424,  c.  12, 
gold  mines  are  declared  to  belong  to  the 
Crown  without  limitation  ;  and  silver  mines, 
when  of  such  fineness  that  three  halfpence  of 
silver  can  be  extracted  from  the  pound  of 
lead.  But  it  wouid  appear,  that  not  only 
gold  and  silver,  but  tin,  copper,  and  lead 
mines  were  formerly  annexed  to  the  Crown. 
See  on  unprinted  act  of  the  year  1592<  By 
that  statute  mines  are  dissolved  from  the 
Crown ;  and  it  is  made  lawful  to  the  Crown 
to  set  in  feu-farm  to  the  baron,  or  other  free- 
holder of  the  ground,  all  metals  or  minerals 
that  may  be  found  within  his  own  lands,  on 
payment  of  the  tenth  part  to  the  Crown,  with- 
out  any  deduction  of  charges ;  and  iu  case  the 
freeholder  should  refuse  to  work  them,  they 
may  either  be  worked  for  the  use  of  the 
Grown,  or  feued  out  to  others.  In  the  in- 
terpretation of  this  statute,  it  has  been  found 
that  a  positive  right  is  conferred  on  tlie  free- 
holder, by  which  he  may  demand  a  right 
from  the  Crown,  in  pursuance  of  the  statute ; 
and  that  the  word  freeholder  means  the  pos- 
sessor of  the  dominium  utile.  Ertk.  B.  ii.  tit. 
6,  §  16 ;  Stair,  B.  ii.  tit.  3,  §  60 ;  Bank.  i. 
573  ;  BMt  Prine.  §  669.    See  Gold  Mines. 

lUniBter.  A  minister  of  the  Church  of 
Scotland  is  inducted  to  bis  charge  in  the 
manner  which  has  been  explained  in  the 
articles  Presentation-^— CaU — Admission — In- 
duction ;  and  it  is  only  necessary  here  to  state 
his  qualifications.  The  student  must  have 
gone  through  a  course  of  philosophy  in  a 
nniversity  ;  and,  after  fiaishing  that  course, 
he  must  have  studied  divinity  for  a  certain 
period  prescribed  by  the  Church.  He  may 
then  be  proposed  to  a  presbytery  to  be  taken 
on  trials ;  and  the  presbytery  must  obtain 
the  consent  of  the  synod  ;  and,  if  a  report  un- 
favourable to  the  character  of  the  candidate 
has  arisen  in  any  of  the  presbyteries  of  which 
the  synod  is  composed,  his  trials  cannot  pro- 
ceed till  the  matter  be  inquired  into.  And 
shonld  there  be  any  oppression,  redress  will 
be  obtained  by  applying  to  their  ecclesiasti- 
cal superiors.  1  be  person  licensed  must  sub- 
scribe a  formula,  owning  his  belief  in  the 
Confession  of  Faith  of  theChurch  of  Scotland, 
and  promising  to  adhere  to  the  same,  and  to 
defend  the  worship,  discipline,  and  govern- 
ment of  the  Church,  by  kirk-sessions,  pres- 
byteries, provincial  synods,  and  general  assem- 
blies, iic.  The  person  licensed  is  after  this 
termed  a  probationer ;  he  is  entitled  to 
preach,  but  has  no  authority  to  dispense  the 
sacraments ;  see  License  to  preadu  The  pro- 
bationer is  then  qualified  to  receive  a  presen- 
tation to  a  church,  which  is  addressed  to  the 


presbytery  within  which  the  parish  is  situ- 
ated ;  he  is  by  them  appointed  to  preach  in 
the  parish  church ;  he  is  required  to  repeat 
bis  subscription  to  the  formula ;  and  he  most 
undergo  a  second  trial  on  his  doctrine,  litera- 
ture, and  moral  character.  A  day  is  then 
appointed  by  the  presbytery,  at  the  distant* 
of  ten  days,  for  the  parishioners  to  meet  in 
the  parish-church,  and  witness  the  o^dina^ 
tion,  at  which  one  of  the  presbytery  preaches 
— informs  the  people  that  a  presentation  has 
been  given  to  the  candidate — and  asks  them 
to  subscribe  a  call,  inviting  him  to  be  their 
minister,  and  promising  him  subjection  in  the 
Lord.  This  is  what  is  termed  the  moderation 
of  a  call ;  see  GaU.  When  the  call  has  been 
sustained,  the  presbytery  proceed  to  complete 
the  settlement  by  putting  to  him,  in  the  face 
of  the  congregation,  the  following  questions : 
"1.  Do  you  believe  the  Scriptures  of  the  Old 
and  New  Testament  to  be  the  Word  of  God, 
and  the  only  rule  of  faith  and  manners  ?  t 
Do  you  sincerely  own  and  believe  the  whole 
doctrine  contained  in  the  Confession  of  Faith, 
approven  by  the  General  Assemblies  of  this 
Church,  and  ratified  by  law  in  the  year  16yt', 
to  be  founded  on  the  Word  of  God  ?  And  do 
you  acknowledge  the  same  as  the  confeeuoo 
of  your  faith  ?  And  will  you  firmly  and  con- 
stantly adhere  thereto,  and,  tn  the  utmost  of 
your  power,  assert,  maintain,  and  defend  the 
same,  and  the  purity  of  worship  as  presently 
practised  in  thisNatioual  Church, andasserietl 
in  the  15th  Act  of  Assembly,  1707  ?  3.  Do 
you  disown  all  Popish,  Arian,  Sociniao, 
Arminian,  Bourignian,  and  other  doctrines, 
tenets,  and  opinions  whatsoever,  contrary  t«, 
and  inconsistent  with,  the  foresaid  Confession 
of  Faith?  4.  Are  you  persuaded  that  the 
Presbyterian  government  and  discipline  of 
this  Church  are  founded  upon  the  Word  of 
God,  and  agreeable  thereto?  And  do  jon 
promise  to  submit  to  the  said  government  and 
discipline,  and  to  concur  with  the  same;  and 
never  to  endeavour,  directly  or  indirectly, 
the  prejudice  or  subversion  thereof,  but  to 
the  utmost  of  your  power,  in  your  station,  to 
maintain,  support,  and  defend  the  said  d^i- 
pline  and  Presbyterian  government,  by  kirk- 
sessions,  presbyteries,  provincial  synods,  and 
general  assemblies,  during  all  the  days  of 
your  life  ?  5.  Do  you  promise  to  submit  your- 
self willingly  and  humbly,  in  the  spirit  of 
meekness,  unto  the  admonitions  of  the  bre- 
thren of  this  presbytery,  and  to  be  subject  to 
them,  and  all  other  presbyteries  and  superior 
judicatories  of  this  Church,  where  Gbd,  in 
His  providence,  shall  cast  your  lot?  And  that, 
according  to  your  power,  you  shall  nuuntain 
the  unity  and  peace  of  this  Church  against 
error  and  schism,  notwithstanding  of  whatso- 
ever trouble  or  persecution  may  arise ;  and 


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tbat  yon  shall  follow  no  divisive  courses  from 
the  present  established  doctrine,  worship,  dis- 
cipline, and  government  of  this  Church  ?  6. 
Are  not  zeal  fur  the  honour  of  God,  love  to 
Jesus  Christ,  and  desire  of  saving  souls, 
your  great  motives  and  chief  inducements  to 
enter  into  the  functions  of  the  holy  ministry, 
and  not  worldly  designs  and  interests?  7. 
Have  you  used  any  undue  methods,  either  by 
yourself  or  othei-s,  in  procuring  this  call  ?  8. 
Bo  you  engage,  in  the  strength  of  Jesus 
Christ,  our  Lord  and  Master,  to  rule  well 
your  own  tiamily,  to  live  a  holy  and  circum- 
spect Ufe,aud  faithfully,  diligently,  and  cheer- 
fully to  discharge  all  the  parts  of  the  minis- 
terial work,  to  the  editication  of  the  body  of 
Christ?  9.  Do  you  accept  of,  and  close 
with,  the  call  to  be  pastor  of  this  parish; 
aud  promise,  through  grace,  to  perform  all 
the  duties  of  a  faithful  minister  of  the  gos- 
pel among  this  people  ?"  See  farther  on  this 
subject,  Church  Stales,  bt/  Churdt  Law  Socieli/, 
1838. 

These  questions  being  answered  satisfac- 
torily by  the  presentee,  the  minister  perform- 
ing the  service  proceeds  to  invest  him  with 
the  full  character  of  a  minister  of  the  gos- 
pel, conveying  to  him  by  prayer,  and  by  the 
imposition  of  the  hands  of  the  presbytery,  all 
the  powers  implied  in  that  character.  He 
then  receives  and  admits  the  person  to  be 
minister  of  the  vacant  parish,  by  which  deed 
the  presbytery  create  a  connection  between 
him  and  the  inhabitants  of  the  parish,  which 
gives  him  a  legal  title  to  the  emoluments  pro- 
vided by  law  l«r  the  person  who  officiates 
there,  and  which  renders  him  incapable  of 
holding  any  other  charge.  And  the  connec- 
tion thus  formed  can  be  dissolved  only  by  the 
act  of  the  Church  accepting  of  his  resigna- 
tion, or  deposing  him,  or  translating  him  to 
a  different  charge.  BiU's  Theological  Insti- 
tutes, pp.  187,  212;  HiWs  Church  I'toc.  64 ; 
SUuT,  B.  ii.  tit.  8,  §  26 ;  Mor(^s  Notes,  pp. 
ccnxviL-xli.-lxxiii. ;  Ersk.  B.  i.  tit.  5,  §  16 ; 
Mik.  vol.  i.  p.  48  ;  ii.  77,  221,  592  ;  BdPs 
Cm.  i.  ]  28 ;  ii.  695 ;  Bell's  Pritic.  §§  1163-6, 
1172,  634.  As  to  the  appointmeni  of  minis- 
ters to  churches  endowed  by  voluntary  con- 
tribution, see  Churches.  See  Deposition.  Dilapi- 
dation. Designation.  Manse.  Glebe.  Calls. 
Minister's  Claim  to  Vote.  A  parochial 
minister  of  the  Church  of  Scotland  is  entitled 
to  a  vote  in  the  election  of  members  of  Par- 
liament. A  presentation  is  not  sufficient  to 
give  the  qualification;  there  must  likewise 
be  induction,  and  all  the  other  forms  of  ap- 
pointing to  the  pastoral  charge.  There  is  no 
distinct  provision  in  the  Reform  Act  declaring 
ministers  entitled  to  be  enrolled ;  and  the  pro- 
per form  of  drawing  the  claim  is,  "  I,  A.  B., 
minister  of  theparish  of  C.,claim  to  be  enrolled 


as  liferent  proprietor,  by  virtue  of  my  office, 
of  the  manse  and  glebe  of  the  said  parish." 
But  much  less  formal  claims  have  been  sus- 
tained, probably  on  the  principle  that  the 
character  of  parochial  minister  per  se,  infers 
the  right  to  a  manse  and  glebe.  Thus,  the 
claim  of  "  minister  possessing  or  occupying 
the  glebe,"  has  been  sustained.  As  the  statute 
does  not  require  occupancy  in  the  case  of 
owners,  and  as  liferenters  seem  to  be  on  the 
same  footing  with  owners,  it  has  been  held 
that  the  minister  may  be  enrolled  on  his 
manse  and  glebe,  although  it  be  in  the  im- 
mediate natural  possession  of  another  per- 
son ;  such  as  the  minister's  assistant  and  suc- 
cessor. Greater  strictness  has  been  required 
in  the  form  of  claims  by  dissenting  ministers, 
whose  appointment  does  not  necessarily  or  ex 
lege  carry  the  right  to  any  heritable  subject, 
buch  a  minister, claiming  as  a  liferenter,  must, 
in  order  to  establish  his  claim  of  enrolment 
on  a  manse  and  glebe,  show,  1st,  The  title  to 
the  subjects  in  the  congregation,  and  that 
they  hold  it  by  right  such  as  enables  them 
to  convey  to  him  a  liferent  interest ;  and,  2d, 
his  own  title  in  the  subjects — viz.,  that  the 
congregation  have  conveyed'  a  liferent  right 
to  him  indbfea^ibly.  But  there  has  been 
some  fluctuation  in  the  decisions  of  the  courts 
of  appeal  with  regard  to  the  claims  of  dissent- 
ing ministers.  Ministers  have  been  found 
not  entitled  to  claim  upon  their  stipends,  or 
as  drawing  L.iO  per  annum  out  of  the  teiuds. 
Cat/'s  Reform  Act,  95,  106. 

Minister's  Homing.  The  law  on  this  sub- 
ject is  stated  in  the  article  Decreet  Conform. 
The  style  of  a  minister's  horning  is  given  iu 
Jurid.  Styles,  iii.  726. 

Minister's  Bental ;  the  rental  of  the  pa- 
rish lodged  by  the  minister  iu  a  process  of 
augmentation  and  locality.  See  Augmentation. 

Minor.  In  a  large  acceptation,  a  minor  is 
a  person  under  lawful  age,  or  majority ;  but 
the  term,  when  used  in  contradistinction  to 
pttpil,  signifies  a  person  above  the  age  of  pu- 
pillarity  (twelve  in  females  and  fourteen  in 
males),  and  under  that  of  majority,  which  in 
both  sexes  is  tweutj-one  years  complete. 
Where  a  minor  has  curators,  his  deeds  are 
not  effectual  to  bind  him  without  their  con- 
sent ;  yet,  in  so  far  as  he  derives  any  benefit 
from  his  deeds,  they  will  be  binding  on  those 
with  whom  he  contracts ;  and  all  obligations 
into  which  he  enters,  where  the  consideration 
has  been  profitably  applied  to  his  use,  will  to 
that  extent  be  effectual  against  him.  A 
minor  with  curators  may  effectually  marry 
without  their  consent ;  he  may  also,  without 
their  consent,  execute  a  testament  bequeath- 
ing all  his  moveable  funds ;  but  he  cannot, 
even  with  their  consent,  execute  a  settlement 
of  his  heritage.    The  curator  of  a  minor 

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merely  consents,  but  cannot  compel  the  minor 
to  act;  the  minor  has  a  right  to  inquire 
into  the  management  of  his  affairs,  and,  if  he 
sees  reason,  he  may  refuse  to  act.     A  minor's 
person  is  not  subject  to  the  control  of  cura- 
tors.    Where,  again,  a  minor  has  no  cura- 
tors, he  may  act  by  himself ;  and  his  deeds 
will  be  equally  effectual  with  the  deeds  of  a 
minor  having  curators,  who  have  concurred 
with  him  in  the  execution  of  the  deed.  Minors 
are  entitled  to  be  restored  agaiust  all  deeds 
done  to  their  prejudice  during  their  minority, 
whether  they  have  been  done  by  their  tu- 
tors, or  by  themselves,  with  consent  of  their 
curators.    In  all  cases,  in  short,  where  a 
minor  can  prove  lesion,  he  is  entitled  to  res- 
titution ;    and  the  only  difference  is,  that 
where  the  deed  has  been  executed  by  a  tutor, 
or  by  a  minor  with  consent  of  his  curator,  or 
by  the  minor  alone,  where  he  has  no  curator, 
as  the  deed  is  effectual  in  law  till  set  aside, 
a  reduction  of  it  becomes  necessary ;  whereas 
deeds  executed  by  pupils,  or  by  minors  hav- 
ing curators,  but  without  their  consent,  are 
null,  and  the  nullity  may  be  pleaded  by  way 
of  exception.    In  an  action  of  restitution,  the 
minor  must  prove  lesion,  proceeding  from  the 
want  of  judgment  on  the  part  of  the  mi- 
nor, and  not  from  any  fraud  or  unjustifiable 
act  on  his  part ;  nor  will  the  minor  be  pro- 
tected against  necessary  payments,  to   his 
tutor  or  curator  for  example,  though  the  pay- 
ment may  have  been  misapplied.    Lesion  is 
presumed  in  a  donation  by  the  minor ;  in  a 
bond  of  caution  entered  into  by  him ;  even 
in  a  bond  for  borrowed  money  by  the  minor 
lesion  is  presumed,  unless  the  creditor  shall 
prove  that  the  money  was  employed  profitably 
for  the  minor.    And  it  has  been  decided, 
that  a  party  is  not  barred  from  pleading 
minority  against  an  action  for  implement  of 
a  cautionary  obligation,  by  bis  having  pre- 
viously made  affidavit  that  he  had  attained 
majority  to  obtain  the  degree  of  M.D.,  and 
thereafter  assumed  the  title  of  doctor ;  Suther- 
land, 3&a.  19, 1825,3  S.<tD.  Aid.   But  there 
is  an  exception  to  the  plea  of  restitution  in 
all  transactions  connected  with  any  trade  or 
commerce  in  which  the  minor  may  have  been 
engaged ;  even  a  bond  for  borrowed  money 
will  not  necessarily  imply  lesion,  where  the 
minor  is  engaged  in  trade.     A  minor  pubes  is 
not  entitled  to  restitution  against  a  mar- 
riage, although  he  may  be  restored  against 
hurtful  provisions    in  a  marriage-contract. 
The  minor  may  be  restored  against  judicial 
act-s,  as  where  competent  pleas  have  been 
omitted,  or  where  the  minor  has  been  entered 
heir,  and  the  debts  of  the  ancestor  exceed  the 
value  of  the  succession.     The  privilege  of 
restitution  may  be  exercised  by  the  minor  at 
any  time  within  four  years  after  his  arriving 


at  majority.    But  to  entitle  him  to  this  pri> 
vilege,  he  most  have  raised  and  executed  tbt 
action  of  reduction  of  the  deed  or  trsDisctioa 
he  means  to  challenge  within  the  four  veui, 
called  the  quadriennium  utUe.    Thia  privilege 
does  not  die  with  the  person  entitled  to  it, 
but  may  be  transmitted  to  his  heir,  accord- 
ing to  these  rules :  1.  Where  a  minor  loe- 
ceeds  to  a  minor,  the  time  allowed  for  daim- 
ing  restitution  depends  on  the  minority  of 
the  heir,  not  of  the  deceased  minor.   2. 
Where  a  minor  succeeds  to  a  mi^or,  who  vu 
not  twenty-five  years  complete,  the  privilege 
continues  with  the  heir  during  his  own  mi- 
nority ;  but  he  cannot  avail  himself  of  his  pre- 
decessor's annt  utiles,  except  in  so  far  as  tlMf 
were  unexpired  at  his  death.    3.  Where  a 
major  succeeds  to  a  minor,  he  has  only  Um 
quadriennium  utile,  to  be  reckoned  from  the 
period  of  the  minor's  death ;  and  if  a  m^ 
succeeds  to  a  mi^or  dying  within  the  jmJ- 
riennitim,  he  can  avail  himself  of  no  more  of 
the  quadriennium  than  remained  unexpired  st 
the  time  of  his  predecessor's  death ;  ErA.  B. 
i.  tit.  7,  §  42.    Mere  revocation  within  the 
quadriennium  utile  is  not  sufficient.  The  deeds 
against  which  the  minor  is  entitled  to  be  re- 
stored, must  be  challenged  by  an  actimi  of 
reduction  in  the  Court  of  Session  within  thst 
term.     The  minor  is  entitled  only  to  be  re- 
placed in  his  former  situation,  not  to  derive 
an  advantage  which  he  could  not  odiertiie 
have  enjoyed.    An  objection  to  a  decree,  u 
pronounced  by  an  incompetent  court,  is  not 
barred  by  the  lapse  of  the  quadriennium  ntSt; 
Rankine,  May  31, 1821, 1  S.  a  D.  43. 

Another  privilege  of  minority  is,  that  a 
minor  cannot  be  compelled  to  defend  his  right 
to  his  ancestor's  heritage,  when  that  right  is 
challenged  by  one  who  claims  the  heritage  m 
a  right  preferable  to  that  which  was  in  the 
minor's  ancestor;  minor  non  tenetur plteHan 
de  hosreditatepatema.  This  privilege  is  limittd 
to  proper  feudal  heritage,  and  does  not  ex- 
tend to  leases,  however  long  the  period  of 
endurance.  Nor  does  it  apply  to  the  settling 
of  marches,  nor  to  the  division  of  land,  nor  to 
a  possessory  action,  nor  to  an  action  at  the  in- 
stance of  the  superior  for  feu-duties  or  eaioii- 
ties,  nor  where  the  action  has  been  con- 
menced  in  the  lifetime  of  the  ancestor.  In 
order  to  entitle  the  minor  to  state  this  pies, 
he  must  be  served  heir  and  infeft ;  and  his 
infeftment,  when  produced,  supersedes  all 
further  production  till  be  be  of  age.  It  is  the 
heir  of  investiture  alone  who  can  plead  the  pri- 
vilege; and  it  cannot  be  pleaded  to  support  the 
fraud  of  the  ancestor,  nor  to  oppose  the  effect 
of  the  ancestor's  obligation,  nor  in  opposition 
to  a  minor  suing  for  reduction  on  the  head 
of  minority  and  lesion ;  Ertk.  B.  i.  tit  7,  $ 
43,  et  $eq.  The  persons  of  pupils  an  pro- 
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tected  against  imprisonment  for  civil  debts ; 
but  this  privilege  does  not  extend  to  minors 
past  the  age  ol  pupillarity,  who  are  liable  to 
personal  diligence  and  impiisonment  ou  ac- 
count of  non-payment  or  non-performance  of 
civil  debts  or  obligations;  Ersk.  £.  i.  tit.  7, 
§  47.    Minors,  under  seven  years  of  age,  are 
not  liable  to  criminal  prosecution ;  A'om  seven 
to  fourteen  they  are  liable  on  conviction  to 
an  arbitrary  punishment ;  and,  above  four- 
teen, they  are  liable  to  the  ordinary  punish- 
ment, even  capital.    A  miuor  may  be  indicted 
without  calling  his  guardian ;  Hume,  i.  33 ; 
S<«fc,  66;  Alison't  Frinc.  663;  Prae.  227. 
Ghil(b«n  under  twelve  cannot  be  examined 
upon  oath,  but  they  may  be  examined  with- 
out it.    The  rule  as  to  this  is  taken  from 
the  age  as  at  the  trial,  provided  the  facts 
ooeorred  not  very  long  before ;  Hume,  ii.  341 ; 
Sttele,  15.    A  minor  cannot  be  elected  a 
member  of  Parliament ;  and  the  election  is 
by  statute  declared  to  be  void,  under  the 
sam«  penalties  as  if  he  had  presumed  to  sit 
without  being  returned ;  7  and  8  Will.  III., 
e.  85.    Minors  may  sit  till  displaced,  because 
the  law  presumes  them  to  be  of  full  years  till 
the  contrary  is  proved.    The  claim  of  a  minor 
to  vote  cannot  be  registered ;  1681 ;  1707, 
e.  8 ;  bot  it  would  appear,  that  if  the  dis- 
ability existed  at  the  time  of  giving  in  the 
claim,  but  ceased  before  the  sitting  of  the 
registration  court  at  which  it  is  considered, 
the  claimant  may  be  admitted ;  Cotes  cited  in 
Cay't  R^orm  Act,  17.    It  had  formerly  been 
decided,  that  the  enrolment  of  a  minor,  under 
the  provision  that  he  should  not  vote  till  he 
was  of  perfect  age,  was  contrary  to  law ; 
Maeleod,  Dec.  1766,  M.  8684 ;  BeU  on  Elec- 
tions, 338.    In  England,  it  u  held  that  ma- 
jority is  completed  the  day  before  the  twenty- 
first  anniversary  of  the  birth-day ;  Chambers' 
Election  Law,  h.  t.    A  minor  may,  with  con- 
sent of  his  curators,  exercise  the  right  of  a 
patron  in  presentation ;  Brodie,  June  9, 1830, 
8  S.d;  D.  899.    Stair,  B.  i.  tit.  6 ;  Mor^t 
Notes,  pp.  xlii.  et  seq.  oxc. ;  Ersk.  B.  i.  tit.  7 ; 
Bank.  vol.  i.  p.  177,  et  seq. ;  iii.  48, 97  ;  B^s 
Com.  vol.  i.  p.  134;  BeiVs  Princ.  §  593,  625, 
2022,  2087, 2103 ;  Karnes'  Stat.  Law  Abridg. 
h.  t. ;  Hunter's  Landlord  and  Tenant,  pp.  64-5, 
136-7,  164,  177,  432,  471 ;  Broum  on  Sale, 
pp.  167-71 ;  Thomson  on  BiUs,  103, 198,259 ; 
Skand's  Prae.  pp.    141,   560;    Madaurin's 
Sheriff-Court  Prae.  pp.  30,  69,  180;  tfufaA. 
Justice  ofPeaee,\\. 266;  Taifs do.,  h.  t. ;  Blair's 
do.,  h.  t.;^BeU  on  Leases,  i.  107-8, 143 ;  Ross's 
Leet.  i.  147;  ii.  359,  364;  Kames'  Equity, 
67,  252,  282.    See  also  Curatory, 

Kinority;  the  period  from  birth  until 
twenty-one  years  of  age;  or,  in  a  more 
limited  sense,  the  intervid  between  pnpillarity 
and  majority.    See  Minor.     Tutor.    Pupil. 


Mint ;  the  place  or  establishment  in  which 
the  Queen's  money  is  coined.  By  39  Geo. 
III.,  c.  94,  and  1  and  2  Will.  IV.,  c.  10,  the 
salary  of  the  master  and  worker  of  the  mint 
was  ascertained,  and,  along  with  the  other 
charges  of  the  mint,  provided  to  be  paid 
from  various  different  sources,  partly  from 
fees,  allowances,  and  emoluments  authorized 
by  the  indenture  between  the  Crown  and  the 
master,  partly  from  the  Consolidated  Fund, 
partly  by  annual  grants  of  Parliament,  and 
partly  from  the  profit  derived  from  the  coin- 
age of  silver  and  copper.  By  7  Will.  IV.,  c. 
9,  it  is  provided,  that  after  the  6th  of  April 
1837,  all  fees,  emolument8,&c.,  payable  to  the 
master  of  the  mint  shall  cease.  So  much  of 
the  above  acts  as  authorizes  the  charging  of 
money  upon  the  Consolidated  Fund  for  salaries 
to  officers  is  repealed ;  and  the  seignorage 
accruing  upon  the  coinage  of  silver  or  copper 
is  directed  to  be  paid  into  the  bank,  to  the 
credit  of  the  Consolidated  Fund.  It  is  made 
lawful  for  the  Treasury  to  authorize  the  issue 
of  money  for  the  purchase  of  bullion  for  coin- 
age, an  account  of  which  must  be  annually 
laid  before  Parliament. 

Hiante ;  a  short  memorandum  or  sketch 
taken  iu  writing. 

Miuute.  W  hen  it  is  necessary  to  preserve 
evidence  of  any  incidental  judicial  act  or 
statement,  this  is  done  in  the  Court  of  Ses- 
sion, and  also  in  the  inferior  courts,  by  a 
minute.  Thus,  where  the  pursuer  restricts  bis 
libel,  or  makes  a  reference  to  the  defender's 
oath,  or  where  the  parties  mutually  consent 
to  a  judicial  reference,  or  to  a  remit  to  per- 
sons of  skill,  or  to  waken  a  process,  or  to  an 
interim  decree,  and,  in  short,  wherever  the 
object  is  to  preserve  special  evidence  of  any 
of  the  res  gestce,  this  is  done  by  a  minute. 
Strictly  speaking,  those  minutes  ought  to  be 
prepared  by  the  clerk  of  Court,  as  their  form 
imports.  They  commence  with  the  name  of 
the  counsel  (or  in  the  inferior  court,  of  the 
procurator)  for  the  party,  and  purport  to  b« 
a  statement  made  by  him ;  e.  g.,  "  Patrick 
Robertson,  for  the  pursuer,  stated,"  Ac.  If 
the  minute  be  answered,  the  answer  proceeds 
in  the  same  style.  The  minute  is  signed  by 
counsel,  or  in  the  inferior  courts  by  the  pro- 
curator ;  and  where  it  is  a  minute  of  refer- 
ence to  oath,  it  must  also  be  subscribed  by 
the  party  referring,  or  he  must  subscribe  a 
written  mandate  authorizing  it ;  A.  S.  12th 
Nov.  1825  ;  Maelaurin's  Sheriff-Court  Prae. 
195.  See  Amendment  of  Libel.  It  sometimes 
happens,  after  an  argument  at  the  bar  of  the 
Inner  House  of  the  Court  of  Session,  where 
questions  of  difficulty  have  been  raised,  that 
the  Court,  instead  of  pronouncing  an  order 
for  Casts,  appoints  the  parties  to  prepare  and 
lodge  Minutes  of  Debate.     These  minutes. 

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which  must  be  prepared  by  eonnsel,  contain 
an  argument  on  the  points  in  dispute  ;  and, 
after  having  been  interchanged,  revised,  aud 
relodged,  tliey  are  printed  and  boxed  for  the 
Court  in  the  usual  manner;  see  Cases.  In 
the  inferior  courts,  when  a  proof,  whether  by 
witnesses  or  oath  of  party,  is  concluded,  the 
inferior  judge  may  either  advise  the  case  on 
the  proof  as  it  stands,  or  order  minutes  of 
debate  or  memorials  on  the  proof  or  on  the 
whole  cause.  These  minutes  must  contain 
no  previous  narrative  of  the  case,  or  detail  of 
the  procedure,  nor  quotations  from  the  evi- 
dence, parole  or  written,  except  when  abso- 
lutely necessary  ;  but  reference  may  be  made 
to  the  proof  by  the  page,  or  by  the  letters  of 
the  alphabet  on  the  margin;  A.  S.  12th 
Nof.  lS->5,Slitrif-C0wU,d:c.,  c.  ix.  §§  18  and 
19.  No  statements  can  be  introduced  into 
these  minutes  not  contained  in  the  closed 
record  or  in  the  proof,  and  no  productions 
can  be  made  with  them.  Madaurin's  Sherif- 
CourtPrac.  210. 

Kinnte  of  Sale.  See  Missives.  Articles  of 
Roup.    Roup. 

Hiniite-Book,  of  Records.  The  minute- 
book,  as  part  of  the  system  of  records  in 
Scotland,  was  first  introduced  by  the  general 
act  1672,  c.  16,  "  Concerning  the  Judicatories," 
§  32.  That  part  of  the  enactment,  however, 
having  been  but  little  observed,  an  attempt 
was  made  to  revive  it,  by  A.  S.  15th  July 
1692,  which  was  immediately  followed  by  the 
subsisting  statute,  1693,  c.  14.  This  statute, 
on  the  preamble  that  the  preceding  enact- 
ments had  been  neglected,  ordained  all  the 
keepers  of  the  registers  of  sasines,  reversions, 
hornings,  inhibitions,  interdictions,  allow- 
ances of  apprising  or  adjudications,  to  keep 
minute-books  of  all  writs  presented  to  them, 
to  be  inserted  in  their  several  registers,  ex- 
pressing the  day  and  hour  when,  and  the 
names  and  designations  of  the  persons  by 
whom,  the  writs  are  presented,  and  that  the 
Baid  minute  be  immediately  signed  by  the 
presenter  of  the  writ,  and  also  by  the  keeper, 
and  be  patent  to  all  the  lieges  who  desire  in- 
spection of  it  gratis;  and  that  the  writs  be 
registered  exactly  in  the  order  in  which  they 
are  entered  in  the  minute-book.  The  keeper 
not  complying  with  these  regulations  is  liable 
to  deprivation,  and  to  reparation  of  the  loss 
which  the  parties  may  sustain.  A  sasine  is 
held  as  recorded  from  the  time  of  its  being 
entered  in  this  minute-book,  provided  it  re- 
mains  with  the  keeper  until  the  operation  of 
transcribing  into  the  register  has  been  com- 
pleted ;  but  when  the  sasine  is  taken  out  of 
the  keeper's  bands  before  being  recorded,  and 
is  not  returned  till  the  sixty  days  are  expired, 
it  will  not  be  allowed  to  be  recorded  as  of  the 
date  of  its  presentment,  though  regularly 


marked  dehito  tempore  in  the  minute-book. 
It  is  now  settled  law,  that  insertion  of  a  writ 
in  the  minute-book  is  indispensable  to  its  due 
registration ;  buii  where  either  the  minute- 
book  has  not  been  regularly  kept,  or  where 
there  has  been  no  minute-book  at  all,  tbe 
certificate  on  the  sasine  corresponding  vith 
the  minute-book,  or  with  the  record-book, 
will  be  held  as  evidence  of  the  registration. 
In  a  recent  case,  where  two  sasines  were  pre- 
sented for  registration  on  the  same  day,  and 
by  the  same  agent,  and  were  both  stated  in 
the  minute-book  as  given  in  between  the 
hours  of  eleven  and  twelve,  but  the  minute 
of  the  sasine  prior  in  date  was  entered  first 
in  order  and  regularly  signed,  and  the  re- 
gistration was  in  the  same  order,  it  was  held, 
that  the  first  in  order  was  preferable,  and 
that  it  was  incompetent  by  parole  to  prove 
that  they  were  de  facto  presented  together. 
The  Lord  Ordinary  (Moncreiff)  in  his  note 
held,  that  when  the  act  1693,  c.  14,  required 
that  the  day  and  hour  should  be  expressed, 
it  was  not  meant  to  limit  the  question  either 
of  date  or  priority  to  the  separate  measured 
periods  of  sixty  minutes  in  the  usual  reckon- 
ing of  time  in  a  day,  but  that  it  was  implied, 
in  the  term  hour,  that  there  might  be  an 
equally    clear   case  of   priority   within  the 
minutes  of  the  same  nominal  hour.  It  meant 
the  precise  point  of  time  in  a  day ;  Douglas, 
Feb.  21,  1835, 13  5.  <ti>.  505.    In  practice, 
persons  searching  the  records  usually  coafine 
their  search  to  the  minute-book,  as  being  a 
statutory  index,  as  it  were,  to  the  full  register. 
And  holding  it  to  be  settled  that  the  minute- 
book  is  part  of  the  record,  it  follows  that  a 
writ,  although  inserted  ad  longvm  in  the  re- 
gister, will  not  be  duly  or  availably  recorded 
if  it  has  not  been  entered,  or  if  it  has  been 
imperfectly   entered,    in    the    minute-book. 
See  an  instructive  case  on  this  subject,  Pmi 
V.  Wood's  Trustees,-  July  10,  1838,  16  &, 
1363;  where  the  omission  in  the  minute- 
book  of  the  names  of  tico  out  of  three  inhibited 
parties  was  held  by  the  consulted  judges  to 
void  the  registration,  quoad  the  parties  vbo^ 
names  were  thus  omitted,  although  the  inhi- 
bition was  inserted  ad  longum  in  the  register 
against  all  the  parties.     See  also  Madaine  t. 
Machine,  June  16,  1852,  14  />.  870.    See 
generally,  the  acts  1672,  c.  16,  §  32 ;  1686, 
c.  19,  in  part  repealed  by  1696,  c.  IS,  and 
1693,  c.  14 ;    Dnmmond,  June  24,  1809, 
F.  C;  Adam,  June  19,  1810,  P.G.;  Stair, 
B.  iv.  tit  50,  §  12,  App.  §  3 ;  Ersk.  B.  iL 
tit.  3,  §42,  noU;  Bank.  vol.  ii.  pp.  498,  675; 
BeU's  Com.  i.  676;  BeU^s  Prine.  §§773-4; 
Ilhtst.  ib. ;  Rosifs  Lect.  ii.  211 ;  Bell  on  Elx. 
Law,  262.     See  Records.    Ink^ition. 

Minute-Book  of  Court  of  Session  ;  is  a  bodt 
in  which  is  minuted,  or  shortly  stated,  the 


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heads  of  the  judgments,  that  is,  acts  and  de- 
crees pronounced  by  the  Court,  or  by  Lords 
Ordinary.  These  minutes  are  intended  to 
apprise  the  parties  of  the  judgments  which 
are  pronounced :  they  are  therefore  entered 
by  the  different  clerks  of  Court  of  the  date 
on  which  the  judgments  or  interlocutors  are 
signed.  Protestations  are  also  inserted  in 
the  minute-book.  A  sheet  of  this  book  is 
printed  and  circulated  by  the  keeper  of  the 
minute-book  twice  a  week  during  session ; 
and  unless  where  the  Court  in  its  judgment 
or  decree  expressly  dispenses  with  the  minute- 
book,  no  decree  can  be  extracted  until  twenty- 
four  hours  after  it  has  been  read  (or  may  hare 
been  read)  in  the  minute-book.  The  keeper 
of  the  minute-book  holds  his  commission  from 
the  Crown,  and  is  paid  by  fees  on  certain 
entries  in  the  minute-hook.  BeU's  Com.  i. 
722-5 ;  Shand's  Prac.  115 ;  Boss,  Jan.  31, 
18'29,  7  S.ttD.  354.  See  Dfcree.  Protesta- 
tion. 

Minutes.  The  Minutes  of  a  meeting  of 
creditors  contain  the  import  of  what  has  been 
stated  and  agreed  to  at  the  meeting.  When 
regularly  made  out  and  authenticated,  the 
minutes  are  legal  evidence  of  the  proceedings 
and  votes.  See  generally,  Stair,  B.  iv.  tit.  1, 
§64;  Bank.  ii.  493  ;  Bell's  Com.  ii.  352-9, 
365-6  ;  Karnes'  Equity,  283. 

MisoMel     See  Malicious  Mischief. 

Misdemeanoiir ;  in  English  law,  a  crime. 
Evory  crime  is  a  misdemeanour  ;  but  a  dis- 
tinction has  been  taken  between  crimes  of  a 
higher  and  lower  kind ;  the  former  being 
termed  felonies,  the  latter  misdemeanours. 
Tomlim'  Diet.  h.  t.     See  Felony. 

Misericordia ;  according  to  Skene,  was  a 
"  mercitOnent,  amerciament,  or  unlaw."  The 
word  is  still  used  in  England  to  signify  an 
arbitrary  fine  for  an  offence,  called  miseri- 
cordia, because  the  amercement  ought  to  be 
less  than  that  required  by  Magna  Charta. 
If  one  be  immoderately  amerced  in  a  court 
that  is  not  a  court  of  record,  the  writ  called 
moderata  misericordia  lies  for  moderating  the 
amercement.     Skene,  h.  t, ;  Tomlin^'  Diet.  h.  t. 

misfeasance ;  in  English  law,  a  trespass. 
Tomlins'  Diet,  k  t. 

Misnomer;  misnaming  a  person.  An  error 
in  the  Christian  name  of  the  defender,  though 
otherwise  correctly  designated,  is  fatal  to  a 
summons.  Tomlins'  Did.  h.  t. ;  Shaw's  Prac. 
218. 

Misprisions ;  from  a  French  word  signify- 
ing contempt,  are  generally  undei'stood,  in 
English  law,  to  be  all  such  high  offences  as 
are  under  the  degree  of  capital,  but  nearly 
bordering  thereon.  A  misprision  is  said  to 
be  contained  in  every  treason  and  felony;  and 
if  the  sovereign  so  please,  the  offender  may 
be  proceeded  against  for  the  misprision  only. 


Misprisions  are  generally  divided  into  two 
sorts ;  negative,  which  consist  in  the  conceal- 
ment of  something  which  ought  to  be  re- 
vealed; and  positive,  which  consist  in  the 
commission  of  something  which  ought  not  to 
be  done. 

Misprision  of  treason,  is  committed  by  him 
who,  being  in  the  knowledge  of  a  treasonable 
act,  does  not  reveal  it  to  a  judge  or  justice 
of  the  peace.  Hence,  whenever  a  new  trea- 
son is  enacted,  there  necessarily  results  a  new 
misprisiou  of  treason.  By  an  act  of  Eliza- 
beth, Stat.  13,  c.  2,  it  is  declared,  that  those 
who  forge  foreign  coin,  not  current  in  the 
kingdom,  shall  be  held  and  punished  as  guilty 
of  this  offence.  The  punishment  of  this  mis- 
prision of  treason  is  perpetual  imprisonment, 
forfeiture  of  goods,  and  of  the  profits  of  land 
for  the  offender's  life.  Misprision  of  treason, 
where  accompanied  with  any  probable  cir- 
cumstance of  assent,  may  subject  the  offender 
to  punishment  as  a  principal  in  the  treason. 
The  form  of  prosecution  for  misprision  is  the 
same  with  that  provided  for  actual  treason. 
Hume,  vol.  i.  p.  543 ;  Ersk.  B.  iv.  tit.  4,  § 
28 ;  Bank.  vol.  ii.  p.  261 ;  Swint.  Abridg.voce 
Treason;  TaiPs  Justice,  voce  Treason.  See 
Treason. 

Misrepresentation.    See  Insurance. 

Missives  ;  in  re  mercatoria;  are  exempted 
from  the  solemnities  requisite  for  the  authen- 
tication of  other  deeds.  Ersk.  B.  iii.  tit.  2,  § 
4  ;  Stair,  B.  iv.  tit.  42,  §  151.  See  Evidence. 
Deed.    Date  of  Deed.     Writ.    Holograph. 

Missives  and  Minutes  of  Sale  and  Lease. 
A  binding  sale  of  heritage  may  be  concluded 
by  an  interchange  of  missives,  as  well  as  by 
a  formal  minute  of  sale.  In  the  missives, 
the  one  party  offers  to  buy  or  sell  on  cer- 
tain conditions :  the  other  party  accepts  of 
the  offer.  This  constitutes  a  complete  con- 
tract, which  may  be  afterwards  carried  into 
effect  by  the  execution  of  a  disposition.  See 
Disposition.  The  minute  is  a  regular  deed 
with  a  clause  of  registration  for  diligence, 
and  a  testing  clause,  executed  according  to 
all  the  requisites  of  the  act  1681,  e.  5.  The 
missives  may  be  holograph  of  the  parties,  the 
acceptor  prefixing  a  copy  of  the  offer  in  his 
own  handwriting.  If  not  holograph,  the  mis- 
sives must  be  tested  and  authenticated  like 
other  probative  deeds.  The  oath  of  party 
acknowledging  his  subscription  will  not  sup- 
ply a  defect  in  any  of  the  solemnities ;  and 
both  missives  must  be  probative,  for  the  con- 
tract is  binding  on  both  or  neither  of  the  con- 
tracting parties;  subject  always  to  the  legal 
effect  of  ret  interventus  and  homologation.  See 
ReiInterventus.JT0mologaiion.\LocusPanitentia;. 
Conditions  are  sometimes  inserted  in  these 
preliminary  deeds.  Security  may  be  stipu- 
lated for  the  regular  payment  of  the  price ; 


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which  may  he  done  by  agreeing  that  the  dis- 
position  shall  be  retained  in  the  hands  of  the 
seller  until  the  price  be  paid,  and  in  such  a 
case  it  has  been  lield  that  the  seller  is  entitled 
to  the  subject  or  the  price ;  Baird,  Aug.  1758, 
Mor.  14,156.    Another  mode  of  securing  the 
price  is  to  make  the  sale  conditional  on  the 
payment  of  the  price.     Where  the  seller  de- 
clares that  the  sale  shall  be  effectual  only  in 
the  event  that  the  price  is  paid  against  a  day 
certain,  the  neglect  to  pay  is  suspensive  of 
the  sale,  and  the  seller  may  dispose  of  the 
subject  to  another.     The  missives  by  which 
the  bargain  is  concluded  ought  to  be  written 
on  paper  duly  stamped,  or  they  ought  to  be 
stamped  afterwards,  before  they  can  befounded 
on  in  a  court  of  law.    A  written  minute  of 
lease  with  mutual  stipulations,  or  an  obliga- 
tion or  missive  letter  by  the  proprietor  to 
grant  a  lease,  accepted  in  like  manner  by  the 
lessee,  has  equal  force  with  a  formal  lease. 
It  is  necessary  that  the  writings  be  proba- 
tive, or  that  the  defect  be  cured  by  possession 
or  rei  interventus.    If  there  be  a  discrepancy 
between  the  formal  lease  and  the  previous 
minute  or  missive  letter,  the  lease  itself  re- 
gulates the  agreement.    An  essential  defect 
in  the  missives  of  lease  cannot  be  supplied  by 
oath.    It   would   appear  that  missives  of 
lease,  like  missives  of  sale,  require  to  be 
stamped  to  found  an  action.    For  the  forms 
of  minutes  and  missives  of   sale  and  lease, 
see  Bell's  Deeds,  i.  144,  et  seq. ;  Jurid.  Styles, 
i.  72,  80,  99,  687.    See  also  BeU's  Princ.  §§ 
889, 1190 ;  Bdlon  Leases,  i.  303-4, 312, 274; 
Hunter's  Landlord  and  Tenant,  285,  316, 327 ; 
Bell  on  Pwchaset's  Title,  141,   154;  Ross's 
Led.  i.  359. 

Mittimus;  in  English  law,  a  writ  for 
transferring  records  from  one  court  to  an- 
other. Also  a  precept  in  writing,  under  the 
hand  and  seal  of  a  justice  of  peace,  directed 
to  the  gaoler,  for  the  receiving  and  safe  keep- 
ing of  an  offender  until  he  is  delivered  by 
law.     TonUins'  Diet.  h.  t. 

Hobbing ;  is  a  tumultuary  assembly  of  a 
number  of  people,  to  the  terror  of  the  lieges 
and  the  disturbance  of  the  public  peace.  The 
meeting  must  be  attended  with  circumstances 
of  actual  violence,  or  of  such  a  tendency 
thereto  as  may  be  the  ground  of  a  reasonable 
apprehension  of  danger.  A  meeting  or  con- 
vocation of  this  kind  may  arise  from  an  act  in 
itself  legal — as  where  a  messenger  unneces- 
sarily raises  the  country  to  assist  in  ejecting 
a  tenant,  and  proceeds  in  an  irregular  man- 
ner with  a  multitude  of  people  to  drive  the 
cattle  and  turn  out  the  furniture  of  the  ten- 
ant, where  no  resistance  has  been  made.  That 
would  be  an  instance  of  a  mobbing  or  convo- 
cation arising  from  a  legal  act,  and  other  in- 
stances may  be  figured.     There  must  not 


only  be  a  tendency  to  violence  in  the  convo- 
cation, but  it  must  be  a  combination  fur  vio- 
lence in  defiance  of  lawful  authority.    Th« 
offence  of  mobbing  is  distinguished  from  th« 
crime  of  treason,  by  being  confined  to  some 
matter  of  private  concern,  as  a  compnlsoiy 
reduction  in  the  price  of  g^ain — to  prerent 
the  division  of  a  common — to  rescne  a  crimi- 
nal, &e.    It  is  not  necessary  to  the  constitu- 
tion of  this  offence  that  the  assemblage  shall 
have  been  brought  together  by  preconcert. 
It  is  enough  that  an  illegal  outrage  is  com- 
mitted or  threatened,  although  the  design  of 
it  should  have  been  the  result  of  a  tacit  con- 
federacy, formed  on  the  instant,  and  after  the 
mob  has  been  collected.    In  order  to  consti- 
tute the  offence,  it  is  only  necessary  that  the 
property  of  individuals,  or  of  the  public, 
should  be  seized  or  damaged,  or  the  persons 
of  individuals  in  any  way  iqjnred,  or  they 
themselves  put  in  fear,  or  constrained  to  act 
contrary  to  their  duty,  interest,  or  inclina- 
tion.   The  bare  act  of  being  tumnltnoosly 
assembled  for  a  violent  purpose,  though  no 
further  movement  be  made  towards  its  exe- 
cution, will  fall  under  the  offence  of  mob- 
bing.   He  will  be  held  as  art  and  part  guilty 
of  this  offence,  who  excites  the  mob,  exboris 
them  to  continue,  or  distributes  money  or 
liquor  amongst  them ;  even  when  the  person 
is  not  present  in  the  mob,  if  he  should  be  able 
to  communicate  with,  or  direct  the  mob,  or  to 
influence  their  operations.    The  act  of  being 
present  in  a  mob,  if  the  person  continue  with 
them  for  any  time,  although  he  does  not  take 
ail  active  part,  may  be  construed  into  being 
art  and  part  guilty  of  the  offence;   and, 
therefore,  those  who  may  be  induced  from 
curiosity  to  enter  into  a  mob  run  a  risk  tnf- 
ficient  to  deter  any  prudent  person  from 
attempting  to  gratify  an  idle  curiosity  of  this 
kind.  One  who  joins  a  mob  does  not  «>  tpw  be- 
come art  and  part  of  a  sudden  and  extraneous 
felony  perpetrated  by  some  rioters  at  the  mo- 
ment.    When  the  libel  on  this  crime  is  laid 
at  common  law,  the  punishment  is  arbitrary. 
The  ancient  law  of  Scotland,  relative  to  con- 
vocations within  burgh,  seems  now  to  be  in  a 
great  measure  superseded  by  the  Riot  Act,  1 
Geo.  I.,  c.  5.     The  first  provision  of  that  act 
relates  to  the  pulling  down,  or  demolishing  of, 
or  beginning  to  pull  down,  a  church  or  place 
of  religious  worship,  or  dwelling-house,  or 
bam,  or  out-house,   by  persons  unlawfully, 
riotously,and  tumultuously  assembled ;  which 
shall  be  adjudged  felony  without  benefit  of 
clergy.    2.  W  here  persons  are  riotously  and 
tumultuously  assembled  for  any  purpose  what- 
ever, to  the  number  of  twelve,  a  proclamation 
is  directed  to  be  made,  orderbg  them  to  dis- 
perse, and  declaring  that,  in  case  of  their 
continuing  together  for  the  space  of  an  hoar 


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thereafter,  to  the  nnmber  of  twelve  or  more, 
after  such  command  or  request  made  by  pro- 
eUunatioD,  it  shall  be  judged  felony  without 
benefit  of  clergy.     Should  this  proclamation 
be  impeded  by  any  of  the  mob,  this  is  made 
instant  felony  in  those  who  are  "  offenders 
therein ;"    and  the    magistrates,  peace-offi- 
cers, and  all  whom  they  shall  call  to  their 
assistance,  are  by  the  act  empowered  to  dis- 
perse, seize,  and  apprehend  the  persons  riot- 
ously assembled,  to  the  number  of  twelve, 
widiin  an  hour  after  proclamation ;  and  the 
act  declares,  that  if  any  of  the  mob  shall  be 
killed,  maimed,  or  hurt,  by  reason  of  their 
resistance,  all  concerned  shall  be  indemnified 
anddischargedoftfaeconsequences;  and  should 
it  happen  before  the  expiration  of  the  hour, 
that  the  meeting  are  not  only  tumultuous,  but 
shall  proceed  to  violence  against  the  property 
or  person  of  any  one,  force  may  instantly  be 
repelled  with  force.    Nothing  can  be  more 
erroneous  than  the  notion,  that  after  the 
proclamation  an  hour  must  elapse  before 
force  can  be  used.     The  proclamation  is  in 
these   terms :    "  Our   Sovereign   Lady  the 
Qaeen  chargeth  and  commandeth  all  persons 
being     assembled    immediately  to   disperse 
themselves,  and  peacefully  to  depart  to  their 
habitations,  or  to  their  lawful  business,  upon 
the  pains  contained  in  the  act  made  in  the 
first  year  of  King  George,  for  preventing 
tamnlts  and  riotous    assemblies. — God  save 
the  Queen."    This  proclamation  may  be  made 
by   ft  justice  of  the  peace  or  other  magis- 
trate ;    and  if  the  mob  continue  assembled 
for  one  hour  after  the  proclamation,  they,  and 
each  of  them,  are  guilty  of  the  capital  offence, 
whether  or  not  they  have  attempted  to  com- 
mit any  felonious  outrage.  By  52  Geo.  III.,  c. 
130,  it  is  enacted,  that  "if  any  person  or  per- 
sons unlawfully,  riotously,  and  tumultuously 
assembled  together,  in  disturbance  of  the 
public  peace,  shall  unlawfully  and  with  force, 
demoliui  and  pull  down,  or  begin  to  demo- 
lish or  pull  down,  any  erection  and  building, 
or  engine  which  shall  be  used  or  employed 
in  carrying  on  or  conducting  of  any  trade  or 
manufactory,  or  any  branch  or  department 
of  any  trade  or  manufactory  of  goods,  wares, 
or    merchandise  of  any  kind  or  description 
whatsoever,  or  in  which  any  goods,  wares,  or 
merchandise  shall  be  warehoused  or  deposited; 
that  then  every  such  pulling  down  and  demo- 
lishing, or  beginning  to  pull  down  and  de- 
molish, shall  l«  adjudged  felony  without  bene- 
fit of  clergy."    Hvme  i.  411,  433 ;  Alison't 
Princ.  50d ;  Erdc.  B.  iv.  tit.4,  §  29,  and  note  by 
Mr  Ivory;  Karnes'  Stat.  Law  Abridg.,  h.  t.;  Hun- 
Ur's  Landlord  and  Tenant,  v.  744 ;  Butch.  Jus- 
tice of  Peace,  i.  p.  370  ;  Tait's  do.,  voce  Riot; 
Blair'i  do.,  &.  (.    See  the  case  of  Caimt  and 
oOur;  18th  Deo.  1887, 1  Swim.  597. 


Kobilia  Sequnntnr  Personam  ;  a  Roman 
law  maxim,  importing  that  moveables  follow 
the  owner's  domicile ;  so  that  a  deed  of  trans- 
ference, executed  according  to  the  forms  of 
the  lex  domicilii,  is  effectual  to  carry  move- 
ables situated  in  a  country  where  such  a 
mode  of  conveyance  would  not  be  effectual. 
Ersk.  B.  iii.  tit.  2,  §  40,  note  by  Mr  Ivory. 
See  Foreign,  Heritable  and  Moveable.  Do- 
micile. 

Koderamen  Inonlpatse  Tntelse ;  is  a  Ro- 
man law  expression,  signifying  that  degree 
of  self-defence  which  a  person  may  legally 
use,  although  it  should  occasion  the  death  of 
the  aggressor,  without  incurring  the  guilt  of 
raurder,or  even  of  culpable  homicide.  Hunu^s 
Grim.  Law,  vol.  i.  p.  221 ;  Ersk.  B.  iv.  tit. 
4,  §  41.  See  Ghaud  Melle,  Homicide.  Jus- 
tifiable Homicide. 

Koderata  Miswioordia.  See  Misericordia. 

Moderator ;  the  person  who  presides  at  a 
dispute  or  in  a  public  assembly.  The  presi- 
dent or  chairman  of  the  General  Assembly  of 
the  Church  of  Scotland  is  styled  Moderator. 
The  moderator  is  chosen  on  the  day  on  which 
the  Assembly  meets,  from  among  the  mi- 
nisters upon  the  roll  prepared  by  the  clerks. 
It  is  usual  for  the  moderator  of  the  last  As- 
sembly to  propose  his  successor ;  and  on  one 
occasion,  when  there  were  two  candidates, 
each  was  proposed  by  the  moderator.  Any 
member  of  Assembly  may  propose  another 
candidate  for  the  chair.  The  majority  of 
members  of  Assembly  determine  in  case  of  a 
division.  In  the  event  of  a  contested  election, 
the  candidates  are  first  called  upon  to  give 
their  votes.  The  chairman  or  president  of 
the  Commission  of  the  General  Assembly,  of 
a  synod,  and  of  a  presbytery,  is  also  called 
moderator.  The  minister  of  a  parish  is  ex 
officio  moderator  of  the  kirk-session,  and  he 
may  appoint  any  other  person  to  preside  in 
bis  stead.  Hill's  Church  Prae.  2,  41,  81,  90, 
98  ;   Gillan's  Acts  of  Assembly,  180. 

Modification ;  is  the  term  usually  applied 
to  the  decree  of  the  Teind  Court,  awarding  a 
suitable  stipend  to  the  minister  of  a  parish. 
The  amount  of  the  stipend  is  fixed  by  the 
Court  on  a  due  consideration  of  the  state  of 
the  teinds — the  extent  of  theparish — its  popu- 
lation— and  the  necessary  expenses  to  which 
the  clergyman  is  exposed.  The  Court,  al- 
though formerly  restricted  by  the  act  1617, 
c.  3,  to  a  maximum,  beyond  which  they  could 
not  augment  the  stipend  of  the  minister,  have 
not,  by  the  subsequent  commissions,  been  so 
restrained ;  and  accordingly  they  are  now 
in  use  to  give  a  reasonable  stipend  to  the 
clergyman,  varying  with  the  circumstances  of 
the  parish  and  the  state  of  the  teinds.  The 
Court  may  also  grant  an  augmentation  of  sti- 
pend after  ad  interval  of  twenty  years  from 


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the  date  of  the  last  final  decree  of  modifica- 
tion. The  stipend,  unless  where  peculiar 
circumstances  render  it  necessary  to  modify 
it  in  money,  must  be  modified  in  grain  or 
victual,  and  paid  in  money,  convertible  ac- 
cording to  the  fiar  prices  of  the  year  for  which 
the  stipend  is  payable ;  48  Geo.  III.,  c.  13d. 
See  Ersk.  B.  ii.  tit.  10,  §  46,  et  seq. ;  Bank. 
vol.  ii.  pp.  60,  516.  See  Augmentation.  Lo- 
cality.    Stipend. 

Modus';  or  modus  decimandi;  in  England, 
is  a  particular  manner  of  tithing  allowed, 
different  from  the  general  law  of  taking 
tithes  in  kind.  When  telnds  in  Scotland 
have  been  valued,  they  are  said  to  be  paid 
by  a  modus.  Bell's  Frinc.  §  1147,  et  seq.; 
Tomlins'  Diet.  h.  t. 

Moiety.  A  sum  payable  in  moieties  is 
payable  in  two  equal  shares,  though  some- 
times, erroneously,  the  term  is  applied  to  a 
sum  payable  in  two  or  three  different  parts 
or  insta,linents. 

Molestatioa  ;  is  the  troubling  of  one  in 
the  possession  of  his  lands.  This  is  a  delict 
which  subjects  the  molester  to  a  claim  of 
damages.  An  action  of  molestation  is  a  pos- 
sessory action,  calculated  for  continuing  pro- 
prietors in  the  lawful  possession  of  their  lands 
during  the  dependence  of  any  question  in  re- 
lation  to  the  right  thereto.  The  action  may, 
by  act  of  sederunt  1580,  rati  Bed  by  stat. 
1587,  c.  42,  be  brought  before  the  Judge- 
Ordinary,  or  the  bailies  of  regality.  Ersk. 
B.  iv.  tit.  1,  §  48  ;  Stair,  B.  iv.  tit.  27  ;  Bank. 
vol.  i.  jp.  280;  Jurid.' Styles,  iii.  128,  137. 
See  Ejection  and  Intrusion. 

Money.  The  current  coin  of  the  kingdom, 
which  may  be  offered  in  payment,  is  of  gold, 
silver,  or  copper,  to  which  is  affixed  the  royal 
stamp,  and  to  which  siich  nominal  value  is 
given  as  the  queen,  by  her  prerogative,  may 
think  proper  to  fix.  Money  cannot  be  iden- 
tified, unless  separated  and  marked  for  the 
purpose.  Money  in  possession  of  an  insolvent 
person  is  a  general  fund  for  division  among 
his  creditors  ;  and  no  sum,  or  part  of  it,  can 
be  claimed  by  any  one,  unless  it  be  dis- 
tinguished and  ear-marked  as  specific.  At 
one  time,  gold  coin  was  the  only  legal  tender, 
except  for  taxes,  or  sums  below  forty  shil- 
lings ;  but  by  a  recent  act,  conferring  cer- 
tain privileges  on  the  Bank  of  England,  it  is 
provided,  that  unless,  and  until,  Parliament 
shall  otherwise  direct,  the  notes  of  the  Bank 
of  England  shall  be  a  legal  tender,  except  at 
the  bank  itself  and  its  branches ;  3  and  4 
WiU.  IV.,  c.  98,  §  6.  Silver  coin  is  a  legal 
tender  to  the  amount  of  forty  shillings.  To- 
kens given  by  manufacturers  to  their  work- 
men are  not  now,  as  formerly,  permitted  to 
be  used  as  money ;  57  Geo.  III.,  c.  46,  §  113. 
Money  Scots  is  the  ancient  money  of  Scotland, 


and  was  one-twelfth  the  value  of  sterling 
money. 

In  the  English  courts,  the  bringing  money 
into  court,  or,  in  other  words,  the  offer  of 
payment  to  a  party,  is  affected  by  many  con- 
siderations unknown  in  Scotch  practice.  Ac- 
cording to  the  English  rule,  an  offer  of  the 
debt  due  will  either  put  an  end  to  the  Itw- 
suit,  or,  should  the  plaintiff's  claim  exceed 
the  just  amount^  will  have  the  effect  of 
throwing  on  him  the  expense  of  the  after 
proceedings.  See  Tomlin^  Did.  h.  t.  Stair, 
JB.  i.  tit.  11.  §  5  ;  tit.  14,  §1 ;  Bank.  vol.  L 
pp.  356,  385,  407,  488  ;  BdPs  Com.  i.  257, 
264  ;  ii.  378,  602  ;  BeWs  Prine.  §§  1332-7; 
Illust.  §  1333  ;  Karnes'  Stat.  Law  Abridy.  h.  U; 
Tail's  Just,  of  Peace,  wee  Coin ;  Blair's  do., 
h.  t.  As  to  the  offence  of  counterfeiting  the 
King's  coin,  see  Coining. 

Monks.  The  monks  were  the  regular 
clergy,  who  had  no. cura  animarHm,  nor  the 
charge  of  any  congi'egation,  but  were  bonDd 
to  close  residence  in  their  monasteries,  unles 
when  sent  out  on  missions.  They  got  the 
name  of  regular,  because  circumscribed  by 
vow  to  certain  rules  of  devotion  and  penance, 
according  to  the  institution  of  their  several 
orders.  Ersk.  B.  i.  tit.  5,  §  4 ;  Stair,  B.  ii. 
tit.  8,  §  15  ;  Bank.  vol.  i.  p.  73 ;  ii.  5. 

Monogn^ams ;  the  signatures  formerly  ad- 
hibited to  deeds  in  place  of  full  subscriptioDS, 
usually  consisting  of  the  letters  of  the  sub- 
scriber's own  name  and  of  some  tntelar  sajot 
fancifully  combined.    Ross's  Lett.  i.  126. 

Monopoly ;  a  license  or  privilege  bestowed 
by  the  sovereign,  by  grant  or  otherwise,  for 
the  sole  buying,  sellhig,  making,  working,  or 
using  of  anything.  Monopolies  are  contrary 
to  the  spirit  of  the  laws  of  this  kingdom,  and 
are  void  at  common  law.  In  England,  by 
James  I.,  c.  3,  all  monopolies,  grants,  letters- 
patent,  and  licenses,  for  the  sole  buying,  eell- 
ing,  and  making  of  goods  and  manufactnres, 
were  declared  void,  except  in  some  particnlar 
cases ;  and  persons  aggrieved  by  putting 
them  in  use  may  recover  treble  damages  and 
double  costs  by  action  on  the  statute.  This 
does  not  extend  to  any  grant  or  privilege 
conferred  by  act  of  Parliament,  nor  to  any 
grant  or  charter  to  corporations  or  cities,  nor 
to  grants  to  companies  or  societies  of  mer- 
chants, for  the  benefit  of  trade ;  nor  to  in- 
ventors of  new  manufactures  posseting  pa- 
tents ;  nor  to  grants  or  privileges  for  print- 
ing, making  gunpowder,  easting  ordnance, 
&c  The  Crown  may  grant  to  particular 
persons  the  sole  printing  of  the  Scriptores. 
In  Scotland,  an  act  was  passed  in  tbe  reign 
of  Charles  I.  (1641,  c.  76),  declarinsr  mo- 
nopolies ineffectual ;  and  since  the  Union, 
the  same  law  rules  both  parts  of  the  king- 
dom.   A  regulation  made  by  the  bailies  of 


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MOR 


577 


Leith,  confining  the  ofiSce  of  procurator  be- 
fore their  conrt  to  those  irho  had  been  ap- 
prentices to  their  procurators,  was  voided  as 
a  monopoly ;  Young,  21st  Dec.  1765.  Diet. 
9564.  See5a«i.i.  411;  BelPt  Com.  i.  109 ; 
Karnes'  Stat.  Law,  h.  t. ;  Kamea'  Equity,  229, 
341,  361 ;  Tomlins'  Diet.  h.  t.  See  Pactum 
iUicitum.  Exclusive  Privilege.  Patents.  Lite- 
rary  Property.    King's  Freeman. 

Xoot;  a  hypothetical  or  debatable  case, 
put  and  argued  by  young  barristers  and  stu- 
dents of  law  at  the  inns  of  court  in  England, 
byway  of  practice,  in  a  place  formerly  called 
Moot  Hall.  A  bailiff  or  surveyor  of  the 
moots  is  annnallj  chosen  by  the  benchers. 
Tomlin^  Diet.  h.  t. 

Mora.  Mora,  or  delay,  is  a  general  term 
applicable  to  all  nndue  delay  in  the  prosecu- 
tion or  completion  of  an  inchoate  bargain, 
diiigence,  or  the  like  ;  and  the  legal  effect 
of  which  may  be  to  liberate  the  contracting 
parties,  or  to  frustrate  the  object  of  the  dili- 
gence. The  question,  whether  or  not  undue 
delay  has  occurred,  may  be  said  to  be  a  jury 
gnestion ;  and  t»  re  mercatoria,  the  determina- 
tion of  it  will  be  regulated  very  much  by  the 
usage  of  trade,  or  the  practice  of  merchants 
in  the  particular  transaction  to  which  it  re- 
lates. A  creditor  who  has  begun  diligence 
against  his  debtor's  person  or  estate,  which 
he  does  not  complete  within  the  legal  and 
requisite  time,  is  said  to  be  in  mora;  and 
soch  diligence  will  not  be  allowed  to  defeat 
the  rights  or  diligences  of  subsequent  pur- 
chasers or  creditors.  A  superior  who  unduly 
dehiys  to  obey  a  charge  to  enter  his  vassal 
forfeits  the  non-entry  duties  during  his  life. 
Mora,  in  the  performance  of  an  obligation, 
subjeciB  the  debtor  to  liability  for  the  direct 
loss  sustained  by  the  creditor;  and  if  the 
subject  to  be  delivered  perish  in  the  debtor's 
hands,  after  mora,  the  loss  falls  upon  him, 
although  he  has  not  been  otherwise  in  fault, 
unless  it  appear  that  it  would  have  perished 
in  the  same  manner  in  the  creditor's  hands. 
And  even  this  is  no  defence,  when  it  can  be 
shown  that  the  owner  might  have  got  it  off 
his  hands  before  the  accident  happened,  espe- 
cially if  it  be  a  thing  for  sale,  and  not  for 
keeping.  In  the  older  law,  on  account  of  the 
disfavour  in  which  the  taking  of  interest  was 
held,  delay  in  the  payment  of  a  money  debt 
did  not  entitle  the  creditor  to  interest  with- 
out previous  stipulation ;  but  this  doctrine 
has,  in  modern  times,  given  place  to  more 
equitable  rules.  In  general,  the  interest  is 
held  to  he  the  loss  which  the  creditor  suffers 
by  delay ;  but  this  rule  is  not  inflexible ;  for 
when  damage  flows  directly  from  the  non- 
payment of  money,  the  party  failing  to  pay 
may  become  liable,  just  as  one  failing  to  im- 
plement an  ordinary  obligation  is  liable  for 
2o 


the  direct  damages.  Thus,  in  a  recent  case, 
a  trustee  for  creditors  sold  the  trust-estate 
to  a  party  who  bound  himself  to  pay  the 
price  by  instalments  at  certain  terms.  Upon 
the  faith  of  this,  the  trustee  intimated  to  an 
heritable  creditor  on  the  estate,  that  the  sum 
in  his  bond  would  be  paid  by  a  certain  day; 
which  intimation  was  accepted  and  acted 
npon.  The  buyer  having  made  no  payment 
till  nearly  a  year  after  the  last  of  the  stipu- 
lated terms,  the  trustee  was  unable  to  fulfil 
his  engagement  to  the  creditor,  who  raised 
action  against  the  trustee  for  the  loss  and 
damage  thereby  sustained.  It  was  held  that 
the  buyer  was  liable  to  the  trustee  in  relief ; 
Mansfield,  Feb.  27, 1836, 14  D.  B.  <t  M.  685. 
Delay  is  incurred,  in  pure  obligations,  by 
disregarding  the  creditor's  requisition ;  for 
when  no  term  is  stipulated,  the  time  of  per- 
formance is  in  the  creditor's  option.  In  obli- 
gations prestable  at  a  stipulated  day,  the 
passing  of  the  day  puts  the  debtor  in  mora. 
See  Dies  interpellat  pro  homine.  In  condi- 
tional obligations,  there  is  no  m^a  until  the 
condition  has  been  purified ;  and  even  then, 
requisition,  or  the  arrival  of  a  previously  sti- 
pulated term,  is  requisite.  If  requisition  is 
impossible,  mora  is  incurred  if  the  obligation 
be  not  performed  so  soon  as  it  may  be ;  as  in 
the  case  of  restitution  of  things  found,  or 
coming  in  any  other  way  into  the  possessor's 
hands  without  the  owner's  knowledge.  In 
debts  doe  to  pupils,  mora  is  incurred  without 
requisition  ;  and  in  obligations  by  delin- 
quence,  mora  begins  from  the  first  moment 
that  the  obligation  might  have  been  imple- 
mented. In  general,  legal  execution  is  not 
competent  till  there  has  been  a  failure  to 
perform  in  terms  of  the  obligation  ;  but  in 
some  cases,  precautionary  steps  for  the  cre- 
ditor's security,  by  action  or  diligence,  may 
be  resorted  to,  before  the  arrival  of  the  term 
of  payment — e.  g.,  where  the  debtor  is  vergens 
ad  inopiam.  See  Ersk.  B.  ii.  tit.  5,  §  45 ; 
BeU's  Com.  i.  326  et  seq.,  445  et  seq. ;  ii,  34 
and  153, 194, 201,  et  seq.;  Stair,  B.  i.  tit.  13, 
§  2  ;  tit.  17,  §  15;  Move's  Notes,  p.  Ixxviii. ; 
Bank.  vol.  i.  p.  471 ;  Bdl's  Prine.  §  82  ;  Bell 
on  Leases,  i.  392  ;  Hunter's  Landlord  and  Te- 
nant, 72S-33 ;  Karnes'  Equity,  208.  See  also 
Diligence.  Damages.  Conjunct  and  Confident. 
Dies  interpellat  pro  homine.  Arrestment.  In- 
hibition.   Adjudication. 

HoraTians ;  a  sect  of  dissenters,  who,  on 
account  of  conscientious  scruples,  are  permit- 
ted, in  lieu  of  an  oath,  to  make  a  solemn 
affirmation  in  courts  of  justice,  civil  and  cri- 
minal, and  on  all  other  occasions  on  which, 
either  at  common  law  or  by  statute,  an  oath 
is  required  to  be  taken.    See  Affirmation. 

Morbus  Sonticiis ;  a  mortal  sickness.  It 
has  been  otherwise  defined,  an  illness  so  se- 


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MOR 


vere  as  to  furnish  a  just  excuse  from  the  per* 
formance  of  duty,  or  the  transacting  of  busi- 
ness. More  strictly,  the  term  is  applied  to 
incapacitating  diseases ;  Laird,9th  July  1763, 
Mor.  3315.  At  one  time,  it  was  necessary  to 
prove  a  morbut  sontieus  in  reducing  a  deed 
ex  capite  lecti;  but  this  is  not  now  the  law. 
Stair,  B.  iv.  tit.  20,  S  41.    See  Deathbed. 

Mortanoestry.  The  brieve  of  inquest  is 
sometimes  called  a  brieve  of  mortancestry. 
But  the  two  brieves  were  originally  distinct ; 
the  brieve  of  inquest  being  intended  for  the 
purpose  of  proving  the  propinquity ;  whereas 
the  brieve  of  mortancestry  was  used  for  call- 
ing into  court  those  in  possession  of  the  an- 
cestor's property,  for  trying  the  title  under 
which  they  possessed ;  Erth.  B.  iii.  tit.  8,  § 
62.    See  Brieve. 

Hortgage ;  according  to  Skene,  is  a  deed 
wed,  as  a  sum  given  upon  lands  in  wadset, 
and  under  reversion,  called  a  deed  wed,  be- 
cause, by  the  old  laws  of  the  realm,  the 
annual  of  the  sum  was  reckoned  a  part  of  the 
stock  and  principal  sum,  contrary  to  the  pos- 
terior practice,  by  which  the  annual  was 
yearly  paid  until  redemption.     Skeiu,  h.  t. 

In  English  law,  it  is  a  pledging  or  pawn- 
ing of  freehold  or  leasehold,  or  any  other 
property  of  a  nature  not  susceptible  of  per- 
sonal delivery.  The  form  of  a  mortgage  of 
land  is  by  a  conveyance  of  the  inheritance  or 
estate  to  another,  on  condition  that,  if  the 
borrower  do  not  by  a  certain  day  repay  the 
money,  the  lender  may  enter  and  enjoy  the 
land;  or,  in  technical  language,  that  the 
lender's  estate  shall  be  absolute  in  the  pre- 
mises. In  equity,  the  lender  or  mortgagee  is 
held  accountable  to  the  borrower  or  mort- 
gager for  the  true  value ;  and  if  the  mort- 
gagee is  in  possession,  by  virtue  of  an  eject- 
ment brought  at  law,  equity  will  make  him 
render  an  account  of  the  profits  received; 
and  this  account  may  be  opened  at  any  time 
during  twenty  years.  The  right  which  a 
mortgager  has  to  redeem  his  property  is 
ealled  his  equity  of  redemption.  Mortgag- 
ers, while  in  possession,  may  vote  as  long 
as  the  interest  due  does  not  reduce  the  bene- 
ficial interest  below  forty  shillings ;  but  after 
a  mortgagee  is  in  possession,  the  mortgager's 
right  ceases.  Mortgagees  may  vote  if  in 
possession  of  the  premises  mortgaged,  but  not 
otherwise.  Mortgage  is  not  a  Scotch  law 
term,  as  is  sometimes  supposed.  The  corre- 
sponding term  in  Scotch  law  is  wadset ;  and  the 
right  of  an  heritable  creditor  by  bend  and 
disposition  in  security,  or  by  heritable  bond, 
is  in  some  respects  analogous  to  that  of  a 
mortgagee.  The  mortgage  of  ships  is  pro- 
vided for  by  special  statute ;  6  Oeo.  IV.  c.  110, 
^§  45-7.  See  Tmlins'  Diet.  h.  t.;  Stair, 
a.  ii.  tit.  10,  §  3 ;  BeU's  Com.  i.  164 ;  BelPs 


Prine.  §  1739.    See  Ships.    Wadset.   Bml 
Bwdens. 

Hortifloatioa,  Hoitmain.  These  tensi 
are  nearly  synonymous,  and  are  applied  to 
lands  given  formerly  to  the  Church  for  reli- 
gious purposes,  or,  since  the  Reformation,  for 
charitable  or  public  uses.  Those  lands  vuted 
in  the  Church  were  held  to  be  given  for 
superstitious  purposes,  and  were  declared,  by 
the  act  1587,  c.  29,  to  belong  to  the  Crown. 
By  the  present  practice,  when  lands  are  gires 
for  any  charitable  purpose,  they  are  nsoallj 
disponed  to  the  trustees  of  the  charity,  to  to 
held  either  in  blench  or  feu.  When  morti- 
fications are  made  for  behoof  of  the  poor 
generally,  and  the  management  is  not  in- 
trusted to  particular  individuals,  or  when  it 
is  given  to  the  "patron  or  overseers"  of  the 
poor,  they  fall  under  the  administration  of 
the  heritors  and  kirk-session,  in  the  same 
way  as  the  ordinary  funds  for  support  of  the 
poor,  each  member  of  the  meeting  having  s 
vote ;  and  this  whether  the  benefit  of  the 
fund  extend  to  the  whole  parish,  or  only  to  a 
particular  district  of  it.  Those  only  who  are 
entitled  to  relief  out  of  the  ordinary  paroehi*] 
funds  can  claim  the  benefit  of  mortificatioia 
for  behoof  of  the  poor  generally.  It  is  de- 
clared by  statute  to  be  unlawful  to  idter, 
change,  or  invert  any  mortifications  for  sup- 
port of  schools  and  hospitals,  or  pious  par- 
poses,  to  any  other  than  the  specific  use  to 
which  they  are  destined  by  the  disposer; 
1633,  c.  6.  This  statute  also  gives  right  of 
action  for  calling  the  managers  to  accomtt 
when  they  misapply  the  fund.  -  The  m»n»- 
gers  of  a  mortification  may  let  in  lease,  or 
feu  out  the  mortified  lands,  when  for  the  ad- 
vantage of  the  fund ;  and  th^r  may  sell  the 
superiority  for  a  fair  price.  Where  the 
managers  of  a  mortified  fund  are  changed,  anv 
set  of  administrators  may  call  their  prede- 
cessors to  account ;  and  any  individual  mana- 
ger may  call  his  brethren  to  account  for  mal- 
versation. Persons  entitled  to  benefit  under 
a  deed  of  mortification  have  a  right  to  purine 
an  action  for  enforcing  their  claims.  The 
jurisdiction  of  the  Court  of  Session  extends 
over  hospitals  and  mortifications,  so  as  to 
entitle  them  to  control  the  management  of 
the  administrators ;  and  in  the  event  of  a 
failure  of  the  administrators  in  whom  the 
management  of  a  mortification  for  a  definite 
purpose  is  vested,  it  has  been  found  that  the 
Court  of  Session  may  supply  the  deficiency  by 
anew  nomination ;  but  this  rule  is  subject  to 
limitation.  Lands  mortified  by  a  private  in- 
dividual as  glebe  to  the  minister  of  a  parish, 
are  not  teind-free ;  Wilson,  Feb.  1, 1831, 9 
S.  6b  D.  357.  See,  generally,  Siair,  B.  ii. 
tit.  3,  §  39 ;  Mmis  Notes,  p.  cliii.,  cccxliii. ; 
Ersk.  B.  ii.  tit.  4,  §  10 ;  Bank.  vol.  i.  p.  558; 

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ii.  8,  46,  235 ;  BeWs  Princ.  §  686 . 
Stat.  Law  Abridg.  h.  t. ;  Hunter's  Landlord  and 
Tmant,  pp.  107,  115 ;  Sand/ord  on  Heritable 
Succession,  i.  57  ;  Hutch.  Justice  of  Peace,  ii. 
pp.  23,  410 ;  Dunhp's  Parish  Law,  pp.  223-6, 
264,343.    See  Poor. 

Mortis  Cansa.  A  deed  mortis  causa  is  a 
deed  granted  in  contemplation  of  death,  and 
which  is  not  to  take  effect  till  after  the 
granter's  death.  See  Testament.  Disposition, 
General.    Settlement,  dc.     ' 

Kortans  Sasit  VlTum ;  a  maxim  of  Eng- 
lish law,  implying  that  a  right  vests  in  the 
person  of  an  heir  simply  by  the  death  of  his 
ancestor.  This  doctrine  has  never  been 
adopted  in  the  law  of  Scotland,  which  rejects 
the  principle  of  an  ipso  jure  transmission  of 
rights  requiring  sasine,  by  mere  survivance. 
BeWs  Princ.  §  1690  ;  Sandford's  Hent.  Sue. 
i.  271.    See  Heir,     Service.     Vesting. 

Mote ;  "  mate,  pley,  action,  qnarrell,  pla- 
citam."     Skene,  h.  t. 

Mother.  As  to  her  obligation  to  aliment 
her  children,  and  her  right  to  the  custody  of 
a  natural  child,  see  Aliment.  Bastard,  Ali- 
ment of. 

Motiont.  A  motion  is  an  application  to 
the  court,  by  the  parties  or  their  counsel,  in 
order  to  obtain  some  order  of  court,  which 
becomes  necessary  in  the  preparation  of  the 
record  or  in  the  progress  of  a  cause.  In  the 
Court  of  Session,  the  record  in  every  cause  is 
made  up  and  closed  under  judicial  superin- 
tendence; and  in  all  defended  causes,  the 
several  orders  requisite  in  the  preparation  of 
the  record,  'nclnding  not  only  the  usual  or- 
ders for  condescendences,  answers,  &c.,  but 
all  demands  for  diligences  for  the  recovery  of 
writings,  and  in  general,  all  incidental  appli- 
cations, are  made  on  motion  to  the  Lord 
Ordinary  in  the  cause.  These  motions  are  dis- 
posed of  according  to  a  roll  called  the  Motion- 
roll,  called  daily  during  session  by  the  seve- 
ral Lords  Ordinary.  The  course  is,  for  the 
party  making  the  motion  to  enrol  the  cause 
in  the  motion-roll  of  the  Lord  Ordinary  be- 
fore whom  it  depends.  Notice  of  the  enrol- 
ment and  of  its  purpose  must  be  given  to  the 
opposite  agent,  by  a  written  or  printed  billet, 
delivered  or  despatched  through  the  Post- 
of&ce,  on  the  day  on  which  the  enrolment  is 
made — i.e.,  always  forty-eight  hours,  at  the 
least,  before  the  cause  is  to  be  called  in  the 
course  of  the  motion-roll ;  and  in  addition  to 
this  notice,  the  roll  of  motions  fur  each  day 
is  put  on  a  board  exposed  on  the  tables  in  the 
Outer-House.  In  this  respect  there  is  a  dis- 
tinction between  the  motion-roll  and  the 
weekly  printed  roll  of  new  causes;  as  to  which 
last  no  notice  of  enrolment  is  necessary,  the 
printed  roll  being  held  sufficient  intimation. 
Motions  are  disposed  of  summarily,  and  al- 


most invariably  on  the  day  specified  in  the 
roll ;  whereas  causes  frequently  stand  for 
many  weeks  in  the  Debale-roUs  of  the  Lord 
Ordinary.  See  A.  S.  6th  Feb.  1806,  and 
Beveridgt^s  Form  of  Process,  i.  266.  See  Record. 

In  the  inferior  courts,  the  practice  is  in 
some  respects  similar  to  that  in  the  Court  of 
Session.  The  agent  for  the  party  making 
the  motion  sends  to  the  opposite  agent  a 
written  notice,  at  least  forty-eight  horn's  be- 
fore the  court-day  on  which  the  case  is  to  be 
in  the  roll,  intimating  the  precise  nature  and 
object  of  the  enrolment.  A  note  of  the  mo- 
tion ought  also  to  be  lodged  with  the  process, 
in  the  hands  of  the  sheriff-clerk,  in  time  to 
be  entered  in  the  roll.  When  a  case  is  called 
in  the  motion-roll,  the  agent  for  the  party 
making  the  motion  is  heard ;  and  when  his 
statement  is  completed,  the  opposite  party's 
agent  is  heard  in  reply*  No  new  motion,  or 
addition  to  the  motion  intimated,  should  be 
made  either  by  the  mover  or  the  respondent. 
In  general,  the  sheriff  disposes  of  the  motion 
in  court,  and  the  interlocutor  thereon  is  writ- 
ten out  and  subscribed,  proceeding  on  the 
narrative  of  having  heard  parties'  procura- 
tors ;  and  no  other  writing  on  the  subject 
forms  part  of  the  process.  But  the  sheriff 
may  make  avizandum  with  the  cause,  and 
give  judgment,  or  he  may  order  written 
pleadings  when  the  case  is  important  and  dif- 
ficult. Maelaurin's  Sheriff  Prac.  71 ;  Alex- 
ander's Abridg.  o/A.S.  182-90.  See  Enrol- 
ment.    Record.    Rolls  of  Court.    Notes. 

Konmings.  A  widow  has  a  legal  claim 
to  mournings  for  her  husband,  suitable  to 
his  quality,  where  his  estate  or  rank  re- 
quires mourning  in  point  of  decency ;  and 
this  claim  was  in  one  case  found  good  al- 
though the  marriage  had  not  subsisted  for  a 
year.  But  although  the  widow's  mournings 
are,  in  a  competition  with  creditors,  held  to 
constitute  a  privileged  debt,  yet,  in  another 
case,  a  claim  for  a  widow's  mournings  was 
found  not  effectual  in  competition  with  the 
husband's  creditors,  where  the  marriage  had 
been  dissolved  within  year  and  day;  Neilson, 
21st  Nov.  1776,  Mor.  6165.  The  claim  of  a 
widow  for  aliment  and  moamings  will  not 
be  barred  by  her  acceptance  of  provisions 
made  for  her  by  her  husband,  by  a  deed 
declaring  these  provisions  to  be  in  AiU  of  all 
claims  whatever  which  she  may  have  on  her 
husband's  effects.  Mournings  for  such  of  the 
deceased's  children  as  are  to  assist  at  the 
funeral  also  form  a  privileged  debt ;  but  no 
claim  can  be  made  by  the  children  who  were 
not  present  at  the  funeral.  A  minor  has 
been  found  liable  for  an  account  of  mournings 
incurred  by  him  for  himself,  his  brothers,  and 
sisters ;  and  in  an  action  pursued  against  an 
apparent  heir,  brother  to  a  defunct,  by  a 

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mercbant  vho  furnished  mournings  to  the 
deceased's  family,  and  to  the  defender  in  par- 
ticnlar,  althongh  without  any  alleged  order 
from  him,  the  defender  was  found  liable- 
Stair,  B.  i.  tit.  4,  §  10  ;  Here's  Notes,  xxvii., 
ccclxii. ;  Ertk.  B.  i.  tit.  6,  §  41 ;  B.  iii.  tit  9, 
§  43,  Notes  by  Mr  Ivory ;  BeWs  Com.  i.  633  ;. 
ii.  166 ;  Bell's  Princ.  §  1406 ;  1  Fraser,  524. 
See  Funeral  Expenses,  Priviitged  Debt.  Mar- 
riag^    Aliment. 

MOTWtblea.  Moveables  are,  in  the  phrase- 
ology of  the  law  of  Scotland,  opposed  to  heri- 
tage ;  80  that  every  species  of  property,  and 
every  right  a  prson  can  hold,  is  by  that  law 
either  heritable  or  moveable.  Hence,  move- 
ables are  not  merely  corporeal  subjects  capa- 
ble of  being  moved,  but  every  species  of  pro- 
perty, corporeal  or  incorporeal,  which  does 
not  descend  to  the  heir  in  heritage ;  Ersk. 
B.  ii.  tit.  2,  §  3.  See  HeritMe  and  Moveable. 
Exetutry. 

Hnirbvrn.  By  13  Geo.  III.  c  64,  every 
person  setting  fire  to  any  heath  or  mnir  in 
Scotland,  from  11th  April  to  1st  November, 
forfeits  408.  sterling  for  the  first,  L.5  sterling 
for  the  second,  and  L.IO  for  the  third  and 
every  subsequent  oflTenoe ;  and  on  failing  to 
pay  the  penalty  within  ten  days  after  convic- 
tion, suffers  six  weeks'  imprisonment  for  the 
first,  two  months'  for  the  second,  and  three 
months'  for  the  third  and  subsequent  offences. 
The  tenant  is  held  liable,  unless  he  prove  that 
the  fire  was  commnnicated  from  some  neigh- 
boaring  ground,  or  was  raised  upon  his  ground 
by  some  person  not  in  his  family  or  ser- 
vice. But  the  proprietors  of  high  and  wet 
muirlands  are  entitled  to  bum,  or  to  author- 
ize their  tenant  to  bum,  the  heath  between 
the  11th  and  25th  of  April.  The  act  ex- 
tends to  the  Highlands.  See  the  case  of 
Roger  v.  Gibson,  March  12,  1842,  1  Bro«,n, 
78.  See  also  Ersk.  B.  ii.  tit.  6,  §  6,  n<i(«  ; 
Karnes'  StaL  Law,  h,  t. ;  Watson's  Slat.  Late, 
TOCO  Oame ;  SHtch.  JusU  ii.  550  ;  Tail's  Just. 
Toce  Game;  Blair's  Just.  h.  k;  Ness's  Game 
Law,  105.  In  England,  by  7  and  8  Geo.  IV. 
c.  30.  §  17,  maliciously  setting  fire  to  heath, 
wherever  growing,  is  made  felony ;  TemUns' 
Diet.  h.  t. 

Knlet;  a  fine.  fomZiW  Diet.  h.  t.  Ste 
Fines.    AmerciametU. 

Hvlieratu  Filiu ;  a  lawful  son,  begotten 
with  a  lawful  wife.    Skene,  h.  t. 

HvltiplepoiiLdiag.  This  term  means 
double  poinding,  or  donble  distress,  and  gives 
name  to  an  action  which  may  be  brought  by 
a  person  possessed  of  money  or  effects  which 
are  claimed  by  different  persons  pretending 
right  thereto.  Thus,  where  money  due  by  a 
debtor  has  been  arrested  in  his  hands  by  the 
creditors  of  his  creditor,  or  where  the  renta 
of  an  estate  are  claimed  by  different  claimants  I 


on  the  estate, — the  arrestee,  in  either  of  thon 
cases,  may  raise  an  action  of  multiplepoin^ng, 
calling  the  different  parties  who  claim  the 
fund  tn  medio,  and  all  others,  to  settle  their 
respective  claims  judicially ;  and  also  to  hare 
it  found,  that  (whoever  may  be  entitled  to  the 
fond)  the  arrestee  is  liable  only  "  in  once 
and  single  payment."  This  action  may  he 
raised  by  the  arrestee,  or  by  the  person  on 
whom  the  claim  is  made  ;  but  it  may  be  also 
raised,  tn  his  name,  by  any  of  the  parties  in- 
terested in  the  competition,  without  his  con- 
sent, or  even  against  it ;  and  every  person 
interested,  though  not  made  a  party  to  it 
originally,  may,  in  the  coarse  of  that  action, 
prodncean  interest  in  it,  and  plead  the  grounds 
on  which  he  conceives  himself  to  be  entitled 
to  a  preference.  In  this  way  the  action  be- 
comes a  process  of  competition  between  the 
different  claimants  on  the  fund ;  the  holder 
of  which,  having  brought  it  into  Court,  quits 
the  field.  The  conclusions  of  the  action  are, 
— 1 .  That  the  raiser  shall  be  liable  in  once 
and  single  payment.  2.  That  the  parties  may 
debate  their  respective  claims;  that  he  or 
they  who  have  the  best  right  to  the  subject 
or  fund  tn  medio  may  be  preferred ;  and  that 
the  raiser  shall  be  entitled  to  the  expense  of 
raising  the  action  and  bringing  the  parties 
into  Court.  The  subject  of  the  action  is  in 
general  a  sum  of  money,  but  it  may  also  be 
moveable  or  heritable  property,  or  even  a 
deed.  Where  the  subject  tn  medio  is  a  snm 
of  money,  it  must  be  such  a  debt  as  the  holder 
may  be  obliged  to  pay.  B^nts  to  become  due 
cannot  competently  form  the  subject  of  this 
process.  When  trustees  have  been  appointed 
by  a  party  deceased  to  pay  off  his  debts,  &C., 
and  objections  exist  against  some  of  the 
claims,  it  seems  competent  for  the  tmsteea  to 
call  all  parties  in  a  multiplepoinding,  to  hare 
the  amount  of  the  claims  settled,  the  moveable 
estate  distributed,  and  themselves  exonerated; 
even  though  there  be  no  double  distress,  and 
although  a  reduction  has  been  raised  of  the 
settlement  of  the  deceased,  in  ao  far  as  it  con- 
veys land ;  M'Dougal's  Trustees,  9th  July 
1830,  8  S.itD.  1036.  Where  %  defender, 
on  being  sued  for  payment  in  an  ordinary 
petitory  action,  states  as  a  defence  that  all 
parties  interested  do  not  concur  in  the  suit,  it 
seems  competent  for  the  pursuer  to  raise  a 
multiplepoinding  in  name  of  the  defender, 
calling  himself  and  the  other  parties ;  Jf'ftif- 
get,  12th  May  1829,  7  S.<tD.  591.  When 
a  multiplepoinding  is  raised  in  the  name  of  a 
holder  of  a  fund  by  one  of  the  claimants,  it 
must  be  intimated  to  the  nominal  pursuer, 
by  being  served  on  him  by  a  messenger'.at- 
arms,  in  the  same  manner,  and  on  the  same 
iru^uct^E,  as  if  he  were  one  of  the  defenders, 
and  an  execution  of  it  must  be  returned  along 


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witb  the  execations  of  citation ;  A.  S.  llih 
July  1828,  §  23.  The  multiplepoindiiig  is 
execoted  by  short  copies,  and  proceeds  on  the 
short  inductee  of  six  days  without  a  bill.  The 
summons  does  not  require  to  be  printed ;  but 
if  the  multipleppinding  contain  conclusions 
for  exoneration,  or  declaratory  conclusions, 
the  rules  as  to  inducux,  printing  and  execut- 
ng,  are  the  same  as  in  an  ordinary  summons. 
Where  the  person  possessed  of  the  funds  is 
the  real  pursuer,  he  must  give  out  a  conde- 
scendence of  the  fund  in  his  hands  along  with 
the  summons ;  and  where  he  is  only  the  nomi- 
nal pursuer,  he  most,  at  the  first  calling  of 
the  cause,  either  give  in  a  precise  and  articu- 
late condescendence  of  the  amount  of  the 
funds  in  his  hands,  stating  likewise  any  claim 
or  lien  which  he  may  think  he  may  have  on 
the  fund,  or  produce  objections  as  his  defences 
against  the  summons  served  as  a  claim  on 
him  ;  otherwise  he  is  held  as  confessed,  or  a 
condescendence  may  be  ordered  from  any  of 
the  claimants;  A.  S.  Uth  My  1828,  §  47. 
Where  the  amount  of  the  fund  is  correctly 
stated  in  the  summons,  a  condescendence  is 
unnecessary.  The  holder  x)f  the  fund  is 
liable  to  the  expense  occasioned  by  his  delay- 
ing to  condescend.  At  the  first  calling  of 
the  cause,  if  the  condescendence  is  lodged, 
and  no  objections  are  made  to  the  competency 
of  the  action,  the  usual  interlocutor  is  pro- 
nounced, finding  the  raiser  of  the  multiple- 
poinding  liable  in  once  and  single  payment 
only,  and  appointing  the  creditors  claimants 
to  produce  their  claims  and  grounds  of  debt 
in  the  clerk's  hands  within  ten  days.  The 
condescendence  of  the  holder  will  at  the  same 
time  be  allowed  to  be  seen.  The  defences  of 
the  raiser  are  in  the  form  of  objections,  either 
to  the  competency,  or  that  all  having  interest 
are  not  called.  It  is  no  objection  to  the  com- 
petency that  the  nominal  raiser  has  no  funds 
of  the  common  debtor.  The  claimants  may 
also  lodge  objections.  When  a  fund  is  proved 
to  be  in  the  hands  of  the  raiser,  it  will  be 
ordered  to  be  consigned  in  a  bank,  on  the 
motion  of  any  of  the  claimants,  the  receipt  to 
be  taken  payable  to  such  person  as  the  Court 
or  Lord  Ordinary  may  direct,  and  to  be 
lodged  with  the  clerk  to  the  process.  See 
Consignation.  But  the  raiser  cannot  be  or- 
dered de  piano  to  consign,  if  he  have  any  claim 
to  the  fund.  On  consignation,  the  holder  is 
entitled  to  decree  of  exoneration,  if  the  sum- 
mons contain  conclusions  of  exoneration,  and 
also  to  the  expenses  incurred  by  him,  which 
he  may  retain  from  the  fund  tn  mfldio ;  or  if 
he  have  consigned  the  wkole,^  he  will  obtain 
warrant  for  payment.  He  does  not  get  ex- 
penses if  the  multiplepoinding  was  unneces- 
sarily raised  by  him,  or  if  he  occasioned  un- 
necessary litigation ;  and  in  this  last  case  he 


may  even  be  found  liable  in  expenses  to  the 
other  party.  On  an  interlocutor  finding  the 
holder  liable  in  once  and  single  payment,  or 
on  a  decree  of  exoneration  being  pronounced, 
the  holder  has  no  further  concern  with  the 
process.  If  any  claimant,  after  appearing  in 
the  action,  proceed  with  diligence  against  the 
holder,  he  will  be  liable  in  damages ;  White^ 
l3th  Feb.  1772,  M.  9133.  The  claimants  in 
a  multiplepoinding  must  state  their  respective 
claims  in  the  form  of  condescendences,  with 
the  conclusions  to  be  drawn  from  the  facts  so 
stated,  in  the  shape  of  notes  of  pleas,  produc- 
ing therewith  their  grounds  of  debts  and  other 
writings  for  instructing  their  claims ;  and  it 
is  competent  to  the  Lord  Ordinary,  if  he  see 
cause,  to  appoint  the  creditors  to  meet  and 
choose  a  common  agent,  who  shall  prepare 
and  lodge  a  state  of  the  claims  and  prefer- 
ences, putting  his  objections,  as  therein  stated, 
to  each  or  any  of  the  claims,  in  the  form  of 
answers  to  a  condescendence,  with  a  note  of 
pleas ;  and,  qvoad  ultra,  the  duty  and  nature 
of  his  oflSce  are  similar  to  that  of  a  common 
agent  in  a  process  of  ranking  and  division. 
See  Gondeicendence  and  Claim;  Common  Agent. 
If  no  common  agent  be  appointed,  the  parties 
are  required  to  revise  their  condescendences, 
each  being  allowed  to  state,  in  the  close  of 
his  condescendence,  his  objections  to  any  other 
claim  or  claims,  in  the  form  of  answers  to  a 
condescendence,  with  a  note  of  pleas;  and 
thereafter  the  procedure  corresponds,  as 
nearly  as  may  be,  to  what  is  provided  in  the 
case  of  an  ordinary  action ;  A.  S,  llth  July 
1828,  §  48.  All  parties  having  an  interest 
in  the  subject  of  the  action  may  appear  and 
produce  their  claims,  though  not  cited.  An 
interlocutor  preferring  one  creditor,  has  the 
effect  of  an  interlocutor  repelling  the  claims 
of  all  the  rest ;  and  each  claimant  who  does 
not  mean  to  retire  f^om  the  contest  must  re- 
claim against  the  interlocutor  preferring  his 
competitor.  By  1584,  c.  3,  one  who  can 
show  a  necessary  cause  of  absence,  or  a  minor 
who  was  without  tutors  or  curators  at  the 
date  of  the  proceedings,  is  entitled,  if  he  had 
a  preferable  right  to  the  fund,  to  reduce  the 
decree,  and  even,  although  expressly  called 
in  the  action,  to  claim  from  those  preferred 
repayment  of  what  he  should  hare  drawn  ; 
but  if  the  party  cited  be  a  minor  with  tutors 
or  curators,  his  only  recourse  is  against  them. 
Those  who  were  not  summoned  will  be  entitled 
to  show  that  the  decree  was  erroneous,  and 
that  the  fund  should  still  be  paid  to  them. 
To  prevent  such  questions,  it  is  the  practice 
to  publish  advertisements  in  the  newspapers, 
intimating  the  dependence  of  the  multiple- 
poinding, and  requiring  all  having  claims 
upon  the  fund  to  appear.  These  intimations 
generally  contaia  a  declaration,  that  those 

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who  do  not  appear  shall  be  excluded  from  any 
share  in  the  division.  Bnt  no  such  declara- 
tion can  deprire  a  creditor  of  his  legal  right 
of  preference,  should  he  afterwards  challenge 
the  decree  of  multiplepoinding,  and  be  able 
to  establish  such  preference.  See  the  case  of 
Morgan  v.  iform,  March  11,  1866,  18  D. 
797  ;  also  the  case  of  the  Magittraks  of  Dun- 
dee V.  Lindtay  and  Morris,  Dec.  14, 1856, 19 
D.  168.  Where  any  of  the  claimants  have 
creditors,  these  creditors  may  claim  to  be 
ranked  on  the  fund  set  aside  for  their  debtor. 
Such  claims  are  called  riding  interests.  See 
Riding  InteresU.  A  multiplepoinding  has 
been  called  a  "congeries  of  actions;"  inas- 
much as,  in  the  competition,  each  claimant, 
as  against  the  competing  claimants,  may 
maintain  all  legal  pleas,  inclnding  pleas  re- 
ductive of  the  grounds  of  the  competing  claim; 
BeWs  Com.  ii.  299.  See  generally.  Stair, 
B.  iii.  tit.  1,  §39 ;  B.  iv.  tit.  17,  §  7 ;  Monfs 
Notes, p. cccxxxviii. ;  Ersk.  B.  iv.  tit.  3,  §  23 ; 
BanL  vol.  ii.  p.  615 ;  iii.  36 ;  BeWs  Com.  ii. 
297-301 ;  BelPs  Princ.  §  2266 ;  Kames'  Stat. 
Law Abridg.h.  i. ;  ShanisPrac.Tf.b79;  Mae- 
laurin's  Sherif -Court  Prac.  p.  363 ;  Davidson, 
April  19  and  July  4, 1815,  3  Dow,  218. 

Moltoret.  The  multure  is  a  quantity  of 
grain,  either  manufactured  or  in  kind,  de- 
liverable to  the  proprietor  or  tacksman  of  a 
mill  in  return  for  grinding  the  corn.  There 
are  other  small  dues,  as  the  knaveship,  ban- 
nock, lock  or  gowpen,  exigible  by  the  miller,  or 
servant  at  the  mill,  by  whom  the  work  is 
performed.  The  multure  is  payable  by  every 
person  who  comes  to  the  mill  for  the  pur- 
pose of  grinding  the  grain.  But  the  tenants 
and  proprietors  of  some  lands  are  bound  to 
use  a  particular  mill ;  and  the  lands  so  bound, 
or  restricted  to  the  mill,  are  termed  the  thirl  or 
the  sucken,  and  the  tenants  or  proprietors  the 
insucken  multnrers;  while  those  who  use  a 
mill  without  being  bound  to  use  it,  are  termed 
the  out-town  or  outsucken  mnlturers.  Hence, 
multures  are  of  two  sorts — those  due  by  the 
persons  astricted  to  the  mill,  termed  insucken 
multures,  and  the  multure  exigible  from 
those  who  voluntarily  use  the  mill,  called 
outsucken  multure.  The  former,  of  course,  is 
much  heavier  than  the  latter,  the  araonnt  of 
which  always  depends  on  the  situation  of  the 
mill,  and  the  competition  there  may  be  with 
other  mills  to  which  the  outsucken  mnlturers 
have  access.  Ersk.  B.  ii.  tit.  9,  §  20 ;  Stair, 
B.  ii.  tit.  7,  §  15  ;  B.  iv.  tit.  15,  §  2;  More's 
Notes,  pp.  ccxxv.,  cclxxiii. ;  Bank.  vol.  i.  684- 
9  ;  Bell's  Princ.  §  1018,  et  seq. ;  Hunter's  Land- 
lord and  Tenant,  pp.  206-11-14,  661 ;  Mae- 
laurin's  Sheriff-Court  Prac.  p.  13  ;  Hutch.  Jus- 
tice of  Peace,  ii.  p.  450  ;  Ross's  Lect.  ii.  170. 
See  Abstracted  Multures.  Knaveship.  Thirl- 
age.    Insucken  Multures.    Outsucken  Multures. 


Knnioipal  Law,  Muiicipia.  Munidpia 
were  cities  dependent  on  Rome,  the  citizens 
of  which  were  allowed  certain  privileges  as 
Roman  citizens ;  and  which  preserved  their 
own  laws,  under  the  name  leges  municipalts. 
Hence  the  term  municipal,  law  came  to  sig- 
nify the  laws  of  any  iree  city  or  kingdom,  and 
municipal  and  civil  law  are  synonymous;  Erik. 
B.  i.  tit.  1,  §  18;  Karnes"  Equity,  492-4. 

Hnrder ;  is  the  depriving  a  human  being 
of  life,  deliberately  and  wilfully,  without  a 
cause.  The  deliberation  and  malice,  or  fore- 
thought, with  which  it  is  committed  is  one 
of  the  characteristics  of  the  crime  of  murder. 
But  the  malice  or  forethought  is  merely  that 
wicked  and  mischievous  purpose  which  is  the 
essence  of  the  crime,  and  which  may  hare 
been  engendered  at  the  meeting  of  the  par- 
ties. The  act  of  killing,  of  itself  implies 
malice ;  and  it  lies  on  the  accused  to  prove  any 
one  of  those  palliating  or  justifying  circnnt- 
stances  which  the  law  admits.  See  Homicide. 
Should  a  person,  therefore,  occasion  the  death 
of  another,  though  there  may  be  ground  to 
presume  that  he  meant  only  to  inflict  a  severe 
beating,  even  this  shows  such  a  disregard  to 
the  safety  of  his  fellow-creature,  and  a  reso- 
lution to  proceed  to  such  extremities  in  order 
to  gratify  his  resentment,  that  he  must  abide 
the  consequences ;  and  if  death  en.sue,  he  will 
be  held  guilty  of  murder.  With  regard  to 
the  nature  of  the  weapon,  there  is  this  differ- 
ence, that  some,  as  fire-arms,  &c,  are  perfectly 
inconsistent  with  any  other  than  an  intent  to 
kill ;  bnt  there  are  others  which  may  be 
thought  to  favour  the  presumption  that  Uiere 
was  no  such  intention.  The  law,  however, 
considers  every  weapon  with  which  a  murder 
is  committed  as  lethal.  In  the  same  way, 
where  a  person  gives  a  violent  medicine  in 
order  to  procure  abortion,  and  death  is  the 
result,  there  is  such  a  disregard  of  the  safety 
of  the  person  to  whom  the  drug  is  adminis- 
tered, that  the  person  by  whom  it  has  been 
administered  shall  be  held  guilty  of  murder. 
We  have  also  in  our  law  what  may  be  termed 
statutory  murder.  Thus,  by  an  old  act,  1450, 
c.  30,  the  importers  of  poison,  by  which 
bodily  harm  may  be  taken,  ai-e  to  be  punished 
with  death ;  but  the  act  has  been  long  in  de- 
suetude. Another  species  of  statutory  mur- 
der is  constituted  by  1690,  c.  21,  which 
enacts,  that  any  woman  who  shall  conceal  her 
being  with  child,  during  the  whole  time  of 
her  pregnancy,  and  shall  not  call  for,  or  make 
use  of,  help  in  the  birth,  is  to  be  reputed  the 
murderer,  if  the  child  be  found  dead  or  miss- 
ing. In  order  to  avoid  the  effect  of  this 
statute,  the  mother  who  is  charged  with  this 
offence  must,  in  her  defence,  be  able  to  prove 
that  she  discovered  her  pregnancy,  and  called 
for  help.    But  by  statute  49  Geo.  III.  c. 


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14,  the  punishment  of  this  crime  is  made  im- 
prisonment not  exceeding  two  years.  A  per- 
son is  art  and  part  of  murder — 1.  By  acces- 
sion at  the  fact  ,*  as  e.g.  if  he  has  gone  out  in 
company  with  others  to  commit  the  crime, 
though  he  does  not  do  it  with  his  own  hand. 
2.  By  accession  before  the  fact ;  as  by  giving 
orders  for  its  committal,  or  furnishing  the 
immediate  means  of  committing  it.  3.  By 
accession  after  the  fact ;  as  by  concealing  the 
corpse,  assisting  the  murderer,  &c.  Hume, 
vol.  i.  p.  249,  et  $eq. ;  Erik.  B.  iv.  tit.  4,  § 
40,  et  seq.;  Bank.  vol.  ii.  p.  669  j  Swint. 
Ahridg.  h.  t.;  Tait's  Justice  of  Peace,  voce 
Homicide;  Shaw's  Digest,  m.  lbO-1 ;  Alison's 
Frinc.1;  Burnett,  268;  Steele,  83.  SeeChOd- 
murder;  Cmeealment  of  Pregnancy. 

Knsioal  Compodtioiis.  See  Literary  Pro- 
perty. 

Mate.  By  the  old  English  law,  a  prisoner 
who  stood  mute,  as  it  was  expressed — that  is, 
refused  to  answer  to  an  accusation — was  held 
guilty  of  the  crime  laid  to  his  charge,  and 
was  frequently  exposed  to  excruciating  tor- 
ture.    Tonlim^  Diet.  h.  t. 

Mutilation ;  is  the  crime  of  disabling  or 
wounding  another  in  his  members.  It  is 
punishable  arbitrarily.  But  mutilation  is  usu- 
ally considered  as  an  aggravation  of  assault, 
and  in  that  case  the  punishment  generally 
awarded  is  transportation.  Hume,  i.  323 ; 
Ersk.  B.  iv.  tit.  4,  §  50,  and  NoU  203,  by  Mr 
Ivory;  Alison's  Princ.  195 ;  Karnes'  Stat.  Law 
Abridg.h.  i. 

Mutiny.  The  Mutiny  Act  is  an  annual 
act,  entitled,  "  An  act  to  punish  mutiny  and 
desertion,  and  for  the  better  payment  of  the 
army  and  their  quarters."  This  act  regulates 
the  quartering  of  soldiers,  and  declares  the 
offences  for  which  soldiers  may  be  punished, 
and  points  out  the  mode  of  their  trial.  The 
Sovereign  is  authorized  to  give  commissions 
for  holding  courts-martial  for  the  trial  of 
these  military  offences.  And,  by  the  22  Geo. 
II.  c.  33,  the  Lord  High  Admiral  is,  in  like 
manner,  authorized  to  give  commission  for 
holding  courts-martial  for  the  trial  of  offences 
committed  at  sea,  by  oflScers,  mariners,  or 
others  in  actual  service.  See  Court-Martial; 
Enlistment.  The  offence  of  mutiny  is  open 
disobedience  of,  and  resistance  to,  authority. 
Any  officer  or  soldier  who  uses  traitorous  or 
disrespectful  words  against  the  sacred  person 
of  her  Majesty,  or  the  royal  family ;  or  who 
behaves  himself  with  contempt  or  disrespect 
towards  the  general  or  other  commander-in- 
chief  of  the  forces,  or  speaks  words  tend- 
ing to  their  hurt  and  dishonour  ;  or  who  be- 
gins, excites,  causes,  or  joins  in,  any  mutiny 
or  sedition  in  the  troop,  company,  or  regi- 
ment to  which  he  belongs,  or  in  any  other 
troop  or  company  in  the  service,  or  in  any 


party,  post,  detachment,  or  guard,  on  any 
pretence  whatever ;  or  who,  being  present  at 
any  mutiny  or  sedition,  does  not  use  his  utmost 
endeavours  to  suppress  the  same,  or,  coming 
to  the  knowledge  of  any  mutiny,  or  intended 
mutiny,  does  not,  without  delay,  give  infor- 
mation to  his  commanding  ofBcer ;  is  guilty 
of  mutiny.  And  any  officer  or  soldier  who 
strikes  his  superior  officer,  or  draws,  or  offers 
to  draw,  or  lifts  up  any  weapon,  or  offers  any 
violence  against  him,  being  in  the  execution 
of  his  office,  on  any  pretence  whatsoever,  or 
disobeys  any  lawful  command  of  his  superior 
officer,  is  guilty  of  mutiny.  The  Mutiny  Acts 
confer  a  privative  jurisdiction  in  Scotland  on 
the  Court  of  Session,  as  to  all  actions,  com- 
plaints, and  suits  against  any  person  for  any- 
thing done  in  pursuance  of  these  acts,  or 
against  any  member  of  a  court-martial,  in 
respect  of  any  sentence  of  such  court,  or  of 
anything  done  in  virtue  or  pursuance  thereof; 
7  Witt.  IV.  c.  7,  §  75.  As  changes  are  some- 
times made  upon  the  provisions  of  the  Mutiny 
Act,  it  is  always  advisable  to  consult  the  sub- 
sisting act.  See  Ersh.  B.  i.  tit  3,  §  36 ;  Hutch. 
Justice  of  Peace ;  Tait's  Justice,  voce  Soldiers; 
Blair's  Manual,  voce  Soldiers. 

Mutnal  Contracts.  A  mutual  contract  is 
an  engagement  entered  into  by  two  or  more 
persons,  by  which  a  reciprocal  obligation  is 
raised;  the  one  party  being  bound  to  give,  or 
do,  or  abstain  from  doing,  something,  in  re- 
turn for  something  to  be  given,  or  done,  or 
abstained  from,  by  the  other  party.  Consensus 
in  idem  placilum  is  not  a  peculiar  attribute  of 
the  mutual  contract ;  there  is  no  contract, 
whether  mutual  or  unilateral,  which  is  bind- 
ing without  a  consensus  in  idem  placitum,  ex- 
pressed or  implied.  Stair,  B.  i.  tit.  3,  §  9 ; 
Bell's  Princ.  §  70.  See  Contract.  Ohligatim. 
Promise.  Offer.  Locus  Pmnitentia.  Unilateral 
Contract. 

Mntnal  Entails.  If  two  persons  enter 
into  mutual  obligations  to  execute  entails  in 
favour  of  each  other,  neither  entail,  when 
executed,  is  revokable  without  the  consent  of 
both  parties ;  and  if  either  party  should  sell 
his  entailed  lands,  in  consequence  of  the  right 
which  he  still  retained  in  them,  with  a  fraudu- 
lent view  to  disappoint  the  succession,  an 
action  lies  against  him  for  damages.  In  the 
case  of  mutual  and  onerous  entails,  the  pro- 
hibitions are  effectual  against  the  creditors  of 
the  entailer.  Ersk.  B.  iii.  tit.  5,  §  24,  and 
Note  by  Mr  Ivory ;  Beffs  Com.  i.  47 ;  Sandford 
on  Entails,  114 ;  BeWs  Prine.  §  1747.  See 
Tailzie. 

Mntnnm ;  is  that  contract  by  which  a  loan 
is  given  of  such  things  as  are  consumed  in 
the  use,  or  as  cannot  be  used  without  their 
extinction  or  alienation, — such  as  com,  wine, 
money,  or  the  like ;  and  as  to  which,  there- 


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fore,  the  obligation  on  the  borrower  is  to 
restore  as  much,  and  of  the  same  kind,  quality, 
and  value,  as  he  received.  For  a  farther  ex- 
planation of  this  contract,  and  of  the  differ- 
ence between    m«<iium  and  commodate,  see 


Ersk.  B.  iii.  tit.  1,  §  18  ;  Stair,  B.  i.  tit.  11 ; 
Mare's  Notes,  p.  Ixxi.;  Bank.  vol.  i.  p.  354; 
BeU's  Com.  i.  255 ;  BeWt  Print.  §  200 ;  Tmft 
Justice  of  Peace,  voce  Iamu.  See  also  Botrow- 
ing.     Commodate.    Loan. 


N 


Hamare ;  or  Namos  expert ;  to  take  a  poind 
or  a  distress.    Skene,  h.  t. 

Vame.  It  frequently  happens,  that  under 
deeds  of  entail,  or  as  a  condition  of  bequests, 
or  for  other  causes,  a  person  changes  his 
name.  In  such  cases,  where  a  royal  license 
or  authority  has  been  obtained,  and  inserted 
in  the  Oazette,  authorising  the  change  or  the 
addition,  a  petition  to  the  Court  of  Session 
for  permission  to  use  the  additional  name 
has  been  held  unnecessary,  not  only  in  re- 
spect of  the  previous  royal  license,  but  also 
on  the  general  ground  that  there  is  no  need 
of  the  authority  of  that  Court  to  entitle  a 
man  in  Scotland  to  change  his  name.  See 
Kettle  Young,  14th  Jan.  1835, 13  S.  A  D.  262. 
See,  however,  the  Acts  of  Sederunt,  SOtk  June 
1757,  20<A  January  1764,  Bth  July  1774, 
lltk  August  1789,  and  some  others,  for 
examples  of  petitions  to  the  Court  for  autho- 
rity to  change  the  name ;  although  in  some 
of  these  instances  the  parties  were  not  notaries- 
public. 

Hame  and  Amu.  It  is  a  common  pro- 
vision in  entails,  that  the  heir  in  possession 
shall  bear  the  name  and  arms  of  the  entailer; 
and  if  fenced  by  irritant  and  resolutive 
clauses,  this  condition  will  be  effectual.  If 
the  injunction  be  that  the  heir  shall  use  the 
entailer's  name  and  arms  exclusively,  and  if 
the  heir  should  succeed  to  another  entailed 
estate,  the  entail  of  which  contained  a  similar 
condition,  it  would  be  incumbent  on  him  to 
make  his  election,  since,  consistently  with 
such  a  condition,  he  could  not  take  both. 
BeU's  Princ.  §  1725.    See  Arms. 

Hame  on  Carti  and  Carriages.  The 
general  Road  Act,  1  and  2  Will  IV.  c.  43, 
provides,  that  the  owner  of  every  waggon  or 
cart,  and  also  of  every  coach,  post-chaise,  or 
other  carriage,  let  either  in  the  whole  or  in 
part  to  hire,  must  paint  in  a  straight  line 
horizontally,  upon  some  conspicuous  part,  on 
the  off  or  right  side  of  his  waggon  or  cart, 
and  upon  the  pannels  of  the  doors  of  all  such 
coaches,  post-chaises,  or  other  carriages, 
before  they  are  used  upon  any  turnpike-road, 
the  Christian  and  surname,  and  place  of 
abode,  of  himself,  or  the  principal  owner  or 
partner  thereof,  in  large,  legible  Roman 
letterd,  either  of  a  dark  colour  upon  a  light 
ground  or  of  a  light  colour  on  a  dark  ground, 


not  leas  than  one  inch  in  height,  with  nam- 
bers  beginning  with  No.  1,  where  more  of 
such  carriages  respectively  than  one  belong 
to  the  same  owner,  and  proceeding  in  regular 
progression.  This  must  remain  so  long  as 
the  vehicle  is  used  upon  any  tumpike-road. 
Every  owner  using,  and  every  person  driving, 
such  a  vehicle  on  a  tumpike-road  without 
this  provision  being  attended  to,  is  liable  to 
a  fine  not  exceeding  forty  shillings  for  every 
offence,  and  the  vehicle  pays  double  toll. 
Every  person  driving  any  such  vehicle,  who 
refuses  to  stop  and  permit  the  name  to  be 
read  or  uncovered  by  any  persou  requiring 
him  so  to  do,  forfeits  over  and  above,  fur 
every  such  offence,  a  sum  not  exceeding  forty 
shillings. 

Harratire  of  Deeds.  The  narrative  de- 
scribes the  granter  and  the  person  in  whose 
favour  the  deed  is  granted,  and  states  the 
cause  of  granting.  The  effect  of  this  clause, 
in  all  questions  between  strangers,  is  to  prove 
against  the  granter  the  facts  therein  set  forth, 
winch  he  will  not  be  allowed  to  disprove 
except  by  the  oath  or  writing  of  the  receiver. 
But  our  practice  has  introduced  a  different 
rule,  where  the  deed  is  between  conjunct  and 
confident  persons,  and  where  creditors  are 
concerned.  In  that  case,  it  is  not  necessary 
for  the  creditors  to  prove  want  of  value  ;  but 
the  onus  probandi  is  on  the  granter  to  prove 
that  he  actually  g^ve  the  value  which  the 
deed  bears  to  have  been  given.  Ersk.  B.  iu 
tit.  3,  §  22 ;  Belts  Com.  ii.  191-7  ;  Bdl  on 
Purchaser's  Title,  29  ;  Ross's  Led.  i.  163,  373, 
293.  See  Consideration.  Conjunct  and  ftw- 
Jident. 

Vational  Debt.  The  debt  due  by  Great 
Britain  is,  in  the  hands  of  the  creditors, 
termed  stock,  and  may  be  transferred  from 
one  creditor  to  another.  See  Stock.  Several 
statutes  have  been  passed  appointing  mea- 
sures to  be  taken  for  the  reduction  of  the 
national  debt.  The  principal  act  is  II  Geo. 
IV.  c.  27,  as  amended  by  3  and  4  Will  IV. 
c.  24,  and  7  Will.  IV.  c.  17. 

Vations,  Law  of.    See  International  Law. 

Native ;  according  to  Skene,  bom  slaves 
or  servants.    Skene,  h.  t. 

Nativi  ;  or  bondmen  ;  were  the  slaves  by 
whom,  anciently,  the  ground  was  laboured. 
For  the  different  ways  in  which  men  might 


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he  reduced  to  this  state  of  bondage,  see  Reg. 
MajesL  i.  2,  c.  12,  §§  4,  5,  and  Quon.  Attad^. 
c.  5&.  Slavery  is  said  to  have  been  a°bolished 
100  years  earlier  in  Scotland  than  in  Eng- 
land ;  Ersk.  B.  i.  tit.  7,  §  60.  See,  however, 
Colliers. 

natural  Children.  A  natural  child  is 
the  child  of  a  woman  who  was  not  married 
to  the  father  at  the  time  of  conception,  and 
who  never  was  thereafter  married  to  him. 
See  Bastard.    Legitimation,    Children, 

Satural  Obligations;  are  those  obliga- 
tions which  arise  from  the  law  of  nature  only, 
or  from  natural  equity.  Such  is  the  obliga- 
tion on  parents,  whose  circumstances  permit 
of  it,  to  provide  their  children  with  reason- 
able patrimonies;  or  the  obligation  on  a 
party  who  has  bound  himself,  by  an  informal 
writing,  to  pay  or  to  perform  in  terms  of  his 
engagement,  even  although,  by  reason  of  the 
informality,  he  may  have  contracted  no  bind- 
ing obligation  in  law.  The  characteristic  of 
a  natural,  as  contrasted  with  a  legal  or  civil 
obligation,  is,  that  the  latter  may  be  legally 
enferced  against  the  obligant,  whereas  the 
fermer  cannot ;  although,  where  one  has 
acted  in  implement  of  a  natural  obligation, 
he  will  not,  generally  speaking,  be  permitted 
to  retract  what  he  has  done,  by  demanding 
repetition  or  restitution  in  an  action.  Ersk. 
B.  iii.  tit.  1,  §  4. 

Hatnre,  Law  of.  The  law  of  nature  is 
that  sense  of  justice,  and  that  feeling  of  right 
and  wrong  experienced  by  every  human  being, 
and  which  has  been  emphatically  described 
as  a  law  written  by  the  finger  of  God  on  the 
heart  of  man.    Ersk.  B.  i.  tit.  1,  §  7. 

Hatnralisation ;  is  a  right  conferred  on 
an  alien  by  act  of  Parliament,  in  virtue  of 
which  be  acquires  the  privileges  of  a  British 
subject.  Ersk.  B.  iii.  tit.  10,  §  10,  NoU  by 
Mr  Ivory ;  Bank.  vol.  i.  p.  80 ;  BM's  Princ.  § 
2136  ;  SwinL  Abridg.  h.  t. ;  Karnes'  Stat.  Law 
Abrit^.  h.  t. ;  Shaw's  Digest,  p.  217.  See 
Alien.     Denizen. 

nantsB,  Canpones,  Stabniarii.  This  is 
the  title  given  to  the  well-known  edict  of  the 
Koman  prator,  by  which  shipmasters,  inn- 
keepers, and  stablers  were  made  answerable 
for  the  goods  and  effects  of  travellers  which 
had  been  brought  into  the  ship,  inn,  or  stable. 
The  edict  is  in  these  terms  :    "  Naut^, 

UAUPOKES,  STABULAHU,  <IU0D  CUJUSQTJB  8AL- 
▼I7M  FOBS  BEOBPERUrT,  NISI  BESTITCENT,  IK 

EOS  JCDioiuu  DABO."  This  rule,  from  its 
expediency,  has  been,  with  some  variations, 
received  into  the  law  of  Scotland.  Persons 
of  this  description  are  liable  for  their  ser- 
vants, or  even  for  the  acts  of  guests  and  pas- 
sengers ;  and  the  extent  of  the  'damage  may 
be  proved  by  the  oath  of  the  claimant,  t'n 
litm,  at  it  is  termed,  although  this  rule  has 


of  late  been  considerably  modified,  both  by 
statute  and  decisions.  See  Innkeepers.  There 
is  no  liability  for  money  said  to  be  taken  from 
the  pocket  of  the  traveller,  though  there  is 
for  money  contained  in  the  pockets  of  clothes 
which  have  been  carried  off,  or  in  trunks 
which  have  been  broken  open  or  carried  off. 
The  rule  extends,  by  Scotch  practice,  to  vint- 
ners and  all  who  carry  goods  for  hire. 

By  11  Geo.  IV.,  and  1  Will.  IV.  c.  68, 
the  liability  of  the  proprietors  of  vehicles  for 
carriage  is  placed  under  certain  limitations. 
Mail-coach  contractors,  stage-coach  proprie- 
tors, and  other  common  carriers  for  hire,  are 
not  liable  for  certain  goods  (gold  or  silver 
coin,  gold  or  silver  in  a  manufactured  or  un- 
manufactured state,  or  precious  stones,  jewel- 
lery, watches,  clocks,  time-pieces  of  any  de- 
scription, trinkets,  bills,  notes  of  the  governor 
and  company  of  the  Banks  of  England,  Scot- 
land, and  Ireland,  or  of  any  other  bank  in 
the  kingdom ;  orders,  notes,  or  securities  for 
payment  of  money,  English  or  foreign  ; 
stamps,  maps,  writings,  title-deeds,  paintings, 
engravings,  pictures,  gold  or  silver  plate,  or 
plated  articles,  glass,  china,  silks  in  a  manu- 
factured or  unmanufactured  state,  whether 
wrought  up  with  other  materials  or  not,  furs 
or  lace),  delivered  for  carriage,  above  the 
value  of  L.IO,  unless  delivered  as  such,  and 
an  increased  charge,  or  an  engagement  to 
pay  an  increased  charge,  accepted.  When 
any  such  parcel  is  delivered,  an  increased 
rate  of  charge  may  be  demanded  by  the 
coach  proprietor  or  carrier,  to  be  notified  in 
legible  characters  in  some  conspicuous  part  of 
the  office,  warehouse,  or  other  receiving- 
house  ;  and  all  persons  delivering  such  par- 
cels are  bound  by  this  notice,  without  further 
proof  of  their  knowledge.  The  carrier  re- 
ceiving the  increased  rate  must,  if  required, 
sign  a  receipt  for  the  parcel,  acknowledging 
it  to  have  been  insured,  which  receipt  is  not 
liable  for  any  stamp-duty ;  and  if  this  receipt 
is  not  given  when  required,  or  if  the  notice 
above  mentioned  has  not  been  affixed,  the 
carrier  is  not  entitled  to  the  benefit  of  the 
act.  The  publication  of  notices  does  not 
limit  the  liability  of  the  carrier  for  other 
goods  than  those  mentioned  above.  Every 
office  used  by  the  carrier  or  coachmaster  is 
held  a  receiving-house  ;  and  any  one  of  se- 
veral coach  proprietors  or  carriers  is  liable 
to  be  sued,  no  action  being  abated  for  want 
of  joining  in  the  summons  the  name  of  a  co- 
proprietor.  The  act  does  not  in  the  least 
degree  affect  special  contracts.  Parties  en- 
titled to  damages  for  loss  may  also  recover 
extra  charges.  The  carrier  is  liable  for 
articles  of  th«  above  description  and  value 
only  when  the  ordinary  legal  evidence  has 
been  given  of  the  value,  and  of  the  amouut 


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of  damage  sustained,  which  can  in  do  case 
exceed  the  declared  value.  Money  may  be 
paid  into  court  by  the  coachmaster  or  pro- 
prietor with  the  same  effect  as  in  other  ac- 
tions.  The  act  17  and  18  Vict.  c.  31  (1854), 
provides  for  the  better  regulation  of  the 
traffic  on  railways  and  canals.  Stair,  B.  i. 
tit.  9,  §  5 ;  tit.  13,  §  18;  B.  iv.  tit.  44, 
§4 ;  Ersk.  B.  Hi.  tit.  1,  §§  28-9,  Notes  by  Mr 
Ivory;  Bank.  vol.  i.  p.  378;  Bell's  Com.  i. 
465-75,  669-64 ;  BdVs  Prine.  §§  235-i5 ; 
niust.  ib. ;  Hutch.  Just,  of  Peace,  ii.  p.  163  ; 
Taies  do.  A.  t. ;  Blair's  do.  h.  t, ;  Tait  on  Evi- 
dence, pp.  283-6.  For  a  fuller  statement  of 
the  doctrines  of  the  law  relatively  to  the  class 
of  persons  here  noticed,  see  the  articles  Mas- 
ters-of  Skips.  Innkeepers.  Carriers.  Public 
Carriages.    Lodging-house  Keepers. 

Havigation.    See  River.    Sea. 

Havigation  Acts.  This  term  is  applied 
to  those  statutes  which  have  been  passed  with 
the  view  of  regulating  the  commercial  inter- 
course of  this  country  and  her  colonies.  Ac- 
cording to  Professor  Bell,  the  objects  of  these 
acts  have  been  the  creation  of  a  body  of  skil- 
ful and  hardy  seamen ;  the  increase  of  the 
shipping  in  the  possession  of  British  subjects ; 
and  the  promotion  of  English  ship-carpeutry, 
by  confining  the  privileges  to  ships  British 
built;  B^'s  Com.  i.  154.  The  latest  act 
upon  this  subject  is  12  and  13  Vict.  o.  29, 
1849,  which  consolidates  the  preceding  acts. 
See,  on  this  subject,  BeWs  Com.  i.  152 ;  Bell's 
Prine.  §  1322;  Mr  Brodie's  Sup.  to  Stair, 
948,  985  ;  Swint.  Abridg.  h.  t.  See  also 
Ship.    Registry  Acts. 

Vavy.  The  payment  of  the  royal  navy  is 
provided  for  by  certain  recent  acts.  These 
acts  regulate  the  advances  made  to  marines, 
&C. ;  the  remittance  of  wages  by  seamen  ; 
the  wills  of  seamen  ;  and  other  matters  con- 
nected with  the  men  on  board  royal  ships. 
See  11  Oeo.  IV.,  and  1  WUl.  IV.  c.  20,  and 
4  and  5  WiU.  IV.  e.  25.  See  also  Seaman. 
Court-MartioL 

Navy  Bills.    See  Exchequer  Bills. 

Neoromancy ;  or  the  corresponding  with 
evil  spirits,  and  the  practising  of  witchcraft 
by  their  assistance  ;  was  formerly  held  to  be 
a  crime  cognisable  by  law.  By  statute  9 
Geo.  II.  c.  50,  however,  all  prosecutions  on 
account  of  witchcraft  are  prohibited  ;  but 
pretenders  to  a  knowledge  of  the  occult  sci- 
ences and  the  telling  of  fortunes  are  punish- 
able by  imprisonment  for  a  year,  and  the 
pillory  once  in  every  three  months  of  that 
year ;  Ersk.  R  iv.  tit.  4,  §  18.  See  Witch- 
craft.    Egyptians.    Pillory. 

NegatiTe  Prescription.    See  Prescription. 

Negative  Servitude.    See  Servitude. 

Negligence.  The  negligence  from  which 
a  loss  arises  will  throw  that  loss  on  the  per- 


son  guilty  of  the  negligence ;  but  different 
degrees  of  negligence  are  required  in  dif- 
ferent situations  to  produce  this  effect. 
Ersk.  B.  iii.  tit.  1,  §§  13,  21 ;  B.  iv.  tit  4, 
§  5  ;  BdPs  Com.  i.  360,  444,  45a-9,  462-3, 
568, 579;  BM's  Prine.  §§  232,  625,  544, 553, 
2031 ;  Ittust.  §  234.  See  Diligence.  Cdpa. 
Damages.     Mora. 

Negotiation ;  is  the  procedure  which  the 
holder  of  a  bill  must  follow  to  procure  ac- 
ceptance of  it,  and  payment  when  it  falls  doe. 
The  steps  necessary  to  be  taken  to  presenre 
recourse  against  the  drawer  and  indorser,  in 
case  of  non-acceptance  or  non-payment,  are 
considered  in  other  articles.  Ersk.  B.  iii.  tit. 
2,  §§  32-4 ;  BelPs  Com.  i.  408-31 ;  BelTt 
Prine.  §§  331-41 ;  Illust.  ib. ;  Shaw's  Digtsi, 
p.  82 ;  Thomson  on  BiUs,  163,  407,  458,  d 
seq.  See  Bill  of  Exchange.  Acceptance.  Bit- 
honour.    Protest.    Noting  a  Bill.    Indorsation, 

Negotiomm  Gestor ;  is  one  who  interferes 
spontaneously  in  the  management  of  the 
affairs  of  another,  without  his  knowledge  sod 
in  his  absence,  and  without  any  forma  man- 
date or  warrant  from  him  for  whom  he  acti. 
A  negotiorum  gestor  is  liable  for  all  sums  of 
money  which  come  into  his  hands  in  the 
course  of  his  actings ;  but  he  is  entitled,  oo 
the  other  hand,  not  only  to  repayment  of 
money  paid  by  him  for  the  principal,  but  to 
interest  on  the  outlay.  He  is  not  entitled, 
however,  to  any  remuneration  for  his  trouble; 
neither  is  he  liable  for  any  loss  the  effects 
may  suffer.  The  degree  of  diligence  required 
from  him  depends  upon  the  circumstance! 
under  which  he  has  interfered.  In  a  case  of 
necessity,  Where  immediate  attention  is  re- 
quired, the  gestor  is  liable  only  for  groa 
omissions;  whereas  cases  may  occur  in  which 
he  engages  him  for  whom  he  acts  in  traosae- 
tions,  as  to  which  the  gestor  will  be  liable 
even  for  casual  misfortunes.  In  the  comnum 
case,  he  is  liable  in  a  middle  kind  of  dili- 
gence. Ersk.  B.  iii.  tit.  3,  §§  52,  53 ;  Stair, 
B.  i.  tit.  8,  §  3;  Mortis  Notes,  pp.  lir. 
cclxiii ;  Bank.  vol.  i.  p.  232 ;  iii.  66 ;  BdPs 
Com.  i.  269  ;  Bell's  Prine  §  639  ;  lUust.  ib. ; 
Taifs  Just,  of  Peace,  voce  Recompense.  See 
Diliqenee.    Culpa. 

N'emo  Debet  ex  Alieno  Damno  Lnerari. 
This  is  a  maxim  of  the  Roman  law  founded 
upon  natural  equity,  and  the  principle  of  it 
may  be  said  to  be  generally  adopted  in  the 
law  of  Scotland.  An  illnstration  of  its  appli- 
cation occurs  in  the  case  where  a  person  has 
erected  a  building  on  the  property  of  another, 
in  the  bona  fde  belief  that  he  was  bnildiog 
upon  his  own  ground.  In  that  case,  althoogh 
the  owner  of  the  ground  is  entitled  to  take 
the  building,  he  will  be  bound,  under  this 
maxim,  to  indemnify  the  person  who  bniit 
bona  fJie,  to  the  extent  at  l«ut  of  the  benefit 


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gained  at  his  expense.  Stair,  B.  i.  tit.  6,  §  33 ; 
tit.  7,  §  11 ;  tit.  8,  §  6  ;  Ertk.  B.  i.  tit.  7, 
§  33 ;  Bank.  vol.  iii.  p.  87 ;  Karnes'  Equity, 
92,  215,  317,  411,  440.  See  Adjunction. 
Conttsture. 

Vemo  Frssnmitnr  Indere  in  Extremis ; 
a  maxim  which  has  been  sometimes  applied 
in  questions  as  to  the  construction  of  ludicrous 
or  jocular  bequests,  and  which  imports,  that 
an  impossible  or  absurd  condition  adjected  to 
a  bequest  is  not  to  be  held  as  a  proof  of  want 
of  a  serious  intention  of  bequeathing.  Bdi's 
Prine.  §  1881. 

Hemo  Tenetnr  Edere  Instmmenta  Ck)ii- 
tra  Se.  This  rule  of  the  Roman  law,  that 
no  man  is  bound  to  produce  writings  against 
himself,  is  so  far  departed  from  in  civil  ques- 
tions, that  where  writings  in  the  hands  of  a 
defender  are  requisite  to  support  the  plea  of 
the  pursuer,  the  pursuer  may  specify  what 
those  writings  are,  and  the  defender  will  be 
bound  to  exhibit  them ;  but  the  defender  is 
not  bound  to  make  a  production  upon  vague 
Allegations.  The  same  rule  applies  to  the 
pursuer,  where  he  has  in  his  possession  writ- 
ings specially  called  for  by  the  defender.  In 
the  prosecution  of  crimes,  writings  may  be 
necessary  in  proof  of  the  crime ;  but  here  the 
rule  is  rigidly  adhered  to,  and  no  man  is  ob- 
liged to  produce  writings  in  his  custody  which 
may  affect  his  life,  estate,  or  good  name.  Erst 
B.  iv.  tit,  1,  §  62,  and  tit.  4,  §  95.  See  Exhi- 
bition.   Diligence. 

Hemo  Tenetnr  Jnrare  in  Snam  Tnrpi- 
tndinem.  The  rule,  that  no  one  can  be  forced 
to  give  his  own  oath  in  evidence  of  his  guilt, 
is  received  in  all  trials  of  crimes  where  the 
punishment  may  affect  the  life,  limb,  liberty, 
estate  or  reputation,  of  the  panel ;  but,  in 
slight  offences  which  are  punishable  only  by 
a  small  fine  or  short  imprisonment,  the  rule 
does  not  hold,  and  the  offence  may  be  referred 
to  the  oath  of  the  accused,  if  no  other  means 
of  proof  is  to  be  obtained.  Ertk.  B.  iv.  tit. 
4,  |5  94, 95.    See  Evidence. 

Ifentrals.  During  a  war  between  two 
countries,  the  ships  of  neutral  states  are  en- 
titled to  trade  with  both  parties,  unless  when 
the  port  to  which  they  are  carrying  the  goods 
is  under  blockade.  Neutrals  are  not  entitled 
to  carry  contraband  of  war  to  either  of  the 
belligerents,  and  they  are  subject  to  be 
searched.  Stair,  B.  ii.  tit.  2,  §  7  ;  Beth  Com. 
i.  304;  BeWs  Princ.  §  43.  See  Reprisals. 
Capture.   Blockade. 

jVew  Trial.  In  jury  causes,  the  time 
allowed  to  move  for  a  new  trial  is  twenty  days 
after  the  trial,  if  there  should  be  that  period 
of  the  session  to  run,  and  if  not,  six  days 
after  the  commencement  of  the  next  session. 
In  the  case  of  causes  tried  during  the  Christ- 
mas recess,  and  where  twenty  days  have  not 


elapsed  after  the  date  of  the  verdict,  the  ap- 
plication may  be  made  at  any  time  within 
twenty  days  after  the  said  date ;  A,  S,  29th 
Nov.  1825,  §  35.  It  is  competent  to  move 
for  a  third,  or  any  number  of  trials,  and  the 
same  rules  apply  to  each  motion.  The  first 
step  in  the  application  is,  to  move  the  Court 
for  a  rule  on  the  opposite  party  to  show  cause 
why  a  new  trial  should  not  be  granted. 
Notice  must  be  given  to  the  opposite  agent, 
and  a  copy  lodged  with  the  clerk.  When 
the  motion  is  founded  on  averments  to  be 
supported  by  affidavits,  they  ought  to  be  duly 
lodged  and  intimated  to  the  opposite  party 
before  the  motion  is  heard.  If  the  party 
moving  succeed  in  making  out  a  prima  facie 
case,  the  Court  grants  a  rule  ordaining  the 
opposite  party  to  be  ready  to  show  cause  why 
a  new  trial  should  not  be  granted  ;  but  if  ho 
fail  in  making  out  a  prima  facie  case,  the  rule 
is  de  piano  refused.  After  the  rule  has  been 
granted,  and  previous  to  hearing  counsel 
against  and  for  the  granting  a  new  trial,  a 
report  in  writing  of  what  passed  at  the  trial 
must  be  delivered  to  the  Division  of  tho 
Court  in  which  the  application  for  the  new 
trial  is  to  be  heard,  signed  by  the  judge  who 
presided  at  the  trial ;  A.  S.  29tt  Nov.  1825, 
§  55.  The  case  is  then  again  put  out  in  the 
roll,  and  the  counsel  for  both  parties  is  heard. 
Every  point  in  the  case  is  open  for  discussion, 
so  far  as  relevant  to  the  grounds  on  which 
the  motion  has  been  rested.  If  a  new  trial 
should  not  be  applied  for,  or  if  it  should  be 
refused,  the  verdict  of  the  jury  is  final  and 
conclusive  as  to  the  facts  found,  and  is 
not  liable  to  be  questioned  by  an  appeal  to 
the  House  of  Lords,  except  in  the  circum- 
stances mentioned  in  the  articles  Appeal,  and 
Exceptions,  Bill  of;  65  Geo.  III.  c.  42,  §  8 ; 
59  Geo.  III.  c.  36,  §  16.  The  grounds  on 
which  a  new  trial  may  be  moved  for  are :  the 
verdict  being  contrary  to  evidence;  misdi- 
rection on  the  part  of  the  judge ;  undue  ad- 
mission or  rejection  of  evideace;  excess  of 
damages  ;  res  noviter  veniens  ad  notitiam  ;  or 
such  other  cause  as  is  essential  to  the  justice 
of  the  case ;  66  Geo.  III.  c.  42,  §  6.  This 
last  ground  has  been  found  to  include  cases 
where  it  appears  doubtful  whether  justice  has 
been  done ;  where  the  evidence  appears  in- 
sufficient to  support  the  verdict ;  where  the 
damages  are  small  and  insufficient ;  where  the 
verdict  does  not  answer  the  issues ;  or  pro- 
ceeds on  a  manifest  error,  inconsistent  with  the 
justice  of  the  case;  where  the  unsuccessful 
party  has  been  taken  by  surprise ;  where  there 
are  objections  to  the  jurymen;  and  where 
there  has  been  fabrication  of  evidence,  and 
falsehood  and  fraud  in  the  procedure.  See  a 
full  statement  of  tho  law  on  this  subject  in 
Marfarlano's  Jury  Prac.  253,  ei  seq.    See  also. 


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Shaw's  Digest,  972.    See  Juty  Trid.    Excep- 
tions, Bill  of.     Appeal. 

Hewspapen.  When  a  creditor  with  an 
heritable  security  is  vested  with  a  power  of 
sale,  under  condition  of  advertising  in  a  news- 
paper, publication  in  a  paper  containing  no- 
thing but  advertisements  is  held  sufficient 
compliance  with  the  condition ;  Dickson,  Jan. 
15,  1831,  9  S.d:D.  282.  The  good-will  of 
a  newspaper  is  held  to  be  property  transmis- 
sible inter  vivos,  or  to  heirs ;  and  if,  on  the  dis- 
solation  of  a  partnership  carrying  on  a  news- 
paper, by  death  of  one  of  the  partners,  the 
surviving  partners  who  may^e  desirous  to  con- 
tinue the  publication  refuse  to  boy  it,  then, 
like  the  other  rights  of  the  deceased  in  the 
dissolved  company,  it  must  be  sold  for  behoof 
of  his  representatives;  M'Cormick,  July  4, 
1822,  lS.<tD.  541. 

Nezi ;  among  the  Romans,  were  free-bom 
persons  who  had  been  reduced  to  a  state  of 
slavery  for  debt. 

Hezt  of  Kin.     See  Executors. 

Vight  Poaching.  By  57  Geo.  III.  c.  90, 
any  one  poaching  at  night,  armed  with  a  gun 
or  other  offensive  weapon,  or  knowingly  ac- 
companying one  so  armed,  is  punishable  with 
transportation  for  seven  years.  It  is  suffi- 
cient that  the  panel  is  seen  on  the  ground, 
though  he  is  only  apprehended  coming  out 
of  it.  Gamekeepers  may  apprehend  of- 
fenders, though  not  armed.  By  9  Geo.  lY. 
c.  69,  amended  by  7  and  8  Vict.  c.  29, 1844, 
when  three  or  more  are  found  togetheiv  in 
the  ground,  and  any  of  them  is  armed,  they 
are  punishable  with  transportation  for  four- 
teen years.  Night  commences  with  the  second 
honr  after  sanset,  and  ceases  at  the  begin- 
ning of  the  last  hour  before  sunrise  ;  Alison's 
Princ.  648 ;  Steele,  171.     See  Game  Laws. 

Vial  PriuB ;  an  English  law  judicial  writ. 
The  record  of  every  cause  in  the  law  courts 
at  Westminster  adjourns  the  trial  to  a  future 
day  eU  Westminster ;  nisi  prius  (according  to 
the  old  Latin  form)  justiciarii  dominii  Regis 
ad  assisas  capiendas  venerint ;  •'.  e.,  unless  the 
judges  previously  come  to  the  place  named  to 
hold  the  assizes,  which  they  are  sure  to  do. 
In  London  and  Middlesex,  courts  ofnisiprius 
are  holden  in  and  after  every  term,  called 
sittings,  before  the  chief  or  other  judge  of  the 
several  superior  courts,  to  try  causes  by  jury ; 
and  the  causes  tried  at  these  sittings  and  on 
the  circuits  in  England  are  called  Nisi  Prius 
cases.     Tondins,  h.  t. 

Vobile  Offidvin.  The  nobile  officium  of  the 
Court  of  Session  does  not  admit  of  a  precise 
definition.  Generally  speaking,  it  may  be 
said  to  be  the  equitable  power  vested  in  that 
Court,  whereby  it  interposes  to  modify  or 
abate  the  rigour  of  the  law,  and,  to  a  certain 
extent,  to  give  aid  where  no  remedy  could  be 


had  in  a  court  confined  to  strict  law ;  Stair, 
B.  iv.  tit.  3,  §  1 ;  Mor^t  Notes,  p.  ceclxxiv. ; 
Ersk.  B.  i.  tit.  3,  §  22 ;  Bank.  vol.  ii.  p.  517. 
See  this  subject  more  fully  treated  under  the 
article  Equity.    See  also  Judicial  Factor. 

Nobility.  Under  this  title  are  compre- 
hended all  degrees  of  dignity  above  a  koight 
baronet.  Those  degrees  are  duke,  marqnii, 
earl,  visconnt,  and  baron.  But  althoagh 
the  scale  of  dignity  is  thus  graduated,  ^e 
holders  of  those  dignities  are  equal  in  all  pub- 
lic acts,  and  are  hence  denominated  peers  of 
the  realm.    See  Dignities.    Peerage. 

Vobleman.    See  Peer. 

Holle  Proaeqni ;  in  Englbh  law,  is  where 
a  plaintiff  in  an  action  does  not  dedare,  in  a 
reasonable  time ;  in  which  case  it  is  usual  for 
the  defendant's  attorney  to  enter  a  rule  for 
the  plaintiff  to  declare,  after  which  a  nmprv- 
sequitur  may  be  entered.     Tondins,  k.  t 

Nomen  Debiti ;  the  right  to  payment  of  a 
debt.  Legatim  nominis,  is  a  legacy  of  a  right 
to  a  debt  due  to  the  testator.  Ertk.  B.  iii. 
tit.  9,  §  4. 

Hominate  and  Inninninate.  A  Dominate 
right  is  a  right  possessing  a  nomen  juris,  the 
use  of  which  defines  its  boundaries,  and  set- 
tles the  consequences  to  all  concerned.  Those 
rights  generally  receive  a  nomen  juris  which 
are  frequently  the  subjects  of  contract  and  of 
legal  discussion ;  while  other  rights  of  infre- 
quent occurrence  remain  innominate,  and 
must  be  determined  by  the  application  of  the 
law  to  the  circumstances  in  the  particular 
ease.  The  nominate  and  innom  inate  contracts 
illustrate  the  doctrine.  Where  two  parties 
enter  into  a  bargain,  recognised  as  a  ooffli- 
nate  contract,  such  as  sale,  the  legal  rales 
which  regulate  its  operation  are  at  once  un- 
derstood, and  the  reciprocal  nghts  of  the  par- 
ties are  implied  in  the  mere  name  of  the  con- 
tract. The  law  thus  supersedes  the  neeeaii^ 
of  special  stipulations,  and  creates  an  obliga- 
tion in  the  one  party  to  perform,  and  a  riglit 
in  the  other  to  demand,  whatever  is  neeesiarj 
to  the  explication  of  that  contract.  In  the 
case  of  the  innominate  contracts,  again,  the 
law  supplies  nothing  beyond  the  express 
agreement  of  the  parties ;  and  th««  are  do 
obligations  or  rights  created,  except  goeh 
as  have  been  matter  of  special  covenant  be- 
tween the  parties.  In  the  Roman  law,  there 
were  twelve  nominate  contracts;  and  for 
each  of  these  there  was  a  particular  action, 
such  as  the  actio  mutui,  the  actiones  commodiii 
directa  et  contraria,  the  actions*  empti  et  te»- 
diti,  &c.  When  it  was  necessary  to  bring  sa 
action  for  implement  of  an  innwainate  eon- 
tract,  the  action  was  infaettnn,  or  prcescriptit 
verbis.  In  the  Roman  law,  inncHsinate  eon- 
tracts  could  only  be  constituted  ex  re — that  is, 
by  the  delivery  of  the  subject  o(  the  cootraet : 

Digitized  byLjOOQlC 


KOM 


NON 


S89 


in  tlie  law  of  Scotland,  generally  speaking, 
■writing  is  required.  In  courts  of  justice,  the 
fiomittate  are  more  favourably  viewed  than 
thn  innominate  contracts ;  and  hence,  an  irre- 
gularity which,  in  the  case  of  an  innominate 
contract,  would  release  the  parties,  will  not 
have  the  same  effect  where  the  contract  is 
nominate.  The  same  distinction  holds  be- 
tween nominate  and  innominate  servitudes. 
And  although  Erskine  says  that  there  may 
be  as  great  a  variety  of  conventional  servi- 
tudes as  there  can  be  ways  in  which  one 
man's  property  may  be  burdened  or  restricted 
in  favour  of  another  {Ersk.  B.  ii.  tit.  9,  §  2), 
yet  it  would  rather  appear  to  have  been  the 
role  of  our  older  law,  as  laid  down  by  Pro- 
fessor Bell,  that  only  well-established  and 
defined  servitudes  can  be  constituted  as  real 
hardens  effectual  against  singular  successors ; 
Bdl's  Princ.  §  979.  Thus,  in  Jaffray,  Feb. 
18, 1755,  M.  14,517,  it  was  held  in  the  House 
of  Lords,  that  bleaching  is  not  a  servitude 
acknowledged  in  the  law  of  Scotland.  In  a 
later  case,  however,  the  servitude  of  bleach- 
ing and  drying  linen  was  held  to  have  been 
acquired— Smciair,  Feb.  10, 1779,  Jf.  14,519, 
House  of  Lords,  March  8, 1779.  And  a  ser- 
vitude of  golfing  has  likewise  been  admitted ; 
Dmpiter,  May  17, 1805,  M.  1614, 2  Dow,  40; 
MagittraUs  of  Qxieensfeny  v.  Malcolm,  June  12, 
1829,  7  S.  755.  But  although  these  cases  re- 
cognise the  admissibility  of  innominate  ser- 
vitudes, yet  the  law  regards  them  with  more 
distrust,  and  requires  much  stronger  evidence 
of  their  constitution  and  nature  than  it  does 
in  the  case  of  servitudes  possessing  a  recog- 
nised nomm  juris.    Heinec.  Elem.  Juris.  § 

i  IV. 

Hominate  Tator.    See  Tutor. 

nomination.*  In  Scotland,  this  word  is 
nsed  to  signify  an  appointment  to  an  ofSce. 
In  England,  it  is  applied  to  the  appointment 
of  a  clergyman  ;  in  which  sense  it  is  synony- 
mous witli  the  Scotch  term  presentation.  As 
to  the  nomination  of  candidates  for  a  seat  in 
Parliament,  see  Reform  Act. 

Hon  Compos  Hentis;  of  unsonnd  mind. 
Ersk.  B.  i.  tit.  7,  §  48 ;  BeU's  Com.  ii.  668. 
See  Idiot.  Furious  Person.  Brieve.  Cura- 
tory.   Insanity.    ImbeciUly. 

Hon  Creditor  Beferenti,  Hisi  Constet 
de  Selato;  a  maxim  nsed  by  Erskine,  as  im- 
plying that  reference  made  in  one  writing  to 
another  is  no  proof  of  the  existence  of  that 
other.  Thus,  an  instrument  of  sasine  does 
not  prove  the  existence  of  the  charter  to  which 
it  refers.    Ersk.  B.  iv.  tit.  2,  §  6. 

Hon  KeminL  When  a  party  to  whose 
oath  a  debt  or  payment  is  referred  swears 
n<m  ffl«miNi,  it  has  generally  the  effect  of  ab- 
solving him ;  but  if  the  fact  is  so  recent  that 
the  swearer  cannot  be  believed  ignorant  of 


it,  he  is  held  as  confessed  in  the  same  manner 
as  if  he  had  refused  to  depone.  Non  memini  • 
is  not  equivalent  to  a  denial  of  the  fact,  and 
does  not  shut  out  the  person  making  the  re- 
ference from  establishing  it  by  other  proofs 
originally  competent.  Ersk.  B.  iv.  tit.  2,  § 
14 ;  Tait  on  Evidence,  240. 

Hon  Hnmeratee  FeoiinisB.  In  the  Homan 
law,  an  obligation  might  be  raised  ex  Uteris, 
by  granting  an  acknowledgment  of  having 
received  a  sum  of  money,  although  no  such 
money  had  been  actually  paid.  During  two 
years,  however,  the  debtor  was  entitled  to 
plead  the  exception  non  numeratoe  pecuniw — 
i.e.,  to  plead  that  the  money  had  not  been 
received ;  and  in  that  case  the  onus  lay  upon 
the  holder  of  the  bond  to  prove,  by  evidence 
external  to  the  bond,  that  the  money  had 
been  paid.  But  if  two  years  were  allowed  to 
elapse,  the  debt  was  held  constituted  by  the 
writing  alone,  and  no  proof  of  the  non-exist- 
ence of  the  debt  could  be  received.  It  was 
formerly  believed  that  this  rule  of  the  Soman 
law  had  force  in  Scotland,  and  hence  it  .was 
customary  to  insert  a  clause  in  old  Scotch 
bonds,  binding  the  debtor  not  to  avail  himself 
of  the  exception  non  numerat<B  pecunioe.  But 
no  such  law  exists  in  Scotland.  Heinec.  Elem. 
Juris.  §  888 ;  Stair,  B.  i.  tit.  10,  §  11 ;  Ersk. 
B.  ii.  tit.  2, 1  5 ;  Ross's  Lect.  i.  53. 

Hon  Offioiendi  Lnminibns.    See  Light. 

Non  Valens  Ag^ere.  See  Contra  non  valen- 
tem,  d'c.    Prescription.    Interruption. 

"Sojs&ge ;  in  English  law,  signifies,  in  gene- 
ral, all  the  time  that  a  person  continues  under 
the  age  of  twenty-one ;  but,  in  a  special  sense, 
it  corresponds  to  the  Scotch  term  pupillage, 
and  denotes  all  the  time  that  a  person  is  under* 
the  age  of  fourteen.  Tomlins,  h.  t.  See 
Minor. 

Hon-Adherence.    See  Adherence. 

Honconformists ;  those  who  do  not  con- 
form to  the  established  religion.  There  were 
formerly  severe  statutory  regulations  against 
nonconformity;  but  these  have  all  been  re- 
pealed. See  Nonjurors,  and  authorities  tltere 
cited. 

Non-Entrei;  is  where  a  vassal,  vest  and 
seised  in  the  fee  and  property  of  the  lands, 
deceases,  leaving  behind  an  heir,  who,  being 
of  lawful  age,  may  enter  to  the  lands  by  tak- 
ing of  sasine  thereof,  and  yet  enters  not;  in 
which  case  the  lands  are  in  the  hands  and 
power  of  the  immediate  superior,  by  reason 
of  non-entresse.    Skene,  h.  t.    See  next  article. 

Non-Entry ;  is  the  casualty  which  falls  to 
the  superior  where  the  heir  of  a  deceased 
vassal  neglects  to  obtain  himself  entered  with 
the  superior;  or,  as  it  is  otherwise  expressed, 
who  fails  to  renew  the  investiture.  In  virtue 
of  this  casualty,  the  superior  is  entitled  to 
the  rents  of  the  feu ;  but  in  order  to  favour 

Digitized  byCjOOQlC 


690 


NON 


NOT 


the  vasisal,  those  rents,  previous  to  the  period 
of  the  superior's  raising  an  action  of  non- 
entry,  are  held  to  he  no  more  than  the  re- 
tonred  duties  of  the  lands ;  or,  where  there  is 
no  retour,  than  the  valued  rent  of  the  lands. 
But  after  an  action  of  declarator  of  non- 
entry  has  been  raised,  then,  from  the  date  of 
citation,  the  superior  is  entitled  to  the  full 
rent  In  this  action  the  superior,  in  the 
ordinary  case,  must  produce  his  sasine ;  the 
apparent  heir  {i.e.,  the  unentered  heir)  is 
made  a  party,  but  the  action  contains  no  per- 
sonal conclusion  for  payment  against  him. 
The  superior  claims  the  retoured  duties,  be- 
cause it  is  only  after  citation  that  the  full 
rent  is  due ;  and  there  must  be  a  conclusion 
for  poinding  the  ground,  in  order  to  render 
the  claim  effectuid,  as  no  personal  decree  is 
pronounced  against  the  heir.  In  virtue  of 
the  decree  in  this  action,  the  superior  may 
recover  the  duties  due  before  citation  (which 
are  debita  fundi)  by  a  poinding  of  the  ground; 
but  the  full  rents  which  bwame  due  after 
citation  belong  to  the  superior,  as  interim 
proprietor,  and  are  therefore  to  be  recovered, 
not  by  a  poinding  of  the  ground,  but  by  an 
action  against  the  tenants  for  payment  of  their 
rents.  Where  the  vassal  dies  after  having 
disponed,  and  where  the  purchaser  has  not 
entered  with  the  superior,  the  superior's  nsual 
remedy  is  an  action  of  reduction-improbation 
against  the  purchaser,  with  a  declarator  of 
non-entry ;  and  although  it  does  not  appear 
to  be  indispensable  in  such  an  action  to  call 
the  heir  of  the  deceased  vassal,  yet,  if  the  heir 
choose  in  such  circumstances  to  enter,  to  the 
effect  of  becoming  the  mid-superior  of  the 
purchaser,  the  superior  must  receive  him; 
Magistrates  of  Dundee,  26th  June  1829,  7  S. 
<t  D.,  801 ;  P^^ot,  9th  Dec.  1829,  i  S.  d;  D., 
213.  Non-entry  is  excluded  wherever  the 
fee  is  held  by  a  corporation,  for  then  the  fee 
is  always  full.  A  corporation  never  dies. 
The  fee  is  considered  as  full,  and  therefore 
an  action  of  non-entry  is  excluded,  so  long  as 
the  vassal  lives,  although  he  may  have  made 
over  the  feu  to  another.  In  the  same  way, 
where  lands  are  conveyed  to  a  husband  and 
wife  in  conjunct  fee  and  liferent,  and  the  in- 
feftment  following  on  the  right  has  been  con- 
firmed by  the  superior,  the  fee  is  held  to  be 
full  so  long  as  either  the  husband  or  the  wife 
remains  alive.  An  infeftment  on  a  public 
right  to  be  held  of  the  vassal's  superior,  when 
confirmed  by  the  superior,  renders  the  fee 
full;  and,  lastly,  non-entry  is  excluded  by 
the  husband's  courtesy  as  to  the  whole  of  the 
lands ;  and  to  the  extent  of  one-third  by  the 
widow's  terce.  Non-entry  duties  cannot  be 
claimed  by  a  superior  when  the  entry  is  de- 
layed through  his  own  fault;  and  therefore, 
from  the  date  of  a  charge  at  the  instance  of 


an  heir,  who,  at  the  same  time,  oGTers  the  r^ 
lief  and  non-entry  duties,  non-entry  is  ex- 
cluded. It  is  excluded,  also,  by  a  charge  at 
the  instance  of  an  adjudger  of  the  vassal's 
property,  who  offers  a  year's  rent ;  further,  a 
superior  forfeits  the  non-entry  duties  during 
his  life,  where  he  is  unentered,  and  refuses 
to  complete  his  title.  Ertk.  B.  ii.  tit.  5,  $$ 
29, 46 ;  Stair,  B.  u.  tit.  4,  §  18,  «<  seq. ;  B.  iii. 
tit.  2,  §  12 ;  B.  iv.  tit.  8 ;  More's  Notes,  pp. 
ccvii.,  ccclxxvii. ;  Bank.  vol.  i.  p.  622,  d  seq.; 
BeU^s  Com.  i.  23;  BdVs  Princ.  §§  704-15; 
JUust  ib.;  Earned  Stat.  Law  Abridg.  h.t.;M 
on  Purchatei'*  Title,  42.  See  CompMitien. 
Entry  of  an  Eeir. 

VoqJQTOn ;  were  those  who,  from  attach- 
ment to  the  Stuart  family,  refused  to  take 
the  oaths  to  the  Government  as  established  at 
the  Revolution  of  1688.  The  objection  to  take 
the  oaths  rested  on  the  obligation  under 
which  the  nonjuror  supposed  himself  to  lie 
to-the  King  de  jure,  as  he  was  called.  In  order 
to  exclude  from  all  public  employments  those 
who  professed  opinions  unfavourable  to  the 
rights  of  the  reigning  family,  certain  oaths- 
were  required  to  be  taken  by  all  who  held 
public  offices ;  and  as  those  of  the  Scottish 
Episcopal  Church  were  remarkable  for  their 
adherence  to  the  exiled  royal  family,  preach- 
ers in  Episcopal  meeting-houses  were  required 
to  take  the  oaths,  and  pray  for  the  King  by 
name— 5  Geo.  I.  c.  28;  and  where  tiiese 
were  neglected,  their  hearers  were  punished ; 
19  Geo.  II.  c.  39,  and  21  Geo.  II.  c.  31 
These  statutes  are  still  unrepealed,  although 
the  political  necessity  which  required  them  no 
longer  exists.  See  Hutch.  Just.  ii.318;  Taifs 
Just,  voce  Nonconformist;  BUiir's  Just.  eod. 
tit. ;  Swint.  Abridg.  eod.  tit.    See  Episcopdiaiu 

HoitObitaiite ;  a  clause  formerly  freqoeot 
in  statutes  and  letters-patent,  importing  a 
license  from  the  King  to  do  a  thing  which  at 
common  law  might  be  lawfully  done,  but 
which,  being  restrained  by  statute,  cannot  be 
done  without  such  license.  A  non-obstaiUe  is 
now  against  law.     Tomlins,  h.  t. 

Hon-Snit ;  in  English  law,  the  dropping 
or  renunciation  of  a  suit  or  action  by  the 
plaintiff.  This  most  commonly  happens  upon 
the  discovery  of  some  error  in  the  plaintiff's 
proceedings,  when  the  cause  is  so  far  proceeded 
in  that  the  jury  are  ready  to  deliver  in  their 
verdict.     Tomlins'  Diet.  h.  t. 

Hot  Guilty  and  Not  Provan.  Not  auilty, 
is  the  general  issue  or  plea  of  the  accused,  or 
panel,  in  any  criminal  action.  A  verdict  of 
not  guilty  imports  the  jury's  opinion  that  the 
panel  is  innocent.  A  vei-dict  of  net  prove* 
only  indicates  that,  in  the  opinion  of  the  jury, 
there  is  a  deficiency  in  the  evidence  to  con- 
vict him.  Alison's  Prae.  363;  Stede,  211. 
See  Verdict.    PkaofPanei. 

Digitized  byCjOOQlC 


NOT 


NOT 


591 


Notarial  Instnunent.  See  Notary.  Evi- 
dence. 

Notary-Pablic.  A  notary-public  has  been 
defined  to  be  a  public  officer,  who,  upon  exa- 
mination and  trial,  being  admitted  by  the 
Lords  of  Session,  gets  power  to  take  instru- 
ments in  any  honest  and  lawful  business, 
which  instruments  make  faith  in  law.  The 
candidate  for  the  office  must  be  of  good  fame, 
and  possessed  of  a  reasonable  knowledge  of 
law,  and  particularly  of  the  lav  relating  to 
the  duties  which,  in  the  exercise  of  his  office, 
he  may  be  called  upon  to  discharge.  Where 
one  desires  to  be  admitted  a  notary,  the  pre- 
sent form  is  for  the  candidate  to  apply  to  the 
clerk  to  the  admission  of  notaries,  who  holds 
his  office  under  the  Crown,  and  by  whom  a 
petition  for  the  candidate  is  presented  to  the 
Conrt  of  Session,  setting  forth  that  the  in- 
trant has  been  engaged  in  studying  the  laws, 
forms,  and  practice  of  Scotland ;  and  that, 
being  now  desirous  to  exercise  the  office  of  a 
Dotary-public,  he  prays  to  be  examined  as  to 
his  qualifications,  and,  if  found  qualified,  to  be 
admitted ;  and  also,  that  the  Court  may  grant 
warrant  to  the  clerk  to  the  admission  of  no- 
taries, to  mark  his  protocol  book,  receive  his 
cautioner,  &c.  An  attestation  by  an  advo- 
cate and  by  a  writer  to  the  signet,  setting 
forth  their  knowledge  of  the  petitioner,  and 
of  his  good  fame  and  qualifications,  must  be 
subjoined  to  the  petition ;  and,  on  its  being 
moved,  the  Court  remits  to  the  examinators 
of  notaries,  who  are  certain  members  of  the 
Society  of  Writers  to  the  Signet,  annually 
elected  by  the  society  for  that  purpose.  If 
the  report  of  the  examinators  be  favourable, 
the  Court  admits  the  petitioner  to  be  a  no- 
tary-public, and  remits  to  the  Lord  Ordinary 
in  the  Outer-House  to  administer  to  the  in- 
trant the  oaths  of  allegiance,  abjnration,  and 
iefiMi;  and  grants  warrant  to  the  clerk  to 
the  admission  of  notaries  to  mark  his  protocol- 
book.  A  notary  being  admitted  to  his  office 
by  royal  authority,  that  authority  is  interposed 
in  the  form  of  a  letter  which  passes  the 
cachet,  addressed  to  the  Court  of  Session,  de- 
ckring  the  King's  intention  to  admit  the 
intrant  as  a  notary,  provided  the  Court  of 
Session  find  him  qualified.  This  warrant, 
which  is  obtained  as  a  matter  of  course,  is  re- 
cited in  the  act  of  admission  of  the  notary, 
which  is  inserted  in  the  register  kept  by  the 
clerk  to  the  admission  of  notaries,  in  which 
register,  also,  the  sign,  motto,  and  subscrip- 
tion of  the  notary  are  inserted  for  preserva- 
tion. The  clerk  to  the  admission  of  notaries 
then  gives  the  intrant  his  commission,  which 
recites  the  procedure  above  mentioned — the 
fact  that  the  notary  has  taken  the  requisite 
oaths — that  he  has  found  caution  for  the 
faithful  performance  of  his  office — that  he  has 


received  a  protocol-book,  and  that  he  is  to 
use  the  sign  and  subscription  manual  in  the 
form  annexed  to  his  commission.  This  com- 
mission bears  to  be  extracted  from  the  re- 
cords of  the  admission  of  notaries,  and  is 
signed  by  the  clerk  to  the  admission,  and  is  the 
authority  in  virtue  of  which  the  notary  exer- 
cises his  duty  as  a  notary.  Some  law  writers 
have  bestowed  considerable  historical  research 
on  the  subject  of  notaries-public.  Without  ' 
citing  special  authorities  on  a  matter  really 
of  no  practical  importance,  the  following 
points  may  be  stated  as  ascertained: — 1. 
That  the  office  of  a  notary  was  known  in  an- 
cient Rome.  2.  That,  after  the  establish- 
ment of  Christianity,  notaries  were  appointed 
by  the  Pope  originally  for  the  purpose  of  pre- 
serving the  records  of  the  Church,  but  after- 
wards for  purposes  almost  entirely  secular.  3. 
That  the  anthority  of  apostolical  notaries  was 
recognised  all  over  Christendom.  4.  That 
after  a  conflict,  the  progress  of  which  it  is  of 
no  consequence  to  trace,  apostolical  and  all 
ecclesiastical  notaries  were  abolished  in  Scot- 
land at  the  Reformation,  and  the  appoint- 
ment of  notaries  vested  in  the  Sovereign, 
under  regulations  which,  with  certain  modi- 
fications, remain  in  force  at  the  present  day. 
Tlie  statutes  of  the  Scotch  Parliaments  con- 
nected with  this  subject  are,  1469,  c.  81 ; 
1603,  c.  64 ;  1540,  c.  76 ;  1540,  c.  78 ;  1651, 
c.  24 ;  1555,  c.  43 ;  1563,  c.  78  and  79 ; 
1587,  c.  45 ;  1617,  c.  22  ;  A.  S.  30tt  Mt/ 
1691.  The  protocols  mentioned  in  several  of 
those  statutes  are  stiU  given  out  to  the  nota- 
ries ;  but,  in  practice,  they  are  never  called 
back  by  the  clerk;  and  it  is  believed  that 
very  few  notaries  make  any  use  of  them.  A 
deed  subscribed  by  notaries,  without  the  man- 
date of  the  person  by  whom  it  bears  to  be 
executed,  is  held  to  be  forged ;  the  same  is 
the  case  if  a  man  personates  another  who  can- 
not write,  and  thus  obtains  a  false  notarial 
subscription,  by  imposing  on  the  notaries; 
Hume,  i.  143;  Alison's  Princ.  381.  The  du- 
ties of  notaries  in  preparing  instruments  of 
sasine — in  executing  deeds — in  attesting  co- 
pies of  writings,  and  the  like,  and  the  evidence 
afibrded  by  those  notarial  documents  respec- 
tively, are  necessarily  treated  of  under  dif- 
ferent articles  in  this  Dictionary.  See,  in 
particular,' l>0^ie<.  Evidence.  Instruments. 
Testament.  Sasine.  Writ.  See  also,  on  the 
subject  of  this  article,  Ross's  Led.  vol.  ii.  p. 
201,  and  The  Office  of  a  Notary,  passim  ;  Mac- 
kemit^s  Observations  on  the  Statutes,  pp.  68, 
122, 153, 167,  240,  356  ;  Stair,  B.  ii.  tit.  3, 
§  17  ;  B.  iii.  tit.  8,  5  34 ;  B.  iv.  tit.  42,  §  9 ; 
Ersk.  B.  iii.  tit.  2,  §§  9,  23  ;  B.  iv.  tit.  2,  §  5  ; 
Bank.  vol.  ii.  p.  500  ;  BeWs  Com.  i.  460,  676, 
323, 366 ;  ii.  17 ;  BeWs  Princ.  §§  19, 298, 3.38, 
770-1 ;  lUust.  §§  298, 338 ;  Earned  Stat.  Law 

Digitized  byCjOOQlC 


692 


NOT 


NOT 


Ahridg.  voce  Puhlic  Officer ;  Bell  on  Purchaset's 
Title,  217,  et  seq. ;  Thomson  on  Bills,  45,  554, 
442  ;  Karnes"  Equity,  202. 

Note  of  Pleat  in  Law.  See  Pleas  in  Law. 

Note,  Fromiasory.    See  Promissory-Note 
and  Bank  Notes. 

Notes.  In  the  judicial  proceedings  of  the 
Court  of  Session,  the  most  important  Notes 
are  Reclaiming  notes,  and  Notes  of  pleas  in 
law;  as  to  which,  see  Record;  Pleas  in  Law; 
Reclaiming  Note.  Notes  of  advocation  and 
suspension  are  now  brought  in  virtue  of  1 
and  2  Vict.  c.  86, 1838.  But  the  term  noU 
is  also  applied  to  various  incidental  applica- 
tions, the  occasions  for  which  it  would  be 
difBcalt  to  enumerate.  In  the  Inner-House, 
such  incidental  notes  are  usually  presented 
where  a  prorogation  of  the  term  for  lodging 
a  paper  ordered  by  the  Court  is  required; 
where  it  is  necessary  to  have  a  remit  of  a 
depending  canse  to  a  new  Lord  Ordinary ; 
where  circumstances  render  it  necessary  to 
pray  the  Court  to  retard  or  expedite  the  de- 
cision in  a  particular  cause,  or  the  like.  These 
notes  are  usually  in  MS.,  and  are  addressed 
to  the  Lord  President  of  the  Division  of  the 
Court  in  which  the  canse  depends.  They 
pray  bis  Lordship  to  move  the  Court  to  the 
elTect  required ;  and  they  must  be  regulaily 
intimated  to  the  opposite  party,  by  leaving 
copies  at  the  office  or  place  of  business  of  his 
Agent;  A.  S.  9th  July  1806.  In  effect,  these 
notes  are  mere  memoranda,  or  notices  of  mo- 
tion. In  the  Bill-Chamber,  similar  notes  are 
presented  when  the  parties  wish  to  be  heard 
by  counsel  before  a  bill  of  suspension  and 
answers  is  disposed  of,  or  when  either  party 
wishes  time  to  reclaim  against  a  Bill-Cfham- 
ber  interlocutor ;  and  here  also  intimation  is 
necpssary  to  the  agent  of  the  opposite  party. 
In  the  Outer-House,  occasionally,  although 
rarely,  an  applicaMon  is  made  to  the  Lord 
Ordinary  by  a  note,  where,  in  peculiar  cir- 
cumstances, the  requisite  motion  cannot  be 
otherwise  made.  See  Motions.  Old  Witnesses. 
BiU-Chamber. 

Noting  a  Bill  When  the  debtor  in  a 
bill  or  note  refuses  acceptance  or  fails  to 
make  payment,  the  notary  presenting  the 
bill  makes  a  minute  at  the  time,  on  the  bill 
or  note,  consisting  usually  of  his  initiab  and 
of  the  date.  This  is  called  noting,  and  is  in 
effect  a  mere  memorandum  by  the  notary,  to 
assist  his  memory  in  extending  his  protest. 
Hence  noting,  as  distinguished  from  the  pro- 
test, has  been  said  to  be  "  unknown  to  the 
law ;"  althongh  it  seems  to  be  now  settled, 
that  it  is  a  kind  of  initial  protest,  which  will 
be  effectual  if  a  formal  instrument  of  protest 
be  afterwards  extended.  But  in  the  event 
«f  the  death  of  the  notary  before  such  pro- 
test is  extended,  or  in  his  absence,  it  would 


appear  that,  on  the  faith  of  the  notsry,  tbe 
protest  cannot  be  lawfully  extended  by  another 
notary.  No  action  of  recourse  can  be  main- 
tained against,  the  drawer  or  iudorsers  unless 
the  instrument  of  protest  be  regularly  ex- 
tended;^ and  in  Scotland  there  can  be  do 
summary  diligence  on  bills  or  notes,  either 
against  the  acceptors,  drawers,  or  indorsen, 
unless  the  extended  protest  is  registered 
within  six  months  from  the  date  of  the  bill, 
in  the  case  of  non-acceptance,  or  from  the 
term  of  payment,  in  case  of  non-payment. 
In  practice,  the  bill,  when  dishonoured,  is 
noted,  and  usually  allowed  to  lie  over  for  a 
day  or  two,  so  as  to  admit  of  a  settlement ; 
but  if  ulterior  proceedings  for  the  recovery 
of  the  debt  become  necessary,  the  protest 
must  be  extended ;  and  in  order  to  preserve 
recourse  against  the  drawer  and  indoners, 
the  bill  must  be  noted  on  the  third  day  of 
grace,  or,  if  that  be  a  Sunday  or  a  holiday,  on 
the  day  preceding;  Smith  v.  Payne,  29th 
June,  1786,  Mor.  1612 ;  7  and  8  Geo.  IV.  c 
15.  But  as  against  the  acceptor  of  the  bill 
or  note,  it  may  be  protested  at  any  tiino 
within  the  six  months ;  and  hence,  where, 
for  example,  a  bill  has  been  discounted  at  a 
bank,  and  dishonoured  and  noted  by  the  no- 
tary of  the  bank,  and  thereupon  retired  from 
the  bank  by  the  drawer  or  indorser,  it  is  per- 
fectly competent  for  him,  after  the  days  of 
grace,  and  within  the  six  months,  to  protest 
the  bill,  as  against  the  acceptor,  by  means  of 
another  notary,  and  to  record  that  protest, 
and  expede  summary  diligence.  In  such  a 
case,  although  it  is  usual,  it  is  not  indispen- 
sable, that  the  notary  who  noted  the  bill  at 
the  bank  should  take  or  extend  the  protest 
against  the  acceptor.  Thomson  on  BiUs,  446, 
et  seq.,  2d  edit. ;  Glen  on  Bills,  194.  See  BiU 
of  Exchange.    Protest. 

Notice  of  DiBhononr.  See  BiU  of  Ex- 
change. Negotiation.  Protesting  a  BilL  Ac- 
ceptance for  Honour. 

Notoriety.  According  to  Stair,  proof  by 
notoriety  is  when  the  judge  knows  that  the 
point  to  be  proved  is  commonly  knoirn  or 
acknowledged  to  be  true,  whether  it  be  known 
to  a  whole  country,  or  to  a  whole  vicinity. 
Such  proof  is  not  elided  by  showing  that 
some  particular  persons  are  ignorant  of  the 
fact ;  but  it  may  be  redargued  by  stronger 
positive  proof,  when  proponed  in  dne  time. 
Allegations  for  husbands,  wives,  parents  or 
children,  are  received  without  proof  of  their 
character  as  such  ;  unless  pregnant  proof  to 
the  contrary  be  offered,  and  instantly  verified. 
But  such  proof  to  the  contrary  is  competent 
in  an  action  of  reduction.  In  services  o( 
heirs,  or  of  widows  to  their  teree,  the  ^t  of 
relationship  being  "commonly  holden  and 
reputed"  in  the  vicinity  is  sufficient,  without 


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UOT 


NUI 


593 


proving  the  marriage  of  the  father  and  mo- 
ther, or  of  the  husband  and  wife.  But  proof 
that  such  persons  could  not  hare  heen  law- 
fully married,  if  instantly  verified,  would  stop 
or  annul  the  service,  or  would  be  competent 
in  a  reduction.  What  is  done  in  presence 
of  the  judge  in  judgment  is  accounted  noto- 
rious ;  but  this  rule  does  not  hold  ex  inter- 
vallo,  since  a  judge  deciding  upon  his  indi- 
Tidual  recollection  would  be  acting  the  part 
of  a  witness.  Stair  and  Erskine  consider  the 
judge's  knowledge  of  the  notoriety  admissible 
proof  of  the  fact ;  but  Glassford  entertains  a 
eontrary  opinion  ;  Olass/ord,  602.  See  also 
Stair,  B.  iv.  tit.  45,  §  4 ;  Ersk.  B.  iv.  tit.  2, 
§  33  ;  Tait  on  Evidence,  432.  And  as  to  the 
notoriety  of  dissolution  of  partnership,  and  of 
subscription  by  a  company  firm,  see  Thomson 
an  Bilh,  247,  554.  See  also  Habit  and  Repute. 

HotouT  Bankrupt.    See  Bankrupt. 

Sova  Diuasina;  recent  spulzie  or  ejection. 
Skene,  h.  t. 

HovaDebita.  Debts  newly  or  recently  con- 
tracted,  in  contradistinction  to  old  or  prior 
debts.  In  questions  as  to  fraudulent  prefer- 
ences given  within  sixty  days  of  bankruptcy, 
security  or  payment  granted  as  a  considera- 
tion for  a  debt  presently  contracted  is  not  re- 
dacible  as  fraudulent.  Bdl's  Com.  ii.  202, 220; 
ThoouM  on  Bills,  686,  704.    See  Bankrupt. 

Hovalia ;  is  a  term  applied  to  lands  newly 
improved  or  cultivated,  and  in  particular  to 
those  lands  which,  having  lain  waste  from 
time  immemorial,  had  been  brought  into  cul- 
tivation by  the  monks.  There  are  certain 
lands  exempted  from  the  payment  of  stipend, 
and  this  exemption  has  been  ascribed  to  their 
formerly  having  been  novalia,  from  which  no 
teinds  had  ever  heen  drawn.  It  has,  upon  a 
similar  principle,  been  held  that  lands  gained 
from  the  sea  by  embankments,  or  by  the 
draining  of  a  loch,  are  not  liable  to  pay  teinds 
to  the  titular  or  patron  of  the  parish ;  though 
Mr  More  presumes  that  such  lands  would  be 
liable  for  a  proportion  of  stipend,  if  all  the 
other  teinds  of  the  parish  should  be  exhausted. 
By  the  canon  law,  the  prescription  of  tithes 
did  not  extend  to  those  of  novalia,  or  newly 
unproved  lands.  Ersk.  B.  ii.  tit.  10,  §  14 ; 
M<yris  Notes  on  Stair,  ccxxxix. ;  Bank,  B.  ii. 
tit.  8,  §  146 ;  GotmeU  on  Tithes,  333,  et  seq. 
See  Teinds.    Deeima  Inclusce.    Labores. 

ITovation.  See  Innovation. 
.  Horels.  An  institute  of  the  Roman  law 
was  compiled  under  the  direction  of  Justi- 
nian ;  and  the  subsequent  constitutions  of 
that  emperor,  and  of  a  few  of  his  successors, 
were  called  the  Novels.    See  Roman  Law. 

Horodamiu.  A  charter  of  novodamus  is  the 

name  given  to  a  charter  by  progress  which 

contains  a  clause  of  novodamus.    This  clause 

is  subjoined  to  the  dispositive  clause ;  and.  by 

2r 


it  the  superior,  whether  the  Crown  or  a  sub- 
ject, grants  de  novo  the  subjects,  rights,  or 
privileges  therein  described.  Such  a  clause 
is  usually  inserted  where  the  vassal  is  sensible 
of  some  defect  or  flaw  in  the  former  right,  or 
where  he  desires,  in  this  manner,  to  get  free 
of  burdens  chargeable  upon  the  subject  for 
casualties  due  to  the  superior ;  for  a  charter 
of  novodamus  is  accounted  in  law  an  original 
right,  which  imports  a  discharge  of  all  prior 
burdens.  It  is  not  necessary  that  the  subjects 
or  rights  conveyed  by  the  clause  of  novo- 
damus (as  might  be  inferred  from  the  term) 
should  have  been  formerly  invested  in  the 
vassal ;  for  such  a  charter  may  be  itself  a 
Jirst  grant,  as  well  as  a  renovation  of  a  former 
grant ;  and  every  subject  conveyed  by  it  is 
held  to  be  effectually  conveyed  to  the  vassal, 
although  he  may  have  had  no  antecedent  title 
thereto  in  his  person.  But,  on  the  other 
hand,  a  subject  which  has  been  formerly 
granted  by  the  superior  to  the  vassal,  and 
which  subject  remains  tn  heereditatejacente  of 
the  vassal's  heir,  cannot  be  conveyed  by  the 
superior  to  any  other  Vassal,  by  a  charter  of 
novodamus  or  otherwise,  to  the  prejudice  of 
the  heir's  right ;  although,  no  doubt,  such  a 
grant,  even  although  ultra  vires  of  the  supe- 
rior, might  be  the  foundation  of  a  prescriptive 
title.  Where  the  lands  hold  of  the  Crown, 
a  signature  containing  a  clause  of  novodamus 
will  not  be  passed  in  Exchequer,  unless  a 
complete  search  of  •  encumbrances  for  forty 
,  years  be  shown,  so  that  it  may  appear  that 
the  Crown  has  no  unsatisfied  claims  or  pre- 
tensions to  the  lands ;  and  the  signature,  be- 
sides, must  have  the  royal  superscription. 
See  Ersk.  B.  ii.  tit.  3,  §  23 ;  Jurid.  Styles ; 
Stair,  B.  ii.  tit.'3,  §  15;  More's  Notes,  p. 
clviii. ;  Bank.  vol.  i.  p.  546 ;  BeiPs  Ittust.  § 
800.     See  also  CAarter. 

Nndnm  Paotnm.    See  Pactum  Nudum'. 

Sniiance;  anything  noxious  or  offensive, 
or  which  makes  life  uncomfortable.  In  Eng- 
land, nuisances  are  of  two  kinds — public  and 
private.  The  former  of  these  is  punishable 
by  fine,  and  the  removal  of  the  offensive  ob- 
ject; while  private  nuisances  are  remedied 
by  a  civil  action  at  ihe  instance  of  the  per- 
son aggrieved.  Public  nuisances  are  such  as 
affect  the  public  generally ;  they  are  offences 
against  the  order  and  economy  of  the  State. 
Among  these  may  be  enumerated  annoyances 
in  highways,  bridges,  and  public  rivers,  dis- 
orderly inns,  gaming-houses,  lotteries;  and, 
in  general,  everything  detrimental  to  the 
public,  which,  if  injurious  to  an  individual, 
would  be  actionable.  In  Scotland,  there  is 
no  such  recognised  distinction  between  public 
and  private  nnisances.  Whatever  obstructs' 
passage  along  the  public  ways ;  whatever  is 
intolerably  offensive  to  individuals  in  their' 


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694 


NUL 


OAT 


dvelliDg-hooses,  by  stench,  noise,  or  inde- 
cency, is  ft  nnigance.  But  the  absolute  right 
which  a  man  has  to  use  his  property  as  he 
thinks  fit  will  not  be  limited  merely  because 
he  causes  inconrenience  to  bis  neighbours; 
there  must  be  positive  discomfort  or  danger. 
Circumstances  have  always  great  weight  in 
determining  whether  an  operation  is  a  nni- 
sauce  or  not.  It  makes  a  great  difference 
when  works  are  established  in  a  populous 
neighbourhood,  or  in  a  place  thinly  or  not  at 
all  inhabited ;  in  a  part  of  the  town  where 
similar  works  already  exist ;  or  in  a  situation 
where  \eei  cause  of  offence  is  required  to  make 
life  uncomfortable.  One  coming  to  a  nui- 
sance cannot  complain  of  it.  In  the  ordinary 
case,  redress  is  obtained  by  presenting  a  note 
of  suspension  and  interdict  to  the  Lord  Ordi- 
nary on  the  Bills,  or  by  means  of  an  ordinary 
action  to  hare  the  nuisance  removed  or  put 
down,  if  necessary,  concluding  for  the  dama- 
ges which  the  pursuer  has  thereby  sustained. 
Ersk.  B.  ii.  tit.  2,  §  2,  Note  2  Jy  Mr  Ivory; 
BtW$  Pnnc.§§  973-8;  lUutt.  ib.;  Huteh.  J»$Uee 
of  Peace,  ii.  pp.  6,  94 ;  Jurid.  Stylet,  2d  edit. 
Tol.  iii.  p.  93 ;  Earned  Efui^,  32 ;  TonUin*' 
Diet.  h.  t.    See  Damage. 

The  Nuisance  Removal  Act  is  the  19  and 
20  Vict.  e.  103,  1856,  which  repeals  the 
previous  acts  on  the  subject. 

Svlla  Saai&a,  Solla  Tern :  a  maxim  im- 
porting that  the  proper  test  or  evidence  of 
property  in  land  is  sasine,  or  infeftment  there- 
in.   Ertk.  B.  ii.  tit.  1,  §  11. 


VnnoapotiTe  Tetrtament,  or  Snaeaptttim 
Legacies.  A  nuncupative  or  verbal  nomi- 
nation of  an  executor  is  ineffectual ;  but  a 
nuncupative  legacy  is  good  to  the  extent  of 
L.100  Scots  (L.8, 6g.  8d.  sterling).  If  it  ex- 
ceed that  sum,  it  will  be  effectual  to  that  ex- 
tent if  the  legatee  choose  so  to  restrict  it,  but 
ineffectual  as  to  the  surplus.  Ertk.  B.  iiL  tit. 
9,  §  7 ;  Stair,  B.  iii.  tit.  8,  §  34 ;  Mar^t 
Notes,  y.  cccxxxviii.;  Bant.  vol.  iL  p.  378; 
BeWe  Princ.  §  1868 ;  Tait  m  Evidemse,  p.  305 ; 
Katue^  Equity,  203.  See  Legwy.  Eviimce. 
TeeUxment. 

Hnnqnam  Cooelnditar  in  False ;  a  maxim 
importing  that,  in  actions  of  rednetion-im- 
probation  on  the  head  of  falsehood  or  for- 
gery, any  relevant  defence  may  be  pleaded, 
or  any  additional  proof  brought  forward, 
however  late  in  the  proceeding  provided  de- 
cree has  not  been  extracted.  The  application 
of  this  maxim  has  been  very  much  limited  in 
civil  proceedings  by  the  introduction  of  the 
new  forms  of  process.  Ertk,  B.  ir.  tit.  4,  §  So ; 
Bank.  vol.  i.  p.  639. 

Hnnqnam  Pnesciibitnr  in  False.  This 
maxim  is  applied  to  actions  of  reduction  on 
the  bead  of  falsehood  or  forgery,  the  ri^t 
to  pursue  which  is  not  lost  even  by  the  li^ 
of  the  negative  prescription  of  forty  yean; 
since  this  omission  on  the  part  of  the  person 
entitled  to  complain  can  never  confer  a  right 
on  one  whose  title  is  founded  on  a  fwgery. 
Ertk.  B.  iii.  tit.  7,  §  12. 


o 


Oath ;  am  aiBrmatioDi  or  denial,  or  promise, 
attested  by  the  name  of  God.  The  judicial 
oath  taken  by  a  witness  is  in  these  t«rm8  : 
"  I  swear  by  Almighty  Qod,  and  as  I  shall 
answer  to  God  at  the  great  day  of  judgment, 
that  I  will  tell  Uie  truth,  the  whole  truth, 
and  nothing  but  the  truth,  in  so  far  as  I 
know,  or  as  the  same  shall  be  asked  at  me." 
This  is  the  formula  used  by  a  witness  when 
he  is  put  upon  his  oath ;  he  stands,  and,  with 
his  right  hand  held  up,  repeats  those  words 
after  the  judge,  or  commissioner  empowered 
to  administer  the  oath.  Quakers,  and  cer- 
tain other  sectarians,  on  account  of  their  re- 
ligious scruples,  are  permitted  to  agirm, 
without  making  oath.  See  4^rflut<*«n.  With 
regard  to  evidence  on  oath,  see  Evidence. 

Certain  oaths  are  required  to  be  taken 
under  certain  circumstances  to  Government. 

Tbst. — The  test,  as  it  is  called,  is  in  these 
terras :— "  I,  A.  B.,  do  solemnly  and  sincerely, 
in  the  presence  of  God,  profess,  testify,  and 
declare,  that  I  do  believe  in  the  sacrament  of 


the  Lord's  Supper,  and  that  there  is  not  any 
transubstantiation  of  the  elements  of  bread 
and  wine  into  the  body  and  blood  of  Christ, 
at  or  after  the  consecration  thereof  by  any 
person  whatsoever ;  and  that  the  invocation 
or  adoration  of  the  Virgin  Mary,  or  any 
other  saint,  and  the  sacrifice  of  the  mass,  as 
they  are  now  used  in  the  Church  of  Rome, 
are  superatitioua  and  idolatrous.  And  I  do 
solemnly,  in  the  presence  of  Qtoi,  fnkm, 
testify,  and  declare,  that  I  do  make  this  de- 
claration, and  every  part  thereof,  in  the  plain 
and  ordinary  sense  of  the  words  read  mito 
me,  as  they  are  commonly  understood  by 
English  Protestants,  without  any  erasien, 
equivocation,  or  mental  reservation  whatso- 
ever, and  without  any  dispensation  already 
granted  me  for  this  purpose  by  the  Pope,  er 
any  other  authority  or  person,  or  witboataay 
hope  of  any  such  dispensation  from  any  per- 
son or  authority  whatsoever,  or  without  think- 
ing that  I  am  or  can  be  acquitted  before  Gkid 
or  man,  or  absolved  of  this  d«dsratioD,  or 


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OAT 


OAT 


596 


any  part  thereof,  althongh  the  Pope,  or  any 
other  person  or  persons,  or  power  whatsoever, 
should  dispense  with  or  annul  the  same,  or 
declaie  that  it  was  null  and  void  from  the 
beginning." 

FoRicoLA. — The  formala  is  prescribed  by 
the  act  1700,  c.  3,  and  is  in  these  words : — 
"  I  do  sincerely,  from  my  heart,  profess  and 
declare  before  God,  who  searcheth  the  heart, 
that  I  do  deny,  disown,  and  abhor  those 
tenets  and  doctrines  of  the  Papal  Romish 
Chnrch — viz.,  the  supremacy  of  the  Pope  and 
Bishop  of  Rome  over  all  pastors  of  the 
Catholic  Chnrch;  his  power  and  authority 
over  kings,  princes,  and  states,  and  the  in- 
fallibility that  he  pretends  to,  either  with  or 
without  a  general  conncil ;  his  power  of  dis- 
pensing and  pardoning ;  the  doctrine  of  tran- 
substantiation,  and  the  corporal  presence, 
with  the  communion  withont  the  cup  in  the 
sacrament  of  the  Lord's  Supper ;  the  adora- 
tion and  sacrifice  professed  and  practised  by 
the  Popish  Church  in  the  mass ;  the  invoca- 
tion of  angels  and  saints ;  the  worshipping  of 
images,  crosses,  and  relics;  the  doctrine  of 
supererogation,  indulgences,  and  purgatory, 
and  the  service  and  worship  in  an  unknown 
tongue  ; — all'which  tenets  and  doctrines  of  the 
said  Church  I  believe  to  be  contrary  to,  and 
inconsistent  with,  the  written  Word  of  God. 
And  I  do,  from  my  heart,  deny,  disown,  and 
disclaim  the  said  doctrine  and  tenets  of  the 
Church  of  Rome,  as  in  the  presence  of  God, 
without  any  equivocation  or  mental  reserva- 
tion, bat  according  to  the  known  and  plain 
meaning  of  the  words,  as  to  me  offered  and 
proposed.    So  help  me  God." 

SuPBEMACT. — The  oath  of  supremacy  is  as 
follows: — "  I,  A.  £.,  do  swear,  that  I  do  from 
my  heart  abhor,  detest,  and  abjure,  as  im- 
pious and  heretical,  that  damnable  doctrine 
and  position,  that  princes  excommunicated 
or  deprived  by  the  Pope,  or  any  other 
authority  of  the  see  of  Rome,  may  be  de- 
posed or  murdered  by  their  subjects  or  any 
other  whatsoever.  And  I  do  declare,  that  uo 
foreign  prince,  prelate,  state  or  potentate, 
hath,  or  ought  to  have,  any  jurisdiction, 
power,  superiority,  pre-eminence,  or  autho- 
rity, ecclesiastical  or  spiritual,  within  this 
realm.    So  help  me  God." 

The  oath  of  allegiance  and  the  assurance, 
aeeording  to  the  form  prescribed  by  the  stat. 
1693,  e.  6,  are  in  these  terms.  See  also 
1  O«o.  I.  c.  13. 

Oath  or  Allcsiakoe. — "  I  do  sincerely 
promise  and  swear,  that  I  will  be  faithful 
and  bear  true  allegiance  to  her  Migesty  Queen 
Victoria.    So  help  me  God." 

The  Asscravcb. — "  I  do,  in  the  sincerity 
of  my  heart,  assert,  acknowledge,  and  declare, 
tbst  her  Migesty  Queen  Victoria  is  the  only 


lawful,  undoubted  Sovereign  of  this  realm, 
as  well  de  jure,  that  is  of  right  Queen,  as  tU 
facto,  that  is  in  the  possession  and  exercise 
of  the  government.  And  therefore  I  do  sin- 
cerely and  faithfully  promise  and  engage, 
that  I  will,  with  heart  and  hand,  life  and 
goods,  maintain  and  defend  her  Majesty's 
title  and  government  against  the  late  King 
James  and  his  adherents,  and  all  other  ene- 
mies, who,  either  by  open  or  secret  attempts, 
shall  disturb  or  disquiet  her  Majesty  in  the 
possession  and  exercise  thereof." 

As  to  the  abjuration,  see  Abjuration. 

The  tmst-oath,  which  a  freeholder  may  be 
required  to  take,  will  be  found  in  the  article 
Reform  Act.  For  the  oath  taken  by  justices 
of  the  peace  to  qualify  them  to  act,  see  Jut- 
ticet  of  the  Peace. 

By  5  and  6  Will.  IV.  c.  62,  1835,  which 
repealed  a  statute  previously  passed  the  same 
session,  provision  is  made  for  the  abolition  of 
unnecessary  oaths.  The  Lords  of  the  Trea- 
sury are  empowered  to  substitute  a  declara- 
tion in  lieu  of  an  oath,  affirmation,  or  affidavit, 
in  any  case  where,  by  acts  relating  to  the 
customs,  or  excise,  the  post-office,  office  of 
stamps  and  taxes,  &c.,  an  oath  or  affidavit  is 
required.  The  provisions  of  the  act  apply 
to  any  declaration  so  substituted  after  twenty- 
one  days  from  the  date  of  its  publication  in 
the  Gazette.  It  is  unlawful  to  administer  an 
oath  in  lieu  of  which  a  declaration  has  been 
directed.  A  false  declaration  in  matters  re- 
lating to  the  customs  or  excise,  stamps  and 
iaxes,  or  poet-office,  is  a  misdemeanour.  Oaths 
in  courts  of  justice,  or  in  any  proceeding  by 
way  of  summary  conviction  before  a  justice  of 
the  peace,  and  the  oath  of  allegiance,  are 
expressly  excepted  from  the  operation  of  the 
act.  The  Universities  of  Oxford  and  Cam- 
bridge, and  other  bodies  authorised  to  ad- 
minister oaths,  are  empowered  to  substitute 
declarations.  The  churchwarden's  and  sides- 
man's oath  is  abolished,  and  a  declaration 
appointed  to  be  substituted.  Declarations 
are  substituted  for  oaths  and  affidavits  by 
persons  acting  in  turnpike-trusts,  and  for 
oaths  and  affidavits  required  on  taking  out  a 
patent.  Declarations  are  substituted  for 
oaths  and  affidavits  required  by  the  acts 
relative  to  pawnbrokers,  and  the  penalties 
and  other  enactments  as  to  such  oaths  are 
extended  to  the  declaration.  It  is  not  lawful 
for  any  justice  of  peace,  or  other  person,  to 
administer,  or  cause  to  be  administered,  any 
oath,  affidavit,  or  solemn  affirmation,  touching 
any  matter  of  which  he  has  no  jurisdiction  or 
cognisance  by  some  statute  in  force  at  the 
time  being.  This  provision  is  declared  not 
to  extend  to  oaths  or  affidavits  touching  the 
preservation  of  the  peace,  or  the  trial  of 
offences,   or  any  proceeding  before  either 

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^ott8e  of  Parliament,  or  a  committee,  nor  to 
any  oath,  affidavit,  or  affirmation,  which  may 
be  required  by  the  laws  of  any  foreign  country 
to  give  validity  to  instruments  in  writing 
designed  to  be  used  in  that  country.  Decla- 
rations are  substituted  for  oaths  and  affidavits 
required  by  the  Bank  of  England  on  the 
transfer  of  stock  ;  and  for  oaths  and  affidavits 
required  by  5  Qeo.  II.  c.  7,  and  54  Geo.  III. 
c.  15,  relative  to  the  recovery  of  debts  in  the 
plantations  and  colonies  in  America  and  New 
South  Wales.  It  is  lawful  for  any  attesting 
witness  to  the  execution  of  any  will  or  codicil, 
de€Mi  or  instrument  in  writing,  and  for  any 
other  competent  person,  to  verify  and  prove, 
by  a  declaration  in  writing,  the  signing, 
sealing,  publication  or  delivery  thereof ;  and 
justices,  notaries,  and  other  officers,  are  em- 
powered to  receive  sach  declarations.  Suits 
on  behalf  of  the  Crown  are  directed  to  be 
proved  by  declaration.  In  cases  not  specified, 
in  which  it  may  be  necessary  and  proper  to 
require  confirmation  of  any  transaction,  jus- 
tices of  the  peace,  notaries-public,  or  other 
officers  by  law  authorised  to  administer  an 
oath,  are  empowered  to  receive  declarations 
in  the  form  given  in  the  schedule  annexed  to 
the  act.  Fees  formerly  payable  on  making 
oath  are  payable  on  making  declaration. 
Persons  making  a  false  declaration  are  held 
guilty  of  a  misdemeanour.  The  form  of  a 
declaration  is  as  follows:  "I,  A.  B.,  do 
solemnly  and  sincerely  declare,  that,  &c  &e. ; 
and  I  make  this  solemn  declaration  con- 
scientiously believin)^  the  same  to  be  tme, 
and  by  virtue  of  the  provisions  of  an  act 
made  and  passed  in  the  fifth  and  sixth  years 
of  his  late  Majesty,  William  the  Fourth,  c. 
62,  intituled.  An  act  for  the  abolition  of  un- 
necessary oaths."  See  also  the  act  1  and  2 
Viet.  c.  105,  1838,  and  the  act  18  Fid.  c. 
25, 1865. 

Oath  of  Teritjr  and  of  Crednlitj.  See 
Evidence,    Claim. 

Oath  in  Litem.    See  Evidence. 

Oath  in  8uppl«m«nt  See  Evidence. 
Semiplma  Probaho, 

Oath  of  Party.    See  Evidence. 

OathdeFideU.    SeeDeFideli. 

Oathi,  TFnlawfaL  Persons  in  Great 
Britain  administering  any  oath,  binding  the 
taker  to  commit  treason,  murder,  or  any 
other  capital  crime,  are  declared  guilty  of 
felony  without  benefit  of  clergy ;  and  persons 
taking  such  oaths  are  declared  felons,  trans- 
portable for  life;  37  Oeo.  Ill,  c.  123;  52 
Oeo.  III.  c.  104. 

Obediential  Obligatioiu ;  as  opposed  to 
oonventional  obligations,  are  such  as  are  in- 
cumbent on  parties  in  consequence  of  the 
situation  or  relationship  in  which  they  are 
placed.    An  example  of  obligationa  of  this 


class  is  the  obligation  upon  parents  to  main- 
tain their  children.  Stair,  JB.  i.  tit.  3,  §  3 ; 
tit.  9.  §  1 ;  Ertk,  B.  iii.  tit  1,  §  9. 

OUati;  secular  persons,  who  devoted 
themselves  and  their  estates  to  some  monsa- 
tery,  into  which  they  were  admitted  as  a 
kind  of  la^-brothers. 

OUigation.  An  obligation  is  "a  legal 
tie  by  which  one  is  bound  to  pay  or  perform 
something  to  another."  The  debtor,  whom 
the  English  term  the  obligor,  is  in  Scotland 
termed  the  obligant  or  granter,  and  the 
creditor  in  the  obligation  (termed  in  Eng- 
land the  obligee),  the  receiver  or  grantee. 
The  ditfdrence  between  a  real  right  and  an 
obligation  of  this  kind  is,  that  the  former 
gives  a  jut  in  re,  or  right  of  poosession  or 
recovery  of  tlie  subject ;  the  latter  gives  do 
more  than  ajM  ad  r«m,  or  right  of  action 
against  the  person  who  has  become  bound ; 
by  which  he  may  be  compelled  to  implement 
his  obligation,  and,  in  terms  of  it,  to  pay  the 
money,  or  perform  the  act  to  which  he  has 
bound  himself.  Obligations  are  divided  into 
merely  natural,  merely  civil,  and  mixed ;  bnt 
mixed  obligations  only  are  those  recognised 
by  the  law.  Thus,  an  obligation  granted 
under  the  influence  of  force  or  fear  it  an 
obligation  merely  civil,  but  imposes  no  natu- 
ral obligation  on  the  granter,  and  hence  the 
obligant  may  get  free  of  his  obligation.  Thnv 
an  obligation,  in  order  to  its  being  effectnal, 
must  be  mixed,  since  he  alone  is  a  proper  obli- 
gant a  quoinvitoaliquid  exigipotest.  See  Nabtr^ 
Obligation.  Obligations  are — 1.  Pure.  2. 
To  a  certain  day.  3.  Conditional.  (I.)  A 
pure  debt  is  one  to  which  neither  day  per 
condition  is  adjected,  and  which  may  thf^re- 
fore  be  instantly  demanded.  (2.)  Obligations 
tn  diem — that  is,  exigible  against  a  certain 
day — constitute  a  debt  from  the  first,  be- 
cause it  is  certain  that  the  day  will  exist ; 
Dies  ttatim  cedit  ted  non  venit.  (3.)  A  con- 
ditional obligation,  dependent  on  an  event 
which  may  never  happen,  has  no  obligatory 
force  until  the  condition  be  purified.  It 
creates  not  a  debt,  but  the  hope  only  of  a 
debt.  See  Conditional  Obligation.  An  obli- 
gation may  be  constituted  in  favour  of  per- 
sons ignorant  of  the  obligation  (see  Jm* 
Quasitum  Tertio) ;  and  where  the  obligation  is- 
granted  for  certain  uses  and  purposes,  this 
does  not  suspend  the  obligation  nntil  perfor- 
mance. When  a  person  has  become  pos- 
sessed of  property  belonging  to  another,  even 
where  he  has  purchased  it  from  an  illegal 
possessor,  he  is  under  an  obligation  to  restore 
the  property  to  the  rightful  owner.  The 
only  exception  to  this  occurs  in  the  ease  of 
property  in  bank-notes,  which  is  constitated 
by  possession.  Bills  also  are,  in  this  respect, 
subject  to  rules  peculiar  to  themselves.    An 


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obligation  ob  turf  em  eausam,  is  not  actionable. 
See  Pactum  lUkitum.  An  obligation  to  indem- 
nify arises  where  one  person  is  made  richer 
through  the  act  of  another,  without  the  in- 
tention of  making  a  donation.      Thus,  if  a 
person  build  in  bona  fide  on  the  ground  of 
another,  supposing  it  bis  own,  the  proprietor 
of  the  ground  claiming  the  house  would  be 
obliged  to  pay  the  expense  of  the  building,  to 
the  extent,  at  least,  of  the  benefit  conferred. 
See  Adjunction.      Contexture.'    Obligations 
also  arise  from  delict ;  since  every  one  who 
can  distinguish  between  right  and  wrong  in- 
curs an  obligation  to  repair  any  damage  be- 
falling his  neighbour  from  a. wrong  committed 
by  himself.      This  wrong  may  arise  from 
blameable    omission    or    neglect    of  duty. 
Where  several   have    been    guilty  of  the 
wrong,  either  as  principals  or  accessaries, 
any  one  of  them  may  be  sned  for  the  whole 
damage ;  and  the  damage  being  paid  by  any 
one  of  them,  the  payer  seems  to  have  an 
equitable  claim  for  relief  pro  raia  against  the 
rest.    See  Delict.    Damages.    Verbal  obliga- 
tions include  all  obligations  which  have  no 
particular  name  by  which  they  may  be  dis- 
tinguished, as — 1.  Promises,    or  unilateral 
engagements.     2.  Agreements  where  two  or 
more  different  parties  contract  mutual  obli- 
gations to  one  another  ;  and  these  are  bind- 
ing, with  the  exception — (1.)  Of  all  obligations 
relative  to  heritage,  which  are  ineffectual  if 
not  constituted  by  writing.  (2.)  This  extends 
even  to  a  lease  or  other  temporary  right  to 
lands.    (3.)  A  verbal  obligation  relative  to 
heritage  cannot  be  competently  proved  by 
the  oath  of  the  party,  or,  what  is  the  same 
thing,  would  not  be  effectual  though  proved ; 
for  as  long  as  writing  is  not  adhibited,  either 
party  has  a  right  to  resile.  (4.)  An  agreement 
relative  to  heritage,  in  the  form  of  mutual 
missives,  requires  to  be  probative,  otherwise 
either  party  may  resile ;    but  payment  of 
part  of  the  price  of  lands,  in  terms  of  a  ver- 
bal bargain,  will  bar  the  locut  pcenitentia, 
which  would  otherwise  have  been  competent 
to  the  parties.    See  Eei  Interventus.     Homo- 
loffotioH,    There  is  also  another  exception  in 
the  case  where  the  agreement,  though  verbal, 
is  to  restrict  an  universal  infeftment  in  secu- 
rity to  certain  parts  of  the  lands.     See  Pacta 
Liberatoria.     Writing  is  required  in  bargains 
-where  it  forms  part  of  the  agreement,  or  is 
par's  contraetut,  as  it  is  expres^d,  that  writing 
shall  intervene ;  and  in  such  a  case,  until  the 
agreement  be  reduced  into  writing,  there  is 
locus  pcenitentice.    Obligations  by  writing  re- 
quire  certain    solemnities;    and  a  written 
deed,  in  the  execution  of  which  these  solem- 
nities have  been  observed,  affords  complete 
evidence  of  the  obligation  or  contract;  and 
if  such  a  deed  contain  a  clause  of  registra- 


tion, the  obligation  thereby  contracted  may 
be  summarily  enforced  by  legal  diligence. 
See  Deeds.  Subscription.  Notary.  Decree  of 
Registration.  On  the  subject  of  obligations, 
it  may  be  farther  observed — 1.  That  certain 
things  are  exempted  from  commerce  by 
nature,  by  destination,  or  by  statute,  or  by 
having  acquired  a  vitium  reaU,  which  renders 
them  unfit  objects  of  commerce,  as  stolen 
goods.  2.  No  person  can  be  legally  bound 
to  do  what  is  impossible,  or  unlawful,  or  im- 
moral. 8.  Conditions  may  be  annexed  to 
obligations ;  and  where  these  are  impossible, 
the  obligation  is  void,  unless  the  granter  lie 
under  a  natural  tie  to  the  grantee,  in  which 
case  the  obligation  is  held  to  be  pure.  See 
Ersh.  B.  iii.  tit.  1,  §  2,  et  seq.<,  and  tit  8, 
§  84,  et  seq. ;  Stair,  B.  i.  passim ;  Batik,  vol.  i. 
p.  92,  d  seq. ;  BeWs  Com.  i.  293  et  seq.,  334 
et  seq. ;  Bell's  Princ.  §  5,  et  seq. ;  lUust.  ib. ; 
Kame^  Equity,  127,  317, 384.  See  also  GoO' 
tract.  Jus  ad  Rem.  Jus  Crediti.  Lobes 
Realis. 

Oblige;  the  debtor  in  an  obligation, — 
obligee,  the  creditor  in  an  obligation. 
Obliteration.    See  Illegibility. 
Obreption.    See  Subreption. 
OcoTUt  Crimes.      See   Domestic   Crimes, 
Evidence. 

Occupancy ;  is,  by  the  law  of  Scotland,  a 
mode  of  acquiring  the  property  of  moveables 
which  have  continued  in  their  original  state, — 
as  precious  stones,  wild  beasts,  fowls  or  fishes ; 
but  where  these  have  been  appropriated,  the 
right  of  occupancy  ceases.  In  no  case  does 
it  reach  to  heritage.  Though  land,  therefore, 
were  possessed  for  ever  so  long  a  time,  if  the 
possessor  has  no  written  title,  he  can  hare 
acquired  no  property  in  the  land.  Ersk.  B.  ii. 
tit.  1,  §  10  ;  Stair,  B.  ii.  tit  1,  §  33 ;  Bank. 
vol.  i.  pp.  85,  505 ;  Bell's  Com.  ii.  811-14 ; 
BelPs  Princ.  §  1287,  et  seq,;  lUust.  ib.  See 
Property, 

Ochiem ;  ogetharius ;  according  to  Skene, 

a  name  of  dignity,  a  freeholder.     Skene,  h,  t. 

CBcmnenioal ;    general     or     universal. 

(Ecumenical  councils  were  general  councils. 

Bank.  vol.  ii.  p.  591. 

OflSenoe  ;  an  act  contrary  to  and  punish- 
able by  law.  Offences  are  either  by  com- 
mission or  omission.  See  Crime.  Misde- 
meanour. 

Offer.  See  Promise  and  Offer.  Unilateral 
Contract.    Mutual  Contract. 

Offer ;  at  a  public  roup  or  sale.  Such  offers 
are  luusdly  made  with  reference  to  articles  of 
roup,  or  conditions  of  sale,  which  regulate 
the  reciprocal  rights  of  exposer  and  offerer. 
And  in  connection  with  this  subject,  the  ques- 
tion of  chief  importance  relates  to  the  con- 
tingent obligation  which,  in  sales  of  heritage 
by  articles  of  roup,  the  offerer  usually  under- 
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takes  to  take  the  subject,  failing  the  higher 
offerer.    See  Clatue  of  Devolution. 

Offerera  at  Auction.    See  Auditn.    Arti- 
du  of  Roup. 

Offi<!e.  An  office  is  a  right  to  exercise  a 
public  or  private  empluyment,  and  to  take 
the  fees  and  emoluments  belonging  thereto. 
In  Scotland,  all  heritable  offices  may  he  ro- 
lantarily  sold,  or  they  may  be  adjudged  for 
debt ;  and  so  also  may  all  patrimonial  offices 
descendible  to  heirs  and  assignees.  But  of- 
fices in  which  there  is  a  personal  trust  reposed 
in  the  functionary  are  not  saleable  nor  at- 
tachable for  debt.  By  the  statute  49  Geo. 
III.  c.  126,  the  gale  of  offices  of  public  trust, 
and  particularly  of  those  offices  connected 
with  the  adminisii'ation  of  justice,  is  prohi- 
bited in  Scotland ;  and  the  prohibition  to  sell 
offices  and  deputations  is  by  the  same  statute 
extended  to  all  offices  in  the  gilt  of  the  Crown, 
and  in  the  public  departments  of  Government 
in  the  United  Kingdom,  or  in  the  Colonies, 
or  under  the  East  India  Company— except- 
ing certain  offices  in  the  palace,  and  also  ex- 
cepting sales  of  commissions  in  the  army. 
The  right  of  appointing  deputies,  upon  the 
same  principle,  cannot  be  made  a  source  of 
gain,  or  adjudged,  or  otherwise  directly  at- 
tached by  creditors,  where  the  office  is  of  the 
nature  of  a  public  trust,  or  connected  with 
the  administration  of  justice.  But  the  salary 
or  profits  of  an  office  are  attachable  by  credi- 
tors, with  the  exception,  perhaps,  of  such  an 
allowance  as  may  be  requisite  for  the  decent 
discharge  of  the  duties  of  the  office.  By  the 
law  of  Scotland,  the  salary  of  a  judge,  the 
stipend  of  a  clergyman,  and  the  pay  or  half- 
pay  of  a  military  officer,  are  held  to  be  at- 
tachable to  a  certain  extent ;  and  the  arrears, 
whether  of  salary  or  of  pay,  are  attachable 
to  the  whole  amount.  All  arrangements, 
generally  speaking,  whereby  the  salary  of  a 
public  officer  is  burdened  with  the  payment 
of  a  sum  in  return  for  influence  exerted  in 
procuring  the  nomination,  or  as  a  considera- 
tion to  another  candidate  for  withdrawing 
from  the  contest,  or  the  like,  are  pacta  illicita, 
which  cannot  be  enforced  in  a  court  of  law. 
But  an  agreement  by  an  officer  in  bad  health 
to  share  the  emoluments  with  an  assistant 
seems  to  be  effectual.  Stair,  B.  i.  tit.  12, 
6  16 ;  Ersk.  B.  ii.  tit.  12,  §  7  ;  B.  iii.  tit.  6, 
I  7  ;  BeWs  Princ.  §  36 ;  Brown  on  SaU,  pp. 
115,123.  See  Cautionary.  See  Pactum  lUi- 
ciium. 

Offlowt  of  State.  The  chief  Officers  of 
State  in  Scotland  are  the  Keepers  of  the 
Great  and  Privy  Seal,  the  Lord  Clerk-Re- 
gister, the  Lord  Justice-Clerk,  the  Lord  Ad- 
vocate, and  the  Gazette  Writer.  The  Of- 
ficers of  State,  when  called  in  any  process  for 
the  interest  of  the  Crown,  must  be  cited  as 


forth  of  the  kingdom,  and  likewise  at  the 
Exchequer  Chambers.  A  proper  warrant 
must  be  inserted  in  the  summons  for  that 
purpose.  Ertk.  B.  iii.  tit.  3,  §  8 ;  Jurii. 
Slytet,m.7,l9,971-5.  See  Citation.  Edidal 
Citation. 

Officers  of  the  Crown.    The  Officers  of 
the  Crown,  as  they  are  styled,  are  the  Lord 
High  Constable  of  Scotland,  the  Heritable 
Standard-bearer,  the  Royal  Standard-bearer, 
the  Knight-Marischal,  the  Vice-Admiral,  the 
Lord  Justice-General,  the  Lord  President  of 
the  Court  of  Session,  and  formerly  the  Lord 
Chief  Baron. 
Offices.    See  Indemnity. 
Official ;  in  the  canon  law,  was  an  eccle- 
siastical judge,  appointed  by  a  bishop,  chapter, 
or  abbot,  with  charge  of  the  spiritual  juris- 
diction of  the  diocese.    An  official  is  now  a 
deputy  appointed  by   an  archdeacon  as  his 
assistant,  and  who  sits  as  judge  in  the  arch- 
deacon's court.     Tomliut'  Diet.  k.  t. 
Officismdi  Lnminibas.    See  Light, 
Officivm  Bemini  debet  esse  Damnofus; 
a  maxim  importing  that  one  is  entitled  to 
be  indemnified,  or  at  least  that  he  ought  not 
to  be  subjected  to  loss,  by  the  discharge  of  an 
office  or  duty.     Thus,  a  mandatary  is  entitled 
to  demand  from  the  mandant  all  reasonable 
expenses  disbursed  by  him  bona  Jide,  and  the 
damage  sustained  by  him  in  the  execution  of 
the  mandate,  even  though  the  management 
should  not  have  been  prosperous  or  succea- 
ful.    Ersk.  B.  iii.  tit.  3,  §  38. 

Oker;  is  the  same  with  usury,  or  the 
taking  of  illegal  interest  for  money.    See 

Q^^4Lj^»i;:^^tent    See  EtteS. 

OldWrautssM.  The  depositions  of  aged 
witnesses — i.e.,  who  are  upwards  of  seventj 
years  of  age — may  in  certain  circumstances 
be  taken  in  initio  litis,  to  lie  in  retentis  in  case 
of  their  death  before  the  cause  comes  to  be 
tried.  See  the  circumstances  under  which 
these  depositions  may  be  taken,  and  the  course 
of  procedure,  explained,  voce  Evidente,  npn, 
p.  373. 

Oleron,  Lam  of.  The  laws  of  King 
Richard  I.  of  England,  relative  to  maritime 
affairs,  are  called  the  laws  of  Oleron,  because 
they  were  made  by  him  when  he  was  at 
Oleron,  which  is  an  island  lying  in  the  Bay  of 
Aguitain,  at  the  mouth  of  the  River  Cht^eat. 
These  laws  are  recorded  in  the  Black  Book 
of  the  Admiralty,  and  are  accounted  the  most 
excellent  digest  of  sea-laws  in  the  world. 
Bell's  Com.  i.  499  ;  Tomlint^  Did.  k.  t. 

Omissa  et  Mide  A^vetiata.  When  aa 
executor  confirms,  and  omits  in  the  inventory 
part  of  the  defunct's  effects,  he  may  have  the 
mistake  corrected.  But  if  he  do  not  take 
steps  for  this  purpose,  any  one  interested  la 


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the  raceession  may  apply,  either  to  have  the 
execator  compelled  to  confirm  the  omissioD, 
or  himaelf  to  hare  an  edict  to  confirm  it. 
Ordinary  executors  ad  omitta  et  male  appre- 
tiala  ought  to  call  the  principal  execator  to 
their  oonfirmation,  or  it  will  be  null ;  but  this 
rule  does  not  hold  in  the  case  of  executors- 
creditors.  Every  person  requiring  confirma- 
tion is  bound,  upon  oath,  to  confirm  the  whole 
moveable  estate  known  at  the  time  ;  it  being 
lawful  to  eik  to  such  confirmation  any  part 
of  the  estate  which  may  afterwards  be  dis- 
covered ;  4  Geo.  IV.  c  98,  §  3.  In  the  case 
of  an  innocent  omission,  an  additional  inven- 
tory may  be  lodged ;  but  it  must  specify  the 
amonnt  of  the  whole  succession,  and  must  be 
written  on  a  stamp  corresponding  to  the  whole 
amount ;  and  the  solicitor  of  stamps  is  bound 
to  repay  the  original  duty  thus  twice  paid. 
The  distinction  which  subsists  between  the 
omista  and  the  vmU  appretiata,  and  which  was 
formerly  of  more  importance,  is,  that  the 
former  term  applies  to  funds  or  effecte  actually 
omitted  in  the  confirmation,  the  latter  to 
effects  or  debts  stated  at  an  undervalue. 
From  the  precautions  now  taken  to  ascertain 
the  value  of  the  known  funds,  an  important 
case  of  mal-appretiation  is  unlikely  to  occur ; 
and  Mr  More  (in  his  Notes  on  Stair,  p.  cccliv.) 
holds  that  confirmation  ad  mtde  appretiata  is 
now  incompetent.  See  Stair,  B.  ilL  tit.  8, 
§  62 ;  Bank.  ii.  393 ;  BeWt  Com.  ii.  85;  Jurid. 
Styles,  ii.  498.  See  Executor.  Con/rmation. 
Inventory. 

Onens  Ferendi ;  a  Roman  law  nrban  ser- 
vitnde,  importing  a  right  in  the  dominant 
proprietor  to  rest  the  weight  of  his  house  on 
the  servient  proprietor's  wall  or  pillar.  BeWs 
iViM.  §  1003.  See  iStt;>p0r(.  Servitude.  Corn- 
mum  Interest. 

Onerous  Deeds;  are  deeds  granted  for 
Talnable  considerations.  See  Consideration. 
.  Oniu  Probandi ;  the  burden  of  proving. 
The  general  rule  is,  that  he  who  affirms  must 
prove  his  affirmation.  But  this  rule,  in  its 
application,  frequently  leads  to  questions  of 
considerable  nicety  and  of  great  importance, 
since  the  throwing  the  burden  of  the  proof 
on  one  party  is,  generally  speaking,  tanta- 
monnt  to  declaring  that  the  right  is  estab- 
lished in  his  adversary.  Tait  on  Evidence,  1 ; 
SlMufs  Digest,  385,  46U.    See  Evidence. 

Open  Aooonnt  See  Book-Debts.  Claim. 
AJidamL  And  for  the  form  of  the  summons 
for  payment  of  an  open  account,  see  Jurid. 
ShfUs,  17. 

Open  Charter;  a  charter  from  the  Crown, 
or  from  a  subject,  containing  a  precept  of 
■aaine  which  has  not  been  executed.  The 
adraatage  of  such  a  charter  is,  that  in  the' 
event  of  a  sale  the  unexecuted  precept  may 
be  aaigned  to  the  purchaser,  and  the  expense 


of  an  entry  with  the  superior  saved  during 
the  purchaser's  life,  or  during  the  life  of  the 
party  who  first  takes  infeftment  on  the  pre- 
cept. See  Charter.  Base  Right.  Confirwt- 
tion.    Composition.     Non-entry.    Disposition. 

Optm.  Doors.  There  are  letters  passing  the 
signet,  called  Letters  of  Open  Doors,  which  are 
requisite  where  goods  are  to  be  poinded, 
which  are  deposited  in  lockfast  places.  The 
messenger  returns  an  execution,  setting  forth 
the  fact  that  he  cannot  obtain  admission ;  and 
on  that  an  application  by  bill  to  the  Lord 
Ordinary  on  the  Bills  may  be  made  for  a 
warrant  for  Letters  tf  Open  Doors,  which  au- 
thorise the  messenger  to  break  open  the  doors 
of  those  places  in  which  the  goods  of  the 
debtor  are  lodged.  Where  no  violence  is  ne- 
cessary, as  where  the  removal  of  some  trees 
which  block  up  the  entrance  to  a  woodyard 
would  procure  admittance,  no  letters  of  open 
doors  are  required ;  Steven,  25th  Jan.  1769, 
Mor.  10,539.  Where  the  messenger  or  other 
officer  who  executes  a  poinding  has  got  en- 
trance into  the  house  or  other  premises,  he 
may  force  open  presses  or  chests  contained 
therein,  in  order  to  poind  their  contents,  with- 
out any  special  warrant.  A  warrant  of  open 
doors  is  included  iu  the  warrant  subjoined  to 
extract  decrees,  under  the  act  1  and  2  Vict, 
c.  114.  See  Stair,  B.  iv.  tit  48,  §  40 ;  More's 
Notes,  p.  ccccxxii. ;  Ersk.  B.  iii.  tit.  6,  §  25 ; 
Bank.  vol.  iii.  pp.  7, 25;  Jurid.  Styles,  iiu  735- 
6,  770, 992 ;  Kost^s  Led.  i.  443.    See  Caption. 

Open  Pidiey.  In  marine  insurance,  an 
open  policy  is  a  policy  where  the  amount  of 
the  interest  of  the  insured  is  not  fixed,  but  is 
left  to  be  proved  by  the  insured  in  the  event 
of  a  loss ;  whereas  in  a  valued  policy,  a  spe- 
cified value  is  put  on  the  ship  or  goods  in- 
sured, to  save  the  necessity  of  proof,  in  the 
rase  of  a  total  loss.  Marshall,  199.  See 
Insurance.    'Valued  Policy.     Wager  Policy. 

Opiiiion,  Oath  o£  In  proving  mercantile 
usage,  as  affecting  the  construction  of  a  con- 
tract, the  witnesses'  opinion  is  not  sufficient. 
It  is  from  a  judge  only,  and  in  matter  of  law, 
that  opinion  can  be  received  by  a  jury ;  other 
persons  speak  only  to  facts.  But  in  some 
cases,  tradesmen  or  scientific  persons  are  al- 
lowed to  swear,  not  to  a  positivo  fact,  but  to 
what  they  believe  to  be  a  fact.  In  such  cases, 
peijury  is  not  in  general  committed  by  a  false 
oath  of  opinion,  or  pure  belief,  or  credulity. 
But  it  is  committed  if  it  can  be  shown  that 
the  party  did  not  believe  what  he  swore  he 
believed ;  or  if  the  oath  is  only  in  appearance  . 
one  of  opinion.  Bellas  Com.  i.  607  ;  Hutne,  L 
308 ;  Alison's  Princ.  468 ;  Steele,  159.  See 
Penury. 

Ora;  metal,  such  as  brass  or  gold.  Skene, 
h.t. 

Ordhard.    The  trees  of  an  orchard  fall 


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ORD 


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under  the  act  for  preserving  planting;  1698, 
c.  16  ;  Rob«rttonJu\y  24,1743,  Mor.  10,484. 
Tbe  breaking  of  orchards  is  an  offence  cognis- 
able by  the  sheriff.  Ertk.  B.  i.  tit.  4,  §  4 ; 
Hunter's  Landlord  and  Tenant,  p.  205 ;  Hutch. 
Justice  of  Peace,  ii.  p.  445 ;  Bell  on  Leases, 
i.  351.    See  Plmting  and  Inclosing. 

Order  of  SedemptioB.  A  wadset  is  a  con- 
veyance of  land  or  other  heritage  in  return 
for  an  advance  of  money,  whereby  a  temporary 
exchange  is  made  ;  the  proprietor  of  the  land 
enjoying  the  use  of  the  money,  and  the  pro- 
prietor of  the  money  the  use  of  the  land  in 
return,  with  power  to  either  party  to  put  an 
end  to  the  transiEiction.  When  the  owner  of 
the  subject  is  desirous  of  repaying  the  ad- 
vanced money  and  redeeming  his  lands,  it  is 
by  the  order  of  redemption  that  it  is  done — a 
form  explained  under  the  article  Wtubet. 
Ersk.  B.  ii.  tit.  8,  j  17  ;  tit.  12,  §  38. 

Ordinary;  in  England,  a  bishop,  or  other 
person  having  peculiar  or  original  ecclesias- 
tical jurisdiction  in  a  diocese,  in  contradis- 
tinction to  extraordinary  or  delegated  juris- 
diction.     TVmtJHM'  Diet.  h.  t. 

Ordinary,  Lord.  In  the  Court  of  Session, 
the  judge  before  whom  a  cause  depends  in 
the  Outer-House  is  called  the  Lord  Ordinary 
in  that  cause.  And  the  judge  who  officiates 
in  the  Bill-Chamber  is  called  the  Lord  Or- 
dinary on  the  Bills.  See  Session,  Court  of. 
Jnner-House.     Outer-House.    BiU-Chamber. 

Ordinary  Endurance.  A  lease  of  ordinary 
endurance  is  a  lease  of  nineteen  or  twenty- 
one  years,  as  contradi8tinguishe<l  from  a  lease 
of  thirty-eight  (twice  nineteen),  or  fifty-seven 
(thrice  nineteen)  years,  or  for  any  period  ex- 
ceeding nineteen  or  twenty-one  years.  Bell 
on  Leases,  i.  215. 

Ordination.     See  Minister. 

Ordnance.  Board  of.  By  1  and  2  Oeo. 
IV.  c.  69,  the  priacipal  officers  of  the  Board 
of  Ordnance  are  authorised  to  hold  feudal 
.  property  in  Scotland.  Prior  to  the  passing 
of  that  act,  the  government  lands  of  Fort 
William  and  Port  George  were  conveyed  in 
trust  to  the  magistrates  of  Edinburgh,  and 
vested  in  them  for  behoof  of  tbe  Board.  By 
3  Geo.  IV.  c.  108,  all  estates  and  property 
occupied  for  the  barrack-service  were  vested 
in  the  Board  of  Ordnance,  and  certain  powers 
conferred  upon  them  in  relation  to  such  pro- 
perty. By  2  Will.  IV.  c  25,  their  powers 
are  extended  and  made  more  effectual,  and 
provisions  are  enacted  for  facilitating  the 
bnsiness  in  the  ordnance  department.  They 
are  empowered  to  sue  as  "  The  Principal  Of- 
ficers of  her  Majesty's  Ordnance,"  without 
being  named  ;  and  it  is  provided  that  the  suit 
shall  not  abate  by  their  being  changed.  They 
are  not  personally  liable,  •see  also  the  act  5 
and  6  Vict.  c.  94. 


Origellnm ;  a  habergeon  edged  with  mailzie, 
of  a  yellow  colour  like  gold.    Skene,  h.  L 

Onter-HouM ;  the  name  given  to  the  great 
hall  of  the  Parliament  House  iu  Edinburgh, 
in  which  the  Lords  Ordinary  of  the  Court  of 
Session  sit  as  single  judges  to  hear  caasei. 
The  term  is  used  colloquially,  as  expressiTe 
of  the  business  done  there,  in  contradistine- 
tion  to  the  Inner-House,  the  name  given  to 
the  chambers  in  which  the  First  and  Second 
Divisions  of  the  Court  of  Session  hold  their 
sittings.  See  Session,  Court  tf.  Inner-Houst. 
Record.    Motions. 

Outlawry  or  Fngitation;  is  a  sentence 
pronounced  in  a  criminal  court  in  the  absence 
of  the  panel  at  tbe  calling  of  the  diet — that 
is,  the  day  on  which  he  is  summoned  to  ap- 
pear and  stand  his  trial.    The  effect  of  tlus 
sentence  is  a  forfeiture  of  the  panel's  person 
in  law,  so  that  he  cannot  bear  testimony  on 
any  occasion,  nor  act  as  a  juryman,  nor  hold 
any  place  of  trust,  nor  even  pursue  or  defend 
in  any  civil  or  criminal  process,  nor  claim 
any  benefit  of  the  law.    This  sentence  is  a 
warrant  for  denouncing  him  a  rebel,  the  con- 
sequence of  which  is  the  escheat  of  his  move- 
able estate ;  and  if  he  shall  remain  a  rebel 
for  the  space  of  a  year,  the  profits  of  his  herit- 
age become  forfeited  to  bis  superior  for  hia 
lifetime.     The  prosecutor  may  also  obtain 
letters  of  caption  against  the  panel,  and  im- 
prison him  if  be  is  to  be  found  witbm  the 
kingdom ;  and  being  thus  imprisoned  be  is 
not  bailable,  whatever  the  nature  of  the  offence 
may  have  been  ;  for,  as  an  outlaw,  he  has  no 
benefit  from  the  law.    The  outlawed  person 
may  appear  in  the  criminal  court,  and  apply 
to  be  reponed  against  the  sentence  of  ont- 
lawry.    Whether  he  may  be. tried  on  the 
original  libel  is  not  so  clear.    The  case  <^ 
Macrae  v.  Macrae,  led  to  a  great  deal  of  learned 
discussion  on  the  effect  of  a  sentence  of  fngi- 
tation upon  the  civil  rights  and  powers  of  die 
person  outlawed.  In  that  case  criminal  letten, 
containing  a  charge  of  murder,  were  raised 
against  a  party  who  was  infeft  in  fee-simple 
in  a  land  estate.    Before  citation,  he  exe- 
cuted a  disposition  of  the  estate,  ex  facie  abso- 
lute, in  favour  of  a  friend  who  was  tmly  a 
trustee  for  his  behoof,  and  who  was  imme- 
diately infeft.  The  party  fled,  and  was  after- 
wards decerned  an  outlaw,  and  ordained  to 
be  put  to  the  horn,  which  sentence  was  fol* 
lowed  by  denunciation  duly  recorded.    He 
lived  abroad  for  many  years,  and  died  nn- 
relaxed.  In  the  interval,  by  a  formal  deed,  he 
directed  his  trustee  to  execute  a  strict  entail 
in  favour  of  his  (the  outlaw's)  onlyson — whom 
failing,  his  only  daughter;  and  he  farther 
directed  his  estate  to  be  burdened  with  a  pro- 
vision of  L.5000  in  favour  of  the  daughter. 
The  son  of  the  outlaw  haying  raised  a  radno- 


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tion  of  the  whole  of  these  deeds,  especially 
the  entail  and  the  application  to  the  Couct 
to  record  it,  the  Court  of  Session  decided 
unanimously  that  the  deeds  were  unchal- 
lengeable at  the  heir's  instance,  and  that  the 
entail  was  duly  recorded.  Macrae  v.  Macrae, 
22d  Nov.  1836, 15  D.  B.  M.  54 ;  Stair,  B.  iv. 
tit.  S.  §  30 ;  tit.  38,  §  27  ;  Ertk.  B.  iii.  tit.  7, 
§  37,  iVofe  by  Mr  Ivory;  B.  i  v.  tit.  4,  §  83 ;  Bank. 
vol.  ii.  p.  250  ;  Hume,  ii.  255,  270 ;  Ross's 
Lea.  i.  244,  322 ;  AUson's  Prae.  349.  See 
Diet.    Fugitation.    Denunciation. 

In  England,  in  cases  of  treason  and  felony, 
the  law  interprets  the  party's  absence  a  suffi- 
cient evidence  of  his  guilt,  and  without  re- 
quiring further  proof  accounts  him  guilty  of 
the  fact;  upon  which  ensue  corruption  of  blood 
and  forfeiture  of  his  personal  estate.  In  civil 
actions,  outlawry  is  putting  a  man  out  of  the 
protection  of  the  law,  so  that  he  is  incapable 
of  suing  for  the  redress  of  injuries ;  he  may 
likewise  be  imprisoned;  and  he  forfeits  all  his 
goods  and  chattels,  and  the  profits  of  his 
iknds.  Outlawry  in  civil  actions  is  used 
where  the  defendant  is  abroad  or  keeps  out 
of  the  way,  so  that  he  cannot  be  arrested  or 
served  with  process.  If  there  be  several  de- 
fendants in  a  joint  action,  and  one  of  them  be 
abroad  or  keep  out  of  the  way,  the  plaintiff 
must  proceed  to  outlawry  against  him  before 
he  can  go  on  against  the  others.  Tondinif 
DicL  h.  t. 

Ontdght  Plenishing;  is  the  moveables 
without  doors,  as  horses,  cows,  oxen,  ploughs, 
liarrows,  carts,  and  other  implements  of  hus- 
bandry ;  but  fungibles,  as  corn,  hay,  &c.,  do 
not  fall  under  the  description  of  plenishing. 
Ersk.  B.  iii.  tit.  8,  §  18.  See  Heirship  Mow- 
ablet. 

Ontsao&en  Mnltnre ;  is  merely  a  fair  re- 
muneration to  tlie  miller  for  manufacturing 
the- grain,  paid  by  such  as  are  not  astricted. 
Ersk.  B.  ii.  tit.  9,  §  20  ;  BeU's  Prine.  §  1018  ; 
Btmter's  Landlord  and  Tenant,  206.  See  Thirl- 
Offe.  Multures.  Astricted  MuUwes.  Jn- 
sudxn. 

Ororieori;  in  England,  are  the  public 
officers  elected  to  provide  for  the  poor  in  every 
parish.  Their  duties  are,  to  collect  the  poor- 
rate,  to  remove  such  persons  as  the  parish  is 
not  liable  to  support,  and  do  other  acts  inci- 
dental to  the  management  of  the  poor,  under 
the  directions  of  the  Foor-Law  Commissioners 
or  their  assistant  commissioner,  or  according 
to  the  provisions  of  any  local  act.  An  over- 
seer may  be  indicted  for  not  finding  immediate 
relief  for  a  pauper  in  cases  of  urgent  neces- 
aty ;  but  in  ordinary  cases  he  is  not  indict- 
itble,  unless  he  have  neglected  a  magistrate's 
onler.  He  is  indictable  if  he  relieve  where 
there  is  no  necessity ;  Tomlins,  h.  t.  In  Scot- 
land, inspectors  of  the  poor  are  apportioned 


under  the  Poor-Law  Amendment  Act,  8  and 
9  Vict.  c.  83,  1845.  Dunlop's  Parish  Law, 
263.    See  Poor. 

Orersmam.  An  oversman  is  an  umpire 
appointed  by  a  submission  to  decide  where 
two  arbiters  have  differed  in  opinion,  or  he 
is  named  by  the  arbiters  themselves,  under 
powers  given  them  by  the  submission.  In 
either  case,  it  ought  to  appear  that  the  arbi- 
ters have  accepted  of  the  submission,  and  dif- 
fered in  opiniou ;  and  the  nomination  of  an 
oversman  by  arbiters  ought  to  be  executed 
according  to  the  statutory  solemnities;  al- 
though the  Court  have  sustained  the  nomina- 
tion of  an  oversman  in  a  case  in  which  the 
requisites  of  the  stat.  1681,  c.  5,  were  not 
attended  to;  SUmirt,  8<A  March  1804,  Fae. 
Coll.,  Mor.  p.  16,911.  When  an  oversman 
has  been  appointed,  it  is  he  alone  who  pro- 
nounces the  decree.  But  where,  without  a 
devolution  subscribed  by  the  parties,  a  person 
to  whom  some  particular  point  is  referred  for 
his  opinion  assumes  the  character  of  overs- 
man,  a  decree  pronounced  solely  by  him  is 
inept;  Tdfer,  Jan.  31, 1823,  2  S.  db  D.  167. 
A  decreet-arbitral  pronounced  by  arbiters 
themselves  is  good,  where,  with  powers  to 
name  an  oversman,  they  have  done  so,  but 
before  any  difference  of  opinion  ;  Bryson,  June 
10,  1823,  2S.d;D.  382.  It  has  been  found 
in  England,  that  the  appointment  of  an  um- 
pire should  be  an  act  of  the  judgment,  and 
that  an  .appointment  by  drawing  lots  or  toss- 
ing up  for  the  choice  is  inept ;  Young,  3  Bam. 
and  Or.  407 ;  6  Dowl.  and  Ry.  263 ;  Gasseli,  9 
Bam.  and  Cr.  624.  See  the  forms  of  a  refer- 
ence to  an  oversman,  and  of  a  decreet-arbitral 
pronounced  by  an  oversman,  Jurid.  Styles,' 
ii.193-7.  See  Arbitration.  Devolution.  Clause 
of  Devolution, 

Overt  Act ;  in  English  law,  an  open  act, 
which  by  law  must  be  clearly  proved.  Tom- 
lins' Diet.  h.  t. 

OrertliTes.  In  church  law  language,  an 
overture  is  a  proposal  to  make  a  new  general 
law,  or  to  repeal  an  old  one;  to  declare  the 
law;  to  enjoin  the  observance  of  former  enact- 
ments; or  generally,  to  take  any  measure 
falling  within  the  legislative  or  executive 
functions  of  the  General  Assembly.  No  new 
law  can  be  enacted  by  the  Qeneral  Assembly! 
nor  can  an  existing  one  be  rescinded,  without 
the  consent  of  a  minority  of  the  presbyteries. 
It  is  provided,  therefore,  that  any  measure  in* 
tended  as  a  binding  rule  and  constitution  for 
the  Church  must  first  be  proposed  as  an  over- 
ture to  the  General  Assembly ;  and  if  approved 
of  by  a  majority  of  that  court,  must  be  trans- 
mitted to  the  several  presbyteries,  who  are 
instructed  to  consider  the  same,  and  send  up 
their  opinions  thereon  to  the  next  Generid 
Assembly;  Act  9,  Assembly  1697.    When 

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the  Immediate  enactment  of  the  new  lavr  pro- 
poeed  in  an  overture  appears  essential  for  the 
good  of  the  Church,  the  General  Assembly 
exercises  the  power  of  converting  the  overture 
iuto  what  is  usually  called  an  interim  act;  aud 
such  temporary  enactments  are  binding  upon 
all  the  members  of  the  Church  until  the  meet- 
ing of  the  next  Assembly.  When  overtures 
transmitted  by  the  Assembly  have  been  re- 
eeived,  the  presbytery,  at  an  ordinary  meet- 
ing, appoints  the  day  on  which  such  overtures 
are  to  bis  considered.  In  expressing  an  opinion 
upon  an  overture,  nothing  more  is  necessary 
than  simply  to  approve  or  reject  it ;  and  those 
presbyteries  only  who  approve  of  an  overture 
limpUciter  are  reckoued  by  the  Assembly 
among  the  number  favourable  to  the  measure 
being  passed  into  a  law  of  the  Church.  It  is 
competent  for  any  member  of  presbytery  to 
move  the  transmission  of  an  overture  on  any 
particular  subject  to  a  superior  court.  It  is 
usual  for  him  to  giro  notice  of  his  intention 
to  do  so  at  a  previous  meeting.  If  the  over- 
ture is  adopted  by  the  presbytery,  it  is  trans- 
mitted in  the  form  of  an  extract  from  the 
minute.  When  an  overture  is  transmitted  to 
the  synod,  some  member  of  synod  is  heard  in 
support  of  it,  and  he  generally  makes  a  motion 
for  its  transmission  to  the  Assembly  for  the 
disposal  of  it,  or  otherwise,  as  the  case  may 
be.  See  GiUan'$  Acts  of  Attemblf,  p.  185; 
EiWt  Ckurch  Prac.  75 ;  Style*  of  the  CSturA 
Law  Socidtf.    See  {7Aur<,A  Judicaioriet. 


Oxen,  EongliiBg  vL  By  the  statutes  1381, 
c.  110,  and  1587,  c.  83,  the  killing  or  hough- 
ing of  oxen,  horses,  or  other  cattle,  u  punish- 
able as  theft,  with  the  pains  of  death.  EnL 
B.  iv.  tit.  4,  §  62. 

Osgate  01  Land.  See  Aratnm  Term. 
Ploughgate. 

Oyer  and  Terminer;  in  English  law,  s 
commission  directed  to  the  judges  and  other 
gentlemen  of  the  county  to  which  it  u  issaed, 
by  virtue  of  which  they  have  power  to  hear 
and  determine  treasons  and  all  kinds  of  fakH 
nies  and  trespasses;  Tomlins'  Diet,  h  t.  A 
commission  of  Oy«r  and  Terminer  may  be  issued 
by  the  Queen  for  trying  treason  in  Scotland, 
under  the  statute  7  Anne,  c.  21,  provided 
three  of  the  Lords  of  Justiciary  be  in  tneh 
commission.  At  the  desire  of  the  Lord  Ad- 
vocate, and  upon  a  writ  of  certiorari  under 
the  great  seal  of  the  United  Kingdoms,  soy 
indictment  of  treason  depending  before  justices 
of  Oyer  and  Terminer,  or  before  the  judges  in 
the  Circuit  Courts,  may  be  removed  for  trial 
into  the  Court  of  Justiciary.  Hume,  voL  I 
p.  528 ;  Ertk.  B.  iv.  tit.  4,  §  84.  See  Treau*. 

O76H ;  the  term  employed  by  a  messenger- 
at-arms  in  denouncing  a  person  rebel,  and  on 
the  occasion  of  other  proclamations,  in  order 
to  call  the  attention  of  the  people.  The  word 
is  a  corruption  from  the  French  word  yez! 
(the  old  imperative  of  ouir),  bark !  or  hear 
ye !  iStoir,  B.  iii.  tit.  3,  §  8 ;  Enk.  B.  u.  tit  5, 
§  56 ;  Bank.  ii.  249 ;  Ross's  Led.  i.  307. 


Paekin;  of  Ooodi.  In  England,packer8 
of  goods  have  a  general  lien.  Bdvs  Com. 
I.  108 ;  BelPs  Priuc.  §  166 ;  Beffs  lUusi.  ih. 
See  Stowage. 

Paction.  In  the  Roman  law,  pactio  was 
different  from  pactum.  It  was  synonymous 
with  amventio,  and  signified  merely  an  agree- 
ment between  two  or  more  parties,  irrespec- 
tive of  the  question  whether  they  were  legally 
bound  by  that  agreement.  As  a  generic 
term,  it  embraced  both  pacts  and  contracts. 
Stair,  B.  i.  tit.  10,  §  6;  Heinee.  Elem.  Juris. 
$  773.    See  Pactum. 

Pactii  PriTatomm  Hon  Derogatnr  Jnri 
Conunnni ;  a  Roman  law  maxim,  importing 
that  t!ie  consent  or  private  agreement  of  in- 
dividuals cannot  validate  any  contravention 
of  the  law,  or  render  just,  or  sufBcient,  or  ef- 
fectual, that  which  is  unjust  or  deficient  in 
what  the  law  declares  to  be  indispensable. 
Thus,an  agreement  by  a  married  woman,  that 
she  will  not  object,  on  the  ground  of  her  be- 
ing a  wife,  to  a  personal  obligation  which 
she  has  incurred,  will  not  sustain  an  action  or 
charge  brought  upon  that  personal  obliga- 


tion. This  maxim  is  not  of  universal  appli- 
cation. If  what  the  law  commands  be  merely 
circumstantial,  the  agreement  of  parties  may 
supply  the  want  of  it ;  and  there  are  maaj 
tYim^gruB  fieri  nondebent,  facta  valenL  That, 
although  the  purchase  of  a  lawsuit  by  a 
member  of  the  College  of  Justice  is  forbiddei 
by  the  law,  under  the  pain  of  deprivation, 
the  purchase  itself  is  good,  and  will  sustain 
action.  See  Bw/ing  of  Pleas.  Paettm  llHti- 
turn.  A  married  woman  cannot  hold  the 
ofOce  of  tutory ;  and  a  provision  in  a  will, 
that  the  ttUrtx-testamentary  shall  retain  her 
office  notwithstanding  her  marriage,  is  in- 
valid ;  Stewart,  8th  March  1636,  Mor.  9585; 
Kerbechill,  July  1686,  Mor.  9685  ;  —  ».  — 
1585,  Brown's  Sup.  i.  123 ;  Stoddart,  June 
30, 1812,  F.  C.  So,  also,  all  attempts  to  dis- 
pense with  the  law  of  deathbed,  or  to  reserve 
power  of  settling  heritage  in  Uxto,  to  the  pre- 
judice of  the  heir-at-law,  are  ineffectual.  In 
like  manner,  an  agreement  between  private 
parties  to  dispense  with  the  statutory  regala- 
tions  as  ta  cruives,  is  invalid,  though  ae- 
quieaced  in  for  upwards  of  for^  yaan ;  /U- 


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lartM,  7lh  Julj  1743,  Mor.  9586.  Bat  it  has 
been  decided,  that  an  obligation  by  a  party, 
that  he  shall  be  satisfied  with  the  evidence  of 
one  witness,  is  lawful  and  binding  in  civil 
matters ;  June  1665,  Brovm'f  Sup.  ii.  419  ; 
Stair,  B.  i.  tit.  17,  §  14 ;  B.  ii.  tit.  9,  §  38  ; 
Brovm^s  Synop,  voce  Pactum  Privatum.  See 
Frovisie  Bominis,  dee.    Cuique  licet,  Jbe. 

Pactnm.  In  the  Roman  law,  the  word 
pactum  had  a  peculiar  signification,  which  ap- 
pears not  to  have  been  adopted  in  any  other 
system  of  jurisprudence.  In  that  law,  &pac- 
Uim  was  an  agreement  between  two  or  more 
persons  to  give  or  perform  anything,  but 
which  was  practically  defective,  in  so  far  as  it 
did  not  produce  what  was  called  a  civil  obli- 
gation. There  were,  however,  certain  agree- 
ments, to  which,  on  account  of  their  reason- 
ableness or  expediency,  either  express  writ- 
ten law  or  prtetorian  equity  gave  the  binding 
effect  of  a  civil  obligation  ;  while  there  were 
others  which,  being  adjected  in  continenti  to  a 
regular  contract,  were  held  to  constitute  part 
of  that  contract,  and  qualify  or  extend  its 
provisions.  Suchpocto  were  styled  nonntM^a, 
in  contradistinction  to  tbe  pacta  nuda  which 
produced  ho  action.  Yet  a  pactum  nudum, 
although  it  gave  no  action,  created  a  natural 
obligation,  which  furnished,  like  other  natural 
obligations,  a  valid  exception.  The  law  of 
Scotland  does  not  recognise  the  distinction 
between  pacta  nuda  and  mm  nuda  ;  and  the 
difference  between  the  two  systems  may  be 
illustrated  by  the  real  contracts — e.g.,  loan, 

itiedge,  or  deposit.  Thus,  the  contract  of 
oan  requires  for  its  completion  that  the 
thing  shall  have  been  actually  given  in  loan. 
By  the  Iloman  law,  the  mere  agreement  to 
lend  a  thing  was,  withoat  delivery,  a  pactum 
nudum,  which  could  not  be  enforced  by  an 
action  ;  but  by  the  law  of  Scotland,  one  who 
legally  binds  himself  to  lend  or  impledge  a 
subject,  may  be  judicially  compelled  either  to 
implement  his  obligation,  or  to  pay  damages 
for  breach  of  bargain.  Ersk.  B.  iii.  tit.  1, 
§  17  ;  Ueinee.  Elm.  Juris.  §  774 ;  BeW*  Prime. 
§8. 

There  are  several  agreements  to  which  the 
general  word  pactum  has  been  applied,  and 
which  may  be  considered  under  this  head. 

Paetvm  Donationit. — This  confers  on  the 
donee  aj«s  ad  rem,  but  gives  no  right  to  the 
thing  itself,  the  donor  continuing  proprietor 
vntU  delivery.  If,  therefore,  the  donor 
should,  even  gratnitonsly,  give  and  deliver  it 
to  a  second  donee,  the  second  donee  becomes 
pnnprietor.    Ertk.  B.  iii.  tit.  3,  §  90. 

Pactum  de  non  petendo ;  an  agreement  by 
which  the  creditor  in  an  obligation  binds 
himself  not  to  insist  for  payment  or  perform- 
ance. If  the  agreement  be  absolute,  it  is 
equivalent  to  a  renunciation ;  but  if  it  is  only 


temporary,  it  does  not  exclude  a  decree ;  it 
only  supersedes  the  execution  until  tbe  lapse 
of  the  specified  time.  The  right  of  a  reponed 
rebel  to  demand  payment  of  a  debt  cannot 
be  prejudiced  by  t^ pactum  de  nonpetrndora^Aii 
by  the  donatar  of  his  escheat ;  Mackieson, 
20th  March  1624,  Jfor.  9449.  A  pactum  de 
non  petendo  made  to  a  principal,  or  to  one  of 
several  co-obligante,  does  not  free  the  cau- 
tioner or  the  other  co-obligants ;  nor  does  it 
free  the  persons  in  whose  favour  it  is  made 
from  their  obligations  to  relieve.  See  Mor. 
Diet.  h.  t.;  Slair,  B.  i.  tit.  18,  §  1 ;  B.  iv.  tit. 
40.  §  31. 

Pactum  de  retrovendendo ;  is  a  stipulation 
that  the  seller  should  be  entitled  to  purchase 
back  his  property  within  a  stipulated  time. 
There  do  not  seem  to  be  any  examples  in  the 
law  of  Scotland  of  such  an  agreement  being 
made  with  regard  to  the  sale  of  moveable 
property ;  but  there  are  instances  of  rights 
of  reversion  being  adjected  to  a  regular  sale 
of  lands.  Such  a  stipulation  is  strictly  inter- 
preted ;  and  the  seller  loses  his  right  of  re- 
version if  he  allows  the  time  specified  to 
elapse  without  making  payment  of  the  price, 
because,  in  a  fair  and  onerous  sale,  there  it 
no  penalty  nor  loss  of  property  inconsequence 
of  such  strict  interpretation  of  the  clause. 
This  distinction  exists  between  the  right  of 
reversion  conferred  by  a  pactum  de  retro- 
vendendo, and  that  to  which  a  wadsetter  is 
entitled ;  that  in  the  latter  case  the  reverser 
may  redeem  even  after  the  lapse  of  the  pre- 
scribed term,  and  at  any  time  before  declara- 
tor of  the  irritancy.  Stair,  B.  ii.  tit.  10, 
§  1 ;  Ertk.  B.  ii.  tit.  8,  §  2 ;  BelVs  Com.  i.  239  ; 
ii.  290;  Brom't  Synop.  1532;  Brovm  o» 
Sale,  429.     See  Redeemable  Rightt. 

Pactum  Legis  Gommissorice, — ^By  this  agree- 
ment, in  the  Iloman  law,  the  sale  became 
void  if  the  price  was  not  paid  before  a  cer- 
tain day.  This  condition,  when  expressly 
stipulated,  does  not  suspend  the  sale — the 
property  is  transferred  to  the  buyer  by  the 
delivery ;  but,  on  his  failure  to  pay  within 
the  time  limited,  the  sale  resolves,  and  the 
property  (as  against  the  buyer  and  his  repre- 
sentatives) returns  to  the  seller.  But  where 
the  payment  is  made  a  condition  of  the  sale, 
that  condition  is  suspensive  of  the  sale,  which 
is  not  perfected  until  the  condition  be  purified. 
The  pactum  legis  commitsorice  was  intended 
solely  for  the  benefit  of  the  seller,  and  could 
not  be  enforced  against  his  will  by  the  buyer. 
Ersk.  B.  iii.  tit.  3,  §  11 ;  Belt's  Com.  i.  239 ; 
ii.  290 ;  Bank.  i.  107  ;  Brown  on  Sale,  430. 
See  Conditional  Obligation.     Missives  of  Sale. 

The  pactum  legis  cvmmissorice  in  pignoribui 
was  also  a  Roman  law  paction,  sometimes 
adjected  to  a  redeemable  right,  whereby  it 
was  provided,  that,  if  the  subject  were  not 

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redeemed  against  a  determinate  day,  the  right 
of  reversion  sboald  be  irritated,  and  the  sub- 
ject should  become  the  irredeemable  property 
of  him  to  whom  it  was  impledged.  Such 
stipulations  were  held  in  the  Roman  law  to 
be  contra  honoi  moret;  but,  by  the  law  of 
Scotland,  irritant  clauses  in  contracts,  obliga- 
tions, infeftments  and  the  like,  are  effectual ; 

A.  S.  27th  Nov.  1592;  1661,  c.  62,  §  14. 
Where  it  happens,  however,  that  the  irri- 
tancy is  penal,  the  right  will  not  be  forfeited 
by  the  mere  lapse  of  the  time  agreed  upon. 
An  action  of  declarator  of  the  irritancy  is 
requisite,  in  which  action  the  defender  may 
still  avoid  the  forfeiture  by  redeeming  the 
lands  or  other  subject.  By  the  Scotch  law, 
moveables  which  have  been  impledged  cannot 
legally  be  sold  by  the  creditor  without  the 
warrant  of  a  judge,  obtained  on  an  applica- 
tion to  which  the  debtor  is  made  a  party. 
Ersk.  B,  ii.  tit  8,  §  14;  Stair,  B,  i.  tit.  13, 
§  14;  B.  ji.  tit.  10,  §  6  ;  B.  iv.  tit.  5,  §  7  ; 
tit.  18,  §5;  Brown's  Synop.  1092.  See 
Pledge,    Expiry  of  Legal. 

Pacta  Liberatoria,  in  regard  to  land,  are 
bargains,  whereby  a  real  right  is  either  passed 
from  or  restricted.  Such  agreements  form 
an  exception  to  the  general  rule,  that  writing 
must  intervene  in  all  that  relates  to  land,  in 
order  to  bar  the  locus  pamitentioe,  or  power  of 
resiling.  Accordingly,  a  mere  verbal  obliga- 
tion, followed  by  no  r«i  interventus,  agreeing 
to  restrict  an  infeftment  in  security,  cannot 
be  retracted,  and  may  be  proved  by  reference 
to  the  party's  oath.  Thus,  a  liberation  from 
a  bond  by  transaction,  with  regard  to  a  sum 
in  another  oblisation,  was  sustained  without 
writing ;  Hepburn,  12th  Dec.  1661,  Mor. 
4865.  So  also  was  a  promise  to  liberate 
Mrt  of  the  lands  burdened  with  a  liferent; 
Ker,  8th  Feb.  1666,  Mor.  8465.     See  Ersk. 

B.  iii.  tit.  2,  §  3  ;  Stair,  B.  i.  tit.  10,  S  9 ; 
Karnes'  Equity  (1825),  329  ;  Taii  on  Evidence, 
225,325-6. 

Paetoxa  niieitnm ;  is  a  general  term  ap- 
plied to  all  contracts  opposed  to  law,  either 
as  being  contra  legem,  contra  bonos  moret,  or 
inconsistent  with  the  principles  of  sound 
policy.  It  is  a  general  rule,  that  no  action 
can  lie  for  implement  of  an  illegal  contract. 
But  in  the  case  where  the  terms  of  the  con- 
tract have  been  fulfilled,  a  distinction  is  taken 
between  the  case  in  which  there  is  turpitude 
ex  parte  utriutque,  and  that  in  which  the  tur- 
pitude attaches  to  only  one  of  the  parties.  In 
the  former  case,  there  can  be  no  action  for 
restitution ;  the  rule  is,  Potior  est  conditio  pos- 
sidentis, and  the  law  gives  no  remedy  to 
either  party.  In  the  latter,  according  to 
Erskine,  the  thing  given  oh  twrpem  causam, 
must  be  restored,  whether  counterpart  of  the 
bargain  has  been  performed  or  not.    In  the 


great  majority  of  cases,  however,  the  tnrpi- 
tude  necessarily  attaches  to  both  parties; 
and  the  law  does  not  interfere  either  to  con. 
pel  implement  or  restitution.  But,  although 
action  is  refused  to  one  socius  against  another, 
for  a  share  in  an  illegal  adventuro,  he  may 
maintain  a  claim  of  accounting  and  repeti- 
tion as  to  advances,  which,  although  resaltia); 
consequentially  from  the  adventure,  are  in 
themselves  tainted  by  no  illegal  consideration ; 
Gibson,  June  6,  1834.  12  S.  d  D.  683,  sad 
Dee.  16.  1835 ;  14  D.  B.  <t  M.  166.  The 
following  are  instances  of  contracts  which 
have  most  frequently  come  under  the  view  of 
courts  of  justice  as  pacta  iUieita : — 

Pactum  de  quota  litis ;  is  an  agreement  be- 
tween an  advocate,  or  an  agent  or  attonwj, 
and  bis  client,  for  a  proportion  of  the  snt^t 
of  the  suit,  in  place  of  his  honorary  or  fins. 
Such  an  agreement  was  void  by  the  Romas 
law,  and  the  same  principle  has  been  adopted 
in  the  law  of  Scotland.   The  act  1594,  e.  216, 
makes  the  purchase  of  the  subject  of  a  lav- 
suit  by  a  member  of  the  College  of  Jnstiee 
punishable  with  deprivation  of  office.    See 
Buying  of  Pleas.    The  course  of  deeisiont, 
however,  has  been  to  sustain  the  sale,  sod  to 
regard  the  penalty  as  the  only  sanction  of  the 
act;    Purves,  Dec.   20,    1683,    M.   9500; 
Home,  Dec.  15,  1713,  M.  9502.    But  s  dis- 
tinction has  been  recognised,  althoagh  not 
very  precisely,  between  such  a  purchase  of  s 
plea  which  is  struck  at  by  the  act  and  thep««- 
tum  de  quota  litis,  which  last  seems  to  be  beM 
illegal,  not  by  the  express  words  of  Uie  tts- 
tutp,  but  rather  as  being  at  common  Isw  s 
pactum  illicitum,  and  at  the  same  time  con- 
trary to  the  spirit  of  the  statute.    Thus,  in 
one  case,  after  the  plea  that  a  transaction 
was  a  purchase  of  a  lawsuit  had  been  re- 
pelled, it  was  alleged  that  the  right  tn» 
ex  pacta  de  quota  litis,  and  was  therefore  nnll. 
To  this  it  was  answered,  that  the  statute  wu 
intended  as  a  special  remedy  to  supply  the 
place  of  the  Roman  law  respecting  jiadiii  (fc 
quota  litis.    This  answer  was  not  sustained ; 
and  Fountainhall,  in  his  report  of  the  cue, 
mentions  the  pactum  de  quota  litis  as  differing 
from  the  buying  of  a  plea;  Ruthven,  Jane  23, 
1680,  Mor.  9499.    The  course  of  decisioni 
has  been  to  annul  pacta  de  quota  litis ;  Mic- 
kentie,  July  23, 1774,  5  Supp.  628.    In  this 
case,  the  agent  was  likewise  deprived  of  his 
office  for  a  limited  time.    An  agreement  tbst 
a  writer  was  to  get  half  of  certain  property 
and  rents,  to  be  recovered  in  an  action  which 
he  was  to  carry  on,  and  that,  if  unsncceafnl, 
he  should  charge  nothing,  was  found  ooll; 
although  it  was  pleaded  that  the  statute  did 
not  apply,  and  that,  at  common  law,  mdi 
agreements  are  bad  only  with  practitionen, 
which  this  writer  was  not ;  Johnston,  Feb.  I, 

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1831,  9  S.  tt  D.  364.  An  agreement,  by 
which  a  country  agent  became  bound  to  em- 
ploy an  Edinburgh  agent  in  the  business  of 
bis  clients,  and  to  make  advances  for  carrying 
on  his  business  on  condition  of  receiving  a 
share  of  the  profits,  the  agreement  to  be  kept 
secret,  was  held  illegal ;  A.  v.  B.,  May  12, 

1832,  10  /S.  ds  D.  523,  See  generally,  on 
pactvm  de  quota  litit,  1594,  c.  216 ;  Mae- 
betuie't  Ob$.,  p.  289 ;  Stair,  B.  i.  tit.  10,  §  8 ; 
Bank.  B.  i.  tit.  11,  §  H  ;  Bell's  Rlust.,  49  ; 
Karnes'  Egnitt/,  12,  335 ;  Glaet/ord,  24th  June, 
123,  2S.<tD.  417. 

Factum  super  hcareditate  viventis;  au  agree- 
ment to  sell  a  right  of  succession,  during  the 
life  of  the  ancestor,  was  forbidden  by  the 
Roman  law,  as  contra  bonos  mores;  but  the 
law  of  Scotland  permits  an  heir  to  dispose  of 
hia  hope  of  succession  during  the  life  of  his 
ancestor.  Stair,  B.  i.  tit.  10,  §  8;  More's 
Notes,  Ixiii. ;  Bank,  vol  i.,  p.  326. 

The  law  of  Scotland  takes  no  notice  of 
debts  contracted  by  gaming  and  betting.  See 
Gaming  and  Betting,  Wager.  Agreements 
incentive  to  crime,  or  for  compounding  a 
crime,  or  procuring  a  pardon,  cannot  be  the 
foundation  of  a  judicial  claim.  A  bond  given 
as  the  price  of  prostitution  gives  no  action ; 
bat  when  the  bond  is  given  subsequently  to 
the  act  of  connection,  as  a  reparation  for  the 
injury  sustained,  it  is  valid.  There  would 
seem,  however,  to  be  an  exception  to  this  rule 
where  the  grantee  is  a  prostitute,  or  where 
she  knew  the  grantor  to  be  married  at  the 
time  of  their  connection ;  although  this  has 
not  been  authoritatively  settled.  The  claim 
of  the  children  of  the  connectiou  to  imple- 
ment of  the  obligation  has  been  admitted  in 
cases  in  which  that  of  the  mother  has  been  re- 
jected. Obligations  contracted  on  an  inde- 
cent or  mischievous  consideration  are  void. 
Ko  action  can  be  maintained  on  a  debt  for 
spiritnous  liquors,  unless  bonajide  contracted 
at  one  time  to  the  amount  of  twenty  shillings, 
or  upwards;  and  the  claim  is  not  valid  even 
as  an  item  in  an  account,  where  the  liquor  de- 
livered at  one  time,  and  mentioned  in  the 
item,  is  not  to  the  amount  of  twenty  shillings ; 
24  Geo.  II.,  c  40.  On  this  statute,  action 
has  been  refused  on  a  bill  granted  for  the 
amount  of  «n  account  for  spirits  furnished ; 
Russel,  6th  July  1808,  Foe.  Coll.  All  con- 
tracts imposing  restraints  on  marriage  are 
void  ;  but  an  engagement  between  two  per- 
sons to  intermarry,  fortified  by  an  agreement 
that  if.  either  of  them  shall  marry  a  third 
party  be  or  she  shall  forfeit  to  the  other  a 
stipulated  sum,  has  been  said  to  form  an  ex- 
ception to  the  general  rule.  Bonds  or  agree- 
ments to  pay  a  sum  of  money,  as  a  considera- 
tion for  using  influence  to  bring  about  a 
particular  marriage,  calledmarriage-r  ocage 


contracts,  are  contra  bonos  mores,  and  will 
found  no  action.  Restraints  on  liberty  are 
void,  except  in  particular  instances.  A  man 
may  enter  into  a  contract  of  service  for  wages, 
which  will  be  binding,  however  long  the  sti- 
pulated term  may  be.  So  a  man  may  bind 
himself  not  to  exercise  a  trade  or  profession 
within  certain  limits,  as  within  the  same 
parish  with  the  creditor  in  the  obligation,  or 
within  half  a  mile  of  him,  or  within  ten  miles. 
But  when  the  restriction  extends  to  a  whole 
country,  or  when  it  is  manifest  that  the  other 
party  has  no  legitimate  interest  in  the  obli- 
gation being  so  strict,  the  contract  is  void. 
By  the  act  17  and  18  Vict.  c.  102, 1854,  if 
any  person  give,  directly  or  indirectly,  any 
sum  of  money,  or  other  consideration,  on  an 
engagement  to  procure  the  return  of  any 
person  to  serve  in  Parliament,  he  is  guilty 
of  bribery,  and  any  candidate  for  any  place 
guilty  of  bribery  by  himself  or  his  agents, 
is  incapable  of  sitting  in  Parliament  for  such 
place  during  the  Parliament  then  in  existence. 
Contracts  for  defeating  the  revenue  laws  are 
void,  at  least  in  so  far  as  relates  to  the  par- 
ties privy  to  the  design  ;  and  every  native  of 
this  country  is  presumed  to  be  acquainted 
with  the  laws  against  smuggling.  A  foreigner 
is  presumed  to  be  aware  of  the  design  to 
smuggle  if  he  knows  that  the  goods  have 
been  packed  so  as  to  escape  detection,  or  as- 
sists in  preparing  false  papers,  or  is  active  in 
planning  or  aiding  the  scheme  for  evasion,  or 
in  landing  the  goods  in  this  country.  Con- 
tracts relative  to  contraband  goods  are  also 
void.  This  rule,  however,  does  not  hold 
when  the  goods  are  sold  abroad,  or  when  they 
have  been  bought  bona  Jide  in  a  market  in 
this  country.  See  Smuggling.  It  has  been 
repeatedly  decided  in  the  English  courts,  that 
the  sale  or  assignment  of  the  pay  or  half-pay 
of  an  officer  or  soldier  is  void. 

At  common  law  the  sale  of  ofBees  of  trust 
is  void,  except  in  those  cases  in  which  o£Sces 
are  expressly  allowed  to  be  sold,  and  in  which 
the  sale  takes  place  under  the  authority  of 
those  who  have  the  power  of  appointment,  as 
commissions  in  the  army.  The  common  law 
forbidding  the  sale  of  ofiices  has  been  aided  by 
several  statutes.  See  Offices.  See  generally, 
on  the  subject  of  this  article,  Ersk.  B.  iii.  tit. 
1,  §  10,  Notes  by  Mr  Ivory ;  Stair,  B.  i.  tit.  10, 
§  8 ;  Morels  Notes,  v.,  Ixiii ;  BeU's  Com. 
298;  Bdl's  Princ.  §  36,etseq.;  Karnes'  Equity, 
331-4;  Kames'  Stat.  Law  Abridg.  h.  t.;  Brown 
on  Sale,  113,  et  seq.;  Gardner,  March  II, 
1835,  13  5.  <*  D.  664;  Johnstone,  Dec.  4, 
1835,  14  D.B.ttM.  106. 

Painting.  Paintings  are  taken  in  the  civil 
law,  and  by  our  institutional  writers,  as  illus- 
trative of  the  doctrine  of  accession.  Where 
the  picture  is  painted  on  a  wall,  or  other  im- 


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moveable  subject,  which  it  is  eridently  in- 
tended to  embellish,  the  possessor  of  that  sub- 
ject becomes  proprietor  of  the  picture  also. 
Where,  aj^in,  the  picture  is  painted  on  a 
moveable  board,  the  board  is  accessory  to  the 
painting.  Paintings  are  sometimes  included 
in  a  deed  of  entail ;  but  may,  notwithstand- 
ing, be  attached  by  the  diligence  of  the  credi- 
tors of  the  heir  in  possession.  Stair,  B.  ii. 
tit.  1,  §  39 ;  More' I  Notes,  clxxx. ;  BatA.  toI.  i. 
p.  609. 

Palinode;  a  recantation.  In  actions  for 
damages  on  account  of  slander  or  defamation 
raised  in  the  Commissary  Court,  with  con- 
cnrrence  of  the  procurator-fiscal,  it  was  for- 
merly the  practice  to  conclude  not  only  for 
damages,  expenses,  and  a  fine,  but  also  for  a 
judicial  recantation  or  palinode  by  the  de- 
fender. In  this  palinode  the  defender  set 
forth,  that  he  had  been  convicted  of  scanda- 
lising, defaming  and  injuring  the  pursuer,  and 
therefore,  in  obedience  to  an  interlocutor  of 
■  the  commissaries,  he  declared  that  he  had 
uttered  and  published  what  was  false,  scan- 
dalous, and  injurious,  and  begged  pardon  of 
the  court,  of  the  pursuer,  and  of  all  persons 
for  his  offence;  aoyd^$  Judicial  Proceeding*, 
117.  In  more  recent  practice  the  conclusion 
for  a  palinode  has  been  discountenanced,  but 
it  is  still  held  to  be  a  competent  conclusion  ; 
and  since  the  transference  of  the  jurisdiction 
of  the  inferior  commissaries  to  the  sheriff, 
under  the  act  4  Geo.  IV.,  c  97,  it  has  been 
decided,  that  the  sheriff,  as  commissary,  has 
jurisdiction  to  entertain  an  action  for  slander, 
concluding,  with  concurrence  of  the  procura- 
tor-fiscal, for  damages,  fine,  and  palinode  ; 
Tmmtr  v.  Cuthiert,  2l8t  June  1831, 9  S.dsD. 
774.  In  that  case  it  was  observed  by  one  of 
the  Judges,  that  "the  conclusion  for  palinode 
has  for  a  long  time  past  been  generally,  if  not 
universally,  discountenanced  and  rejected.  It 
exposes  a  court  to  the  risk  of  ordaining  a 
man  judicially  to  retract  as  false  a  charge 
which  he  may  conscientiously  believe,  or  even 
know  to  be  trne,  though  he  had  no  means  of 
proving  it."  But  a  majority  of  the  First  Di- 
vision were  of  a  different  opinion,  holding 
palinode  to  be  a  part  of  the  law  of  Scotland  ; 
and  that  the  question  as  to  its  expediency 
was  one  for  legislative,  and  not  for  judicial 
determination.  See  A.  S.  21«t  Feb.  1824, 
which  recognises  a  palinode.  Stair,  B.  i.  tit. 
9,  §  4  ;  Bal/our't  Prae.  664 ;  Er$k.  B.  i.  tit. 
6,  §  30  ;  Bank.  vol.  ii.  p.  548 ;  BelP$  Princ. 
§  2043 ;  and  other  authorities  cited  in  the 
case  of  Turner. 

Paudeots ;  are  a  digest  of  the  whole  Ro- 
man law  made  by  the  order  of  the  Emperor 
Justinian.     See  Reman  Law. 

PaneL  The  accused  person  in  a  criminal 
action,  from  the  time  of  his  appearance,  is 


styled  the  pand.     See  Criminal  PresectOin. 
Diet. 

PaiUM^     See  Foggage. 

Paanmgiiim  Poroomm;  an  old  law  phrase, 
signifying  the  duty  given  to  the  King  for 
the  pasturage  of  swine  in  his  forests.  Pm- 
nagium  signifies  also  a  part  of  the  King's 
domain  given  to  a  younger  son.  Skeu, 
\.  t. 

Papen  at  a  Ehip.  See  Ship.  Gesture.  Be- 
prisalt.  Neutnd. 

Papist.    Many  regulations  were  thonglit 
necessary  to  repress  Popery ;  and  they  were 
ratified  and  revived  by  the  act  1700,  e.  3. 
Papists  were  disabled  from  purchasing  hoi 
by  voluntary  disposition,  either  in  their  own 
name,  or  through  a  trustee.    Every  grant  in 
breach  of  the  statute  was  declared  void,  and 
the  property  ordered  to  remain  with  the 
seller,  without  subjecting  the  seller  to  aay 
action  for  recovery  of  the  price.     By  the 
same  act,  all  who  profess  the  Popish  religion 
were  declared  incapable  of  succeeding  to  heri- 
tage, if  they  refused  to  renounce  Popery  tod 
sign  the  formula.     And,  in  such  event,  the 
succession  is  declared  to  go  to  the  next  Pro- 
testant heir,  who  would  be  entitled  to  the 
succession  were  the  Popish  heirs  naturally 
dead.     The  same  statute  farther  enacts,  tiist 
any  person   labouring  under   the  repute  of 
being  a  Jesuit  priest,  or  trafficking  priest, 
and  being  called  upon  to  purge  himself  of  the 
suspicion  of  Popery,  according  to  a  form  pre- 
scribed by  the  statute,  and  refusing  so  to  do^ 
may  be  banished  forth  of  the  realm,  never  to 
return,  under  pain  of  death,  while  he  e«>- 
tinnes  a  Papist.    These  highly  penal  regala- 
tions  were  repealed  by  the  statute  33  Geo. 
III.,  c  44,  which  provides  a  certain  form  of 
oath  and  declaration  to  be  taken  by  those  in 
Scotland  professing  the  Roman  Catholic  re- 
ligion ;  whereby  they  are  relieved  from  iJl 
pains,  penalties,  and    disabilities    imposed, 
enacted,  revived,  ratified  and  confirmed,  by 
the  statute  1700,  c.  3 ;  and  as  fully  enaUed 
to  take  by  descent,  purchase,  or  othervise, 
and  to  hold,  enjoy,  alien,  settle,  and  dispose 
of  any  real  or  personal  property  whatsoertr, 
within  that  part  of  Great  Britain  called  Scot- 
land, as  any  other  person  or  persons  whatso- 
ever, anything  in  the  aforesaid  act  (1700  c 
3),  or  in  any  other  act  or  acts  of  the  Parlis- 
ment  of  Scotland,  contained  or  Implied  to  the 
contrary  thereof,  in  any  manner,  notwithstand- 
ing.     See  also  10  Geo.  IV.  e.7,»ai7  andS 
Vict.  e.  102.  ErtL  B.  ii.  tit  3,  §  16,  iiimA!. 
See  Roman  Catholic. 

Paiaphemalia;  are  those  moveables  which 
continue  the  sole  property  of  the  wife  notwith- 
standing the  marriage.  They  consist  of  ber 
body  clothes  and  wearing  apparel,  with  all 
the  ornaments  of  dress  proper  to  a  woBaa's 


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peraon,  necklaee,  ear-rings,  breast  or  arm 
jewels.  Those  articles  are  exempted  from 
the  jvt  mariti,  and  can  neither  be  alienated 
by  the  hnsband,  nor  attached  for  bis  debts. 
Things  of  promiscuous  use  to  man  and  wife, 
as  watches,  jewels,  medals,  plate,  and  even 
the  repositories  for  holding  paraphernalia, 
are  not  paraphernal,  unless  they  have  been 
presented  by  the  husband  before  or  on  the 
marrii^-day.  The  same  things  presented  to 
the  wife  after  the  marriage  are  not  parapher- 
nal,— ^they  are  gifte  which  the  husband  may 
reroke;  and  such  things  are  paraphernal  only 
with  respect  to  the  husband  who  gave  them ; 
for,  in  the  event  of  the  wife  entering  into  a 
second  marriage,  they  are  held  to  be  move- 
ables only,  and  as  snch  fall  to  the  second  hus- 
band. The  present  sometimes  made  by  the 
purchaser  to  a  wife  on  occasion  of  her  re- 
nouncing a  liferent  over  her  husband's  lands, 
commonly  called  the  Lady't  Gown,  is  also,  by 
the  custom  of  Scotland,  regarded  as  parapher- 
nal. See  Lady's  Gown.  A  wife  may  effectu- 
ally impignorate  her  paraphernalia,  in  secu- 
rity of  her  husband's  debts,  even  without  his 
consent ;  but  she  cannot  validly  impignorate 
even  her  paraphernalia,  in  security  of  her 
own  debts,  without  her  husband's  consent ; 
and,  if  she  do  so,  the  impignoration  will 
be  null;  Ertk.  B.  i.  tit.  6,  §§  15  and  27. 
See  Jiu  Mariti.  Stair,  B.  i.  tit.  4,  § 
17  ;  Monfs  Note*,  p.  xviii. ;  Bank,  i.  129 ; 
BeU'M  Com.  i.  632;  BdPt  Princ.  §  1555; 
lUvtt.  ib. 

Parceners ;  in  English  law,  persons  hold- 
ing land  .in  copartnership,  and  who  ma^  be 
compelled  to  make  division;  Tomlin$'  Diet, 
h.  t.  The  corresponding  Scotch  law  term 
is  common  proprietors.    See  Common  Pro- 


'ardon.  The  Queen,  in  virtue  of  her  pre- 
rogative, has  the  privilege  of  extending  her 
royal  clemency  to  those  whom  penal  laws  in 
their  strictness  may  have  condemned.  This 
power,  however,  extends  no  farther  than  to 
liberate  the  ofTender  from  public  penalty  for 
his  offence ;  it  does  not  deprive  tlie  injured 
party  of  his  claim  of  damages;  and  it  is  pro- 
vided by  various  enactments,  that  the  remis- 
sion shall  not  be  pleaded  until  the  assythment 
to  the  private  party  be  paid.  See  1457, 
c  74 ;  1528,  c.  7  ;  1592,  c.  155 ;  and  1593, 
c  174.  It.  is  in  the  case  of  pardon,  or  of  the 
offender  having  fled  from  justice,  that  an  as- 
sythment is  claimable ;  and  in  th  is  last  case  it 
trill  be  doe  from  the  donator  of  the  offender's 
escheat ;  for,  where  the  criminal  has  suffered 
the  pains  of  law,  no  assythment  is  due ;  Er$k. 
B.  iv.  tit.  4,  §  105 ;  Sume,  i.  279,  et  seq.,  and 
ii.  476,  ti  seq. ;  Bank.  vol.  ii.  p.  275 ;  Saint. 
Ahridg.  h.  t.    See  Mwrey. 

Parent  aa4  CMld.    Children  are  either 


lawful  or  unlawful — ^that  is,  are  either  bom 
in  lawful  wedlock  or  legitimated  by  the  sub- 
sequent intermarriage  of  their  parents,  or 
they  are  bastards.  See  Bastard.  Legitimaa/. 
Legitimation.  Filialion.  The  obligations  aris- 
ing from  this  relationship  are  reciprocal. 
They  are,  1.  The  obligations  of  parents  to 
children ;  and  2.  The  obligations  of  children 
to  parents. 

1.  The  father  has  the  sole  and  absolute 
right  of  directing  what  relates  to  the  person, 
education,  or  improvement  of  the  minds  of  bis 
lawful  children ;  he  is  bound  to  support, 
clothe,  and  educate  them  according  to  their 
rank  and  station  in  life;  and  the  performance 
of  those  duties  may  be  judicially  enforced.  It 
is  sufficient,  however,  that  the  parent  receive 
the  child  into  his  own  house,  unless  he  behave 
with  too  great  a  degree  of  harshness;  in 
which  case  the  child  may  be  taken  from  the 
father,  and  the  father  compelled  to  give  a 
reasonable  sum  for  the  maintenance  of  the 
child.  The  father  is  likewise  entitled  to  the 
profits  of  the  labour  of  his  child  while  he  re- 
mains in  family  with  him,  and  not  forisfami- 
liated. See  Forisfamiliation.  The  father  is 
also  the  administrator  for  managing  any 
separate  estate  belonging  to  his  children  dur- 
ing their  minority,  unless  (1.)  the  estate  has 
flowed  from  a  stranger,  and  the  right  of  ma- 
nagement has  been  given  by  the  donor  to 
another ;  or  (2.)  the  donor  has  excluded  the 
management  of  the  father  without  naming  a 
curator,  in  which  case  a  curator  must  be 
named  by  the  judge.  (3.)  By  the  marriage  of 
a  daughter  she  is  put  under  the  curatory  of 
her  husband;  or  (4.)  when  the  child  has  an 
action  to  maintain  i^ainst  the  father,  in 
which  case  a  curator  ad  litem  will  be  named 
by  the  Court.  See  Curatory.  Judicial  Factor, 
The  administration  of  the  father  is  restricted 
to  such  of  his  children  as  remain  in  family 
with  him  or  live  at  his  expense,  though  at  a 
distance  prosecuting  their  education,  or  ac- 
quiring a  profession.  Q'he  office  of  adminis- 
trator belongs  to  the  father  alone ;  it  re- 
quires no  service ;  it  is  not  necessary  that  he 
should  take  an  oath  defiddi;  nor  is  he  bound 
to  find  caution  for  his  intromissions,  unless 
his  circumstances  are  low  or  embarrassed ; 
nor  is  he  obliged  to  make  np  an  inventory. 
The  presumed  affection  of  a  •  parent,  and  his 
consequent  interest  in  the  welfare  of  his  child, 
supersedes  the  necessity  of  those  guarantees 
which  the  law  requires  from  stranger  guar- 
dians. Sw  AdminisiratoT.  The  father  is  bound 
by  the  law  of  nature  to  provide  for  his  chil- 
dren after  his  death,  as  well  as  during  his 
lifetime.  But  this  obligation  is  not  enforced 
by  the  law,  farther  than  that,  where  a  person 
leaves  heritage,  the  heir  succeeding  to  him 
must  give  an  aliment  to  the  younger  children, 

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where  they  are  unable  to  proride  for  tbem- 
■elves :  thus,  sons  must  be  maintained  till 
their  majority,  and  daughters  till  their  mar- 
riage.   See  Aliment. 

2.  Children  are  morally  bound  to  honour 
and  respect  their  parents,  although  that  obli- 
gation cannot  be  legally  enforced.  But  the 
grosser  breaches  of  filial  respect  and  reverence 
may,  under  some  of  the  Scotch  statutes,  be 
visited  with  the  high%t  penalty  of  the  lav. 
See  Cursing  of  Parents.  Children  are  under 
an  obligation  to  support  their  indigent  pa- 
rents, and  this  obligation  may  be  enforced  by 
law.  Ersk.  B.  i.  tit.  6.  §  49;  Stair,  B.  i. 
tit.  5 ;  More's  Notes,  p.  zxviii. ;  Bank.  i. 
p.  122,  etseq. ;  Bell's  Com.  i.  56  ;  BeWs  Prine. 
444 ;  Karnes'  Equity  (1 825),  71.  See  Father. 
Children.  Aliment.  Filiation.  Semiplena  Pro- 
batio.  Palria  Potestas.   Bastard.  Marriage. 

Pares  CnrisB.  Curia  was  the  court  or 
place  where  the  superior  exercised  his  power 
over  his  vassals  ;  and  those  vassals,  being  all 
equally  dependent  on  their  superior,  were 
termed  peers,  or  pares;  so  that  the  pares 
eurice  were  all  the  vassals  holding  of  any  one 
superior.  They  formed  his  court,  and  in 
their  presence  many  things  relating  to  the 
fee  and  the  entry  of  heirs  were  transacted. 
Ersk.  B.  ii.  tit.  3,  §  17 ;  BeU  on  Completing 
Titles,  3  ;  Bell  on  Leases,  i.  20  ;  Ross's  Lect,  ii. 
119. 

Pari  Pasta.  In  a  competition  of  creditors 
claiming  a  common  fund,  those  who  are  pre- 
ferred equally,  or  share  and  share  alike,  to 
the  fund,  are  said  tu  be  preferred  pari  passu. 
See  Adjudication.  Poinding.  Competition. 
Preference. 

Pariih.  A  parish  seems  anciently  to  have 
signified  the  diocese  of  a  bishop,  though  now 
it  signifies  the  territorial  bounds  connected 
with  a  particular  church  of  the  established 
religion,  and  for  the  support  of  which  alone 
the  tithes  within  those  bounds  can  be  allo- 
cated. The  bounds  of  each  parish  are  pre- 
cisely fixed.  Hence,  in  the  description  con- 
tained in  the  title-deeds  of  lands,  there  is 
joined  to  the  name  by  which  the  lands  are 
distinguished  the  name  of  the  county  and 
parish  within  which  they  are  locally  situated. 
It  had  been  found  necessary  in  many  cases  to 
divide  some  parishes  or  to  unite  others ;  and 
powers  to  that  eflFect  were  given,  by  different 
statutes,  to  commissioners  for  the  plantation 
of  kirks,  &c.,  as  by  1617,  c.  3,-1621,  c.  5,— 
1633,  c.  19,-1661,  c.  61,-1693,  c.  23.  At 
last  the  power  of  all  former  commissions  was 
transferred,  by  1707,  c.  9,  to  the  Court  of 
Session  as  commissioners ;  and  under  that 
act  the  judges  of  that  Court  are  empowered, 
with  the  consent  of  three-fourths  of  the 
heritors,  to  erect  new  churches  and  to  disjoin 
parishes.    But  they  may  annex  or  unite  two 


parishes  into  one,  on  cause  shown,  witbont 
the  consent  of  the  heritors.  By  the  set  7 
and  8  Vict.,  c.  44,  1844,  the  consent  of  the 
majority  of  the  heritors  is  sufficient.  EtA. 
B.  i.  tit.  6,  §  21;  Stair,  B.  ii.  tit.  8,  §3; 
Bank.  ii.  p.  4 ;  Bell's  Prine.  pp.  304,  599,  ^ 
1132,  2157  ;  Karnes'  Stat.  Law  Abridg.  k.  I 
See  Disjunction.  Union.  Annexaii«n.  Peer. 
Kirk-Session.  Heritor.  Teinds.  Minitter. 
Church.    Patronage. 

Park ;  in  the  acceptation  of  the  Enghik 
law,  is  a  large  extent  of  ground  enclosed  and 
privileged  for  wild  beasts  of  the  chase,  bj 
royal  grant,  or  by  prescription.  In  Scotlaod, 
park  has  no  such  signification,  the  synooymoot 
term  being  forest,  whereby  is  meant  a  large 
tract  of  enclosed  ground  where  deer  are 
kept.  Woods  or  parks  enclosed  by  private 
persons  for  deer  are  juris .  privati,  and  art 
carried  in  charters  as  part  of  the  land  dis- 
poned, though  not  expressed.  Ertk.  B.  iL 
tit.  6,  §  14 ;  Bank.  i.  p.  91 ;  Totalins"  DicL 
A.  t.    See  Forestry.    Deer. 

Parliamcait.  The  Parliament  is  the  legis- 
lative branch  of  the  supreme  power  of  Great 
Britain.  It  consists  of  the  Sovereign — the 
lords  spiritual  and  temporal — and  the  knights, 
citizeps,  and  burgesses,  representative  of 
the  commons  of  the  realm.  The  representa- 
tives of  the  commons  of  the  United  Kingdom 
amount  in  number  to  658,  distributed  in  the 
proportions  mentioned  in  the  article  Com- 
mons, House  of.  As  to  the  manner  of  electing 
the  representatives  of  the  Scottish  peerage 
and  of  the  commons  of  Scotland,  see  SeeUtt 
Laws.     Reform  Act. 

In  the  present  article  will  be  considered 
the  assembling  of  Parliament;  the  bin 
and  customs  of  Parliament ;  the  method 
of  conducting  business;  and  the  adjenm- 
ment,  prorogation,  and  dissolution  of  Tir- 
liament.  ,  • 

1.  Of  the  manner  and  time  of  assemilisf 
Parliament. — The  Parliament  is  summoBed 
by  a  writ  from  Chancery,  in  the  name  of  the 
Sovereigpa,  issued  by  the  advice  of  the  Privr 
Council.  This  writ  must  be  issued  forty 
days  before  the  sitting  of  Parliament ;  and 
by  practice  this  writ  is  extended  to  fifty  dajs. 
The  calling  together  of  Parliament  is  part  of 
the  royal  prerogative,  and  a  power  properly 
and  necessarily  vested  in  the  Sovereign,  as 
being  the  only  branch  of  the  Legi^ature 
which  has  a  separate  individual  existence. 
And  although  there  may  be  instances  of 
Parliaments  called  without  the  King's  writ, 
as  in  the  Convention  Parliament  which  re- 
stored Charles  II.,  or  the  Convention  of 
Lords  and  Commons  which  called  in  Kisg 
William,  yet  those  are  exceptions  from  the 
rule,  justified  only  by  necessity,  and  beyond 
the  influence  of  common  rules.    The  Sore- 


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reigD  is,  foy  the  law  of  the  realm,  bound  to 
convoke  a  Parliament  "  every  year,  or  o/tener 
if  need  be."  This  has  been  interpreted  by 
some  as  if  the  calling  a  Parliament  every 
year  depended  on  the  necessity  of  the  mea- 
sure ;  while,  on  the  other  hand,  it  has  been 
maintained,  that  it  was  not  the  calling  of  a 
Parliament  annually,  but  calling  it  oftener 
than  annually,  which  was  to  depend  on  the 
state  of  the  times.  But,  by  subsequent 
statutes,  this  power  has  been  regulated ;  and 
by  stat  6  Will,  aad  Mary,  c.  2,  it  is  enacted, 
that  a  new  Parliament  shall  be  called  within 
three  years  after  the  termination  of  the  for- 
mer  one ;  though,  practically,  these  regula- 
tions are  of  less  value,  as  the  Mutiny  Act, 
and  Land-tax  and  Malt-tax  Acts,  are  passed 
for  one  year  only ;  in  consequence  of  which 
the  Parliament  must  necessarily  meet  for  the 
despatch  of  business  once  a  year. 

2.  Of  the  laws  and  customs  of  Parliament  as 
4M  aggregate  body. — The  power  and  jurisdiction 
of  Parliament  is,  by  Sir  Edward  Coke,  said 
(o  be  so  transcendent  and  absolute  that  it 
cannot  be  confined,  either  for  causes  or  per- 
sons, within  any  bounds.  It  has  sovereign 
and  uncontrollable  authority  in  the  making, 
confirming,  enlarging,  restraining,  abroga- 
ting, repealing,  reviving,  and  expounding  of 
laws,  concerning  matters  of  all  possible  de- 
nominations, ecclesiastical  or  temporal,  civil, 
military,  maritime,  or  criminal — this  being, 
by  the  British  Constitution,  the  depository  of 
that  absolute  power  which  must  in  all  go- 
vernments reside  somewhere.  All  mischiefs 
and  grievances,  operations  and  remedies, 
which  transcend  the  ordinary  course  of  law, 
are  within  the  reach  of  this  tribunal.  It  can 
regulate  and  new-model  the  succession  to  the 
crown ;  it  can  alter  the  established  religion ; 
it  can  change  and  re-model  the  constitution 
of  the  kingdom,  and  of  Parliament  itself.  It 
can,  in  short,  do  everything  which  is  not 
naturally  impossible ;  it  is  a  power  uncon- 
trolled by  any  superior.  The  High  Court  of 
Parliament  has  its  own  peculiar  law,  called 
ihe  Lex  et  eonsttetudo  Parliamenti ;  a  law  to  be 
learned  out  of  the  rolls  and  records  of 
Parliament,  and  by  precedents  and  experi- 
ence. Of  this  law  the  great  maxim  is, 
"  That  whatever  matter  arises  concerning 
cither  House  of  Parliament  ought  to  be 
examined,  discussed,  and  adjudged  in  that 
House  to  which  it  relates,  and  not  elsewhere." 
Hence,  the  Lords  will  not  suffer  the  Commons 
to  interfere  in  settliug  the  election  of  a  peer 
of  Scotland.  The  Commons  will  not  allow 
-the  Lords  to  judge  of  the  election  of  a  mem- 
ber of  their  House ;  nor  will  either  branch 
fwrmit  courts  of  law  to  examine  the  merits 
of  such  cases.  But  the  maxims  on  which 
tiwy  proceed  rest  entirely  with  Parliament, 
2« 


and  are  not  defined  and  ascertained  by  pre- 
cise regulations. 

The  House  of  Lords  is  a  distinct  court 
from  the  Commons  for  several  purposes,  and 
is  the  sovereign  court  of  justice  and  dernier 
resort.  This  House  tries  criminal  causes  or 
impeachments  of  the  Commons,  and  has  an 
original  jurisdiction  for  the  trial  of  peers 
upon  indictments  found  by  a  grand  jury.  It 
also  tries  causes  upon  appeal  from  the  Court 
of  Chancery,  or  upon  writs  of  error  to  re- 
vise judgments  in  the  King's  Bench,  or  by 
appeal  from  the  Court  of  Session.  All  the 
decrees  of  the  House  of  Lords  are  as  judg- 
ments, and  may  be  executed  in  England  by 
the  Lord  Chancellor — in  Scotland  by  the 
Court  of  Session.  The  House  of  Commons 
is  also  a  distinct  court  for  many  purposes. 
It  examines  the  rights  of  election,  is  entitled 
to  expel  its  own  members,  and  to  commit 
them  to  prison.  The  book  of  the  clerk  of 
the  House  is  a  record.  The  House  is  also  the 
grand  inqnest  of  the  kingdom,  to  present  to 
the  Sovereign  or  Lords  public  grievances  or 
delinquents ;  and  any  member  of  the  House 
of  Commons  has  the  privilege  of  impeaching 
a  peer.  The  High  Court  of  Parliament  is 
the  supreme  court  in  the  kingdom,  not  only 
for  the  making,  but  for  the  executing  of 
the  laws ;  by  the  trial  of  great  and  enormous 
offenders,  whether  lords  or  commons,  by 
parliamentary  impeachment.  Acts  of  Parlia- 
ment to  attaint  particular  persons  of  treason 
or  felony,  or  to  inflict  pains  and  penalties,  are 
new  laws  made  pro  re  nata,  and  by  no  means 
an  execution  of  those  already  in  existence. 
But  an  impeachment  before  the  Lords,  by 
the  Commons  of  Great  Britain  in  Parliament, 
is  a  prosecution  proceeding  on  the  known  and 
established  law,  being  a  presentment  to  the 
supreme  court  of  criminal  jurisdiction  by 
the  solemn  grand  inquest  of  the  whole  king- 
dom. The  Commons,  where  a  peer  is  im- 
peached for  treason,  osnally  address  the 
Crown  to  appoint  a  Lord  High  Steward,  for 
the  greater  dignity  and  regularity  of  the 
proceedings,  although  it  has  been  maintained 
that  the  House  of  Lords  may  proceed  with- 
out such  an  appointment.  The  privileges  of 
Parliament  are  large  and  indefinite  ;  and  are 
preserved  indefinite,  that  their  powers  may 
meet  all  the  attempts  which  may  at  any 
time  be  made,  by  such  expedients  as  the  exe- 
cutive power  in  bad  times  may  devise,  for 
the  purpose  of  violating  the  privileges  of 
Parliament.  There  are,  however,  certain 
privileges  which  are  completely  ascertained. 
These  are  the  privileges  of  speech  and  of 
person.  The  privilege  of  speech  is  parti- 
cularly demanded  of  the  Sovereign  in  person, 
by  the  Speaker  of  the  House  of  Commons, 
at  the  opening  of  every  new  Parliament. 

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But  if  any  member,  in  the  coune  of  a  debate, 
use  offensire  words,  he  may  be  called  to  the 
bar  to  receive  a  reprimand  from  the  Speaker, 
or,  if  the  offence  be  great,  he  may  be  sent  to 
the  Tower.  With  regard  to  pririlege  of 
person,  it  is  now  confined  to  freedom  from 
arrest  or  imprisonment  in  civil  matters  ;  in 
the  case  of  peers  constantly,  in  that  of  com- 
mons during  the  sitting  of  Parliament,  and 
for  forty  days  after  each  prorogation,  and  for 
as  many  days  prior  to  the  day  to  which  the 
Parliament  is  prorogued  ;  and  after  a  disso- 
lution, the  privilege  continues  for  what  is 
termed  a  reasonable  time.  All  other  privi- 
leges which  obstruct  the  coarse  of  justice  are 
BOW  abolished  by  stat.  10  Qeo.  II.  c.  50 ; 
whereby  it  is  enacted,  that  any  suit  may  at 
any  time  be  brought  against  any  peer  or 
member  of  Parliament,  their  servants,  or 
any  other  person  entitled  to  privilege  of 
Parliament,  which  shall  not  be  impeded  or 
delayed  by  pretence  of  any  such  privilege ; 
except  that  the  person  of  a  member  of  the 
House  of  Commons  shall  not  thereby  be  sub- 
ject to  any  arrest  or  imprisonment  on  any 
such  suit  or  proceedings. 

3.  Of  the  laws  and  customs  of  the  House  of 
Lords. — The  Lords  are  entitled  to  have  the 
attendance  of  the  Judges  of  the  Courts  of 
Queen's  Bench  and  Common  Pleas,  and  such 
of  the  Barons  of  the  Exchequer  as  are  of  the 
degree  of  the  coif,  or  have  been  made  ser- 
jeants-at-law ;  or  likewise  of  the  Queen's 
counsel,  being  Serjeants,  and  of  the  Masters 
of  the  Court  of  Chancery,  for  their  advice  in 
point  of  law,  and  for  the  greater  dignity  of 
their  proceedings.  Every  peer  may,  bv  li- 
cense from  the  Sovereign,  appoint  any  Lord 
of  Parliament  his  proxy  to  vote  for  him  in 
his  absence ;  and  even  the  license  seems  now 
to  be  presumed.  A  spiritual  lord  can  alone 
be  proxy  for  a  spiritual  lord,  and  a  tem- 
poral for  a  temporal  lord.  These  proxies 
cannot  vote  in  a  question  of  guilty  or  not 
guilty;  and  their  authority  ceases  on  the 
return  of  the  lord  by  whom  they  are  granted. 
No  peer  can  hold  more  than  two  proxies  at 
the  same  time.  Each  peer  has  a  right,  by 
leave  of  the  House,  when  a  vote  passes  con- 
trary to  his  sentiments,  to  enter  his  dissent, 
with  the  grounds  thereof,  on  the  journals  of 
the  Honse.  This  is  styled  a  protest.  All 
bills  which,  in  their  consequence,  may  affect 
the  peerage,  by  the  custom' of  Parliament 
originate  in  the  House  of  Lords,  and  suffer 
no  changes  or  amendments  in  the  House  of 
Commons.  In  its  judicial  capacity,  the  House 
of  Lords  is  the  supreme  court  of  judicature 
in  the  kingdom.  It  possesses  no  original 
jurisdiction  in  civil  causes,  but  only  by  appeal 
and  writ  of  error,  that  it  may  rectify  any  in- 
justice or  mistake  committed  by  the  courts  of 


law.  It  baa,  however,  an  original  erimintl 
jurisdiction  in  the  case  of  impeachment  by 
the  Commons,  and  in  the  trial  of  peers. 

4.  Of  the  laws  and  eusUms  tf  the  House  ef 
Comnwns. — The  Commons,  in  making  and 
repealing  laws,  have  equal  power  with  the 
Lords ;  and  it  is  the  ancient  indi^ntable  pri- 
vilege of  that  Honse,  that  all  grants  of  sob- 
sidies,  or  parliamentary  aids,  shall  be  first 
introduced  in  that  House ;  and  all  bills  im- 
posing taxes  on  the  subject  must  also  origi- 
nate in  the  House  of  Commons,  although  sncb 
bills,  in  order  to  their  being  effectual  as  acts 
of  Parliament,  must  have  the  assent  of  the 
other  branches  of  the  Legislature.  So  far  is 
this  privilege  carried,  that  the  House  oS  Com- 
mons will  not  permit  the  House  of  Lords  t» 
alter  or  amend  any  money-bill ;  and  this  ex- 
tends even  to  tolls,  rates  or  duties  to  be  col- 
lected, or  where  pecuniary  fines  are  imposed 
for  offenoee. 

5.  The  method  of  conducting  business. — ^Tbe 
mode  of  making  laws  is  much  the  same  in 
both  Houses  of  Parliament.    In  each  Home 
there  is  a  Speaker.    The  Speaker  oi  the 
House  of  Lords  is  the  Lord  Chancellor ;  bat 
if  the  seals  are  not  in  oommiasioQ,  the  House 
of  Lords,  it  is  said,  may  elect  a  Speaker.  The 
Speaker  of  the  House  of  Commons  is  chosea 
by  the  House,  and  must  be  approved  of  by 
the  Sovereign.    In  this  the  usage  of  the  tve 
Houses  differs — vis.,  that  the  Speaker  of  the 
House  of  Commons  does  not  take  part  in  the 
debate,  nor  offer  his  own  opinion  on  the  ques- 
tions before  the  Honse ;  whereas  the  SpMker 
of  the  House  of  Lords  (if  a  lord  of  Parlia- 
ment) may  in  all  cases  speak  and  argue.    In 
either  House  the  voice  of  the  majority  bieds 
the  whole,  and  this  majority  is  decla^  by 
votes  openly  given.    In  the  House  of  Lor^ 
the  Speaker  gives  his  vote  as  one  of  thepeen, 
and  has  no  casting-vote ;  and  where  the  votes 
of  the  House  are  equal,  the  opinion  of  the 
non-contents  is  the  prevailing  one.    HeoM, 
were  the  peers  equally  divided  in  opinion  on 
au  appeal  case,  the  judgment  of  the  Coart 
below  would  remain  unaltered.   In  the  House 
of  Commons,  again,  the  Speaker  never  rotes 
excepting  where  there  is  an  equality  withoat 
his  vote,  in  which  ease  his  vote  creates  a  ma- 
jority in  favour  of  that  side  to  which  he  gives 
it.     In  the  House  of  Commons  there  is  no 
precedency  as  in  the  Honse  of  Lords,  only 
the  Speaker  has,  towards  the  upper  end,  a 
seat  or  chur  in  the  middle  of  the  Honse; 
and  the  clerk,  with  his  assistant,  sits  near 
him  at  the  table,  just  below  the  chair.    The 
Lords  have  robes ;  the  members  of  the  House 
of  Commons  have  none,  except  the  Speaker 
and  clerks,  who  wear  wigs  and  gowns,  as 
English  lawyers  do  during  term-time. 

The  members  of  the  House  of  CommoM 


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are  not  st  liberty  to  depart  from  Parliament 
without  leave  of  the  Speaker  and  CommonB 
assembled ;  and  the  leave  must  be  entered  in 
the  book  of  the  clerk  of  Parliament.  A  call 
of  the  House  is  intended  for  the  purpose  of 
disoovering  what  members  are  absent  without 
leave  or  just  cause.  On  the  calling  over  the 
names,  such  as  are  absent  are  marked ;  and 
the  defaulters  being  again  called  over  on  the 
same  day,  or  the  day  after,  and  not  appearing, 
are  summoned  by  the  serjeant-at-arms.  Forty 
members  are  requisite  to  constitute  a  House 
for  despatch  of  business.  All  bills,  motions, 
and  petitions,  whether  favourably  or  anfa- 
vonrably  received,  and  whether  or  not  the 
bills  pass  into  statutes,  are,  by  order  of  Par- 
liament, entered  on  the  Parliament  rolls. 
The  Speaker  of  the  House  of  Commons  does 
not  persuade  or  dissuade  in  passing  a  bill ; 
he  gives  a  short  account  of  it,  with  a  view  to 
explanation.  If  any  question  is  put,  he  may 
explain,  but  he  enters  into  no  argument. 
When  he  desires  to  speak,  he  ought  to  be 
beard  without  interruption ;  and  when  any 
other  member  stands  np  to  speak  at  the  same 
time,  he  ought  to  give  way  to  the  Speaker. 
When  two  members  stand  up  to  speak,  he 
who  is  to  speak  against  the  bill  should  be 
first  heard,  or  he  who  first  caught  the  eye  of 
the  Speaker.  No  member  can  be  silenced 
unlees  by  the  Speaker ;  though,  if  any  person 
speak  impertinently,  or  beside  the  question, 
the  Speaker  may  interrupt  him,  and  ask  the 
pleasure  of  the  House,  whether  he  shall  be 
farther  heard.  Whoever  hisses  or  disturbs 
any  person  in  his  speech  is  answerable  at  the 
bar  of  the  House. 

In  enacting  laws  and  other  proceedings  in 
Parliament,  the  Lords  give  their  voices  in 
their  House  from  puisne  lord  serialim,  by  the 
word  content  or  not  content.  The  manner  of 
voting  in  the  House  of  Commons  is  by  yea  or 
no  ;  and  when  there  is  any  di£Sculty  in  deter- 
mining on  which  side  the  majority  is,  the 
Hoose  divides,  the  ayet  going  out  and  the  noet 
staying  in ;  and  four  tellers  are  appointed  by 
the  Speaker,  two  on  each  side,  and  the  tellers 
report  to  the  Speaker  the  numbers.  When 
a  bill  of  a  private  nature  is  to  be  brought 
into  the  House,  a  petition  must  be  presented 
by  one  of  the  members  of  the  House  of  Com- 
mons. The  petition,  if  founded  on  facts,  is 
aent  to  a  committee,  who  inquire  into  the 
facte,  and  report  to  the  House ;  and  then,  or 
if  DO  investigation  be  necessary  upon  the  bill, 
leave  is  given  to  bring  in  the  bilL  In  public 
matters,  the  bill  is  brought  in  by  a  motion, 
and  without  the  necessity  of  a  petition.  For- 
merly, all  bills  wore  drawn  in  the  form  of 
petitions,  which  were  entered  on  the  Parlia- 
ment rolls,  with  the  King's  answer  subjoined ; 
^d  at  the  end  of  each  Parliament  the  Judges 


drewthem  into  the  form  of  a  statute,  which  was 
entered  on  the  Statute  Roll.  In  the  reign  of 
Henry  VI.,  bills  in  the  form  of  acts  (accord- 
ing to  the  modern  custom)  were  first  intro- 
duced. Any  person  may  move  for  leave  to 
bring  in  a  bill,  except  it  be  for  imposing  a 
tax  (which  can  be  done  only  by  an  order  of 
the  House).  When  the  motion  is  seconded, 
and  leave  given,  the  mover  and  seconder  are 
ordered  to  prepare  and  bring  in  the  bill. 
When  prepared,  it  is  drawn  out  on  paper, 
with  blanks  wherever  any  point  is  dubious, 
or  where  blanks  or  sums  are  to  be  filled  up. 
It  is  read  a  first  time,  and  at  a  convenient 
distance  a  second  time.  After  each  reading, 
the  Speaker  states  to  the  House  the  substance 
of  the  bill,  and  puts  the  question,  whether  it 
shall  proceed  any  further.  The  introducing 
of  the  bill  may  be  opposed,  as  the  bill  itself 
may  be  at  either  of  the  readings ;  and  if  the 
opposition  succeeds,  the  bill  must  be  dropped 
for  that  session.  If  the  bill  passes  the  second 
reading,  it  is  committed — that  is,  referred 
to  a  committee,  which  is  either  selected  in 
matters  of  little  moment,  or  where  the  mea- 
sure is  of  importance  the  House  resolves  it- 
self into  a  committee  of  the  whole  House, 
which  is  done  by  the  Speaker  quitting  the 
chair,  and  a  member  being  appointed  as  chair- 
man. The  Speaker,  in  a  committee  of  the 
whole  House,  may  speak  and  vote  as  any 
other  member.  In  these  committees  the  bill 
is  debated  clause  by  clause,  amendments  made, 
the  blanks  filled  up,  and  sometimes  the  bill 
entirely  new-modelled.  After  tlie  bill  has 
been  gone  through,  the  chairman  reports  it 
to  the  House,  with  such  amendments  as  the 
committee  have  made ;  and  then  the  House 
reconsiders  the  whole  bill  again,  and  the  ques- 
tion is  repeatedly  put  upon  every  clause  and 
amendment.  When  the  House  has  come  to 
an  opinion  on  the  various  points,  the  bill  is 
ordered  to  be  engrossed,  or  written  in  a  strong 
gross  hand,  on  one  or  more  long  rolls  of  parch- 
ment sewed  together.  This  being  done,  the 
bill  is  read  a  third  time,  and  amendments  are 
sometimes  made  even  then ;  and  if  a  new 
clause  be  added,  it  is  done  by  tacking  a  new 
piece  of  parchment  to  the  bill,  which  is  called 
a  rider.  The  Speaker  then  once  more  states 
the  natnre  of  the  bill,  and,  holding  it  up  in 
his  hands,  puts  the  question,  Whether  the 
bill  shall  pass  ?  If  it  be  agreed  to  pass  the 
bill,  the  title  of  it  is  settled,  and  one  of  the 
members  is  commissioned  to  carry  it  up  to  the 
Lords,  and  to  desire  their  concurrence.  This 
member,  attended  by  other  members  of  the 
House,  carries  the  bill  to  the  bar  of  the  House 
of  Lords,  and  there  deli  vers  it  to  their  Speaker, 
who  comes  from  the  woolsack  to  receive  it. 

The  bill  then  passes  through  the  same 
forms  in  the  House  of  Lords  which  it  has 

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passed  in  the  House  of  Commons,  except  the 
engrossing.  If  it  be  rejected,  no  further 
notice  is  taken  of  it,  in  order  to  prevent  unbe- 
coming altercations  between  the  two  Houses ; 
but,  if  it  be  passed  by  the  Lords,  they  send 
a  message  to  the  Commons  by  two  Masters  of 
Chancery,  or,  in  matters  of  great  moment,  by 
two  of  the  Judges,  that  they  have  agreed  to 
the  bill ;  and  if  no  amendment  has  been 
made,  it  remains  with  them  ;  but  if  amend- 
ments be  made,  they  are  sent  down  with  the 
bill,  to  receive  the  concurrence  of  the  Com- 
mons. Where  the  Commons  do  not  agree  to 
the  amendments,  a  conference  usually  takes 
place  between  members  chosen  from  either 
House,  who  meet  and  debate  the  matter.  If, 
in  consequence  of  this  conference,  the  Com- 
mons agree  to  the  amendments,  the  bill  is 
sent  back  to  the  Lords  by  one  of  the  mem- 
bers, with  a  message  to  acquaint  them  there- 
with ;  but  should  both  Houses  remain  in- 
flexible, the  bill  is  dropped.  When  the  bill 
originates  in  the  House  of  Lords,  the  same 
form  takes  place ;  but  when  an  act  of  grace 
or  pardon  is  passed,  it  is  signed  by  the  So- 
vereign, and  then  read  over  in  each  of  the 
two  Houses  of  Parliament,  without  any  new 
engrossing  or  amendment ;  and  where  both 
Houses  have  agreed  to  a  bill,  it  is  deposited 
in  the  House  of  Lords,  there  to  await  the 
royal  assent,  unless  it  be  a  money-bill,  which, 
after  receiving  the  concurrence  of  the  Lords, 
is  sent  back  to  the  House  of  Commons. 

The  royal  assent  may  be  given  in  two 
ways: — 1.  By  the  Sovereign  in  person.  In 
this  case  the  Queen  goes  to  the  House  of 
Lords  in  her  royal  robes,  with  the  crown  on 
her  head ;  and  being  seated  on  the  throne,  a 
message  is  sent  to  require  the  presence  of  the 
Commons,  who  appear  at  the  bar.  The  titles 
of  all  the  bills  which  have  been  passed  are 
then  read,  and  her  answer  is  declared  by  the 
clerk  of  the  Parliament  in  Norman  French. 
In  a  public  bill,  where  the  S<)yereign  con- 
sents, the  clerk  declares,  "  La  Reigne  U  veut,'' 
The  Queen  wills  it.  If  it  be  a  private  bill, 
the  clerk  repeats,  "  Soit  fait  eomtne  il  ai  de- 
tiri"  Be  it  as  it  is  desired.  The  refusal  of 
the  royal  assent  is  expressed  in  these  terms, 
"  La  Reigne  t'avisera,"  The  Queen  will  con- 
sider of  it.  When  a  bill  of  supply  is  granted, 
it  is  carried  up  and  presented  to  the  Queen 
by  the  Speaker  of  the'  House  of  Commons, 
and  the  royal  assent  is  then  expressed,  "  La 
Reigne  remercie  te»  loyal  sujets,  accepte  tear  be- 
nevolence et  autsi  k  veut,"  The  Queeu  thanks 
her  loyal  subjects,  aocepts  their  benevolence, 
and  wills  it  to  be  so.  Where  it  is  an  act  of 
grace,  which  originates  with  the  'Sovereign, 
and  has  the  royal  assent  in  its  first  stage,  the 
clerk  of  Parliament  pronounces  the  gratitude 
of  the  subjects  in  these  terms,  "  Les  Prelate, 


Seigneurs,  H  Cemmont,  en  ee  pretent  PetrUa- 
ment  asten^Us,  au  nam  de  totUs  tmu  ovtrti 
svfett,  remereient  tree  humblement  voire  MejelU, 
et  prient  d  Dieu  vout  doniur  en  santd  b<m»e 
vie  et  longue,"  The  Prelates,  Lords  and  Com- 
mons, in  this  present  Parliament  assembled, 
in  the  name  of  all  your  other  snbjeete,  most 
humbly  thank  your  Majesty,  and  pray  to 
God  to  grant  you  in  health  and  wealth  long 
to  live.  2.  The  royal  assent  may  be  givoi 
by  letters-patent  under  the  great  seal,  signed 
with  the  Sovereign's  hand,  and  notified  in 
her  absence  to  both  Houses  assembled  in  the 
House  of  Lords.  When  4he  bUl  has  received 
the  royal  assent  in  any  of  those  ways,  it  is 
then,  and  not  before,  a  statute  or  act  of  Par- 
liament, and  is  placed  amongst  the  records  of 
the  kingdom. 

6.  Of  the  adjonrnment,  firon>gation,  mtd  die- 
solution  of  Parliament. — An  adjournment  h 
no  more  than  a  continuance  of  the  session 
from  one  day  to  another,  as  the  word  itself 
imports ;  and  this  is  done  by  the  authority  of 
each  House  separately  every  day,  and  some- 
times for  a  fortnight,  or  even  a  month  U^ 
gether,  as  at  Christmas  or  Baster,  or  upon 
other  particular  occasions  ;  but  the  adjonrn- 
ment of  one  House  is  no  adjournment  of  the 
other.  It  has  also  been  usual,  on  the  sug- 
gestion of  the  Sovereign,  for  both  Houses  to 
adjourn  themselves  for  the  time  pointed  out 
by  her  Majesty ;  and  the  advantage  of  an 
adjournment  in  place  of  a  prorogation  is, 
that  everything  remains  as  it  was,  and  may 
be  taken  up  on  the  meeting  of  Parliament : 
whereas  by  a  prorogation  the  session  is  at 
an  end,  and  the  bills  at  that  time  in  their 
progress  are  lost,  and  must  be  begun  of  new. 
A  prorogation  is  the  continuance  of  the  Par- 
liament from  one  session  to  another,  and  k 
made  by  the  royal  authority,  expressed  by 
the  Lord  Chancellor,  or  by  a  eommiwon 
from  the  Crown,  or  by  royid  proclamation. 
At  the  beginning  of  a  new  Parliament,  vben 
it  is  not  intended  that  Parliament  dioaid 
meet  for  the  despatch  of  business,  at  the  re- 
turn of  the  writ,  the  practice  is  to  prorogne 
Parliament  by  a  writ  of  prorogation,  which 
is  read  by  the  Lord  Chancellor  in  the  House 
of  Lords  on  the  day  of  return  of  the  summons; 
and  notice  is  given  by  a  proclamation  when 
Parliament  is  to  proceed  to  business  on  the 
day  to  which  it  stands  prorogued.  Both 
Houses  are  prorogued  hj  these  writs,  it  not 
befng  a  prorogation  of  either  House,  bat  of 
Parliament.  The  session  is  never  understood 
to  be  at  an  end  until  it  is  prorogued.  All 
orders  of  Parliament  are  determined  by  pro- 
rogation ;  and  a  person  taken  into  castody  by 
order  of  Parliament  may,  after  prorogation, 
be  discharged  on  a  habea*  corpus;  but  im- 
peachments brought  up  by  the  Commoiu,  and 


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all  cues  of  appeal  and  writs  of  error,  continue 
in  the  state  in  which  thej  were  at  the  pro- 
rogation or  disBolation  of  Parliament  Dis- 
eolution  is  the  civil  death  of  Parliament;  and 
this  may  be  effected  in  three  ways: — 1.  By 
the  Sovereign's  will,  expressed  in  person,  or 
by  representation ;  and  this  is  a  branch  of 
the  royal  prerogative.  2.  Parliament  may 
be  dissolved  by  the  demise  of  the  Crown; 
and  this  dissolution  must  take  place  within 
six  months  after  that  event,  unless  the  sue* 
ceeding  Sovereign  shall  sooner  dissolve  the 
Parliament.  If,  at  the  time  of  the  demise. 
Parliament  be  prorogued,  it  is  ordered  in- 
stantly to  meet ;  and  should  Parliament  have 
been  dissolved,  the  last  Parliament  is  in- 
stantly to  re-assemble,  and  become  again  a 
Parliament  for  six  months,  or  until  dissolved 
by  the  Sovereign  ;  stat.  6  Anne,  c.  7.  3.  Par- 
liament may  dissolve  by  length  of  time ;  for, 
as  the  matter  is  now  ordered,  it  must  die  a 
natural  death  at  the  end  of  every  seventh 
year,  if  not  sooner  dissolved.  Tomlins'  Did.' 
k.  t.  See  Amendment,  Commons,  Bouse  of, 
Eleetion  Law. 

Parochial  Belief ;  is  a  disqualification  for 
r^stration  as  a  voter.    See  Ahnt. 

Paroehiu.    See  Deeima  debentw  paroeko. 

Parole  Proof;  is  evidence  by  the  oaths  of 
witnesses,  in  contradistinction  to  evidence  by 
writ  or  oath  of  party.  See  Evidence,  and 
authorities  there  cited. 

Parrieide ;  the  murder  of  a  parent  This 
is  a  crhne  so  monstrous  and  unnatural  as  to 
have  excited  the  just  indignation  of  all  Legis- 
latures ;  and  by  the  law  of  Scotland  it  is 
punished  with  more  than  ordinary  severity. 
In  addition  to  the  punishment  of  death,  it  is 
ordered,  by  the  act  1594,  c.  220,  that  he  who 
has  slain  "  his  father  or  mother,  gudschir  or 
gndedame,"  shall  suffer  a  total  corruption  of 
blood,  tn  linea  recta,  and  be  "disherished  in 
all  time  thereafter  fra  their  lands,  heritages, 
tacks,  possessions,"  which  are  to  devolve  on 
the  next  collateral  relation,  in  the  same  man- 
ner as  if  the  direct  line  had  failed.  These 
terms,  however,  do  not  comprehend  the  of- 
fence of  killing  father  or  mother  by  affinity. 
To  have  the  effect  of  disinheriting  the  pos- 
terity of  a  parricide,  it  has  been  held  neces- 
sary that  he  be  convicted  by  a  jury ;  it  not 
being  sufficient  that  he  has  been  fngitated  for 
non-appearance.  In  some  cases  of  conviction 
for  this  crime,  the  right-band  of  the  criminal 
has  been  struck  off  before  he  was  executed. 
Bvme,  i.  285 ;  Ersk.  B.  iv.  tit.  4,  §  47  ;  Stair, 
B.  iii.  tit.  5,  S  85 ;  Bank.  ii.  331 ;  Kana^ 
Stat.  Law  Ahridg.  h.  t. 

Panonage  Telnds;  were  those  tithes 
which  belonged  to  the  parson  ;  and  they  con- 
sisted of  the  tithes  of  corn,  or  of  wheat, 
barley,  oats,  peas,  &c.     They   are  termed 


deeima  rectorice  in  our  Latin  charters,  and 
sometimes  decimce  garbales.  Stair,  B.  iv.  tit 
26,  §  10 ;  ifore's  Notes,  ccxxxi. ;  Ersk.  B.  ii. 
tit  10,  §§  12,  S3;  Sutd^.  Justice,  ii.  349; 
Connell  on  Tithes,  i.  125 ;  on  Parishes,  303, 
359.    See  Teinds.    Decimal  Oarbales, 

Part  and  Pertinent.  Lands  are  generally 
disponed  with  all  parts  and  pertinents  there- 
to belonging ;  and  the  effect  of  that  expres" 
sion  is  often  very  important  Thus,  it  may 
import  a  conveyance  of  lands,  or  rights  of 
servitude,  which  have  been  possessed  for  forty 
years  as  part  and  pertinent  of  the  principal 
subject  conveyed.  So,  also,  this  expression 
carries  everything  which,  from  its  close  con- 
nection with  land,  falls  properly  under  the 
description  of  part  and  pertinent ;  hence,  natu- 
ral fruits,  before  they  are  separated,  as  fruit, 
natural  grass,  he.,  are  deemed  part  and  perti- 
nent. In  the  same  way,  woods  or  deer-parks 
are  juris  privati,  and  are  carried  as  part  and 
pertinent ;  so  is  a  seat  in  a  church ,  or  a  burial- 
ground.  But  a  steillbow  stocking,  unless 
the  lands  have  been  sold  on  a  rental,  does 
not  accompany  the  lands  as  part  and  perti- 
nent. Ersk.  B.  ii.  tit  5,  §  3,  et  seq. ;  Stair, 
B.  ii.  tit  3,  §  60,  et  seq. ;  Morels  Notes, 
p.  cc ;  Bank.  i.  p.  592,  et  seq. ;  BeWs  Prme. 
I  739 ;  lUust.  ib.  See  Commonty.  Bound- 
ing Charter. 

Partes  Soli    See  Part  and  Pertinent. 

Partial  Confirmation.    See  Confirmation. 

Partial  Counsel;  is  one  of  the  circam- 
stanees  which  throws  discredit  upon  a  wit- 
ness's testimony.  It  is  no  disqualification 
that  the  witness  has  been  the  informer  against 
the  panel,  even  where  he  is  not  the  injured 
party,  or  that  he  has  endeavoured,  by  fair 
means,  to  support  his  evidence  by  that  of 
others.  Neither  is  suspicion  thrown  upon  the 
testimony  of  a  procurator-fiscal,  sheriff,  ma- 
gistrate, police  or  sheriff  officer,  because  he 
discharges  his  duty  by  making  inquiries,  or 
conducting  a  precognition  against  the  accused. 
It  is  a  good  objection  to  the  credibility  of  a 
witness,  that  he  has  been  guilty  of  undue  and 
illegal  agency  against  the  panel.  In  civil 
causes,  instructing  a  witness  what  to  say,  or 
telling  him  what  has  been  proved  by  other 
witnesses,  or  speaking  to  him  regarding  the 
cause  after  citation,  renders  him  inadmissi- 
ble ;  but  the  presence  of  a  person  in  his 
official  capacity,  while  a  witness  is  under  exa- 
mination, infers  no  disqualification.  Neither 
will  the  circumstance  of  a  witness  drawing 
up  a  written  statement  of  the  facts  known  to 
him,  at  the  desire  of  the  party,  constitute  a 
ground  of  exclusion.  Agency  was  formerly 
a  ground  of  exclusion  of  a  witness ;  but  by 
the  act  16  and  17  Vict  c.  20,  1853,  this 
ground  was  removed,  except  in  consistent 
causes.     Stair,  B.   iv.  tit  43,  §  9:  Mor^s 

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Notes,  ececxiv.;  Enk.  B.  iv.  tit.  2,  §  28; 
Bill's  Prine.  §  2313 ;  Tait  on  Evidence,  368 ; 
Macfatiane^s  Jury  Prac.  156.    See  Evidtnct. 
Partial  counsel  is  a  ground  of  declinature  of 
a  judge.    Maclaurin's  Sheriff  Prac.  il.     See 
Dedinatwe.    Evidence. 
Partial  Loss.    See  Insurance. 
Partial  Payment'  No  one  is  bound  to  ac- 
cept part-payment  of  a  debt ;  and  the  offer  of 
part-payment  has  no  effect  in  interrupting 
mora.      But  a  creditor  in  two  or  more  sepa- 
rate-debts cannot  refuse  the  payment  of  any 
one  of  those  debts,  though  the  debtor  should 
decline  to  dear  off  even  the  interest  on  the 
others.     It  is  a  general  rule,  that  payment  of 
part  of  a  debt  extinguishes  the  debt  to  that 
extent ;  and  the  claim  of  the  creditor  receiv- 
ing  such   payment  from  his  debtor  is,  in 
ranking  on  his  bankrupt  estate,  limited  to  the 
balance.  This  rule  holds,  whether  the  partial 
payment  was  made  by  the  bankrupt  himself, 
or  by  a  solvent  co-obligant.     Bat  partial 
payment,  although  it  may  diminish  the  debt, 
has  no  such  effect  on  a  real  security  given  for 
it  by  way  of  pledge.     Doubts  were  at  one 
time  entertained,  whether  partial  payment  to 
an  adjudger  did  not  diminish  the  security ; 
but  it  is  now  settled,  that  notwithstanding 
each  partial  payment,  the  adjudger  is  en- 
titled to  rank  for  the  undiminished  amount 
of  his  original  claim  in  a  pari  passu  rank- 
ing of  adjudgers;    Er$k.  ii.   12,  67.     See 
also    Dairy mple's    Trustees    v.     Cuthbertson, 
May  18,  1825,  4  .$.  16;  and  2  Bell's  Com. 
p.  532.     A  landlord  may  refuse  part-payment 
of  rent.     The  holder  of  a  bill  is  not  bound  to 
take  less  than  the  whole  sum  contained  in  the 
bill ;  but  he  is  entitled  to  take  a  partial  pay- 
ment firom  the  acceptor,  without  cutting  off 
his  claim  of  recourse  against  the  other  par- 
ties, provided  he  protest  the  bill,  in  so  far  as 
it  is  not  paid,  and  in  other  respects  negotiate 
the  bill  duly.     Suing  one  of  the  obligants  in 
a  promissory-note,  and  thereby  receiving  part 
of  the  debt  in  the  note,  does  not  discbarge 
the  other  obligaut.     Partial  payment  by  an 
indorser  has  been  held  equivalent  to  a  waiver 
of  notice.    A  partial  payment  by  the  accep- 
tor precludes  tlie  holder  from  suing  either 
the  drawer  or  indorsers  for  more  than  the 
balance.     And  although  there  was  at  one 
time  some  doubt  upon  the  point,  it  has  been 
decided,  that  the  payment  of  part  of  a  bill  by 
the  drawer  precludes  the  holder  from  suing 
tlie  acceptor  for  more  than  the  balance; 
Thomson,  26th  Jan.  1819,  cited  in  Thomson  on 
BiUs,  p.  583.    Partial  payments  made  to  ac- 
count of  a  debt  should  be  noticed  in  the  sum- 
mons; Jurid.  Styles,  iii.  26.   Partial  payments 
should  also  be  mentioned  in  letters  of  hom- 
ing ;    ib.  pp.  581  and  605,  Notes.    Partial 
payments  made  by  the  debtor  interrupt  the 


long  prescription ;  but  none  of  the  short  pre- 
scriptions of  debt  are  interrupted  by  partial 
payments.  Yet  markings  of  partial  payments 
to  account,  made  and  entered  in  the  debtor's 
handwriting,  after  a  bill  has  undergone  the 
sexennial  limitation,  amount  to  an  acknow- 
ledgment by  the  debtor's  writ  that  the  prin- 
cipal sum  was  due  after  the  six  years,  and 
therefore  afford  evidence  that  it  is  still  rest- 
ing-owing,  unless  he  proves  the  contrary.  See 
Ersk.  B.  iii.  tit  4,  §  1 ;  tit.  7,  §  39 ;  BdTs  Com. 
ii. 427,531;  Thomson  on  Bills,394,524-8,582, 
637,745.    Sw  Payment.    Indefinite  Paywieai. 
Partibiu ;  is  a  note  written  on  the  margin 
of  a  summons,  or  of  notes  of  advocation  or 
suspension,  when  lodged  for  calling,  contain- 
ing the  name  and  designation,  in  plain  and 
lesible  writing,  of  the  pursuer,  advocator,  or 
suspender ;  or  of  each  pursuer,  advocator,  or 
suspender,  if  there  be  only  two ;  or  if  more, 
the  name  and  designation  of  the  party  fint 
named,  with  the  words,  "  and  others."    And 
if  the  defenders,  respondents,  or  chargers,  are 
not  more  than  three,  their  names  and  desig- 
nations, one  or  more,  are  inserted  in  the  parti- 
bus;  but  if  there  be  more,  the  partibiu  con- 
tains the  name  of  the  party  first  named,  with 
the  words,  "  and  others,  as  per  roll,"  referring 
to  a  separate  roll  of  all  the  defenders,  re- 
spondents, or  chargers.    The  partibus  must 
also  contain  the  names  of  the  pursuer's,  ad- 
vocator's, or  suspender's  counsel  and  agent 
As  it  is  iVom  this  partibus  that  all  the  entries 
in  the  calling  lists,  rolls,  and  minute-book  are 
made,  it  is  of  great  consequence  that  it  be 
perfectly  correct     See  A.   S.   10th  Monk 
1772 ;  A.  S.  llth  Juiy  1828,  5  27.    See  also 
Shand^sPrac.  265,  et  seq.;  Maelaurin's Form  «f 
Process,  93.    See  Calling  a  Summons. 

Particata ;  in  old  law  language,  a  rood  of 
land.    Three  bere  corns,  without  tails,  set 
together,  in  length  make  an  inch,  one  of  which 
corns  should  be  taken  off  the  mid-rig,  one  off 
the  side  of  the  rig,  and  one  off  the  furrow. 
Twelve  inches  make  a  foot.     Three  feet  and 
an  inch  make  an  ell.    Six  ells  make  a  fall; 
and  six  ells  long  by  six  broad  make  a  squsre 
fall  or  rood.    Skene,  h.  t. 
Particular  Average.    See  Average. 
Partnership.    See  Society. 
Passage.    See  Road.    Ish  and  Entry. 
Paaiengers.    As  to  the  rights  and  Usbili- 
ties  of  passengers  by  land  and  sea,  see  the 
articles  Nautm,  Cauponts.     Public  Carriages. 
Luggage.     Stage-Coaches. 

Passes  for  Ships.  See  Ship.  Prite  Law. 
Capture. 

Passive  Titles.  By  the  law  of  Scotland, 
the  whole  property  of  a  deceased  person  is 
liable  for  all  the  debts  he  may  hare  con- 
tracted ;  and  the  heir  who  takes  up  thesoe- 
oeasion  of  the  deceased  thereby  incurs  a  per- 

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■onal  liability  for  his  debts  and  obligations. 
Anciently,  it  would  appear  thatt  he  responsi- 
bility of  the  heir  extended  no  farther  than 
to  the  ralne  of  the  property  to  which  he  suc- 
ceeded.    But  this  gare  facilities  to  the  heir 
for  secreting  much  of  the  deceased's  property, 
and  thereby  defrauding  creditors;    and  in 
order  to  obviate  such  frauds,  certain  acts  on 
the  part  of  the  heir  are  held  sufficient  in  law 
to  render  him  universally  responsible  for  the 
debts  of  the  ancestor.     This  has  been  termed 
a  passive  title,  by  which  the  heir,  without 
Acquiring  an  active  title,  as  by  service  or  con- 
firmation, tacitly  and  by  implication  subjects 
himself  to  the  responsibilities  belonging  to 
the  character  of  heir.    All  passive  represen- 
tation was   founded    on  a  presumption    of 
fraud  on  the  part  of  the  heir ;    and  therefore, 
where  an  heir  was  desirous  of  intromitting 
and  fairly  accoanting  for  his  intromissions  to 
the  creditors  of  the  ancestor,  he  might  do  so 
by  making  an  inventory  of  the  heritable  estate 
of  the  deceased,  and  serving  with  reference 
to  such   inventory,  technically  called  entry 
eum  beneficio  inventarii.    The  ancient  law  has 
been  restored  by  the  act  10  and  1 1  Vict.  c. 
47,  1847,  which  limits  the  responsibility  of 
an  heir  expeding  a  special  service  to  the  value 
of  the  lands  embraced  by  the  service.     By 
the  same  act,   the   representation   under  a 
general  service  may  be  limited  to  the  lauds 
specified.    With  regard  to  moveables,  where 
the  heir  chooses  to  pursue  the  regular  method, 
he  is  accountable  only  for  the  effects  con  firmed ; 
and  the  inclination  of  the  more  recent  decisions 
is  in  every  case,  whether  relating  to  heritable 
or  to  moveable  succession,  to  restrict  the  re- 
qtonsibility  to  the  value  of  the  succession, 
wherever  fraud  is  not  imputable  to  the  heir. 
See  Btfuficium  Inventarii. 

The  passive  titles  which  have  been  intro- 
dneed  for  the  security  of  creditors,  are,  I. 
Ocnkiial:  as,  1.  Gestioprohcerede;  2.  Pr<e- 
ceptio  htereditatit;  and,  3.  Certain  statutory 
or  presumptive  passive  titles.  Or,  II.  Pab- 
vial:  as,  1.  By  stating  a  peremptory  de- 
fenco ;  or,  2.  By  failing  to  renounce.  The 
only  passive  title  relating  to  moveable  succes- 
sion is  vitious  intromission.  A  few  words  will 
explain,  sufficiently  for  the  present  purpose, 
thegroands  and  natureof  those  passive  titles: — 

I.  Qenxbai.  Passitx  Tixlxs. 

1.  Geitio  pro  Harede. 
Oettio  pro  harede,  or  behaviour  as  an  heir, 
tignifiea  the  heir's  behaving  or  conducting 
himself  in  such  a  manner,  with  respect  to  his 
predecessor's  heritage,  as  none  but  the  heir 
u  legally  entitled  to  do.  See  Behaviour  at  Heir. 

2.  Praceptio  H<ereditatit. 
This  passive  title  may  be  incurred  where 


the  heir-apparent  accepts  fi-om  his  ancestor 
a  gratuitous  right  to  the  heritage,  or  any 
part  of  it,  to  which  he  himself  might  have 
succeeded  as  heir.  It  is  called  proeceptio  hare- 
ditatit,  because  it  is  a  taking  of  the  succession 
prematurely,  and  before  it  has  opened  to  the 
heir  by  his  ancestor's  death.     The  effect  of 
this  anticipation  is  to  render  the  heir  liable 
for  the  debts  of  his  predecessor  contracted 
prior  to  the  date  of  the  gift.   But  should  the 
disposition  to  the  heir  remain   latent,  and 
should  no  infeftment  be  taken  upon  it,  it  may 
be  reduced  on  the  head  of  fraud  by  posterior 
creditors  of  the  person  in  possession.  In  order 
to  subject  the  heir  in  this  passive  title,  the 
grant  must  be  gratuitous ;  for  there  is  no- 
thing to  prevent  a  fair  sale  to  the  heir  for  an 
adequate  price,  provided  evidence  of  the  one- 
rosity  of  the  transaction  be  preserved,  and 
that  there  be  no  room  for  challenge  under 
the  act  1621,  c.  18.    See  Conjunct  and  Cmtfi- 
dent.    When  a  right  of  this  kind  is  given  in 
implement  of  an  obligation  under  a  marriage- 
contract,  its  effect,  as  regards  the  passive  title, 
depends  on  the  fact  whether  the  contract  cre- 
ates aj|t<«  crediti  in  the  heir,  or  a  mere  spee 
succeesionis.      Where  the  niarriage-conti-act 
vests  fkjut  crediti  in  the  heir,  as,  for  example, 
when  it  contains  an  obligation  to  infeft  the 
heir  of  the  marriage  against  a  certain  day, 
the  heir,  in  that  case,  incurs  no  passive  title 
by  accepting  the  conveyance  from  his  father. 
On  the  other  hand,  where  the  heir  has  a  mere 
spe»,  he  will  incur  the  passive  title  by  accept- 
ing a  gratuitous  conveyance  from  his  father 
This  passive  title  may  be  incurred  by  the  me- 
diate as  well  as  the  immediate  apparent  heir 
in  the  direct  line.    Thus,  a  proprietor  cannot 
convey  gratuitously  to  his  grandson  any  more 
than  he  can  convey  to  his  son,  the  father  of 
that  grandson.    But,  in  the  case  of  a  gratui- 
tous ri^ht  granted  to  a  brother  by  one  who 
has  no  issue,  the  brother,  though  next  in  suc> 
cession  at  the  date  of  the  grant,  is  not  liable 
proeceptione ;  yet  a  daughter  (though  there 
might  have  been  a  male  heir  at  the  death  of 
the  father)  was  rendered  liable  praceptione 
for  acceptingof  a  disposition  from  her  father. 
The  conveyance  of  heritage,  or  an  assignation 
to  a  loan,  in  the  same  way  with  a  disposition 
to  lands,  falb  under  this  passive  title ;  but  a 
conveyance  of  moveables  to  the  heir  in  herit- 
age has  not  the  same  effect.      The  heir  who 
incurs  the  passive  title  of  prceeeptio  hareditatit 
is  no  farther  liable,  in  consequence  of  his  ac- 
ceptance, than  he  would  have  been  had  he, 
of  that  date,  entered  heir  to  the  grantor,  so 
as  to  subject  himself  to  the  debts  at  that  time 
chargeable  against  the  granter.  It  may  there- 
fore be  doubted  whether  he  would  now  be 
held  liable  beyond  the  value  of  ihe  subject 
received  from  his  ancestor.    The  heir  has  no 


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eoDoern  with  posterior  contractions ;  not  eren 
with  those  contracted  between  the  date  of  the 
right  and  the  infeftment  following  thereon. 
Hence,  the  heir  is  called  *w:ee*$or  iitulo  Iwra- 
tivo  pott  contraetum  debHum.  Erik.  B.  iii. 
tit,  8,  S  87,  et  teq. ;  Stair,  B.  iii.  tit.  5,  §§  10, 
14,  and  tit.  7  ;  Jfore's  Note*,  p.  cccxzxviii. ; 
Ersk.  B.  iii.  tit.  8,  §  87,  et$«q. ;  Bank.  ii.  374 ; 
BeWt  Com.  i.  660 ;  BeWs  Priite.  §  1918 ;  Sand- 
ford  on  Heritable  Swxettion,  ii.  90-4 ;  Brown't 
Sym>p.  1473,  1549 ;  S.  <t  D.  xiii.  31. 

The  passive  titles  of  gatio  pro  kerede  and 
prceceptio  h<ereditatis  agree  iu  this,  that  neither 
of  them  can  affect  the  heir,  unless  the  subjects 
he  such  as,  on  the  ancestor's  death,  he  is  en- 
titled to  take  np  gva  heir.  So  mnch  is  this 
the  case,  that  when  a  right  is  taken  by  a 
father,  not  to  himself,  but  to  his  son,  as  the 
■on  does  not  take  the  property  as  heir  bnt 
as  disponee,  he  is  not  liable  on  either  of  these 
passive  titles.  They  farther  agree  in  this, 
that  neither  title  can  be  extended  beyond  the 
effect  which  would  have  been  produced  by  the 
actual  entry  of  the  heir,  so  as  to  entitle  him 
to  the  benefit  of  discussion  and  an  action  of 
relief  against  executors,  or  any  other  order  of 
heirs,  primarily  liable  in  the  debts  he  may 
have  paid ;  and,  lastly,  they  agree  in  this, 
that  in  both  some  intromiesion  after  the  death 
of  the  ancestor  must  appear.  These  two  pas- 
sire  titles  differ,  however,  in  so  far,  that  be- 
harioDP  as  heir,  as  being  intromission  without 
the  order  of  law,  is  a  gttan  delict ;  and  there- 
fore, unless  an  action  has  been  raised  against 
tfae  heir  during  his  lifetime,  the  action  can- 
not be  brought  against  those  who  may  suc- 
ceed to  him ;  because  no  action  founded  on  a 
delinquency  is  transmitted  against  heirs, 
where  there  has  not  been  litiscontestation 
while  the  delinquent  was  alive.  But  the  prce- 
eeptio  hcereditatit  is  considered  as  equivalent 
to  an  entry  as  heir,  by  which  the  heir  enters 
into  an  implied  contract  with  the  creditors, 
and  undertakes  the  burden  of  the  ancestor's 
debts ;  and  all  obligations  arising  ex  contraciH 
are  transmissible  against  heirs.  Er$k.  B.  iii. 
tit  8.  §§  91, 92. 

3.  Statutory  Pattive  Titles. 
1.  An  adjudication  on  a  trrut-bond. — This 
is  an  expedient  whereby  an  heir,  who  is  un- 
eertain  as  to  the  state  in  which  his  ancestor  has 
left  his  affairs,  and  of  the  obli^tions  which  he 
may  incur  by  entering  heir,  instead  of  taking 
up  the  succession,  executes  a  bond  in  favour  of 
a  confidential  friend,  acknowledgin<;  a  debt  to 
him,  and  at  the  same  time  obtaining  a  back- 
bond from  the  confidential  person  explanatory 
of  the  nature  of  the  transaction.  The 
nominal  creditor  in  this  (rust-frond,  as  it  is 
called,  then  charges  the  heir  to  enter  to  his 
predecessor  in  the  nsual  form  ;  the  heir  r«- 


nonncet ;  and  the  nominal  creditor,  as  credi- 
tor of  the  heir,  obtains  a  decree  of  constitu- 
tion, and  thereafter  an  adjudication  against 
the  heereditat  jaeent  of  the  deceased.  0^  this 
the  trustee  is  infefi;  and  then,  in  implement 
of  the  back-bond,  he  dispones  the  subject  to 
which  he  has  thus  acquired  a  title  to  the  heir. 
To  prevent  the  bad  consequences  resulting  to 
creditors  from  this  device,  it  was  provided,  by 
the  act  1695,  c.  24,  that  if  an  heir,  without 
being  served,  shall  possets  any  part  of  bis 
ancestor's  estate,  or  purchase  any  right,  re- 
deemable or  irredeemable,  or  any  le^  dili- 
gence affecting  it,  otherwise  than  as  highest 
offerer,  without  collusion,  at  a  judicial  sale, 
such  possession  or  purchase  shall  be  deemed 
behaviour  as  heir.  8an«^ord  on  Berii.  S«e- 
een.  ii.  9,  16,  et  uq. ;  Jurid.  Sb^let,  2d.  edit 
ii.  96;  Br»k.  B.  iii.  tit  8.  §  72,  and  NoU  bj 
Mr  Ivory;  B*Wt  Frinc.  §  834;  Stmd/ord  m 
EutaiU,  349. 

2.  TU  patting  by  an  heir  tkree  year*  in  pot- 
settion. — This  passive  title  is  established  by 
the  act  1695,  c  24,  and  it  arises  where  aa 
heir,  passing  by  a  preceding  heir  who  had 
possessed  as  apparent  heir  for  the  period  vf 
three  years,  serves  to  a  more  remote  heir. 
Thus,  if  he  pass  by  his  father,  and  enter  ss 
heir  to  his  grandfather,  or  succeed  to  one 
more  remote,  upon  an  adjudication  proceeding 
on  his  trust-bond,  the  effect  of  this  is  to 
render  the  heir  so  passing  by  liable  for  the 
debts  and  deeds  of  the  heir  passed  by,  to  the 
value  of  the  estate  to  which  he  enters.  Is 
the  sense  of  this  act,  the  obligations  cone 
under  by  a  marriage-contract  will  be  effectoal 
against  the  estate,  because  they  are  aceonntsd 
onerous ;  but  the  heir  passing  by  is  not  boosd 
to  give  effect  to  the  gratuitous  deeds  of  th« 
interjected  apparent  heir.  Where,  howeva", 
the  heir,  withont  entering,  attains  posstenoo 
of  the  estate,  he  may  eontinne  the  possesnoo 
without  falling  under  the  statute,  or  incurring 
a  passive  title.  Ertk.  B.  iii.  tit  8,  §  94 ;  M* 
Com.  i.  664 ;  BeU't  Prine.  §  1929 ;  lUtuL  ib.; 
Kamet'  Equity,  124. 

3.  Under  the  same  statute,  1695,  c.  24,  it 
is  declared  to  constitute  a  passive  title,  tbst 
an  apparent  heir  shall  possess  any  part  of  the 
ancestor's  estate,  except  npon  lawful  pnrdisse 
by  public  roup,  under  a  title  vested  in  the 
person  of  any  such  near  relation  as  the  sp- 
parent  heir  may  also  succeed  to  M  heir.  Eri. 
B.  iii.  tit.  8,  §  94.     See  Apparent  Heir. 

II.  Pabtial  Passive  Titlks. 

1.  By  ttating  a  peremptory  defence. 

When  an  heir  is  cited  as  representing  hii 

ancestor,  he  incurs  a  passive  title  if  he  states 

a  peremptory  defence.    For  example,  were 

he  to  state  that  the  debt  has  been  paid  or  ex- 


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tingiiisb«d,  or  that  the  debt  is  prescribed,  he 
would  incur  a  paagive  title,  because,  unless  in 
the  character  of  heir,  he  has  no  title  to  state 
each  a  plea.  But  this  extends  only  to  the 
particular  debt,  and  does  not  infer  a  general 
panlYO  title.    Erik.  B.  iii.  tit.  8,  §  93. 

2.  Where  the  heir  neglects  to  renoftnce. 
Where  an  heir  is  charged  to  enter,  if  he  does 
not  mean  to  represent  the  deceased,  he  ought 
to  renounce  the  succession ;  and  if  he  neglects 
to  do  so,  he  incurs  a  passive  title,  and  may 
he  pursued  personally  for  the  debt :  this,  in 
the  same  manner  with  the  former,  infers  no 
farther  obligation  than  ia  regard  to  the  parti- 
cular debt  charged  on.  This  renunciation 
nay  be  made  and  produced  in  the  process  of 
constitution  at  any  time  before  decree  is  given, 
or  even  after  decree  has  been  pronounced,  if 
it  has  been  pronounced  in  absence.    Enk.  ib. 

YiriOUS  ISTKOUISSION. 

Vitieut  intromission  is  the  only  passive  title 
recognised  in  moveable  succession.  It  signifies 
an  unwarrantable  intermeddling  with  the 
moveable  estate  of  a  defunct  without  the  order 
•f  law.  This  passive  title  is  not,  like  those 
relating  to  heritage,  limited  to  the  persons 
legally  entitled  to  the  succession,  but  may  be 
JBcnrred  by  any  one  whose  opportunities  allow 
of  his  intromitting  with  the  deceased's  move- 
able effects;  and  the  mere  intermeddling  is 
BoflBcient,  although  the  article  should  not  be 
applied  to  any  use  by  the  intromitter.  So 
also,  an  executor  confirmed,  intromitting  with 
more  than  is  given  np  in  the  inventory  in  the 
confirmation,  is  accounted  a  vitious  intro- 
mitter. But  this  passive  title  has  no  place — 
1.  Where  the  article  intromitted  with  had 
ceased  to  be  part  of  the  defunct's  estate  prior 
to  the  intromission.  By  the  stat.  1696,  c  20, 
the  confirmation  of  an  executor-creditor,  as 
being  of  the  nature  of  a  step  of  diligence,  does 
not  screen  from  the  passive  title  a  third  party 
intermeddling,  unless  he  claim  through  the 
creditor  confirmed,  or  unless  his  intromission 
has  been  merely  with  the  special  subject  con- 
firmed. 2.  The  passive  title  is  excluded  by 
any  probable  title  in  the  intromitter  sufficient 
to  remove  the  presumption  of  fraud  on  which 
this  passive  title  rests;  and  necessary  intro- 
mission by  the  members  of  the  deceased's 
family,  custodies  causa,  infers  no  passive  title. 
Lastly,  The  passive  title  is  excluded  by  the 
intromitter's  confirmation  as  executor,  wbere- 
by  he  incurs  an  obligation  to  account  to  the 
extent  of  the  inventory  confirmed ;  and  where 
the  intromitter  is  a  relict,  or  one  of  the  next 
of  kin,  her  or  his  confirmation,  at  any  time 
within  a  year  after  the  death  of  the  defunct, 
will  exclude  the  passive  title,  notwithstanding 


a  prior  citation.  As  this  passive  title  is  in- 
tended for  the  benefit  of  creditors,  it  cannot 
be  pleaded  by  legatees;  and  as  it  arises  ex 
delicto,  it  cannot  be  founded  on  against  the 
heir  of  the  intromitter ;  but  if  the  action  be 
restricted  to  simple  restitution,  it  may  be  in- 
sisted in  against  the  intromitter's  representa- 
tive. It  also  follows,  from  this  being  a  delict, 
that  all  the  vitious  intromitters  are  liable 
singuli  in  solidum  to  the  creditors — the  intro- 
mitter who  pays  having  a  claim  of  relief  pro 
rata  against  his  co-delinquents;  and  if  the 
creditor  sue  the  intromitters  jointly  in  the 
same  summons,  they  are  liable  jn-o  virili — (.  e., 
in  equal  snms  according  to  their  number,  not 
according  to  the  extent  of  their  intromissions; 
Ersk.  B.  iii.  tit.  9,  §  49,  el  seq.  The  Act  of 
Sederunt  23d  Feb.  1692  establishes  a  pre- 
sumptive vitious  intromission  against  those 
who,  on  the  death  of  a  person  who  is  succeeded 
by  a  minor,  fail  to  seal  np  his  repositories  as 
soon  «s  he  becomes  insensible.  Where  the 
defunct  dies  in  his  own  house,  this  must  be 
done  by  his  nearest  relations.  Where  he 
dies  in  the  house  of  another,  the  duty  devolves 
on  the  master  or  mistress  of  the  house,  who 
must  deliver  the  keys  of  bis  repositories  to 
the  judge-ordinary,  forbehoof  of  all  concerned. 
Ersk.  B.  iii.  tit.  9,  §  49,  et  seq.  ;Bank.  iL  420 ; 
Bdl's  Com.  i.  661 ;  MTs  Prine.  §  1921 ;  Jurid. 
Styles,  2d  edit.  iii.  108,  112 ;  Stair,  B.  iii. 
tit.  9 ;  Morels  Notes,  p.  ccclxiv.  See  Executor. 
Pasturage;  is  a  known  rnral  servitude, 
whereby  the  proprietor  of  the  dominant  tene- 
ment is  entitled  to  pasture  a  certain  number 
of  his  cattle  on  the  grass  grounds  of  the  ser- 
vient tenement.  This  right  may  be  constituted 
either  by  express  grant  or  by  prescription. 
The  right  of  common  pasturage  is  often  given 
generally  in  the  original  feu-right,  and  in 
that  case  the  extent  of  the  burden  will  be 
explained  by  possesion  ;  or  the  grant  specifies 
the  ground  over  which  the  servitude  is  to  ex- 
tend. Where  the  right  extends  over  a  com- 
mon, and  is  indefinite  as  to  the  number  of 
cattle  to  be  pastured,  the  right  is  not  un- 
limited, but  will  be  regulated  as  to  its  extent 
by  the  number  of  cattle  which  each  of  the 
dominant  proprietors  can  fodder  during  the 
winter  on  the  dominant  lands.  The  action 
whereby  the  parties  having  servitudes  of  pas- 
turage over  a  common  adjust  their  rights  n 
called  an  action  of  sotming  and  rovming. 
Common  pasturage  may  be  constituted  by  pre- 
scription— t'.e.,by  the  acquirer's  uninterrupted 
exercise  of  the  right  for  forty  years  on  lands 
contiguous  to  his  own,  under  a  general  clause 
in  his  charter  cum  communi  pastura;  or  even 
by  the  common  clause  of  part  aud  pertinent, 
without  a  clause  of  pasturage.  The  proprietor 
of  the  dominant  tenement  is  not  entitled  to 
communicate  the  servitude  tocattle  apd  sheep 

Digitized  byCjOOQlC 


618 


PAT 


PAT 


not  his  own ;  thus,  he  cannot  let  the  right  of 
pasturage  to  drovers  or  others  bot  actually 
poasesging  the  dominant  lands.  The  pro- 
prietor of  the  gervient  tenement  may  plough 
portions  of  the  ground  over  which  the  servi- 
tude extends,  provided  he  leave  enough  in 
grass  for  the  use  of  the  dominant  tenement 
Ertk.  B.  ii.  tit.  9,  §  14,  et  teq. ;  Bank.  B.  ii. 
tit.  7,  §  32 ;  Beiet  Frine.  §  1013 ;  lUutt.  ib. ; 
RoM't  Led.  ii.  176 ;  BeU  on  Leaiet,  ii.  280 ; 
Stair,  B.  it.  tit.  3,  §  73;  tit.  7,  §  14.  See 
Sowming  and  Rouming. 

Patenta.  A  letter-patent  royal  is  a  grant 
ft'om  the  Crown  hnder  the  great  seal.  The 
term  patent  is,  however,  generally  understood 
to  mean  a  patent  for  an  invention.  Patents 
for  inventions  were  expressly  excepted  from 
the  operation  of  the  statute  21  James  I.  c  3, 
against  monopolies.  See  MotupolUs.  The 
6th  section  declares,  that  the  act  shall  not 
extend  to  letters-patent  or  grants  of  privi- 
lege for  fourteen  years,  "of  the  sole  working 
or  making  of  new  manufactures  within  the 
realm,  to  the  true  and  first  inventor  and  in- 
ventors of  such  mannfactures,  which  others 
at  the  time  shall  not  use,  so  as  also  they  be 
not  contrary  to  the  law,  nor  mischievous  to 
the  State,  by  raising  prices  of  commodities  at 
home,  or  hurt  of  trade,  or  generally  incon- 
venient. The  said  fourteen  years  to  be  ac- 
counted from  the  date  of  the  first  letters- 
patent,  or  grants  of  such  hereafter  to  be  made ; 
but  that  the  same  shall  be  of  such  force  as 
they  should  be  if  this  act  had  not  been  made, 
and  of  none  other."  The  act  5  and  6  Will. 
IV.  c.  83  was  passed  to  amend  the  laws 
touching  letters-patent  for  inventions,  and  to 
afford  better  protection  to  the  patentees.  The 
following  are  the  provisions  of  this  act : — Any 
person  who,  as  grantee,  assignee,  or  other- 
wise, has  obtained,  or  shall  obtain,  letters- 
patent,  may  enter  with  the  clerk  of  the  pa- 
tents of  England,  Scotland,  or  Ireland,  having 
first  obtained  the  leave  of  the  Attorney- 
General  or  Solicitor-General  in  the  case  of 
an  English  patent ;  of  the  Lord  Advocate  or 
Solicitor-General  of  Scotland  in  the  case  of  a 
Scotch  patent;  or  of  the  Attorney  or  Solicitor- 
General  for  Ireland  in  the  case  of  an  Irish 
patent— certified  by  his  Jiat  and  signature — 
a  disclaimer  of  any  part  of  either  the  title  of 
the  invention  or  of  the  specification,  stating 
the  reason  for  such  disclaimer ;  or  he  may, 
with  the  same  leave,  enter  a  memorandum  of 
any  alteration  in  the  title  or  specification, 
provided  it  be  not  such  a  disclaimer  or  alter- 
ation as  shall  extend  the  exclusive  right 
granted  by  the  letters-patent.  This  disclaimer 
or  memorandum  of  alteration  being  filed  by 
the  clerk  of  the  patents,  and  enrolled  with 
the  specification,  is  held  as  part  of  the  letters- 
patent  or  specification  in  all  courts  whatever. 


The  specification  here  mentioned  means  s 
description  of  the  invention,  which,  in  terms 
of  an  act  of  Queen  Anne,  must  be  given  in 
and  enrolled  in  Chancery.     The  construction 
of  the  words  in  q>ecification8  is  very  strict 
The  invention  must  be  fully,  fairly,  and  in- 
telligibly described,  and  must  exactly  aeeorti 
with   the   patent    The  method  and  effect 
must  be  fully  detailed,  and  nothing  usefiil 
omitted,  and  the   most  advantageous  mode 
most  be  stated.    The  terms  employed  an 
interpreted  according  to  the  acceptaticm  of 
practical  men  at  the  time  of  the  enrolmeDt 
In  order  to  give  time  for  preparing  a  proper 
specification,  the  application  for  a  patent  may 
be  preceded  by  a  caveat  to  prevent  surprise ; 
but  this  will  not  prevent  disclosure,  nor  de- 
bar other  inventors — the  preference  of  the 
pretensions  of  competitors  being  determined 
on  proof  of  their  rights.    The  act  provides, 
that  any  person  may  enter  a  caveat  against  a 
disclaimer  or  alteration,  which  gives  the  party 
entering  it  a  right  to  have  notice  of  the  ap- 
plication being  heard  by  the  Attomey-Qe- 
neral  or  Solicitor-General  or  Lord  Advo- 
cate, respectively.  No  disclaimer  or  alteration 
can  be  received  in  evidence  in  any  action  or 
suit  (except  in  proceedings  by  scire  faeiat) 
pending  at  the  time  when  such  disclaimer  or 
alteration  was  enrolled ;  but  in  such  actions 
the  original  title  and  specification  alone  are 
received.    The  Attorney  or  Solicitor  General 
or  Lord  Advocate  may,  before  granting  his 
fiat,  require  the  party  applying  for  it  to  ad- 
vertise his  disclaimer  or  alteration,  as  may 
seem  right ;  and  if  such  advertisement  is  re- 
quired, the^  must  certify  that  it  has  been 
duly  made.     If   in   any  suit  it  be  proved 
or  specially  found  by  the  verdict  of  a  jury, 
that  any  person  who  has  obtained  letten- 
patent  for  an  invention,  or  supposed  inven- 
tion, was  not  the  first  inventor  of  it,  or  of 
part  of  it,  by  reason  of  some  other  peraon 
having  invented  or  used  it,  or  some  part  of  it, 
before  the  date  of  the  letters-patent ;  or  if 
the  patentee  or  his  assignees  discover  that 
some  other  person  had,  unknown  to  him,  in- 
vented it,  he,  the  patentee,  or  his  assignees, 
may  petition  her  Majesty  in  Council  to  con- 
firm the  letters-patent,  or  grant  new  letters- 
patent.    The  matter  of  this  petition  is  heard 
before  the  judicial  committee  of  the  Privy 
Council ;  and  this  committee,  upon  examining 
the  matter,  and  being  satisfied  that  the  paten- 
tee believed  himself  to  be  the  first  and  original 
inventor,  and  that  the  invention,  or  part  of  it, 
had  not  been  publiclyand  generally  used  before 
the  date  of  the  first  letters-patent,  may  report 
to  her  Majesty  their  opinion  that  the  prayer  of 
the  petition  ought  to  be  complied  with,  and  her 
Majesty  may,  if  she  think  fit,  grant  the  prayer. 
The  letters-patent  are  then  available,  in  law 

Digitized  byLjOOQlC 


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PAT 


619 


nnd  equity,  to  give  to  the  petitioner  the  sole 
right  of  nsing,  making,  and  vending  the  in- 
reution  against  all  persona  whatever.    Any 
penon  opposing  the  petition  is  entitled  to  be 
beard  before  the  committee;  and  any  party 
to  a  former  suit  or  action,  touching  the  first 
letters-patent,  is  entitled  to  have  notice  of  the 
petition  before  iU  being  presented.    If  any 
action  at  law,  or  any  suit  in  equity  for  an 
aceonnt,  be  brought  for  infringement  of  let- 
ters-patent, or  any  tare  facias  to  repeal  them, 
and  if  a  verdict  pass  for  the  patentee  or  his 
assignees,  or  if  a  final  decree  or  decretal 
order  be  made  for  him  or  them  upon  the 
merits  of  the  suit,  the  judge  before  whom  the 
action  is  tried  may  certify  on  the  record,  or 
the  judge  who  makes  the  decree  or  order  may 
give  a  certificate  under  his  hand,  that  the 
validity  of  the  patent  came  in  question  be- 
fore him.     And  this  record  or  certificate, 
given  in  evidence  in  any  other  suit  or  action 
touching  the  patent,  entitles  the  patentee  or 
his  assignees,  if  a  verdict  pass  or  a  decree  be 
made  in  his  or  their  favour,  to  treble  costs,  to 
be  taxed  at  three  times  the  taxed  costs ;  un- 
less the  judge  who  tries  the  second  or  other 
action  certify  that  treble  costs  ought  not  to 
be  given.    Application  may  be  made  for  pro- 
longation of  the  term  of  the  patent.    The 
provisions  ot  the  act  upon  this  subject  are, 
that  if  any  person  who  has  obtained  letters- 
patent  advertise  in  the  London  Gazette  three 
times,  and    in  three  London   papers,    and 
three  times   in   some    country  paper  pub- 
lished in  the  town  where,  or  near  to  which, 
he  carried  on  the  manufacture  according  to 
the  specification,  or  in  which  he  resides,  if  he 
carry  on  no  manufacture,  or  published  in  the 
county,  if  there  be  none  published  in  the 
town,  that  he  intends  to  apply  to  her  Majesty 
in  Council  for  a  prolongation  of  his  exclusive 
privilege ;  and  if  he  petition  her  Majesty  to 
that  effect,  any  person  may  enter  a  caveat 
at  the  Council  Office.     And  if  her  Majesty 
refer  the  consideration  of  the  petition  to  the 
judicial  committee  of  the  Privy  Council,  and 
notice  be  given  to  the  persons  entering  caveatt, 
the  petitioner  and  persons  entering  caveats  are 
heard  by  counsel  and  witnesses.    The  com- 
mittee may  then  report  to  her  Majesty  that 
an  extension  of  the  term  in  the  letters-patent 
should  be  granted  ;  and  her  Majesty  is  autho- 
rized, if  she  think  fit,  to  grant  new  letters- 
patent  for  a  term  not  exceeding  seven  years 
after  the  expiry  of  the  first  term.    No  exten- 
sion can  be  granted  if  the  petition  be  not  made 
and  prosecuted  with  effect  before  the  expira- 
tion of  the  term  originally  granted  in  the 
letters-patent.     In  any  action  brought  for 
the  infringement  of  letters-patent,  the  defend- 
ant, on  pleading  to  the  action,  must  give  to 
the  plaintiff,  and  in  any  scire  facias  to  repeal 


letters-patent  the  plaintiff  roust  file  with  his 
declaration,  a  notice  of  any  objections  on  which 
he  means  to  rely  at  the  triid  of  the  action ; 
and  no  objection  is  allowed  to  be  made  in  be- 
half of  such  defendant  or  plaintiff  unless  he 
prove  the  objections  stated  in  the  notice.  But 
any  judge  at  chambers  may,  on  summons 
serv^  by  snch  defendant  or  plaintiff  on  his 
opponent  to  show  cause  why  he  should  not  be 
allowed  to  offer  other  objections,  give  leave  to 
offer  objections  of  which  notice  has  not  been 
given.  In  actions  brqnght  for  infringement 
of  a  letter-patent,  the  costs  of  each  part  of 
the  case  are  given  according  as  either  party 
has  succeeded  or  failed  therein,  regard  being 
had  to  the  notice  of  objections,  as  well  as  the 
counts  in  the  declaration,  and  without  regard 
to  the  general  result  of  the  tri^l.  If  any 
person  put  upon  goods  made  or  sold  by  him, 
without  a  patent,  the  name  or  imitation  of  the 
name  of  a  patentee  for  such  goods,  or  the 
word  "  Patent,"  "  Letters-Patent,"  or  such 
like  word,  without  leave  in  writing  from  the 
patentee  or  his  assignees,  he  is  liable  for  each 
offence  to  a  penalty  of  fifty  pounds,  to  be  re- 
covered in  any  of  the  Courts  of  Record  at 
Westminster  or  in  Ireland,  or  in  the  Court  of 
Session  in  Scotland.  One  half  of  the  penalty 
goes  to  the  Crown,  the  other  to  the  person 
who  sues  for  it. 

In  the  construction  of  these  statutes,  it  has 
been  found  that  the  subject  of  a  patent  must 
be  something  vendible.  A  mere  principle  or 
method  would  not  be  sufficient ;  but  if  the 
patent  were  actually  for  a  process  or  thing 
produced,  it  would  not  be  a  valid  objection 
that  the  specification  described  it  as  a  me- 
thod. A  new  process  of  manufacture,  to  be 
carried  on  by  known  implements,  or  element* 
acting  upou  known  sul»tances,  so  as  to  pro- 
duce some  other  known  substance,  may  be  a 
lawful  subject  of  patent,  provided  it  be  in  a 
cheaper,  better,  or  more  expeditious  manner. 
The  improvement  of  an  old  commodity  or 
manufacture  is  a  fair  subject  of  patent,  pro- 
vided the  old  part  be  not  described  as  new. 
A  patent  for  an  entire  subject,  in  which  an 
old  is  united  with  a  new  commodity,  is  bad, 
unless  the  combination  be  new,  and  produc- 
tive of  a  new  result.  The  improver  of  a  ma- 
chine under  an  existing  patent  cannot,  with- 
out the  consent  of  the  patentee,  use  his  in- 
vention till  the  expiration  of  the  first  patent. 
A  discovery  or  invention  imported  may  be  the 
subject  of  a  patent.  But  a  patent  for  an  in- 
vention truly  made  by  the  patentee  will  be 
good,  although  a  model  of  a  similar  machine 
imported  from  abroad  had  been  seen  before 
the  date  of  the  patent,  provided  the  machine 
itself  have  not  previously  been  made  and  in- 
trodnced  into  practice.  The  patentee  may 
either  grant  license  to  certain  individuals  to 

Digitized  byLiOOQlC 


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PAT 


PAT 


ose  his  right,  or  he  may  transfer  his  entire 
right  by  one  deed  of  assignation,  accompany- 
ing the  transfer  with  delivery  of  the  patent ; 
and  his  creditors  may  compel  him  to  raise 
money  in  this  way  for  their  payment.  A  pa- 
tentee cannot  transfer  his  right  to  more  than 
f  re  persons.     In  BeW$  Illiutrationt,  vol.  i., 

!i  1350,  abstracts  are  giren  of  several  Eng- 
ish  decisions  upon  the  subject  of  patents. 
See  also  BdPs  Com.  i.  109,  et  teq.;  BeWt 
Princ.  §  1318;  Mor^$  Nota  on  Stair,  cxli. 
See  Literary  Property.  • 

The  law  concerning  letters-patent  for  inven- 
tions was  amended  by  the  acts  15  and  16  Viet, 
c  83, 1852,  and  16  and  17  Vict.  c.  115, 1853. 

Pater  est  fnem  Vnptis  D«meiutraat. 
See  Filiation,    Legitimary. 

Patemapatemis,  Materia  maternis.  In 
the  Roman  law,  where  a  person  died  leaving 
half-brothers,  both  consanguinean  and  uterine, 
a  distinction  was  taken,  as  to  his  succession, 
between  what  he  had  derived  from  bis  father 
and  what  he  had  derived  from  his  mother. 
The  former  went  to  his  brothers-conaangai- 
nean,  the  latter  to  his  brothera-nterine,  on 
the  maxim,  Patema p<jUemi$,  matenxa  matemit. 
And  generally,  the  principle  of  the  maxim 
applied  to  any  competition  between  relations 
on  the  father's  and  mother's  side.  This  rule 
has  no  place  in  the  law  of  Scotland,  where 
the  half-blood  uterine,  and  in  general  all  the 
relations  by  the  mother's  side,  are  excluded 
from  succeeding.   Stair,  B.  iii.  tit.  4,  §§  8, 34. 

Patwnity'.     See  Filiation. 

Patria ;  in  old  law  language,  an  assize  or 
inquest  of  countrymen,  which  is  called  r«- 
eognitio  patria.    Skene,  h.  t.   See  Bona  Patria. 

Patriia  Potettai.  A  term  used  to  express 
the  singular  power  of  Roman  citizens  over 
their  offspring.  An  nnemancipated  son,  pos- 
sessing in  every  other  relation  the  high  pri- 
vileges of  a  Roman  citizen,  was  merely  a  part 
ef  his  parent's  property.  By  the  laws  of  the 
twelve  tables,  the  father  had  the  power  of 
life  and  death  over  his  children.  He  could 
expose  them  when  infants,  and  their  legiti- 
macy depended  upon  his  acceptance  of  them. 
He  could  sell  them,  or  resign  them,  instead 
of  paying  the  damages  which  he  had  incurred 
through  their  fault.  He  and  they  were,  in 
matters  of  private  right,  held  as  one  person, 
and  there  could  be  neither  obligation  nor  ac- 
tion between  them.  They  could  neither  con- 
tract marriage  nor  do  anything  else  of  im- 
portance without  his  consent.  But  when  he 
did  permit  his  daughter's  marris^,  his  pa- 
ternal rights  as  to  her  were  destroyed,  and 
she  became,  equally  with  her  own  daughters, 
the  JUia  famuias  of  her  husband.  A  son 
could  acquire  no  property  but  with  his  fa- 
ther's consent ;  and  even  when  such  consent 
was  granted,  Jiis  acquisitions  were  called  pe- 


eMtm,  the  term  applied  to  the  portion  oft 
slave.  See  PeaUium.  The  patria  potettu 
yielded  to  the  ton's  official  dignity,  bat  re- 
vived when  that  ceased,  extending  even  to 
grandchildren  and  great  grandchildren,  tad 
coating  only  when  extinguished  by  natsnl 
or  civil  death,  or  by  the  ceremony  of  emanci- 
pation. Emancipation  was  effected  peraiH 
libram — i. «.,  by  selling  the  son  three  times,  in 
presence  of  a  competent  magistrate,  to  sl  pater 
jUditciarius,  who  was  held  bonnd,  after  the 
third  sale,  to  re-sell  him  to  his  natoral  father, 
who  then  finally  manumitted  him,  retaining 
the  JH$  patronatiu.  Daughters  and  grand- 
children, in  their  manumission,  were  sold 
only  once,  with  the  same  formalities.  Bat 
these  tronblesome  eeremoniea  were  gradually 
abolished;  and  under  Justinian,  a  father 
could  go  before  any  competent  magistrate, 
and  with  his  son's  consent  declare  him  free. 
The  despotic  authority  here  described  as  exer- 
cised by  Roman  parents  was  not  anthorixed 
by  the  later  law.  Several  emperors  had  it- 
sued  constitutions  to  restrain  the  cruelty  with 
which  fathers  abused  their  trust.  Fir«t  tbe 
right  of  sale,  and  then  the  power  of  life  and 
death  were  taken  away ;  while  that  of  mo- 
derate chastisement  was  reserved,  and,  in  tg- 
gravated  cirmei  committed  by  tbe  son,  the 
privilege  of  prescribing  his  punishment  to  the 
judge.  L.  3,  et  ult.G.de  pat. ;  poU  L.  m  G. 
de.  emend,  propinqu, ;  L,  ti».  C.  de  bit  qui  par. 
vel  Ub.  oceid. ;  L.  l\,  D.  de  Ub.et  poginm.  In 
Scotland,  authority  so  great  has  never  been 
recognised  ;  aad  the  relations  of  parent  and 
child  are,  directed  by  the  light  of  nature, 
viewed  through  a  milder  medium.  On  this 
subject,  see  Stair,  B.  i.  tit.  5  ;  MauU  v.  Mmk, 
9ih  July  1823,  appealed  in  1825,  especially 
Lord  Eldon's  speech  ;  Wdlesley,  June  4, 1823. 
See  also  Parent  and  Child.  GhUdrea.  Fm$- 
familiation.  Aliment,   Adoption.    Arrogafyit. 

Patriarch ;  was  the  title  anciently  men 
to  the  head  of  the  Christian  Chnrcb.  Tbts 
there  was  the  Patriarch  of  Jerusalem,  of 
Alexandria,  of  Antioch,  of  Rome,  and  of 
Constantinople,  each  of  which  had  primates, 
archbishops,  and  bishops  under  him  ;  though 
the  title  bishop  was  used  to  express  even  the 
patriarch  himself.  These  patriarchs  origi- 
nally were  all  of  eqnal  authority,  and  eonti- 
nned  to  be  so  until  tbe  beginning  of  the  se- 
venth century,  when,  fiom  several  favonrable 
incidents,  the  Patriarch  of  Rome  was  acknow- 
ledged by  almost  all  the  western  parts  of 
Christendom  as  the  flnt  and  universal  bishop 
of  the  Church,  by  the  name  of  papa,  or  father, 
an  appellation  formerly  common  to  all  bi' 
shone.     ErsL  B.  i.  tit.  5,  §  2. 

Patrimony ;  an  hereditary  estate  or  ri^t 
descended  from  ancestors. 

Patrimony  of  the  dmreh.    The  pttri- 

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mony  of  the  Church  consisted  of  two  branches: 
1.  Of  the  property  of  such  lands  as  had  been 
gifted  or  devised  to  the  Church,  which  was 
called  the  temporality  of  benefices.  2.  Of  the 
tithes  of  lands,  which  got  the  name  of  the 
spirituality  of  benefices.  Er»k.  B.  ii.  tit.  10, 
f  4.     See  Teinds. 

Patronage.  A  patron  is  one  who  enjoys, 
along  with  other  rights  of  less  importance, 
tho  right  of  presenting  a  parochial  minister 
to  a  vacant  charge.  It  would  appear  that  pa- 
trons were -originally  merely  the  guardians  of 
the  temporal  property  of  particular  churches ; 
and  that  the  rights  afterwards  attached  to 
patronage  were  at  first  conceded  by  the 
Church  only  to  those  who  endowed  particular 
churches,  with  a  view  to  encourage  the  prac- 
tice. Afterwards,  however,  similar  rights,  in 
reference  to  other  churches,  were  assumed  by 
persons  of  influence  in  the  neighbourhood; 
and  while  the  Roman  Catholic  religion  pre- 
vailed, the  Pope,  and  since  the  Reformation 
the  Crown,  have  claimed  to  be  considered  pa- 
trons of  all  churches  in  regard  to  which  no 
right  of  patronage  could  be  shown  by  indivi- 
duals. In  addition  to  the  right  of  presenta- 
tion, the  patron  in  former  times  had  a  pre- 
eminent seat  and  a  burial-place  in  the 
ehurch,  and  a  right  of  precedency  in  pro- 
cessions ;  his  name  and  arms  were  engraved 
on  the  church,  bells,  &c  He  had  also  the 
disposal  of  the  fruits  of  the  benefice  during  a 
vacancy,  and  his  consent  was  necessary  to  the 
validity  of  leases  or  feus  by  the  incumbent. 
The  vacant  stipends  now  go  to  the  Ministers' 
Widows'  Fund.  See  Vacant  Stipend.  The  sta- 
tute 1567,  c.  7,  which  abolished  Popery  and 
recognised  the  Reformed  religion,  reserved 
'*-the  presentation  of  laick  patronages,"  by 
"  the  just  and  aunoient  patrones."  And,  in 
still  broader  terms,  the  act  1592,  c.  110,  pro- 
vided that  the  presbyteries,  to  whom  all  pre- 
ceotations  were  thereby  appointed  to  be  di- 
rected, "  be  bound  and  astricted  to  receive 
and  admit  quhatsumever  qualified  minister 
presented  be  his  Majesty  or  laick  patronis." 
The  act  immediately  succeeding  (c.  117) 
declared,  in  reference  to  benefices  rendered 
vacant  by  the  deposition  of  the  incumbent, 
that  if  the  presbytery  refused  a  minister  pre- 
sented by  the  patron,  the  latter  should  be 
entitled  to  retain  the  fruits  of  the  benefice. 
On  the  establishment  of  Episcopacy,  the 
principle  of  these  acts  was  adopted  in  the  act 
1612,  c.  1,  by  which  presentations  were  ap- 
pointed to  be  directed  to  the  bishop  of  the 
diocese ;  and  it  was  provided  that  if  the 
bishop  should  refuse  to  admit  a  qualified  mi- 
nister, still  undeprived,  it  should  be  lawful 
for  the  patron  to  retain  the  fruits  of  the  bene- 
fice ;  and  that  if  no  suflicient  reason  should 
be  given  for  refusal,  letters  of  homing  should 


be  issued,  charging  the  ordinary  (t. «.  the  bi- 
shop) to  do  his  duty  in  receiving  and  admit- 
ting the  presentee.  Some  time  after  the  re- 
establishment  of  Presbytery,  patronage  was 
abolished  by  1649,  c.  23,  which  empowered 
presbyteries  to  settle  ministers  "  on  the  sute 
and  calling,  or  with  the  consent  of  the  con- 
gregation, on  whom  none  is  to  be  obtruded 
against  their  will."  At  the  Restoration,  the 
act  1649  fell  under  the  Rescissory  Act.  But 
patronage  was  again  abolished  by  1690,  c.  23, 
anfl  the  right  of  election,  for  the  approval  of 
the  congregation,  given  to  the  elders,  with  the 
heritors,  or  the  magistrates  in  burghs.  As 
compensation,  patrons  were  to  receive  600 
merks  (L.33,  6s.  sterling) ;  on  receiving 
which  they  were  bound  to  execute  a  deed  of 
renunciation  of  the  patronage.  Only  three 
parishes  (Cadder,  Old  and  New  Monkland) 
had  obtained  effectual  renunciations,  when 
the  right  of  patrons  to  present  was  again  re- 
stored by  10  Anne,  c.  12,  which  declared 
that  it  should  be  lawful  to  all  patrons,  who 
had  not  executed  renunciations  in  terms  of 
the  former  statute,  to  present  as  formerly,  and 
that  presbyteries  should  be  bound  to  admit 
the  qualified  presentees  as  presentees  ought 
to  have  been  admitted  before  the  passing  of 
the  act.  This  act  is  still  in  force  ;  and  at  pre- 
sent, accordingly,  the  first  step  in  the  settle- 
ment of  a  parochial  minister  is  the  presenta- 
tion by  the  patron.  But  the  presentee  must, 
before  he  acquires  a  right  to  the  stipend  and 
other  emoluments  of  his  office,  be  admitted  to 
it  according  to  the  rules  of  the  Church.  The 
forms  of  admission  and  ordination  by  the  pres- 
bytery, after  trial  and  examination,  are  so  far 
explained  in  the  articles  MiuUter ;  Admistion. 
Patronage  is  an  heritable  right.  But  it  is 
naturally  a  ju»  incorporaie,  transferable  by 
disposition  without  infeftment.  It  is,  bow- 
ever,  capable  of  being  feudalized,  after  which 
it  can  be  completely  conveyed  only  by  infeft- 
ment. The  usual  symbols  are  a  psalm-book 
and  the  keys  of  the  church.  It  was  held  that 
patronages  were  not  included  in  the  Act  of 
Annexation  1587.  Lords  of  Erection  were 
held  entitled  to  exercise  a  right  of  patronage, 
by  presenting  ministers  to  the  several  churches 
attached  to  the  erected  benefices.  The  Crown, 
as  already  said,  has  right  to  all  patronages  to 
which  no  title  can  be  proved  ;  and  hence,  in 
a  question  with  the  Crown,  the  failure  of  a 
subject  to  prove  his  title  establishes  the 
Crown's  right.  The  jus  coronoe  is  a  title  on 
which  prescription  may  run.  A  Grown  char- 
ter of  resignation,  containing  patronages  not 
previously  belonging  to  the  resigner,  will  not 
carry  these  patronages  without  a  clause  of 
novodamus.  Titles  to  patronages,  otherwise 
ineffectual,  may  be  fortified  by  prescription. 
But,  as  in  the  case  of  other  rights,  the  pre- 

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seription  will  not  carry  more  tfaan  is  in  the 
title ;  and  it  has  been  held  that  a  grant  of 
the  patronages  of  a  lordship,  qualified  with  a 
declaration  that  it  was  not  to  be  prejudicial 
to  the  Crown's  right  of  presenting,  which  was 
reserved,  was  not  a  good  title  for  acquiring 
patronage  by  prescription ;  King's  Advocate, 
18th  May  1830,  8  S.  <fc  Z).  765.  Nor  can  a 
title  to  a  right  to  present  altemis  vicibus  only 
be  a  foundation  for  acquiring  by  prescription 
a  right  to  the  exclusive  patronage ;  Brodie, 
July  1777,  if.  9937.  It  is  difficult  to  say 
precisely  what  is  to  be  considered  as  poases- 
sion  of  a  patronage  during  the  years  of  pre- 
scription ;  for  the  possession  of  the  presentee 
being  altogether  independent  of  the  patron, 
cannot  be  held  as  the  patron's  possession.  It 
has  been  decided,  by  a  majority  of  the  whole 
Court,  that  one  act  of  presentation,  though 
followed  by  an  incumbency  of  the  presentee 
for  more  than  forty  years,  is  not  possession 
which  can  bestow  a  prescriptive  right ; 
M'DonneU,  Feb.  26.  1828,  6  S.  <t  D.  600. 
Bat  a  m^ority  of  the  judges  inclined  to  the 
opinioB  that  two  acts  of  presentation  were 
sufficient,  if  forty  years  had  run  from  the  date 
of  the  first,  although  forty  years  had  not  in- 
tervened between  the  two.  One  judge,  how- 
ever, held  that  there  must  be  two  acts  of  pre- 
sentation, the  one  at  or  after  the  interval  of 
forty  years  from  the  other.  A  right  of  pa- 
tronage cannot  be  lost  by  mere  neglect  to 
exercise  it.    There  must  be  contrary  positive 

Ereeeription.  Where  two  or  more  parishes, 
aving  separate  patrons,  are  united,  the  com- 
missioners are  authorized,  by  1617,  c.  3,  to 
appoint  the  right  of  presenting  to  be  exer- 
cised per  vieei,  Bren  in  cases  where  the 
rights  of  the  patrons  are  not  regulated  by 
the  commissioners,  the  rule  of  the  statute 
takes  effect.  It  was  first  decided  that  when 
there  were  different  patrons  of  the  united 
parishes  at  the  date  of  the  union,  the  pre- 
sentation belongs  to  the  patrons  per  vices, 
whatever  be  the  inequality  in  extent  of  the 
respective  parishes.  And  in  a  recent  case 
where  two  benefices,  A.  and  B.,  the  latter  of 
small  value,  belonging  to  the  same  individual, 
but  held  by  separate  feudal  titles  flowing  i^m 
different  authors  under  different  superiors, 
and  with  different  destinations,  were  united 
by  decree  of  the  Commission  1617,  without 
any  mention  of  the  right  of  presentation — it 
being  thereby  declared  that  B.  should  be 
unit&l  and  annexed  to  A.,  as  a  "  part  and 
pendicle  of  that  parish"— and  where  the  pro- 
prietor subsequently  disponed  the  two  pa- 
tronages to  different  disponees,  in  terms  of 
the  titles  as  they  existed  before  the  union,  it 
was  held  that  the  disponee  to  the  patron- 
age of  A.  had  not  the  exclusive  right  of  pre- 
sentation to  the  united  parish,  and  that  the 


disponee   to  the  patronage  of  B.  had  aa 
equal  vice  therein ;   EaH  ^  ffopetowt,  March 
11, 1835, 13  S.  *  D.  685.     The  patron  of 
the  larger  benefice  is  entitled  to  the  first  nee 
after  the  union.     The  Crown,  when  one  of 
the  patrons,  is  entitled  to  the  first  vice.   Er- 
slcine  lays  it  down,  that  in  the  case  of  hein- 
portioners,  a  patronage  is  not  a  prtEopatni 
falling  to  the  eldest,  but  that  all  in  torn  are 
entitled  to  present,  according  to  seniority; 
and  that  other  joint  patrons  would  hare  ri^t 
to  present  per  vices,  and  not  jointly  on  each 
vacancy ;  Erik.  B.  i.  tit.  6,  §  1 ;  B.  iii.  tit.  8, 
§  13.     Where,  however,  a  patronage  is  con- 
veyed to  a  class  of  persons,  as  the  heritors  of 
a  parish,  each  individual  has  a  vote,  and  the 
election  is  determined  by  the  majority.    If  a 
new  parish  be  formed  out  of  parts  of  other 
parishes,  the  patrons  of  these  will  have  right 
to  present  per  vices  to  the  new  parish,  withoat 
regard  to  the  extent  obtained  from  the  several 
parishes.     If  a  second  charge  be  founded  and 
endowed  without  reserving  the  right  of  pa- 
tronage, it  will  belong  to  the  patron,  unless 
he  be  excluded  by  immemorial  usage  in  pre- 
senting on  the  part  of  the  founders  of  the 
second  charge.     According  to  Erskine,  the 
reservation  of  the  right  of  patronage  would 
be  effectual  in  such  a  case  ;  Ertk.  B.  i.  tit.  5, 
§  15.    But  it  seems  to  have  been  considered 
ineffeetual  in  the  case  of  Ouninykam,  Feb.  26, 
1762,  Jf.  9933.     A  right  of  patronage  ouy 
be  made  the  subject  of  a  liferent  provision,  by 
way  of  locality  to  a  widow,  and  she  will  hare 
right  to  present  during  her  lifis.    The  msgi»- 
trat«s  of  a  royal  burgh  cannot  alienate  the 
patronage  of  a  church  within  burgh.  Where 
a  patronage  is  given  to  one  in  liferent,  and 
another  in  fee,  the  liferenter  is  entitled  to 
present.     Where,  however  (as  may  be  validly 
done),  the  patronage  is  conveyed  to  the  heri- 
tors of  a  parish,  fiars  only  are  understood  to 
be  meant.      A  presentation  by  a  married 
woman  must   have  the  concurrence  of  her 
husband.       A   tutor   may   present  to  the 
churches  of  which  his  pupil  is  patron ;  and 
minors  may  present — ^their  curators,  if  they 
have  any,  giving  their  consent.     A  patrw 
cannot  present  himself  to  the  benefice.    For 
other  questions  relative  to  the  exercise  of  pa- 
tronage, see  the  article  Presentation.     The 
exercise  of  the  right  of  patronage  may  some- 
times give  rise  to  questions  of  right ;  and  it 
may  be  difficult  to  determine  whether  the 
civil  or  ecclesiastical  courts  have  jurisdiction 
in  these  questions.     The  judgment  of  the 
church  courts  is  absolute  in  determining  the 
fitness  of  the  presentee  for  the  pastoral  office; 
but  the  Court  of  Session  has  the  primary  and 
exclusive  jurisdiction  in  questions  rehitive  to 
the  validity  of  the  presentation.    Although, 
however,  a  presbytery  should  erroneously  re- 
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623 


ject  &  valid  presentation,  or  refuse  to  settle  a 
presentee  on  grounds  not  cognisable  by  them, 
tbey  cannot  be  compelled  to  settle  him  by 
civil  diligence,  which  the  act  1612,  c.  1,  em- 
powered a  patron  to  employ  against  a  bishop 
who  refused  to  collate  a  qualified  presentee. 
An  action  of  damages,  however,  will  lie 
against  the  presbytery ;  Earl  of  KinnouU  v. 
Fergwtson,  March  5,  1841,  3  D.  778.  See 
Ersk.  B.  i.  tit.  5,  §  9  ;  Stair,  B.  ii.  tit  8,  §  27, 
et  teq. ;  More's  Note$,  p.  ccxlii. ;  Bank.  vol.  ii. 
V.  21,  etieq. ;  BdPs  Princ.  §  836 ;  JUust.  ib.; 
See  Admission.  Benefice.  Galls.  Jut  Dew- 
luHm.  License  to  Preach.  Minister,  Prescrip- 
tion. Presentation.  Simony.  Transportation. 
Vacant  Stipends.  WidoiBs"  Fund.  As  to  the 
patronage  of  churches  erected  by  voluntary 
contribution,  see  Churehet. 

Patterns.  New  patterns  of  linen.  Sic,  are 
protected  by  the  law  of  copyright.  Sw  Lite- 
rary Property. 

Pawn.    See  Pledge. 

Pawnbrokers.  A  pawnbroker,  in  the  sta- 
tutory meaning  of  the  word,  is  one  who  lends 
money  on  pledge,  at  a  higher  profit  or  rate  of 
interest  than  five  per  cent.  The  previous  acts 
upon  this  subject  were  consolidated  and  super- 
seded by  39  and  40  Geo.  III.  c.  99. 

Every  taker  of  pawns  must  place  over  his 
door  his  name,  and  the  word  "  Pawnbroker." 
A  pawnbroker  must  not  take  pawns  on  Sun- 
day, Good  Friday,  Christmas-day,  or  any  fast 
or  thanksgiving  appointed  by  the  Queen.  He 
must  not  buy  goods  before  eight  o'clock  in  the 
morning,  or  after  seven  in  the  evening,  at 
any  time  throughout  the  year.  He  must  not 
take  goods  in  pawn  or  exchange,  unless  be- 
tween eight  o'clock  forenoon  and  eight  o'clock 
afternoon  from  Michaelmas  (September  29) 
to  Lady-day  (March  25),  or  between  seven 
o'clock  forenoon  and  nine  o'clock  afternoon 
throughout  the  rest  of  the  year ;  the  time 
being,  however,  extended  till  eleven  o'clock 
in  the  evening  of  all  Saturdays  and  days  pre- 
ceding fasts,  on  which  the  taking  of  pawns  is 
forbidden.  A  pawnbroker  must  not  employ, 
as  a  taker  of  pawns,  any  person  under  six- 
teen years  of  age ;  nor  take  a  pawn  from  a 
person  under  twelve  years  of  age ;  nor  from 
one  who  is  intoxicated.  He  must  not  take  in 
pawn,  exchange  or  purchase,  a  note  of  another 
pawnbroker ;  nor  goods  of  manufacture  in  an 
unfinished  state.  Tbe  act  24  Geo.  II.  c  40 
provides  that  a  retailer  of  spirits,  receiving  a 
pawn  for  their  price.mustre-deliverthe article 
pledged.  The  pawnbroker  must  enter  in  his 
000^  the  description  of  each  pawn,  the  num- 
ber,  the  date,  the  pawner's  name,  the  street 
and  number  of  his  residence,  with  the  letter 
It.  fora  lodger,  or  H.fora  housekeeper,  and  the 
name  and  residence  of  the  owner  of  the  pawn, 
as  stated  by  the  pawner.     On  loans  not  ex- 


ceeding 5s.,  this  entry  may  be  made  within 
four  hours  after  pawning ;  but  on  loans  ex- 
ceeding 5s.  it  must  be  made  before  lending. 
Pawns  foi*  loans  above  10s.  must  be  entered 
in  a  separate  book  by  themselves ;  and  the 
entries  of  such  pawns  must  be  numbered  seria- 
tim from  the  beginning  of  each  month.  At 
pawning,  the  pawnbroker  must  give,  and  the 
pawner  receive  a  note,  bearing  the  descrip- 
tion of  the  pawn,  and  the  name  and  residence 
of  the  pawnbroker — the  pawnbroker  charging 
for  this  note,  on  a  loan  under  58.  nothing ; 
under  10s.,  id.;  under  208.,  Id. ;  under  L.5, 
2d. ;  above  L.5,  4d.  A  table  of  the  prices  of 
the  notes  must  be  placed  conspicuously  in  the 
pawnbroker's  shop. 

The  pawner  has  a  right  to  redeem  the 
thing  pledged,  which  lasts  for  a  year  from 
the  pawning.  The  time  is  prolonged  for  three 
months  more,  if  notice  not  to  sell  be  given, 
before  or  at  the  end  of  the  year,  to  the  pawn- 
broker in  writing,  delivered  to  him  or  left  at 
his  residence,  or  verbally,  in  presence  of  one 
witness.  The  pawnbroker  is  not  bound  to 
re-deliver  the  pawn  without  production  of  the 
note  given  at  pawning.  The  producer  of  this 
note  is  entitled  to  redeem  the  pawn,  unless 
the  pawnbroker  has  received  notice  from  the 
true  owner,  or  information  from  other  quar- 
ters, that  the  pawn  was  stolen,  or  is  suspected 
to  have  been  so.  If  the  note  given  at  pawn- 
ing has  been  lost,  or  if  a  new  person  alleges 
himself  to  be  the  true  owner  of  the  pawn,  the 
pawnbroker  must  give  to  the  party  demanding 
it  a  second  note,  being  a  copy  of  the  first,  ana 
a  form  of  an  affidavit  of  the  facts  stated,  re- 
ceiving for  those,  in  case  of  a  loan  under  5s., 
^. ;  under  10s.,  Id. ;  above  lOs.,  at  the  same 
rate  as  for  the  original  note.  Then  the  ap. 
plicant,  upon  proving  his  right  before  a  jus- 
tice of  peace  of  the  place  of  pawning,  and 
swearing  to  the  affidavit,  which  is  certified 
thereon  by  the  justice,  is  entitled  to  redeem 
the  pawn.  The  act  5  and  6  Will.  IV.  c  62, 
relative  to  oaths,  provides,  that  declarations 
be  substituted  for  oaths  and  affidavits  required 
in  matters  connected  with  pawnbrokers,  and 
that  the  penalties  and  other  enactments  as  to 
such  oaths,  be  extended  to  the  declarations. 
Pawnbrokers'  legal  profits,  in  full  of  interest 
and  warehouse-room,  are,  per  calendar  month, 
on  sums  not  exceeding  28.  6d.,  ^d. ;  not  ex- 
ceeding 40s.,  4d.  per  L.1 ;  not  exceeding  42s., 
8d.  in  all ;  not  exceeding  L.IO,  3d.  per  L.I. 
These  rates  of  profits  must  appear  in  the 
pawnbroker's  table.  On  redemption  of  a 
pawn,  the  amount  of  profits  drawn  by  the 
pawnbroker  must  be  endorsed  by  him  upon 
the  duplicate,  which  he  must  keep  by  him  for 
the  next  year.  If  the  owner,  wishing  to  re- 
deem a  pledge  for  not  more  than  L.IO,  ten- 
ders the  loan  and  profits  within  a  year ;  or 

Digitized  byLjOOQlC 


624 


PAW 


PAW 


three  mootlis  further,  where  notice  hu  been 
giren ;  and  the  panrnbroker,  without  just 
cause,  reruses  to  re-<leliver  the  pawn,  the  party 
may  apply  to  a  justice  of  the  peace  where  the 
pawnbroker  resides,  who,  on  oath  (declara- 
tion) to  the  facte  alleged,  and  on  production 
of  the  note,  must  bring  the  pawnbroker  be- 
fore him,  and  examine  on  oath  (declaration) 
parties  and  such  credible  witnesses  as  appear. 
On  proof  of  the  offer  of  payment,  or  on  tender 
and  reftisal  of  it  in  presence  of  the  justice,  he 
must  order  the  pledge  to  be  restored,  and  in 
default  of  delivery  or  satisfaction,  must  com- 
mit the  pawnbroker  to  the  house  of  correc- 
tion  or  prison,  till  he  obtemper  the  order.  A 
justice  finding  it  proved  that  a  pawn  has  been 
■old  too  soon,  or  improperly,  or  embezzled, 
lost  or  injured,  through  the  pawnbroker's  fault, 
must  award  a  proper  satisfaction,  to  be  allowed 
or  paid  by  the  paAvnbroker. 

Forfeited  pawns — ^that  is,  pledges  not  re- 
deemed within  a  year,  or,  when  notice  has 
been  given,  within  the  three  additional  months 
—may  be  sold.  Pawns  for  sums  between  lOs. 
and  L.10  roust  be  sold  by  public  auction. 
The  salesman  must  exhibit  them,  and  publish, 
with  the  pawnbroker's  name  and  abode,  cata- 
logues, in  which  each  article  must  be  entered 
separately,  with  the  month  of  pawning,  and 
the  number  registered  in  the  pawn-book. 
The  sale,  and  the  pawnbroker's  name  and 
residence,  and  the  month  of  pawning,  must  be 
advertised,  on  two  days,  in  a  newspaper,  not 
less  than  two  days  before  the  sale.  Books, 
prints,  pictures,  statues  and  other  similar  ar- 
ticles specified  in  the  act,  must  be  sold  apart 
on  the  first  Mondays  of  January,  April,  July, 
and  October,  and  the  following  days,  if  not 
all  disposed  of.  They  must  be  previously  ex- 
posed to  view,  catalogues  of  them  published, 
and  the  sale  and  pawnbroker's  name  adver- 
tised on  two  days,  in  a  newspaper,  three  days 
before  the  sale.  An  account  of  all  sales  of 
pawns  on  which  more  than  10s.  has  been  lent 
must  be  entered  by  the  pawnbroker  in  a  book, 
with  the  date  of  pawning,  the  pawner's  name, 
the  date  of  sale,  the  price,  and  the  auctioneer's 
name  and  abode.  The  pawner  is  entitled  to 
have  access  to  this  entry  on  payment  of  a 
penny.  The  surplus  of  the  price  beyond  the 
loan,  profits  and  expense,  must  be  paid  to  the 
pawner  or  other  person  entitled  to  it,  if  de- 
manded within  three  years.  A  pawnbroker 
must  not  buy  pawns  in  his  hand,  except  at 
public  auction,  nor  allow  pawns  to  be  re- 
deemed that  he  may  buy  them,  nor  make  any 
bargain  for  their  purchase  till  a  year  after 
pawning.  Any  person  pawning  goods  with- 
out the  owner's  consent  may  be  apprehended 
by  warrant  of  a  justice  of  the  peace,  and  tried 
summarily  before  him.  If  the  owner  of  goods 
unlawfully  pawned  or  exchanged,  by  his  own 


or  one  witness's  oath  (or  declaration),  and 
production  of  probable  grounds  of  suspicion, 
satisfy  a  justice  of  the  bounds  that  there  ii 
reason  to  suspect  a  person  within  his  jurisdic- 
tion of  having  received  the  goods  in  pawn  or 
in  exchange,  the  justice  may  grant  warrant 
to  search  the  premises  of  the  suspected  party 
during  the  hours  of  business,  and  to  break 
open  doors  if  refused  admittance.   Such  goods 
being  found  on  search,  and  the  claimant's 
right  being  established  before  any  justice,  by 
confession  of  the  party  charged,  or  by  oath 
(or  affirmation)  of  one  witness,  the  justice 
must  restore  them  to  the  owner.    If  anj  per- 
son offering  to  sell,  exchange,  or  pawn  goods, 
cannot  give  a  good  account  of  himself,  or  of 
the  way  in  which  he  obtained  them,  or  if  he 
wilfully  give  the  pawnbroker  false  informa- 
tion as  to  his  property  in  the  goods,  or  as  to 
his  own  or  the  proprietor's  residence,  or  if 
there  be  other  grounds  of  suspicion  of  the 
goods  having  been  legally  obtained,  or  if  any 
one,  not  being  entitled,  attempt  to  redeem 
goods,  the  person  to  whom  the  goods  are  of- 
fered, or  who  holds  them  in  pawn,  may  detain 
the  party  and  goods,  and  deliver  them  imme- 
diately to  a  peace-officer,  to  be  carried  before 
a  justice  of  the  bounds,  who,  on  seeing  groun(k 
uf  suspicion,  may  commit  the  person  for  a 
reasonable  time  for  inquiry.     And  wheneTer 
he  is  satisfied  of  the  person's  guilt,  he  moA 
commit  him  to  the  jail  of  the  place,  to  be  dealt 
with  according  to  law,  when  the  offence  is  o{ 
a  higher  sort,  or  else  penally  for  anytime 
within  certain  limits.     If  any  one  make  or 
knowingly  utter  a  counterfeit  note  of  a  pawn- 
broker, the  person  to  whom  it  is  offered  may 
detain  him,  and  have  him  carried  by  a  con- 
stable before  a  justice,  who  may  try  him  sam- 
marily.    Provision  is  made  for  penalties  os 
account  of  offences  and  contravention  of  the 
act,  and  directions  are  given  fur  the  conduct- 
ing of  prosecutions.    For  these,  reference  is 
made  to  the  act  itself.    In  interpretation  d 
this  statute,  it  appears  to  have  beeu  held,  thst 
it  was  Intended  to  enable  poor  persons  to  ob- 
tain advances  not  exceeding  L.IO  on  any  singls 
pledge  ;    Ro$f  r.   BquUable   Loan  GmpMf, 
Dec.  23, 1826,  5  S.  *  D.  192.    In  this  case, 
advances  bad  been  made  by  the  company  on 
security  of  large  assortments  of  haberdaAery 
goods  transmitted  to  them ;  and  although  the 
amount  lent  was  divided  into  numerous  sums 
of  L.10  each,  with  corresponding  tickets,  to 
bring  the  transaction  under  the  Pawnbrokere' 
Act,  yet  several  of  these  tickets  were  fre- 
quently given  on  one  unbroken  piece  of  doth 
or  single  package,  so  that  hM  or  L.^,  or 
even,  in  some  instances,  L.150  and  upwards, 
were  advanced  on  a  single  unbroken  pacb^. 
The  company  having  intimated  an  intention 
to  sell  the  goods  in  virtue  o.'  the  Pawnbrokers' 

Digitized  byLjOOQlC 


PAY 


PAY 


625 


Act,  the  trustee  on  the  pawner's  bankrupt 
estate  presented  a  bill  of  suspension  and  in- 
terdict against  the  sale,  which  was  passed  by 
the  Court.  See  TaiVs  Justice,  voce  Pledge; 
Blair' i  Juttiee,  voce  Pawn  ;  M'Glashan's  Digest 
efth«Law  of  Pawnbroking.  See  also  the  Ge- 
neral Burgh  Police  Act  for  Scotland,  13  and 
14  Vict.  c.  33. 

Payee ;  the  person  in  whose  favour  a  bill 
of  exchange  or  a  draft  is  drawn.  See  Bill  of 
Exekanffe. 

Payment.  A  creditor  is  entitled  to  de- 
mand full  payment  of  his  debt  at  once,  and 
eannot  be  compelled  to  accept  of  partial  pay- 
ments, unless,  by  the  original  obligation,  it 
has  been  made  payable  in  parts ;  for  in  that 
ease,  there  are  held  to  be  as  many  obligations 
as  there  are  terms  of  payment.  By  the  same 
rule,  a  creditor  in  two  or  more  separate  debts 
eannot  refuse  to  accept  payment  of  any  of 
them,  though  the  debtor  should  not  offer  to 
pay  the  others,  or  although  he  should  not 
pay  even  the  interest  then  dne  on  the  others. 
See  Particd  Payment, 

Indefinite  Payment. — Where  there  are  seve- 
ral debts  due,  and  an  indefinite  payment  is 
made  by  the  debtor,  without  specifying  to  ac- 
count of  which  debt  he  wishes  the  payment  to 
be  applied,  the  payment  is  applied  according 
to  certain  equitable  rules  which  show  an  equal 
regard  to  the  interests  of  the  debtor  and  to 
those  of  the  creditor ;  the  creditor's  interest, 
however,  being  chiefly  regarded.  For  these 
rules,  see  Indefinite  Payment,  and  autkorities 
there  cited. 

Payment  bona  fide.^— Where  payment  has 
been  made  bena  fide,  though  to  a  person  not 
entitled  to  receive  1^  the  payment  may  never- 
theless be  effectual.  Where,  for  example,  a 
payment  is  made  to  a  person  who  was  for- 
merly factor  for  the  creditor,  but  whose  fac- 
tory has  been  withdrawn,  without,  intimation 
to  the  debtor ;  in  that  case,  the  debtor  who 
pays  bona  fide — that  is,  without  having  reason 
to  suspect,  and  without  knowledge  of  the  fac- 
tory having  been  withdrawn — pays  with  safety; 
and  the  discharge  of  the  person  who  was  for- 
merly factor  will  be  to  him  an  effectual  dis- 
charge. Bona  fides  ceases  from  the  time  that 
citation  is  given  by  those  having  an  interest 
in  the  debt.  Payment  made  to  one  who  never 
possessed  a  power  of  receiving  or  discharging 
the  debt  is  not  accounted  a  bona  fide  payment. 
Thus,  a  payment  to  a  messenger-at-arms  en- 
trusted with  the  execution  of  diligence  will 
not  discharge  the  debt,  unless  the  money  is 
accounted  for  by  the  messenger  to  his  em- 
ployer ;  for  a  messenger  is  not  authorized, 
fHa  messenger,  to  do  more  than  merely  to  exe- 
cute the  diligence.  His  employer,  indeed, 
may  expressly  authorize  him  to  receive  and 
discharge  the  debt ;  bnt  otherwise  his  dis- 
2b 


charge  will  not  be  effectual  against  his  em- 
ployer ;  and  as  the  debtor  is  presumed  to 
know  this  legal  doctrine,  such  a  payment  to  a 
messenger,  not  specially  authorized  to  dis- 
charge the  debt,  is  not  accounted  a  boTia  fide 
payment.  Ersk.  B.  iii.  tit.  4,  §  3 ;  Stair,  B.  i. 
tit.  18,  §  3 ;  B.  iv.  tit.  40,  §  33 ;  Jfore's 
Notes,  p.  cxxiv. ;  Bant.  vol.  i.  p.  486 ;  iii.  82 ; 
BelPs  Com.  ii.  45 ;  Karnes'  Principles  of  Equity 
(1826),  406  ;  Hunter's  Landlord  and  Tenant, 
732-3  ;  Thomson  on  Bills,  402. 

Gottutive  Payment. — Rent  is  payable  either 
at  the  legal  terms  of  Whitsnnday  and  Mar- 
tinmas, or  at  such  conventional  terms  as  the 
parties  may  have  fixed ;  and  where  a  tenant 
anticipates  the  term  of  payment,  and  pays  his 
rent  beforehand  to  his  landlord,  such  pay- 
ment will  be  accounted  collusive,  in  a  question 
with  the  creditors  of  the  landlord,  who  may 
have  arrested  before  the  term  of  payment,  al- 
though posterior  to  the  actual  payment  by 
the  tenant.  Hence  the  tenant  will  be  obliged 
to  pay  over  again  to  the  arresters.  The  same 
happens  in  the  payment  of  fen-duties ;  but  in 
common  debts,  the  debtor  may  safely  pay  even 
before  the  term  of  payment.  Ersk.  B.  iii.  tit. 
4,  §4;  BeU's  Com.  a.  219. 

Presumed  Payment. — The  payment  of  a  debt 
is  presumed  to  have  been  made  wherever  the 
voucher  is  found  in  the  hands  of  the  proper 
debtor,  or  of  a  cautioner.  This  holds  not 
in  bonds  and  bills  only,  but  even  an  herit- 
able bond  with  sasine,  found  in  the  hands 
of  the  debtor,  will  infer  payment,  unless  it  can 
he  proved  that  the  voucher  of  debt  came  into 
the  hands  of  the  debtor  in  some  other  way 
than  on  payment.  Ersk.  B.  iii.  tit.  4,  §  6  ; 
More's  Notes  on  S<a<V,pp.  cxxiii-v. ;  Bell's  Prin- 
ciples, §  566 ;  lUtist.  ib. ;  Thomson  on  Bills, 
400,  625 ;  Blair's  Justice,  205.  See  Chiro- 
graphum  apud  debitorem  repertum. 

Payment  by  a  Third  Party. — Payment  of  a 
debt  by  a  third  party  is  presumed  in  dubio  to 
have  been  made  with  the  proper  money  of  the 
debtor.  Thus,  if  a  discharge  or  receipt  bear 
the  money  to  have  been  paid  by  A.  in  name 
of  B.,  the  proper  debtor,  the  presumption  is, 
that  the  money  was  B.'s,  and  that  A.  was 
merely  interposed  to  make  the  payment.  In 
an  obligation  where  several  are  bound,  and 
payment  is  made,  and  the  money  said  to  have 
been  received  from  one  of  the  obligaots:  should 
that  obligant  afterwards  cancel  the  ground  of 
debt,  the  presumption  is,  that  he  was  the  prin- 
cipal debtor  from  the  beginning,  or  that  he 
had  actually  received  their  shares  from  the 
other  obligants.    Ersk.  B.  iii.  tit.  4,  §  6. 

Proof  of  Payment. — It  is  a  general  and  estab- 
lished rule,  that  payment  of  a  debt  constituted 
by  writing  cannot  be  proved  by  witnesses. 
Where,  however,  the  written  obligation  binds 
the  party  to  the  performance  of  special  facts, 

Digitized  byCjOOQlC 


626 


PEA 


PEN 


the  performance  of  those  facts  may  be  proved 
by  witnesses  to  the  effect  of  discharging  the 
obligation.  W  here  the  debt  is  not  constituted 
by  writing,  payment  to  the  extent  of  L.lOO 
Scots  (L.8, 6s.  8d.)  maybe  proved  by  witnesses. 
Jink.  B.  iv.  tit.  2,  §  21 ;  Stair,  B.  iv.  tit.  32, 
§  3 ;  tit.  43,  §  4 ;  Beie$  Prine.  §  663 ;  lUtut. 
ib. ;  Karnes^  Equity,  507 ;  Tail  on  Evidence, 
301 ;  Diekton  on  Evidence,  329 ;  Thovuon  on 
BiUs,  397.  See  Evidence.  On  the  subject  of 
payment  generally,  see  Stair,  B.  i.  tit.  18; 
/Wf»  Com.  ii.  210  et  seg.,  531  et  teq.;  BeWs 
Princ.  §  556,  <{.  ieq ;  lUutt.  ib. ;  Kames'  Equity, 
375,  32i* ;  Brown  on  Sale,  388 ;  Thornton  on 
BiUt,  897.  See  Partial  Payment.  IndefiniU 
Payment,    Place  of  Payment. 

Peaoe,  JnstioM  of.    See  Jutiieet  of  Peace. 

Peats.    Seei^i. 

Peealinm;  in  Roman  law,  was  that  pro- 
perty which  a  slave  or  a,JUiug  familiat  could 
acquire  with  his  master's  or  father's  consent. 
A  son's  pectUium  was  of  four  kinds :  eattrente, 
acquired  in  war ;  quasi  caetrenee,  acquired  in 
the  exercise  of  public  duty,  or  of  some  of  the 
liberal  arts;  adventitiwn,  derived  from  a 
stranger;  or  profectitium,  derived  from  his 
father.  The  law  as  to  the  property  of  the 
peculium  varied,  according  as  it  was  of  one  or 
other  of  these  kinds;  Stotr,  B.  i.  tit.  6,  §  11. 
Professor  Bell  uses  the  word  peculium  for  the 
Aind  which,  in  addition  to  paraphernalia,  is, 
by  custom  or  special  gift,  appropriated  to  the 
wife,  such  as  the  "  lady's  gown,"  a  sum  secured 
by  antenuptial  contract,  or  derived  from  a 
stranger,  or  with  regard  to  which  the  husband 
has  renounced  his  jus  mariti.  Bell't  Princ.  § 
1560 ;  lUuet.  ib. 

Pade  PnlvfliroiilB ;  a  "  vagabond,  especially 
a  merchant  or  cremar  who  has  no  certain 
dwelling-place  where  the  dust  may  be  dicht 
from  his  feet,  to  whom  justice  should  be  sum- 
marily ministered  within  three  flowings  and 
ebbings  of  the  sea."  Skene,  h.  t.  See  Duett/' 
foot.     Piepowder. 

Pedellu ;  according  to  Skene,  the  serjeant 
or  beadle  of  the  burgh,  who  should  execute 
summonses,  make  attachment,  or  take  poinds. 
Skene,  h.  t. 

Peer.  A  peer  is  an  eqaal ;  and  hence  all 
commoners,  or  those  who  are  under  the  rank 
of  nobility,  are  said  to  be  peers  of  each  other, 
being  subject  to  the  common  tribunals  and 
ordinary  jurisdiction  of  the  kingdom.  But 
peers  of  Parliament  or  of  the  realm  are  the 
nobility  of  the  kingdom,  and  constitute  a 
branch  of  the  Legislature.  It  would  appear 
that  originally  the  right  of  peerage  was  terri- 
torial, but  it  has  gradually  become  personal. 
Peers  are  now  created  either  by  writ  or  by 
patent ;  a  writ  or  patent  being  presumed  in 
the  case  of  those  who  claim  by  prescription. 
The  creation  by  writ,  or  the  Queen's  letter,  is 


a  summons  to  attend  the  House  of  Peers,  by 
the  style  and  title  of  that  barony  which  the 
Queen  is  pleased  to  confer.  The  creation  by 
patent  is  a  royal  grant  to  a  subject  of  any 
dignity  and  degree  of  peerage.  Peers  are  pos- 
sessed of  certain  important  privileges,  among 
which  is  that  of  being  judges  of  each  other, 
and  being  exempt  from  the  common  and  ordi- 
nary jurisdiction.  By  the  Treaty  of  Union, 
art.  23,  it  is  declared  that  the  sixteen  peers 
of  Scotland,  entitled  to  sit  in  the  House  of 
Lords,  shall  have  all  the  privileges  of  Parlia- 
ment enjoyed  by  the  British  peers,  and  parti- 
cularly the  right  of  sitting  upon  the  trial  of 
peers ;  and  that  all  peers  of  Scotland,  whether 
representative  or  not,  shall  he  tried  as  peers 
of  Great  Britain,  and  shall  enjoy  all  privileges 
as  peers  as  fully  as  the  British  peers,  exerat 
the  right  of  sitting  in  the  House  of  Lorm, 
and  the  privileges  depending  there<m.  The 
trial  of  a  peer  proceeds  before  the  peers 
assembled  in  the  Court  of  the  Lord  High 
Steward  of  Britain ;  towards  a  trial  before 
which  tribunal  a  true  bill  must  be  found  by 
a  jury  of  twelve  men,  who  may  be  oommonen, 
before  a  special  commission  issued  for  that 
purpose ;  6  Anne,  c.  23.  This  matter,  in  re- 
lation to  the  peers  of  Scotland,  is  now  rqpi- 
lated  by  6  Geo.  17.  c  66,  which  enacts  that 
the  crimes  on  account  of  which  such  a  com- 
mission may  issue  are — all  treasons,  misprisioDs 
of  treasons,  murders,  and  other  crimes  wfaicb 
infer  a  capital  punishment  by  the  law  of 
Scotland;  and  all  felonies  and  other  crimes 
for  which,  if  committed  in  England,  a  peerof 
the  United  Kingdom  would  be  tried  by  his 
peers.  And  the  statute  declares  it  unkvtiil 
tor  the  Court  of  Justiciary,  or  any  other  court 
in  Scotland,  to  take  cognizance  of  any  of  tb« 
aforesaid  crimes  when  committed  by  a  peer. 
The  law  concerning  the  election  of  the  six- 
teen peers  of  Scotland  is  given  at  length  in 
the  article  Election  Law,  By  the  statute  2 
and  3  Will.  IV.  c.  63,  the  peers  of  StoU 
land  are  enabled  to  take  and  subscribe  in 
Ireland  the  oaths  required  for  qnalifyii^ 
them  to  vote  in  any  election  of  the  peere  of 
Scotland.  See  Tomlint'  Did,  h.  (.;  Alitn's 
Prac.  14. 

Peers.  See  Nobtlity.  Election  Lave.  Dig- 
nitiet. 

Pejorations ;  deteriorations ;  used  some- 
times, though  rarely,  in  contradistinction  to 
meliorations.  Id  one  case  the  term  was 
characterised  in  the  House  of  Lords  as  a  con- 
venient one.  See  Graham  v.  JMy,  House  of 
Lords,  29th  June  1831. 

Penal  Actions.  An  action  is  said  to  be 
penal  when  the  conclusions  of  the  summons 
are  of  a  penal  nature ;  that  is,  when  not  merely 
restitution  and  real  damages,  but  extraordi- 
nary damages  and   reparation,  by  way  of 


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penalty,  are  concluded  for.  In  such  actions, 
whether  they  be  of  a  quasi  criminal  character, 
and  requiring  the  concurrence  of  the  public 
prosecutor,  or  condnde'for  payment  of  heavy 
pecuniary  penalties,  great  accuracy  and  pre- 
cision are  required  in  the  summons  or  com- 
plaint. The  time  and  place  where  the  offence 
was  committed  must  be  distinctly  libelled, 
and  the  persons  against  whom  the  charge  is 
made  must  be  clearly  pointed  out.  Indeed, 
it  has  been  said  that,  in  respect  to  the  pre- 
eision  required,  there  is  little  or  no  distinction 
between  such  a  summons  or  complaint,  and 
an  indictment  in  the  criminal  court.  Actions 
in  which  the  pursuer  inusts  barely  for  an 
indemnification  of  real  loss  are  transmitted 
against  heirs ;  but  actions  in  which  some  de- 
mand  is  made  by  way  of  penalty  die  with  the 
delinquent  or  transgressor,  on  the  maxim. 
Actio  pcenalis  in  hceredem  turn  datur,  nisi  ex 
damno  locupktior  hcBresf actus  sit.  Ersk.B.ui. 
tit.  1,  §  15 ;  B.  iv.  tit.  1,  §  14;  Bank.  vol.  iii. 
p.  67. 

Penal  Bond.  In  England,  bonds  bear  to 
be  granted  for  double  the  actual  debt,  on  the 
condition  that,  if  the  actual  debt  be  paid,  the 
bond  shall  be  held  as  discharged.  Such  bonds 
are  called  penal  bonds.  An  adjudication  may 
proceed  on  an  English  penal  bond  without 
any  previous  decree  of  constitution ;  BdCs 
(km.  i.  740.  The  form  of  a  summons  for 
payment  of  such  a  bond  is  given  in  Jurid. 
Styles,  iii.  25. 

Penal  IrritanciM.  Irritancies  were  for- 
merly strictly  interpreted.  Hence,  the  Act 
of  Sederunt,  Nov.  27,  1692,  declared  that 
irritancies  were  to  be  explained  according  to 
their  express  words  and  meaning;  and  al- 
though the  act  1661,  c.  62,  in  consideration 
of  the  political  confusions  which  had  preceded 
the  passing  of  the  act,  allows  proprietors  to 
redeem  wadsets  within  five  years,  yet  in  the 
statute  it  is  assumed  that  the  penal  irritancies 
which  those  wadsets  may  contain  are  lawful; 
and,  according  to  our  ancient  practice,  the 
offer  of  payment  before  decree  of  declarator, 
in  an  action  of  declarator  of  irritancy,  was 
not  competent  after  the  irritancy  had  been 
incurred.  A  distinction,  however,  is  now 
made  between  irritancies  penal  and  not  penal. 
Where  the  irritancy  is  not  penal,  as  in  the 
irritancy  of  a  sale  for  a  just  price,  provided 
payment  be  not  made  at  a  certain  term,  the 
condition  receives  full  effect  even  without 
declarator.  But  wherever  it  ia  of  a  penal 
nature,  as  in  a  redeemable  right  for  a  sum 
leaa  than  the  value  of  the  subject,  the  Court 
will  soften  the  rigour  of  the  condition,  and 
aJlow  the  reverser  a  power  of  redemption, 
even  after  the  time  allowed  by  the  deed ;  and 
at  any  time  before  declarator,  provided  the 
long  prescription  of  forty  years  has  not  run 


after  the  term  of  redemption,  for,  by  the  lapse 
of  that  time,  the  power  to  redeem  is  cut  off 
by  the  negative  prescription.  Ersk.  B.  ii. 
tit.  8,  §  14,  and  tit.  5,  §  25. 

Penal  Statatea ;  are  strictly  interpreted — 
that  is,  they  are  not  extended  against  the 
offender.  Where  a  thing  is  prohibited  by 
statute  under  a  penalty,  if  the  penalty,  or  part 
of  it,  be  not  given  to  him  who  sues  for  it,  it 
goes  to  the  Crown.  Se^Ersk.  B.  i.  tit.  1,  §  5.5 ; 
Tomlins'  Diet,  voce  Penal  Laws ;  King's  Advo- 
cate, 18th  March  and  23d  Dec.  1793,  Mor. 
4900.  As  to  the  limitation  of  penal  statutes, 
see  Prescription^  Grimes. 

Penalties.  Where  an  obligant  fails  to 
perform  any  act  to  which  he  has  become 
bound,  he  will  be  liable  in  damages  to  the 
person  who  suffers  by  his  breach  of  agree- 
ment. But  in  estimating  this  damage,  where 
there  has  been  no  fraud,  consequential  or  in- 
direct damage  is  not  taken  into  account. 
Thus,  the  failure  to  pay  money  at  a  stipulated 
time  may  occasion  indirect  damage  to  the 
creditor,  but  is  not  a  damage  which  the  law 
can  estimate ;  and  therefore  the  creditor's 
demand  is  limited  to  the  principal  sum  with 
interest,  and  the  expeuses  to  which  the  credi- 
tor has  been  put.  In  order  to  cover  the 
damage  which  maybe  sustained  by  failure  in 
performance,  penalties  are  usually  adjected 
to  obligations.  Where  the  penalty  relates  to 
the  payment  of  money,  it  is  fixed  at  a  fifth  part 
of  the  principal  sum — probably  because  this 
is  the  extent  of  the  statutory  penalty  in  ap- 
prisings  and  adjudications;  but  this  fifth 
part  is  never  enforced  beyond  the  amount  of 
the  expenses  actually  incurred  by  the  credi- 
tor in  endeavouring  to  recover  payment. 
When,  therefore,  the  debtor  offers  the  prin- 
cipal sum,  interest,  and  the  expense  of  dili- 
gence, no  more  can  be  demanded  out  of  the 
penalty.  Even  where  an  action  has  been 
raised,  and  decree  obtained,  the  expense  of 
that  process  cannot  be  demanded  out  of  the 
penalty,  unless  expenses  have  been  awarded 
by  the  decree.  Where  a  penalty  is  annexed 
to  the  performance  of  a  fact,  it  is  to  be  con- 
sidered more  in  the  nature  of  a  conventional 
liquidation  of  the  damages,  in  order  to  avoid 
a  question  in  regard  to  the  extent  of  the 
damage,  than  as  of  the  nature  of  a  penalty 
adjected  to  a  money  obligation.  Hence,  where 
a  tenant  becomes  bound  to  pay  a  year's  rent 
in  case  he  does  not  enter,  or  a  certain  rent 
per  acre  in  case  he  shall  labour  the  ground 
in  a  certain  way,  these  are  considered  as  the 
equivalents  to  which,  ex  contractu,  the  land- 
lord, generally  speaking,  will  be  entitled 
without  modification.  In  one  case  a  tenant 
had  bound  himself  to  pay  L.4  of  covenanted 
additional  rent  for  each  acre  laboured  con- 
trary to  a  certain  rotation  of  crops ;  and  bav- 


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ing  deviated,  the  Conrt  held  that  Bueh  a 
eovenant,  being  of  the  nature  of  estimated 
damage  or  additional  rent,  they  had  no  equi- 
table power  to  interpose  ;  even  although  the 
tenant  offered  to  prove  that  the  deviation  was 
necessary,  and  had  been  occasioned  by  the 
accidental  failure  of  a  field  of  grass,  from  its 
having  been  sown  with  bad  seed,  which  com- 
pelled him  partially  to  change  the  rotation ; 
Frazer  v.  EmH,  Feb.  25,  1813,  F.  C.  See 
also  Hunter  v.  Broadwood,  Feb.  2,  1854, 16 
i>.44l.  But  although  the  penalty  may  in 
this  way  be  considered  as  the  liquidated  da- 
mage, still  the  obligant  may  be  compelled, 
notwithstanding,  to  perform  his  obligation  ; 
for  he  is  not  entitled  to  pay  the  penalty  and 
be  free.  In  general,  obligations  of  this  kind 
bear  that  the  penalty  is  to  be  exigible  "  over  and 
above,"  or  "  by  and  attour  performance ;" 
bat  even  without  these  expressions,  the  per- 
formance of  the  fact  may  be  enforced  by  dili- 
gence. From  this,  however,  there  is  an  ex- 
ception, as  where  a  person  become^  bound 
that  another  shall  perform  an  act  under  a 
penalty ;  for  here,  as  the  obligant  cannot  per- 
form the  act  himself,  the  conventional  penalty, 
as  to  him,  must  free  him  from  farther  dili- 
gence. Ersk.  B.  iii.  tit.  3,  §  86 ;  BtU  on 
Ir«a««(,  i.  253 ;  BeiesCom.i.65i;  Stair,  B.i. 
tit.  10,  §  14 ;  B.  iii.  tit.  2,  §§  32  and  64 ; 
B.  iv.  tit.  3,  §  2  ;  tit.  18,  §  3 ;  Mor^i  Notes, 

5.  Ixxi. ;  Bank.  vol.  i.  p.  473 ;  BdPs  Princ. 
34;  Jllust.  ib.;  Karnes'  Prine.  of  Equity, 
(1825)  ;  Karnes"  Slat.  Law  Abridg.  K.  t. ;  Hun- 
ter's Landlord  and  Tenant,  788-9 ;  Thmnson  on 
BiUs,  16,  27, 36,  146, 154;  Jwid.  Styles,  2d 
edit.  iii.  97 ;  Rosses  Leet.  i.  32,  58.  See 
Damages. 

Penanoe ;  an  ecclesiastical  punishment,  by 
which  a  penitent  gives  satisfaction  to  the 
church  for  the  scandal  he  has  occasioned  by 
his  ill  example.  The  judicatories  of  the 
Church  of  Scotland  judge  of  and  punish  gross 
immorality,  heresy,  and  schism,  but  with  a 
degree  of  temper  and  moderation  suited  to  the 
state  of  society  in  this  country,  and  better 
calculated  than  a  more  rigid  exercise  of  eccle- 
siastical discipline  would  be  to  attain  the 
end  in  view.  When  penance  is  inflicted,  it  is 
done  by  applying  the  lesser  excommunica- 
tion ;  which  excludes  the  offender  from  the 
ordinances  of  the  church  ;  and  time  and  op- 
portunity are  given  for  reconciliation.  It  is 
only  in  the  case  of  more  hardened  offenders, 
and  where  the  offence  is  of  a  nature  which 
cannot  be  overlooked,  that  the  greater  excom- 
munication is  used.     See  Excommunication. 

Pendente  Lite  Nihil  lanorandnm.  Tliis 
maxim  of  the  Roman  law  is  adopted  generally 
in  the  law  of  Scotland,  and,  according  to 
Erskine,  has  been  applied  to  the  case  wliere 
rights  are  rendered  litigious  by  an  action  of 


ranking  and  sale  for  behoof  of  creditors.  Ac- 
cording to  this  rule,  no  diligence  carried  on 
or  perfected  while  the  action  of  sale  is  pen- 
dent, and  intended  to  create  a  new  preference 
to  the  user,  in  competition  with  the  other 
creditors,  ought  to  receive  effect.  But,  in 
practice,  this  rule  has  been  disregarded ;  and 
Erskine's  doctrine,  stated  as  referable  to  the 
maxim  Pendente  lite  nihil  innovandum,  seems  to 
be  properly  referable  to  the  principle,  that 
wherever  Uie  process  can  be  regarded  as  a 
general  measure,  it  ought  to  supersede  the 
diligence  of  individual  creditors.  This  doe- 
trine  is  so.  established  by  the  Bankrupt  Sta> 
tnte.  See  BelTs  Com.  ii.  155 ;  ErO:.  B.  ii. 
tit.  12,  §65. 

Pennon ;  is  defined  by  Skene  to  be,  a  duty, 
such  as  an  annualrent.    Skene,  k.  t. 

Pension ;  an  annual  allowance  paid  for  a 
person's  maintenance  at  the  will  of  another. 
It  is  criminal  to  receive  a  pension  from  a 
foreign  prince  or  state  .without  leave  of  our 
Sovereign.  No  person  having  any  pension 
from  the  Crown  is  capable  of  being  elected 
member  of  Parliament,  or  of  sitting  or  of 
voting,  and  a  penalty  of  L.500  is  imposed 
upon  pensioners  who  sit  or  vote;  6  Anne, 
c.  7,  §  25-29 ;  1  Gee.  /.,  sUt.  2,  c.  66.  But 
Chelsea  and  Greenwich  pensioners  may  vote, 
and  out-pensioners  are  embodied  under  tiie 
statutes  6  and  7  Vict  c.  95, 1843 ;  9  and  10 
Vict.  c.  9,  1846 ;  and  11  and  12  Yici  c.  84, 
1848.  Pensions  from  the  Sovereign  are  held 
as  alimentary,  although  they  do  not  expressly 
bear  a  declaration  to  that  effect.  It  has  been 
repeatedly  decided,  that  a  pension  granted 
for  services  done  and  to  be  done  is  good,  al- 
though the  pensioner  should,  from  circani- 
stances,  find  it  impossible  to  perform  these 
services  for  the  future.  Stair,  B.  ii.  tit.  5, 
6  16 ;  B.  iii.  tit  1,  §  37  ;  Ersk.  B.  iii.  tit.  6, 
^  7  ;  Bank.  i.  p.  654 ;  ii.  14  ;  BelPs  Com.  i. 
130 ;  Jurid.  Styles,  ii.  283,  306  ;  Kama'  SlaL 
Law,  h.  t.    See  Annuity. 

Pcmnria  Teitinm.  The  disqualifications 
formerly  attaching  to  witnesses,  and  espe- 
cially that  of  relationship,  were  sometimes 
disregarded  in  occult  or  private  facts,  where 
there  most,  from  the  nature  of  the  ease,  be 
a  scarcity  of  unexceptionable  witnesses ;  but 
such  witnesses  were  examined  cum  n9ta—i.e., 
reserving  consideration  of  their  credibility.  It 
was  not  enough  in  this  sense,  to  constitute  a 
penuria  testium,  to  prove  that  the  other  evi- 
dence was  scanty  and  defective ;  it  most 
farther  have  been  shown  that  the  penuria  was 
necessarily  occasioned  by  the  very  nature  of 
the  question  at  issue.  Tait  e»  Evidence,  373 ; 
Mar/arlan^s  Jury  Prac.  92.  See  Evidence. 
Domestic  Crimes. 

Perambnlation.  Actions  upon  brieves  of 
perambulation  were  authorised  by  the  act 


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1597,  c  79,and  were  intended  to  settle  the  line 
of  march  between  conterminous  properties. 
^«fc.  B.i7.  tiLl,  § 48;  fifteir, B. iv.  tit.3, §  14; 
tit.  28,  §  3;  Bank.  i.  281 ;  BdPi  Princ.  §  2241 ; 
Kan^es'  Slat.  Law,  h.  t. ;  Jurid.  Styles,  i.  419. 

Per  Decretum  Domioorom  Conoilii   See 
£x  Ddiberatione,  <te. 

Perdnellian;  treason.    See  Treason, 

Peremptory  Defeaces.    See  Defeneet. 

Pfflrionliun ;  risk.  The  general  rule  with 
regard  to  risk  is,  that  a  subject  perishes  to 
its  dominut,  or  to  him  who  has  the  right  of 
property  in  it, — Rts  peril  domino.  But  tliis 
rule  is  frequently  modified  by  the  introduc- 
tion of  certain  opposite  principles ;  by  the 
rules  of  particular  contracts,  and  by  the 
«ffect  of  culpa  or  fault  in  subjecting  those  to 
the  risk  of  loss  who  would  not  otherwise  be 
liable.  The  most  important  exception  occurs 
in  the  case  of  a  subject  seld,  but  not  delivered. 
The  rule  of  the  law  of  Scotland,  adopted  from 
the  Roman  law,  is,  that  property  is  not  trans- 
ferred without  delivery — Traditionibus  domi- 
mia  rertun  trantfenmtur.  Before  delivery,  the 
bnyer  has  merely  a  jus  ad  r«n :  he  is  creditor 
for  the  delivery  of  the  thing  sold.  See  Jus 
«d  Rem. ;  Jus  Grediti.  And  yet,  if  the  subject 
perish  undelivered,  it  perishes  to  the  buyer, — 
Ferieulum  r«t  vendiUe,  nondum  traditce,  est 
€mptoris.  If  the  buyer  has  paid  the  price,  he 
is  not  entitled  to  repetitiou ;  if  he  has  not 
mid  it,  the  seller  may  sue  hira  for  payment. 
The  principle  of  this  rule  is,  that  by  comple- 
tion of  the  contract  of  sale,  the  obligation  of 
each  party  to  implement  the  bargain  is  per- 
fected. The  seller  is  bound  to  deliver  the 
thing  sold,  the  buyer  to  pay  the  price ;  and 
although  the  seller's  obligation  falls  in  con- 
sequence of  the  extinction  of  the  subject  of 
it,  the  buyer's  still  subsists.  The  rule  may 
also  be  referred  to  the  maxim,  Ejus  est  peri- 
ctJiMi,  cujus  est  eommodum ;  since  the  buyer 
has  the  benefit  of  the  accessions,  fruits  and 
profits  of  the  subject,  from  the  moment  in 
which  the  contract  is  completed.  When  a 
4sommodity  is  sold  as  a  fungible,  not  as  a 
corpus — that  is,  when  a  certain  quantity,  by 
number,  weight  or  measure,  has  been  sold, 
and  is  not  yet  delivered — the  loss  falls  upon 
the  seller,gince  the  buyerdid  not  purchase  any 
specific  subject.  Thus,  when  a  proprietor  sells 
80  many  bolls  of  his  farm-grain,  of  a  particu- 
lar crop,  without  specifying  any  particular 
parcel,  and  a  loss  of  that  year's  grain  hap- 
pens, the  purchaser  is  not  bound  to  suflTer  any 
part  of  the  loss,  as  he  did  not  purchase  any 
precise  part  of  the  farm.^rain.  In  condi- 
tional sales,  the  rule  of  the  Roman  law  was, 
that  if  the  subject  perished  pendente  condi- 
tione,  it  perished  to  the  vendor ;  but  if  it  was 
merely  deteriorated,  without  the  fault  of 
the  vendor,  the  loss  fell  npou  the  vendee. 


In  alternative  sales,  if  one  of  two  subjects 
sold  perish  before  the  choice  has  been  made, 
it  perishes  to  the  seller ;  because  the  remain- 
ing subject  continues  tn  obligalione,  and  de- 
mandable  by  the  vendee  ;  but  if  both  perish, 
the  loss  falls  on  the  buyer.  When  the  seller 
has  been  tn  mora  in  making  delivery,  the 
loss  falls  upon  him.  See  Mora.  A  subject 
likewise  perishes  to  the  seller  which  is  lost 
through  his  fault,  or  by  his  neglecting  the 
obligation  under  which  he  lies  to  attend  to 
the  buyer's  interest,  by  taking  care  of  the 
su  bject  until  it  is  delivered.  W  here  the  buyer 
gives  directions  for  the  transmission  of  the 
goods,  if  these  directions  be  not  followed,  the 
loss  falls  upon  the  seller ;  Harle,  24th  Jan. 
1749,  Mor.  10,096.  If  the  buyer  orders  the 
goods  to  be  sent  by  a  certain  mode  of  convey- 
ance, and  they  are  sent  accordingly,  it  would 
appear  that  the  seller  is  freed  from  the  risk. 
When  no  particular  carrier  or  ship  is  named 
by  the  buyer,  delivery  by  the  seller  to  any 
carrier  or  wharfinger,  on  account  of  the 
buyer,  is  the  same  as  delivery  to  the  buyer 
himself,  to  the  effect  of  freeing  the  seller 
from  further  responsibility  for  care  of  the 
goods ;  provided  he  procures  them  to  be  de- 
livered to  the  carrier  or  wharfinger  in  the 
proper  and  usual  manner,  and  with  the  usual 
precautions  to  ensure  the  safety  of  the  goods, 
and  the  claim  of  the  buyer  against  the  party 
entrusted  with  them.  It  has  been  held  that 
it  is  no  part  of  the  seller's  duty  to  ascertain 
the  seaworthiness  of  the  ship  in  which  the 
goods  are  to  be  sent,  and  that  he  is  not  re- 
sponsible for  a  loss  occasioned  by  the  defects 
of  the  ship.  It  is  the  duty  of  the  seller  to 
give  timeous  notice  to  the  buyer  of  the  ship- 
ment of  goods  sent  by  sea,  in  order  that  he 
may  know  when  the  goods  are  likely  to  ar- 
rive, and  that  he  may  be  enabled  to  insure 
them ;  but  this  rule  is  subject  to  certain  limi- 
tations. The  loss  of  an  undelivered  subject 
falls  upon  the  seller,  if  it  perish  from  a  vice 
of  such  a  nature  that  the  seller  would  have 
been  liable  under  his  obligation  of  warran- 
dice had  the  subject  perished  from  the  same 
cause  after  delivery.  Where  the  seller  ex- 
pressly takes  the  risk  upon  himself,  or  binds 
himself  to  deliver  the  thing  sold  at  a  certain 
place,  his  engagement  makes  him  liable  for 
the  loss  before  such  delivery.  The  modifica- 
tions of  the  rule,  that  the  risk  is  with  the 
owner,  arising  from  the  obligation  to  a  repa- 
ration of  loss  occasioned  by  fault  or  careless- 
ness, and  from  the  peculiar  doctrines  of  cer- 
tain contracts,  such  as  aflFreightment  and  car- 
riage by  land,  are  noticed  in  other  articles. 
Sen  Nauta,Gaupon«s.  Innkeepers.  Public  Car- 
riages, Damages.  Culpa.  Mora.  See  gene- 
rally, on  the  snbject  of  risk.  Stair,  B.  i.  tit. 
11,  §  2 ;  tit.  14,  §  7 ;  MwesjfoUs,  lxxii.-vii.- 

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Tiiu,  lixxr.-vii.;  Ertk.  B.  iiL  tit.  1,  §§  19, 20, 
26,  31,  33 ;  tit,  3,  §  7  ;  BelPs  Com.  i.  169, 
443,  468 ;  Brown  on  Sak,  355  ;  BeWs  Prme. 
f§  87, 141, 153, 199,  202-6, 226,232;  lUutU 
lb. ;  Kames'  StaL  Law  Abridg.  k.  L ;  UwUei't 
Landlord  and  Tenant,  724. 

Pojiiry ;  is  the  Judicial  affirmation  of  a 
falsehood  upon  oath.  The  esaence  of  the 
crime  consists  in  affirming  a  plain  and  obvi- 
ous falsehood ;  for,  where  the  oath  can  in  any 
reasonable  way  be  reconciled  with  truth,  or 
an  innocent  intention,  there  is  no  perjury. 
Neither  must  there  he  any  doubt  about  the 
true  state  of  the  fact,  or  the  sense  in  which 
the  panel's  words  are  to  be  understood ;  and 
where  it  is  possible  to  account  for  what  may 
have  the  appearance  of  a  falsehood,  on  the 
KTOund  of  its  being  an  omission,  that  will 
save  the  paneL  To  constitute  the  crime  of 
perjury,  the  person  must  have  sworn  abso- 
lutely, and  not  to  the  best  of  his  recollection, 
where  the  matters  are  not  recent,  or  of  a  na- 
ture not  to  call  for  his  particular  attention ; 
for,  where  the  matters  are  recent,  or  of  a  na- 
ture to  which  his  attention  may  be  supposed 
to  have  been  specially  directed,  he  will  not 
be  allowed  to  screen  himself  under  the  pre- 
text that  he  had  forgotten.  The  falsehood 
must  be  wilfully  affirmed  by  one  who  knows 
the  truth,  and  who,  for  some  corrupt  purpose, 
resolves  to  conceal  it.  Hence,  there  can  be 
no  prosecution  for  perjury  where  the  oath  is 
pure  matter  of  opinion  and  belief,  as  in  the 
oath  of  calumny,  where  his  own  prejudices 
may  lead  the  deponent  to  view  the  cause  in  a 
different  light  from  that  in  which  it  will  be 
viewed  by  any  other  person.  Of  the  same 
kind  is  the  oath  in  lawburrows,  where  the 
complainer  expresses  his  apprehensions  of 
danger ;  which  fears  may  have  been  genuine 
in  him,  though  entirely  chimerical.  The  oath, 
to  found  the  charge  of  perjury,  must  be  ma- 
terial to  the  point  at  issue,  in  the  question 
where  it  is  given ;  for  where  the  falsehood 
extends  only  to  trifling  particulars,  it  will  be 
attributed  to  inadvertency  or  oversight, rather 
than  to  that  dole,  or  corrupt  intention,  which 
is  the  essence  of  this  crime.  The  falsehood 
must  have  been  affirmed  on  oath,in  contempt  of 
that  high  adjuration  which  the  witness  makes. 
The  most  formal  written  declaration  is  there- 
fore no  ground  of  prosecution  as  perjury.  To 
this,  however,  the  wordof  honour  of  a  peer  is  an 
exception;  and  all  affirmations  allowed  under 
the  statutes  are  held  identical  with  oaths. 
It  is  farther  necessary  that  the  oath  should 
be  given  before  a  magistrate  or  other  person 
empowered  by  law  to  administer  au  oath ; 
be4»use,  without  that,  an  oath  has  neither 
those  consequences,  in  point  of  interest,  to  the 
man  himself,  nor  that  prejudice  to  his  neigh- 
bour, which  are  the  proofs  of  that  malice 


which  is  principally  the  object  of  pnnishmeni 
Neither  can  falsehood  contained  in  a  volun- 
tary affidavit  given  before  a  magistrate  be 
the  ground  of  prosecution  for  perjury.  Not 
only  must  the  oath  be  taken  before  a  person 
entitled  to  administer  it,  but  it  must  hare 
been  given  in  the  due  and  accustomed  form, 
in  the  department  of  business  to  which  it  re- 
lates ;  for  example,  it  must  have  be«i  read 
over,  approved  of,  and  signed,  when  the  per- 
son can  write.  In  short,  all  the  requisite  forms 
most  have  been  observed.  The  crime  of  perjnry 
may  be  committed  by  a  party  on  a  reference 
to  oath,  as  well  as  by  a  witness  in  a  cause.  The 
same  may  happen  in  takingthe  oath  of  bribery, 
or  of  trost  and  possession — the  oath  to  obtain 
the  benefit  of  the  act  of  grace — a  suspender's 
oath  at  passing  a  bill  on  juratory  caution — 
at  obtaining  the  benefit  of  the  cetsio  bon«nm 
—or  a  discharge  of  dehts  under  the  Bankrupt 
Statute.  The  evidence  of  the  terms  of  the 
oath  ought  to  be  the  written  oath,  signed  by 
the  panel,  or  certified  by  the  judge;  and 
where  the  oath  has  not  been  taken  down  in 
writing,  as  in  Justiciary  trials  and  trials  be- 
fore the  Court  of  Exchequer,  and  in  jory 
causes,  the  terms  of  the  depositions  must  be 
established  by  respectable  and  intelligent  wit- 
nesses. The  evidence  of  the  falsehood  may 
be  by  parole  proof,  or  by  writing ;  but  it  is 
not  enough  that  the  fact  actually  was  con- 
trary to  what  has  been  sworn  to  by  the  panel; 
it  must  further  be  proved,  or  sufficiently  in- 
ferred from  circumstances,  that  the  panel 
actually  knew,  at  the  time  be  was  delirerisg 
his  oath,  that  the  fact  was  inconsistent  with 
what  he  was  swearing.  The  punishment  of 
perjury  has  been  directed  by  statute,  the  last 
of  which,  1555,  c.  47,  declares  perjury  to  bt 
punishable  by  confiscation  of  moveables,  by 
piercing  the  tongue,  and  infamy;  to  which  the 
judge,  in  aggravated  cases,  may  add  any  other 
penalty  that  the  case  seems  to  require.  No 
person  convicted  of  wilful  or  corrupt  peijury, 
or  subornation  of  peijury  after  conviction,  is 
capable  of  voting  in  the  election  of  a  member 
of  Parliament.  But  the  incapacity  does  not 
apply,  unless  action  be  commenced  within 
two  years  after  the  ground  of  it  occurred; 
2  Geo.  II.  c  24,  §§  6  and  11.  The  inca- 
pacity of  bearing  testimony  consequent  upon 
a  conviction  of  peijury,  or  subornation  of 
peijury,  formerly  could  not  be  removed,  as 
in  the  case  of  other  crimes,  by  suffering  the 
punishment;  but  this  appears  to  be  altered 
by  the  act  15  and  16  Vict.  c.  27,  1852. 
The  trial  for  peijury  is  proper  to  the  Court 
of  Justiciary ;  but  it  may  be  tried  by  the 
Court  of  Session,  where  it  occurs  in  any 
examination  on  oath  taken  in  the  conrse 
of  an  action  before  that  Conrt.  Subom»- 
tion  of  perjury,  which  consists  in  tampering 

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▼ith  those  who  are  to  appear  as  vitnesses, 
and  directing  them  what  to  say,  without 
regard  to  truth,  is  directed,  by  the  act  1555, 
c.  47,  to  be  punished  with  the  pains  of 
perjury.  See  Hume,  vol.  1.  pp.  360-74; 
Alison's  Prine.  i.  464 ;  Stair,  B.  ir.  tit.  43, 
§  6  ;  Ersk.  B.  ir.  tit.  4,  §  74  ;  Bank.  vol.  i. 
p.  299,  e<  seq.;  BelPs  Com.  ii.  343,  889,  390- 
5  ;  Karnes'  Slat.  Law  Ahridg.  h,  t.     See  Oath. 

PenniaaiTe  Laws.  A  law  permitting  cer- 
tain persons  to  have  or  enjoy  the  use  of  cer- 
tain things,  or  to  do  certain  acts,  by  direct 
implication  prohibits  all  others  from  obstruct- 
ing the  exercise  of  the  right  so  conferred. 
Ersk.  B.  i.  tit.  1,  §  24. 

Permit ;  a  license  or  warrant  for  persons 
to  pass  with  and  sell  goods,  on  having  paid 
the  duties  of  customs  or  excise  for  them.  The 
statutes  upon  this  subject  have  been  consoli- 
dated by  2  and  3  Will.  IV.  c.  16.  See  Excise. 

Permutation  or  Barter ;  is  the  exchange 
of  one  moveable  subject  for  another ;  and,  by 
the  law  of  Scotland,  the  contract  is  com- 
pleted by  consent  alone,  so  as  to  enforce  the 
subsequent  exchange.  By  this  contract  the 
property  is  transferred.  Stair,  B.  i.  tit.  10, 
1 14,  and  tit.  14 ;  Ertk.  B.  iii.  tit.  3,  §  13. 
See  Barter. 

Perpetuity.  In  the  law  of  England,  a 
perpetuity  seems  to  have  been  originally 
equivalent  to  a  Scotch  entail;  but  in  that 
law  an  entail  may  be  defeated  by  a  common 
recovery.  See  T(mUiM'  Diet.  h.  t. ;  Sand/ord 
on  Entails,  25,  31. 

Persona  Standi  in  Judido ;  the  right  en- 
joyed by  all,  except  by  those  who  are  deprived 
of  it  on  account  of  civil  death,  nonage,  or 
other  disability,  to  pursue  for  and  defend 
their  rights  in  a  court  of  justice.  What 
persona  standi  is,  may  be  more  easily  learned 
by  considering  the  loss  of  it  by  civil  death 
or  outlawry.  The  outlaw  is  said  amittere 
legem  terroe,  to  be  repelled  ab  agendo  et  de- 
fendendo,  to  be  incapable  of  pursuing  or  de- 
fending in  any  process,  civil  or  criminal. 
But  there  are  others  besides  outlaws  who 
have  no  persona  standi.  A  pupil  cannot 
pursue  or  defend  ;  that  must  be  done  by  his 
tutor  in  his  name.  And  companies,  as  such, 
have  not  a  persona  standi.  See  Firvi.  Per- 
sona standi  is  different  from  title  to  pursue. 
Persona  standi  applies  to  the  status  of  the 
person,  as  qualified  to  pursue  or  defend  in 
actions  generally  ;  title  to  pursue  applies  to 
particular  actions,  and  requires,  in  addition 
to  a  persona  standi,  that  the  party  have  a 
proper  legal  interest  in  the  particular  action 
pursued  or  defended.  Thus,  although  a 
superior  possess  a  persona  standi,  he  cannot 
pursue  a  declarator  of  non-entry  unless  he 
produce  an  infeftment  in  the  lands.  See  Title 
to  Pursue.    Interest. 


Pwsonal  Bonds.    See  Bond. 

Personal  Execution.  See  Caption.  Dili- 
gence. Imprisonment.  Liberation.  Act  of  Grace. 
Act  of  Warding. 

Personal  Objection  or  Exception.  When 
a  party  is,  by  his  own  act,  or  by  the  peculiar 
circumstances  in  which  he  is  placed,  incapaci- 
tated from  maintaining  a  certain  plea  in  an 
action  or  in  a  defence,  he  is  said  to  be  barred 
from  maintaining  that  ^\e&personali  exceptione. 
Thus,  one  is  barred  personali  exceptione  or  ob- 
jeciione  from  redarguing  his  own  judicial  as- 
sertion ;  from  objecting  to  a  deed  to  which 
he  has  already  consented  ;  from  pleading  the 
defect  of  his  own  or  his  author's  title ;  from 
taking  benefit  by  his  own  fault  or  neglect.  It 
was  even  held  in  the  Court  of  Session,  that 
a  woman  who  had  been  privately  married, 
and  who  had  connived  at  a  second  marriage 
which  her  husband  entered  into,  was  barred, 
personali  exceptione,  from  challenging  the  se- 
cond marriage.  But  this  was  reversed  in  the 
House  of  Lords ;  Campbell  v.  Cochrane,  28th 
July  1747,  and  Jan.  31,  1753,  M.  10,466; 
Gr.  and  Stewart,  519.  For  illustrations  of  the 
cases  in  which  personal  objection  is  or  is  not 
inferred,  see  Brown's  Synop.  h.  t. ;  Shaw's  Di- 
gest, h.  t. 

Personal  Protection.  A  warrant  of  pro- 
tection to  the  bankrupt  may  be  granted  by 
the  Lord  Ordinary  or  the  Sheriff,  until  the 
meeting  of  the  creditors  for  the  election  of 
trustee ;  and  the  protection  may  be  renewed 
on  the  application  of  the  trustee,  authorized 
to  do  so  by  the  creditors.  19  and  20  Viet. 
c.  79,  §§  44  and  77, 1856. 

Personal  Bights.  A  real  right,  or  jus  in 
re,  entitles  the  person  vested  with  it  to  pos- 
sess the  subject  of  the  right  as  his  own,  and 
to  reclaim  or  vindicate  it  from  others ;  whereas 
the  creditor  in  a  personal  right  or  obligation 
has  no  more  than  a  jus  ad  rem,  or  a  right  of 
action  against  the  debtor  or  his  representa- 
tives, whereby  they  may  be  compelled  to  im- 
plement the  obligation,  by  transferring  the 
subject  to  the  creditor,  or  by  paying  or  per- 
forming in  terms  of  the  obligation.  See  Obli- 
gation. Heritable  rights  in  the  persons  either 
of  heirs  or  of  disponees,  not  completed  by  in- 
feftment,— such,  for  example,  as  the  right  of 
one  who  has  obtained  a  disposition  to  an  herit- 
able subject  on  which  he  has  not  taken  in- 
feftment,— are  also  termed  personal  rights. 
In  such  a  case,  the  disponee,  before  taking 
infeftment,  may  sell  the  subject,  and  may  as- 
sign to  the  purchaser  the  unexecuted  procu- 
ratory  of  resignation  and  precept  of  sasine,  in 
virtue  of  which  the  purchaser  may  complete 
his  right  by  infeftment ;  or  the  first  disponee, 
as  if  he  were  actually  infeft,  may  himself  grant 
to  the  purchaser  a  precept  of  sasine,  on  which 
the  purchaser  may  obtain  himself  infeft ;  and 

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PET 


although  such  infeflment  will  be  ineffectual  so 
long  as  the  first  disponee  remains  nninfeft,  yet, 
as  soon  as  he  completes  his  title,  the  prior  sa- 
sine  of  the  purchaser  and  the  feudal  right  will 
be  perfected  by  accretion.  But  the  holder  of 
a  personal  right  is  not  so  divested  by  a  first 
conveyance  as  to  prevent  him,  if  fraudulently 
inclined,  from  granting  a  second  conveyance 
to  another  disponee,  which  second  conveyance, 
if  first  perfected  by  infeftment,  will  exclude 
the  first  conveyance — and  that  although  up 
to  the  date  of  the  competition  the  original 
disponee's  right  should  remain  personal.  Ersk. 
B.  ii.  tit.  7,  §  26 ;  B.  iii.  tit.  1,52;  Stair, 
B.  iii.  tit.  1,  §  2 ;  B.  i.  tit.  3,  §  1 ;  BdPs 
Frindplet,  §  851 ;  Jllust.  ib. ;  Ross's  Lect.  ii. 
308,314.  See  Disposition.  Confirmation.  Set' 
vice.  Brieve.   Accretion.  Jus  ad  Rem. 

Personal  Services.  It  was  anciently  the 
custom  in  feu-rights  to  bind  the  vassal  to  at- 
tend the  superior  at  huntings  and  hostings, 
with  many  other  personal  services  peculiar  to 
a  rude  and  warlike  period.  But  after  the 
Rebellion  1715,  by  1  Geo.  I.  stat.  2,  c.  64,  those 
personal  services,  whether  due  by  charter  or 
custom,  were  abolished.  Notwithstanding 
this  statute,  however,  there  is  nothing  to  pre- 
vent the  superior  from  stipulating  in  the  char- 
ter, that  the  vassal  shall  perform  certain  speci- 
fied agricultural  serviceR.  Thus,  in  the  case 
of  the  Dvke  of  Argyle,  Feb.  5, 1762,  Mor.  p. 
14,495,  the  vassal  was  taken  bound  to  keep 
the  castle  of  Tarbert,  and  to  defend  it  against 
the  enemies  of  the  family  of  Argyle,  as  well 
as  to  keep  a  boat  with  six  oars  and  a  steers- 
man for  the  use  of  the  Duke  in  going  from 
one  place  of  the  coast  to  another.  All  that 
related  to  the  military  part  of  this  obligation 
was  held  to  fall  under  the  statute  ;  but  the 
keeping  of  the  boat  was  held  to  be  a  legal  obli- 
gation on  the  vassal.  Where  the  personal 
obligations  consist  in  annual  agricultural  ser- 
vices, the  vassal  is  free  unless  they  are  de- 
manded within  the  year.  Ersk.  B.  ii.  tit.  5, 
§  2 ;  Morels  Notes  on  Stair,  ccvii. ;  Karnes' 
Stat.  Law,  voce  Service;  Brown's  Synop.  h.  t. ; 
Beffsllhst.^&9l. 

Personal  FriTilege  from  Arrest.  SeePr»- 
vihge.  Personal  Protection.  Protection  from 
Diligence. 

Personalty  and  Sealty.  In  the  law  of 
England,  the  distinction  between  real  and 
personal  property  is  almost  but  not  entirely 
the  same  as  the  distinction  between  heritable 
and  moveable  property  in  the  law  of  Scotland. 
Things  real  are  described  by  Blackstone  to  be 
such  as  are  permanent,  fixed  and  immoveable, 
which  cannot  be  carried  out  of  their  place,  as 
lands  and  tenements  ;  while  things  personal 
indnde  all  sorts  of  things  moveable,  which  may 
attend  a  man's  person  wherever  he  goes. 
Things  personal,  however,  include  something 


in  addition  to  things  moveable ;  they  eunprfr* 
hend  every  thing  which  wants  the  two  requi- 
sites of  a  real  estate — duration  as  to  time,  and 
immobility  as  to  place.  Whatever,  therefore, 
is  not  a  real  estate,  is  a  personal  estate  or 
chattel.  There  is  also  a  subordinate  divisioB 
of  personal  estate  or  chattels  into  chattels  real 
and  chattels  personal.  Chattels  personal  are, 
properly  and  strictly  speaking,  things  move- 
able, such  as  animals,  household  stuff,  money, 
jewels,  &c.  Chattels  real  are  interests  issu- 
ing out  of  or  annexed  to  real  estates,  such  ss 
terms  for  years  of  land,  the  next  presentation 
to  a  church,  &c.  The  essential  distinction  be- 
tween a  chattel  real  and  a  real  estate  is,  that 
the  duration  of  the  former  is  limited  to  a  tine 
certain,  beyond  which  it  cannot  subsist.  Chat- 
tels real  are  not  conveyed  by  sasine  or  corpo- 
ral investiture ;  the  possession  of  them  is 
gained  simply  by  the  entry  of  the  tensat 
Two  of  the  most  important  points  in  which 
the  personalty  of  England  does  not  coincide 
with  the  moveable  property  of  Scotluid  an 
leases  and  securities  affecting  land.  By  the 
law  of  England,  lesses,  of  whatever  duration, 
are  chattels  real,  and  of  the  nature  of  personal 
estate,  and  upon  the  lessee's  death  go  to  the 
personal  representative.  By  the  law  of  Scot- 
land, they  are  heritable  as  to  succession,  but 
moveable  as  to  the  fisc  Morl^g^  and  secu- 
rities for  money  affecting  lands  or  real  estate 
in  England,  and  bonds  of  all  kinds,  are  of  the 
nature  of  personal  estate,  and  go  to  the  per- 
sonal representative ;  while  in  Scotland,  aQ 
securities  for  money,  affecting  lands  or  herit- 
able property,  are  themselves  heritable,  and 
descend  to  the  heir.  Bladcsk  ii.  16,  384; 
Robertson  on  Personal  Sueeesiion,  307.  See 
Heritable  and  Moveable.  Bond.  Chattels.  Suc- 
cession. 

Pertinmt.  This  term  is  ased  in  our  char* 
ters  and  dispositions  in  conjunction  with  partt. 
Thus,  lands  are  disponed  with  parts  a»i  per- 
tinents ;  and  that  expression  may  cany  vari- 
ous rights  and  servitudes  connected  widi  the 
lands.  See  Paris  and  Pertinents.  Bomdinf 
Charter.     Commonty. 

Petaria,  TnrlKuria.  The  clause,  Gum  pet*- 
riis,  turbariis,  &c.,  gives  the  privilege  of  Uk- 
iug  fuel,  by  peats  and  turfs,  in  mosses  and 
muirs.    Stair,  B.  ii.  tit.  3,  §  76. 

Petitory  AotionB;  are  actions  by  which 
something  is  sought  to  be  decreed  by  the 
judge,  in  consequence  of  a  right  of  property 
or  a  right  of  credit  in  the  pursuer.  Thus, 
all  actions  on  personal  contracts,  by  which  the 
grantor  has  become  bound  to  pay  or  to  per- 
form, are  petitory  actions.  Ersk.  B.  iv.  tit.  1, 
§  47  ;  Stair,  B.  iv.  tit.  21,  22,  and  24 ;  Brnk. 
vol.  ii.  p.  616 ;  BeWs  Princ.  §  2243 ;  Mae- 
laurin's  Sheriff  Prac.  285  ;  Jurid.  S^kt,  iii. 
17  ;  Ross's  Lect.  ii.  279. 


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Petition  and  Complaint  In  the  judicial 
procedure  of  the  Court  of  Session,  a  petition 
and  complaint  is  the  form  in  which  certain 
matters  of  summary  and  extraordinary  juris- 
diction are  brought  under  the  cognisance  of 
the  Court.  Petitions  and  complaints  are  ad- 
dressed to  one  or  other  of  the  Divisions  of  the 
Inner-House.  The  petition  sets  forth  the 
matter  of  complaint,  generally  in  an  argu- 
mentative detail  of  the  facts,  and  coucludes 
with  a  prayer,  first  for  a  warrant  of  service 
on  the  adverse  party,  and  an  appointment  on 
him  to  answer ;  and  then,  that  on  resuming 
consideration  of  the  petition  and  complaint, 
with  or  without  answers,  the  Court  may 
grant  the  appropriate  remedy,  the  nature  of 
which  is  specified ;  or  such  other  redress  as 
to  them  may  seem  proper  in  the  circum- 
stances. The  petition  and  complaint  is  pre- 
pared and  signed  by  counsel,  and  the  occa- 
sions on  which  redress  may  be  sought  in  this 
form  are  various.  Thus,  under  the  old  par- 
liamentary election  law,  this  was  the  form  of 
bringing  the  proceedings  of  freeholders  and 
of  magistrates  of  royal  burghs,  at  their  Mi- 
chaelmas head-courta  and  election  meet- 
ings, under  the  review  of  the  Court  This 
Lranch  of  the  jurisdiction  of  the  Court  of 
Session  has  been  taken  away  by  the  Keform 
Act ;  but  petitions  and  complaints  are  still 
eompetent  inthe  following  cases — viz.,  against 
magistrates  and  officers  of  the  law,  or  against 
members  of  the  College  of  Justice,  or  judicial 
factors,  or  other  managers  appointed  by  the 
Court,  for  malversation  in  office,— against 
parties  guilty  of  breach  of  interdict,  or  of 
contempts  of  Court  of  all  kinds, — and,  in  ge- 
neral, against  all  parties,  officially  or  other- 
wise, summarily  amenable,  for  irregularities 
or  misconduct,  to  the  jurisdiction  of  the  Court 
of  Session.  When  such  petitions  and  com- 
plaints are  presented,  they  are  enrolled  in  the 
Single  Bill  Roll ;  and  when  moved  in  the 
coarse  of  that  roll,  an  interlocutor  is  pro- 
nounced, granting  warrant  for  service,  and 
ordering  answers  to  the  petition  within  a 
certain  number  of  days,  varying  in  ordinary 
cases  from  eight  to  fifteen.  By  the  same  in- 
terlocutor, the  case  is  sometimes  remitted  de 
piano  to  the  Junior  Lord  Ordinary,  although 
the  Court  have  power,  if  they  please,  to  remit 
to  any  of  the  other  Lords  Ordinary.  But 
such  a  remit  is  not  uniformly  made,  it  being 
competent  to  the  Court  to  order  answers  to 
themselves,  and  to  hear  and  decide  according 
as  the  circumstances  of  the  case  may  require, 
without  a  remit  to  the  Lord  Ordinary.  When 
a  remit  is  made  to  the  Jjord  Ordinary,  he 
proceeds  as  soon  as  the  answers  are  put  in 
with  the  preparation  of  the  cause,  agreeably 
to  the  form  in  other  processes ;  that  is,  he 
superintends  the  making  up  and  closing  of 


the  record ;  with  this  promo,  that  in  the 
event  of  no  answers  being  lodged  to  the  peti- 
tion, or  on  the  failure  of  either  party  to  ob- 
temper  any  of  the  orders  of  the  Lord  Ordi- 
nary, it  is  competent  to  him  to  report  the 
cause  to  the  Court,  in  order  that  judgment 
may  be  pronounced  in  absence,  or  by  default. 
After  the  case  has  been  prepared,  and  the 
record  closed  before  the  Lord  Ordinary,  he 
reports  the  case  to  the  Inner-House.  Alt 
proceedings  in  petitions  and  complaints  are 
summary,  both  before  the  Lord  Ordinary  and 
the  Inner-House.  SeeA.S.  11th  July  1828, 
§§  83  to  96  inclusive.  See  also  Skand't  Prac 
1035,  e*  seq. ;  Beveridge's  Forms  of  Pro.  i.  406, 
et  seq.    See  also  Contempt  of  Court. 

Petition,  Reclaiming.  See  Reclaming  Ft- 
tition. 

Pettjr  Average.    See  Average. 

Physicians'  Pees;  may  he  pursued  for, 
but  are  presumed  to  be  paid,  unless  incon- 
sistent with  the  practice  of  the  place,  and 
excepting  where  the  patient  is  on  deathbed. 
In  Bdinburgh,  a  surgeon's  fees  do  not  fall 
under  the  presumption  of  payment.  Ersk. 
B.  iii.  tit  7,  §  17  ;  tit  9,  f  43 ;  Bank.  vol. 
iii.  p.  76  ;  BM's  Prine.  §  568  ;  lllust.  ib. ; 
Tait  on  Evidence,  3d  edit  471-2.  See  Fee. 
Honorary. 

Pickery ;  is  the  stealing  of  trifles,  which 
has  never  been  punished  in  any  other  way 
than  by  an  arbitrary  punishment.  The 
breaking  into  gardens  and  orchards,  and  the 
stealing  of  green  wood,  are  punishable  by  a 
pecuniary  fine,  which  rises  in  proportion  as 
the  crime  is  repeated ;  and  it  would  appear 
that,  when  frequently  committed,  even  a  capi- 
tal punishment  has  been  inflicted.  JJume, 
i.  85,  et  seq. ;  Ersk.  B.  iv.  tit  4,  §  59 ;  Tait'a 
Justice,  voce  Th0. 

Piotores.    See  Paintings. 

Piepowder  Conrt    See  Dnstyfoot. 

Pigeon.  It  is  enacted  by  several  of  the 
Scotch  acts  of  Parliament,  that  the  shooting 
of  pigeons,  without  the  consent  of  the  owner, 
shall  be  reckoned  theft.  The  breaking  into 
dovecots  is  not  only  reckoned  theft  but  under 
an  old  statute,  might,  on  a  third  oflTence, 
where  the  ofi'ender  had  no  effects,  have  been 
punished  with  death ;  1579,  c.  84.  This 
offence  may  be  tried  before  the  sheriff'.  Ju^ 
tices  of  the  peace  may  execute  the  acts  against 
breakers  of  dovecots,  but  cannot  judge  in 
complaints  for  shooting  or  killing  pigeons. 
The  statute  2  Geo.  III.  c.  29,  for  the  pro- 
tection of  pigeons,  does  not  extend  to  Scot- 
land. It  has  been  held  not  relevant  to  justify 
a  tenant  in  shooting  his  landlord's  pigeons,  to 
allege  that  they  are  destructive  to  his  farm  ; 
Easton,  18th  May  1832,  10  S.  and  D.  542. 
See  Uuich.  Just.  \.  117, 557  ;  Tait'a  Just.  h.  t,; 
Blair's  Just.  h.  t.    See  Dovecot. 


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PIL 


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Pillory;  &n  instrument  by  which  an  of- 
fender is  fastened  to  the  market-cross  or  other 
pnblic  place,  and  exposed  tn  tnodum  pceiue  to 
the  contempt  and  derision  of  the  public  ;  to 
whom  he  is  thus,  as  it  were,  introduced  as  a 
base  and  infamous  person ;  Hume,  ii,  470. 
By  the  stat.  56  Geo.  III.  o.  138,  the  punish- 
ment  of  the  pillory  was  abolished,  except  in 
eases  of  perjury — fineorimprisonment,orboth, 
being  substituted  in  lieu  of  the  pillory,  as  the 
punishment  for  those  offences  of  which  the 
pillory,  prior  to  the  date  of  that  statute,  had 
formed  the  whole  or  part  of  the  punishment ; 
and  by  the  act  1  Vict,  c  23  (1837),  it  was 
absolutely  abolished.  Stair,  B.  ir.  tit.  36, 
§  8 ;  Ertk.  B.  iv.  tit.  4,  §  102 ;  ffutch.  Just. 
i.  198 ;  Taifs  Jiui.  voce  Punishment. 

Pilots ;  persons  licensed  to  offer  themselves 
as  guides  for  navigating  ships  through  narrow 
firths  and  rivers,  or  into  ports,  or  through 
any  place  where  the  navigation  is  difiBcult.  In 
England,  pilots  are  established  at  several 
ports,  under  the  appointment  of  certain  in- 
corporations regulated  by  statute.  The  sta- 
tutes on  this  subject  were  consolidated  by  the 
act  6  Geo.  lY.  c.  12o ;  but  none  of  the  sta- 
tutes extend  to  Scotland.  In  Scotland,  this 
matter  has  been  left  to  common  law,  and  the 
regulations  and  usages  of  the  several  ports^ 
firths,  and  rivers.  By  royal  charter,  the 
Trinity  House  of  Leith  has  authority  to  exa- 
mine and  appoint  pilots  for  the  Firth  of 
Forth,  and  for  the  seas  and  firths,  and  along 
the  coasts  and  islands,  of  the  Northern  and 
German  Oceans.  The  town  of  Edinburgh 
has  a  right  to  appoint  pilots  for  the  naviga- 
tion of  the  port,  harbour,  and  roads  of  Leith. 
But  the  magistrates  are  not  liable  for  damage 
suffered  by  ships  under  the  guidance  of  those 
whom  they  appoint ;  Ogilvie,  May  22, 1821, 
1  S.  it  D.  24.  In  contracts  of  affreightment 
and  insurance,  the  obligation  of  the  owners 
to  have  the  ship  provided  with  persons  suf- 
ficient to  navigate  her  implies  the  obligation 
io  have  a  pilot  oo  board,  wherever  a  pilot  m, 
by  regulation  or  usage,  held  to  be  necessary. 
Where  a  pilot  cannot  be  bad,  the  aid  of  per- 
sons locally  acquainted  with  the  navigation 
must  be  taken.  It  is  a  sufficient  compliance 
with  this  condition  if  the  master  take  a  per- 
son authorized  by  the  regular  custom  of  the 
port,  or  the  law  of  the  place,  to  act  as  a  pilot, 
provided  he  be  at  the  time  fit  to  act,  and  not 
manifestly  incapable  through  intoxication  or 
otherwise.  A  pilot  employed  to  bring  the 
ship  into  harbour  is  not  entitled  to  sal- 
vage ;  The  Juliana,  2  Dod$  {AdmX  504.  It 
has  likewise  been  decided  in  the  English  Ad- 
miralty Court,  that  where  towing  is  neces- 
sary, pilots  are  bound  to  perform  it,  having 
a  claim  of  compensation  for  any  damage  to 
their  boats,  and  for  extra  labour ;  they  are 


also   bound  to  offer  their  services  in  sll 
weathers ;  General  Palmer,  1  Hagq.  (Ain.) 
176.   See  BeU's  Com.  551,o94j  BrodHsSufp. ' 
to  Stair,  985-9, 1004. 

Pimp-Teonre.  As  a  matter  of  historical 
curiosity,  and  as  indicative  of  the  manners  of 
that  age,  it  may  be  mentioned  that  Williel- 
mus  Uoppeshor  tenet  dinidiam  virgatam  tena 
in  RodAampt<m  de  domino  rege  per  Mmtiiiiw 
euttodiendi  hx  demisdUu,  soil,  meretrieet,  ad 
utum  Dom,  Reg.  12  Edw.  I. — «/.,  hj  Piwif- 
tenure.     Tomlint^  Did.  h.  t. 

Piracy ;  is  hostility  committed  at  sea  by 
an  individual  without  license  or  eommisuon 
from  any  acknowledged  state  or  government. 
Any  adventurer,  therefore,  who  sails  on  a 
voluntary  unlicensed  warfare,  and  who  dis- 
poses of  his  prizes  at  sea  or  elsewhere  by  his 
own  authority,  is  properly  a  pirate.  Brea 
where  a  person  engaged  in  an  adventure  of 
this  kind  holds  a  commission,  if  he  take  the 
ships  of  his  own  nation,  or  of  a  nation  not  at 
war  with  his  own,  or  if  he  act  contrary  to  the 
terms  of  his  commission,  he  is  guilty  of  pirsey. 
It  is  piracy  in  the  captain  or  crew  to  rnn 
away  with  the  ship  or  cargo.  The  trial  of 
this  crime  formerly  belonged  to  the  High 
Admiral  or  his  deputy ;  but  the  sentenee  of 
that  Court  was  liable  to  review  by  the  Coart 
of  Justiciary,  in  the  form  of  sospension.  Since 
the  abolition  of  the  Admiralty  Court,  tiie 
only  competent  court  is  the  Court  of  Josti' 
ciary.  The  punishment  of  this  crime  it 
death.  See  the  act  1  Vict.  c.  88,  1837. 
Ertk.  B.  iv.  tit.  4,  §  6 ;  Hume,  i.  476 ;  AU- 
*on't  Prine.  639;  Bank.  i.  528;  BeW$  Cm.  i. 
559  ;  Swint.  Abridg.  h.  t. ;  Ton's  Justice,  k  t; 
Brodies  Supp.  to  Stair,  989. 

PiMationiblU.  For  the  effect  of  the  daote 
cum  pisecUionibvs,  see  Fishing.    Salmon-fitki*^. 

Pit  and  Oallows.    See  Fossa  et  Furca. 

Place  of  Crime.    See  Loctu  DtUdi. 

Place  of  Payment.  If  the  place  at  which 
an  obligation  is  to  be  performed  be  previooslj 
stipulated,  the  agreement  mast  be  adhered 
to,  unless  access  to  that  place  be  unsafe  or 
impossible,  in  which  case  the  rule  is  the 
same  as  if  no  place  had  been  named.  Where 
no  place  is  named,  and  if  the  thing  to  be 
performed  is  delivery  of  a  certain  qtecies  or 
corpus,  the  place  where  the  subject  is  is  an- 
derstood  ;  but  if  it  be  a  quantity,  the  place 
of  contract,  or  where  the  debtor  resides,  is  nn- 
derstood ;  Stair,  B.  i.  tit.  17,  §  19.  Whether 
or  not  this  rule,  as  laid  down  by  Stair,  be 
still  the  law,  is  doubtful ;  but  it  seems  to  be 
held  in  England,  that  where  no  place  of  pay- 
ment is  specified,  the  debtor  is  bound  to  seek 
out  his  creditor ;  and  that  the  creditor,  when 
the  debt  becomes  due,  may  raise  an  action 
without  giving  him  notice ;  Chi^  on  BtOs, 
391.    It  is  not  indi^ensable  to  specify  the 


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place  of  payment  in  a  bill  or  note.  When 
no  place  of  payment  is  specified,  it  has  been 
quMtioned  vhether  the  acceptor  or  grantor 
is  bound  to  seeii  oat  the  creditor,  and  make 
payment,  or  whether  the  creditor  ought  to 
apply  for  it.  The  general  rule  laid  down  by 
Chitty  applies  to  the  case  of  bills  and  notes, 
where  no  summary  diligence  is  to  be  nsed ; 
presentment  and  protest  being  in  all  cases 
necessary  to  authorize  summary  diligence. 
Mr  Thomson  holds  that  there  is  an  exception 
to  the  rule  that  the  debtor  must  seek  out 
the  creditor,  in  the  case  of  bills  payable  on 
demand,  and  at  or  after  sight ;  Thomson  on 
Bilk,  3S4.  To  preserve  recourse  against  the 
drawer  and  indorsers,  it  is  indispensably  ne- 
cessary to  present  the  bill  for  payment  to  the 
debtor  personally,  or  at  his  residence,  unless 
he  has  himself,  in  his  acceptance,  specified 
some  other  place  of  presentment.  The  ques- 
tion, whether  the  specification  of  a  place  of 
payment,  in  the  body  of  a  bill  or  note,  makes 
the  presentment  of  it  at  that  place  a  condi- 
tion of  the  contract,  is  discussed  by  Mr  Thom- 
son, p.  420.  See  also  BelPt  Princ.  §  337  ; 
JUtut.  ib. ;  Bell't  Com.  i.  412 ;  Jurid.  Styk$,  ii. 
12, 16- 

Place  of  Sabseription.  The  insertion  in 
tfae  testing  clause  of  the  place  where  a  deed 
was  subscribed  is  not  a  statutory  requisite,  and 
is  not  essential  to  the  legal  authentication  of 
the  deed.  But  it  is  the  invariable  custom  to 
insert  the  place  of  subscription ;  and  in  a 
doubtful  or  suspicious  case,  the  omission  would 
be  a  very  unfavourable  circumstance.  Ross's 
Led.  i.  141;  Stair,  B.  It.  tit.  42,  §  19 ;  Ersk. 
B.  iii,2,  §18. 

Pladtim ;  "  pley,  contention,  strife  or  de- 
Imte."    Skene,  h.  t. 

Plaok  Bills.    See  Bills  of  Signet  Letters. 

Flagii  Crimeoi ;  or  the  stealing  of  adult 
living  human  creatures ;  is  a  crime  not 
known  in  the  present  state  of  society  in 
this  country  ;  but  in  former  times,  under  the 
notion  that  it  was  a  treasonable  usurpation 
of  the  royal  authority  in  detaining  the  King's 
free  lieges,  it  was  punishable  with  death. 
The  same  punishment  has  been  applied  to 
the  stealing  of  children;  for  which  offence 
there  are  recent  instances  of  capital  sentences. 
Hume,  i.  81  and  83,  in  Notes ;  Alison's  Princ. 
280 ;  Kamet'  Stat.  Law,  h.  t.    See  Theft. 

Plaffoe.     See  Quarantine. 

Plaintiff;  in  English  law,  he  that  sues  or 
complains  in  an  assize  or  action  personal- 
Tomins'  Diet.  h.  t.     See  Pursuer. 

Plan.  A  particular  plan  of  building  may 
be  enforced,  provided  it  be  clearly  made  a 
condition  of  the  feu-contract.  The  plan  of 
Charlotte  Square  of  Edinburgh,  which  the 
feuarg  were  called  upon  to  sign  and  adhere 
to,  wa8  held  binding;  Dirom,  Jane  5,  1812, 


F.  G.  But  the  mere  exhibition  of  a  plan  of 
a  new  street,  at  the  time  of  the  sale  of  a  piece 
of  ground  for  building  a  house  in  the  intended 
line  of  the  street,  does  not  of  itself  amount  to 
a  warranty  or  engagement  that  all  that  is 
exhibited  on  the  plan  shall  be  done ;  Herioft 
Hospital,  May  4,  1814,  2  Dow,  301 ;  Gordon, 
Feb.  9, 1819,  5  Dow,  87.  In  a  subsequent 
case,  however,  the  fenars,  having  proceeded 
on  the  plan  of  the  New  Town  of  Edinburgh  in 
taking  their  feus,  were  held  entitled  to  pre- 
vent any  building  deviating  in  an  inconve- 
nient or  material  degree  from  that  plan; 
Touny,  Nov.  17,  1814,  P.  G.  In  a  judicial 
sale,  plans  of  the  estate  ought  to  be  prepared, 
in  which  the  lots  may  be  distinguished  as 
they  are  exposed  to  sale.  Plans  are  allowed 
to  be  founded  on  as  evidence,  when  distinctly 
authenticated  and  sworn  to.  They  are  not, 
however,  properly  evidence  of  themselves ; 
they  are  rather  adminicles,  explanatory  and 
illustrative  of  other  and  proper  evidence.  All 
plans,  maps,  models,  or  other  such  produc- 
tions, proposed  to  be  used  at  a  jury  trial,  must 
be  lodged  eight  days  before  the  trial ;  if  the 
trial  is  to  be  at  Edinburgh,  with  the  jury- 
clerk,  at  the  office  in  the  Register-house ;  if 
on  circuit,  either  with  the  jury-clerk,  or  with 
the  sheriff-clerk  of  the  county ;  A.  S.  1825,  § 
29.  BeWs  Com.  ii.  274 ;  Princ.  §§  867,  994 ; 
lUust.  ib. ;  Macfarlan^s  Jury  Prat.  183. 

Planting  and  Inclosing.  Various  acts  of 
the  Scotch  Parliaments  were  passed  for  the 
encouragement  of  planting  and  inclosing,  and 
for  the  punishment  of  those  guilty  of  injuring 
or  destroying  growing  trees  and  plantations ; 
and  with  regard  both  to  planting  and  in- 
closing, justices  of  the  peace  have  a  sta- 
tutory jurisdiction.  At  common  law,  inju- 
ries done  to  trees  and  inclosures  are  also 
punishable  as  malicious  mischief.  The  gene- 
ral act,  1661,  c.  38,  directs  justices  to  en- 
force the  older  laws  for  the  protection  and 
encouragement  of  planting,  with  a  modifl« 
cation  in  the  punishment — the  penalties  being 
thereby  made  pecuniary.  The  older  statutes 
for  the  encouragement  of  planting  are  in  de- 
suetude ;  but  injuries  to  existing  plantations 
are  still  punishable,  and  may  be  punished  by 
two  justices,  on  proof  of  the  facts  :  such  are, 
setting  fire  to  trees;  cutting,  breaking,  or 
pulling  them  up,  or  peeling  them;  the  penalty 
in  these  last  cases  being  L.IO  Soots  for  each 
tree  less  than  ten  years  old,  and  L.20  Scots 
for  each  older  tree.  The  haver  or  user  of 
such  trees  is  liable  in  the  same  penalties,  un- 
less he  produce  the  party  who  brought  him 
the  trees.  And  in  default  of  payment,  the 
party  convicted  must,  for  each  naif  merk  of 
penalty,  work  one  day  for  the  party  injured, 
on  receiving  meat  and  drink  only ;  1685,  c. 
39.    Tenants  and  cottars  are  likewise  liable 

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in  the  game  pecuaiary  penalties,  if  the  in- 
jury be  proved  to  have  been  done  by  their  fa- 
milies, servants,  or  othei-s  living  with  them  ; 
although  it  has  been  thought  that  these  sta- 
tutory penalties  are  subject  to  mitigation. 
Sundry  British  statutes  make  offences  of  this 
description  punishable  by  fine,  and  even  with 
transportation  for  seven  years;  bat  in  this 
last  case,  the  trial,  of  course,  cannot  proceed 
before  the  justices.  See  on  this  subject,  and 
also  as  to  inclosing,  the  acts  1  Oeo.  I.  c.  48  ; 
1  Geo.  I.  sess.  ii.  18 ;  6  Geo.  III.  c.  36 ;  13 
Geo.  III.  c.  33 ;  9  Oeo.  III.  c.  41 ;  although 
certain  of  these  statutes  have  not  been  acted 
on  in  Scotland.  The  Scotch  statutes  on  the 
same  subject  which  may  consulted  are — 1457, 
c.  80,  and  c  83 ;  1424,  c.  33;  1603,  c  71 
and  74 ;  1535,  c.  10  and  11 ;  1579,  c.  84 ; 
1661,  c.  41 ;  1685,  c  39 ;  1669,  c.  17 ;  1603, 
c.  71 ;  1535,  ell;  1687,  c  83 ;  1607, 
c.  3  ;  1641,  c.  45  ;  1686,  c.  11 ;  1689.  c.  16. 
The  statutes  regarding  iuclosures  and  the  pro- 
tection of  fences  may  be  executed  by  sheriflEs 
and  other  judges,  and  also  by  justices  of  the 
peace.  Such  are  the  statutes  concerning  mutual 
and  march  fences.  See  Marches.  Runrig.  And 
the  statute  1685,  c.  39,  imposes  penalties  on 
parties  injuring  ordinary  inclosures,  or  allow- 
ing animals  to  go  over  them ;  giving  one- 
half  of  the  penalty  to  the  owner  of  the  fence, 
and  the  other  to  the  fund  for  repairing  roads 
and  bridges  in  the  parish.  A  stranger  found 
within  a  broken  inclosure  will  be  presumed 
to  be  the  breaker;  1661.  c.  41.  By  1686, 
c.  11,  the  herding  of  cattle  is  eqjoined  nnder 
certain  penalties,  directed  against  the  owner 
of  the  animals  found  trespassing;  and  in 
order  to  enforce  payment,  the  heritor  or  pos- 
sessor who  has  been  injured  may  detain  or 
poind  the  trespassing  animals,  until  payment 
«f  half  a  merk  of  penalty  (t. «.  about  Is.  3^ 
sterling) ;  together  with  the  expense  of  keep- 
ing the  animals,  and  the  damages.  But  the 
Sittj  seizing  the  cattle  must  give  immediate 
timation  of  the  seizure  to  the  owner,  afid 
must  place  the  cattle  where  they  can  have 
fodder  and  water  ;  nor  can  he  make  any  use 
of  them,  except  at  the  risk  of  being  held 
liable  in  a  spulzie.  JErsk.  B.  iii.  tit.  6,  §  28 ; 
Mutch.  Just.  ii.  498, 513 ;  TcUet  Jutt.  of  Peau, 
i.  t.;  Blair's  Manual,  208,  «(  seq.;  Kama' 
Stat.  Law,  h.  t. ;  Watson's  Stat.  Law,  h.  t.; 
Bank.  i.  679 ;  iii.  27 ;  B^m  Leases,  i.  807  ; 
Hunter's  Landlord  and  Tenant,  572-6 ;  Jurid. 
Styles,  iii.  95. 

Plat,  DeereM  o£    See  Teinds. 

Player.    See  Comtdian. 

Pleu  in  Law.  Fleas  in  law,  as  a  distmct 
portion  of  a  record,  were  introduced  by  the 
Judicature  Act,  6  Geo.  IV.  c  120,  §  9,  in 
which  they  are  defined  as  "  a  short  and  con- 
cise note,  drawn  and  signed  by  coansel,  of  the 


pleas  in  law  on  which  the  action  or  defence 
is  to  be  maintained;  and  in  such  note  the  maU 
ter  of  law  so  to  be  stated  shall  be  set  forth 
in  distinct  and  separate  propositions  viihont 
argument,  but  accompanied  by  a  reference  to 
the  authorities  relied  on."  At  first  thoss 
pleas  were  put  into  process  as  a  sepantt* 
paper,  but  are  now  subjoined  to  tiie  paper  u 
which  they  relate;  A.  S.  Uih  Jvh/  1828, 
§49.  It  is  the  statutory  duty  of  theLonl 
Ordinary,  in  adjusting  the  record  prior  t« 
closing  it,  to  suggest  any  new  plea  which  asj 
appear  to  him  to  be  necessary  for  exhausting 
the  disputable  matter ;  and  the  pleas  in  U* 
stated  on  the  record  are  to  be  held  as  the  wit 
grounds  of  action  or  defence,  to  which  the 
future  arguments  of  the  parties  are  to  be  con- 
fined ;  with  power,  however,  to  the  psrtiei, 
with  the  leave  of  the  Lord  Ordinary,  or  of 
the  Court,  to  add  to  the  record  any  additionsi 
plea  which  may  have  been  suggested  b;  the 
Lord  Ordinary  or  the  Court,  or  by  thepsrtj, 
as  fit  to  be  discussed  in  relation  to  the  facts 
already  set  forth ;  slat.  §  11.  If,aiter  cloiing 
the  record,  either  party  wishes  a  new  pleaor 
ground  in  law  to  be  stated  on  the  record,  he 
must  enrol  the  cause  and  furnish  the  nevples 
to  the  opposite  party  forty-eight  hours  before 
the  enrolment;  A.  S.  llth  July  1828,  §59. 
It  would  be  an  obvious  absurdity  to  deprire 
a  party  of  the  benefit  of  any  plea  in  law  which 
the  facts  of  his  case  may  warrant,  merelj  be- 
cause such  plea  had  been  omitted  io  the  >«• 
cord  ;  and  hence  it  has  hi^tpened  in  prscti(«, 
that  pleas  in  law  are  not  prepared  with  tbst 
circumspection  and  care  which  the  statute 
seems  to  have  contemplated.  The  pleas  are 
in  general  so  framed  as  to  ground  any  legal 
argument  which  the  facts  may  warrant;  but 
the  statutory  injunction  as  to  the  citation  of 
authorities  is  not  in  very  strict  observance ; 
and  hence,  and  from  other  causes,  it  not  ns- 
frequently  happens  that,  when  a  case  comei 
to  be  more  carefully  considered  and  argaed, 
either  orally  or  in  a  written  argument,  it  is 
necessary  either  to  obtain  leave  of  tbeCoutto 
add  farther  pleas,  or  to  maintain  an  argnment 
which  the  pleas  on  the  record  barely  corer. 
In  the  Court  of  Session,  the  pleadings  t« 
which  pleas  in  law  are  subjoined  are  defeocts, 
revised  condescendences,  revised  answen  to 
condescendences,  reasons  of  su8pensi(»i,ressoiii 
of  advocation,  condescendences  and  cIsIbis  in 
multiplepoindings,  and  other  analogous  plead- 
ings in  the  less  ordinary  processes.  In  inflsrior 
courts,  pleas  in  law  are  subjoined  to  the  de- 
fences and  to  the  replies  in  ordinary  proceoes, 
and  to  no  other ;  in  summary  applications,  tt 
the  answers  to  the  original  petition  and  to 
the  replies ;  and  in  multiplepoindings,  to  the 
condescendence  and  claim.  See  6  Get.  !>• 
c  120,  §§  2,  9, 10, 11 ;  A.  S.  ntkJviyim 

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48, 49,  58;  A.  S.  12<A Nov.  1825 ;  Shand^t 
roe.  i.  325 ;  Maelaurin'$  Sheriff-Court  Pro- 
cess, 116-8, 124.    See  Record. 

Plea  of  Panel.  The  panel's  plea  most 
either  be  guilty  or  not  guilty.  W  hen  it  is 
gnilty,  sentence  is  forthwith  pronounced  by 
the  Court.  In  pleading  not  guilty,  the  panel 
is  not  always  to  be  understood  to  deny  the 
whole  allegations  of  the  libel.  Thus,  to  a 
charge  of  murder  he  may  plead  not  guilty,  and 
jet  admit  the  homicide.  The  panel  may 
plead  guilty  to  certain  charges,  and  deny  the 
rest ;  or  he  may  admit  the  crime  and  deny 
the  aggravations  ;  in  which  case  the  prose- 
cutor may  either  rest  satisfied  with  the  plea  of 
guilty,  so  far  as  it  goes,  or  proceed  to  prove 
the  charges  which  are  denied.  The  panel 
cannot  plead  guilty  of  the  aggravations  and 
not  guilty  of  the  crime.  The  particulars  of 
a  special  defence  intended  to  be  maintained 
ought  to  be  stated  to  the  Court  immediately 
after  the  plea  of  not  guilty  has  been  entered ; 
and  where  a  « ritten  defence  has  been  given 
in,  the  clerk  of  Court  reads  it  at  the  same 
stage  of  the  proceedings;  This  statement  of 
the  panel  has  sometimes  a  considerable  effect 
on  the  charge  as  set  forth  in  the  libel.  9 
Geo.  IV.  c.  29,  §  14 ;  Hume,  ii.  282  ;  Alison's 
Prae.  357;  Steele,  197.  See  Not  Guilty. 
Libel,    Aniendment  of  Libel. 

Pledge ;  is  a  moveable  subject  put  into  the 
hand  of  a  creditor  by  his  debtor  in  security 
of  a  debt,  or  of  an  advance  of  money  ;  which 
subject  the  creditor  is  to  re-deliver  on  receiv- 
ing repayment.  The  creditor  is  liable  in  a 
middle  degree  of  diligence  for  preserving  the 
pledge  {prcBstat  culpam  levem) ;  and  should 
it  perish  without  any  fault  imputable  to 
the  creditor,  beyond  what  is  implied  in  this 
degree  of  diligence,  it  perishes  to  the  debtor, 
as  being  the  proprietor  ;  and  the  creditor  is 
entitled  to  the  expense  profitably  disbursed 
on  the  subject  while  in  his  hands.  The  pledge 
cannot  be  sold  without  judicial  authority ; 
and  therefore,  where  a  sale  becomes  neces- 
sary, the  proper  course  is  to  apply  to  the 
judge-ordinary  for  a  warrant  to  sell  the  sub- 
ject hy  public  sale — the  pledger  being  called 
as  a  party.  Ersk.  B.  iii.  tit.  1,  §  33 ;  Bell's 
Com.  ii.  20,  et  seq.;  Stair,  B.  i.  tit.  13,  §  11 ; 
B.  ii.  tit.  10,  §  1 ;  Mor^s  Notes,  p.  Ixxvii. ; 
Brodie's  Supp.  913  ;  Bank.  vol.  i.  p.  383,  et 
seq. ;  Bell's  Princ.  p.  56  ;  Illust.  151 ;  Kames' 
Stat,  Law  Abridg.  h.  t. ;  TatVs  Justice  of  Peace, 
k.  U  ;  Blair's  do.  voce  Pawn  ;  Ross's  Lect.  ii. 
321.  Seo  Pactum  Legis  CommissoricB  in  Pig- 
tuirihu.     Culpa,    Pawnbrokers. 

Pleg^na ;  "  a  pledge,  borgh,  or  cautioner. 
Dimittere  terras  ad  plegium,  to  let  lands  to 
borgh,  isirhen,  any  controversy  being  for  the 
possession  of  lands,  the  same  are,  after  in- 
quisition -  and  trial  taken  thereanent,  given 


and  committed  to  their  last  lawful  possessor, 
under  borgh  and  caution  that  he  shall  restore 
them  to  him  who  shall  be  found  to  have  right 
thereto."    Skene,  h.  t. 

Plongh-GoodB.— By  the  act  1503,  c.  98, 
horses,  oxen,  and  other  goods  pertaining  to 
the  plough,  are  forbidden  to  be  poinded  at 
the  time  of  labouring  the  ground,  when  the 
debtor  has  other  goods.  The  time  of  labour- 
ing in  this  statute  is  understood  to  be  the 
time  at  which  the  individual  is  engaged  in 
labouring,  whether  he  be  earlier  or  later  than 
the  rest  of  the  country.  This  labouring  does 
not  extend  to  summer  fallowing,  but  only  to 
the  labour  necessary  for  raising  the  crop  of 
the  season,  so  that  the  land  may  not  lie  waste. 
Where  there  are  not  enough  of  other  move- 
ables to  answer  the  debt,  the  messenger  may 
poind  even  the  plough-goods.  If  the  messen- 
ger has  been  shown  ether  poindable  effects 
equal  to  the  debt,  exclusive  of  the  plough- 
goods,  and  has  notwithstanding  poinded  the 
latter,  it  amounts  to  a  spulzie.  If,  on  the 
other  hand,  the  messenger  has  poinded  plough- 
goods  in  consequence  of  not  having  made  a 
sufBcient  search  for  others,  the  debtor  is  en- 
titled to  restitution  merely.  Ersk.  B.  iii.  tit. 
6,  §  22  ;  Stair,  B.  i.  tit.  9,  §  29  ;  B.  iv.  tit» 
30,  §  5 ;  tit.  47,  §  34  ;  Hunter's  Landlord  and 
Tenant,41-2, 816;  Tail's  Just,  voce  Poinding. 
By  the  act  1587,  c.  82,  the  offence  of  destroy- 
ing plough-graith  in  time  of  tillage  is  punish- 
able as  theft ;  the  offence  may  be  tried  before 
the  judge-ordinary,  and  without  a  jury.  Ersk. 
B.  iv.  tit.  4,  §§  39,  62. 

Plonghgate  of  Land.  According  to  Bal- 
four, "  ane  pleuch  sould  contene  viii  oxen- 
gang,  the  oxengang  sould  contene  xii  aikers, 
the  aiker  sould  contene  iiii  rudis,"  &c. ;  Bal- 
four's Prac.  voce  Brieve  of  Dirision,  c.  98, 
p.  441.  But  although  this  may  have  been  a 
rule  in  measuring  land  anciently,  it  will  not 
be  found  to  correspond  with  the  measure- 
ments specified  in  charters.  A  ploughgate  of 
land  is  the  property  qualification  to  hunt 
under  the  game-laws.    See  Acre. 

Plumper.  If  there  be  more  seats  vacant 
than  one  in  the  same  county  or  burgh,  and  a 
voter  chooses  to  vote  for  only  one  of  the  can- 
didates, he  can  give  him  but  a  single  vote, 
which  Is  then  called  a  plumper.  See  Reform 
Act. 

Plvris  Petitio ;  is  the  asking  more  judici- 
ally than  is  truly  due.  W  here  an  adjudica- 
tion is  led  for  a  larger  sum  than  what  is 
actually  due  to  the  adjudging  creditor,  it  is 
said  to  be  a  pluris  petitio,  which,  where  it  is 
material,  or  where  there  has  been  culpable 
neglect,  or  fraud,  will  have  the  effect  of  an- 
nulling the  adjudication.  Where  the  pluris 
petitio  is  slighter,  its  only  effect  is  to  reduce 
the  adjudication  to  a  security  for  principal 


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and  interest,  without  expenses  or  penalties. 
Pluru  petitio  in  the  libel  is  immaterial,  if  de- 
cree be  taken  onlj  for  the  sums  really  due. 
Bdl's  Com.  i.  745 ;  Karnes'  Equity,  296.  See 
Adiudieation.    Articulate  Adjudication, 

Poinding;  is  the  Scotch  law  diligence, 
whereby  the  property  of  the  debtor's  move- 
ables is  transKr^d  to  the  creditor  using  the 
diligence.  Poinding  is  either  real  or  per- 
sonal :  Real  poinding  proceeds  on  debita  fundi, 
and  it  affects  the  moveables  on  the  lands  to 
which  the  debt  attaches ;  pers^^  poinding, 
on  the  other  hand,  is  used  by  creditors  in  or- 
dinary personal  obligations,  and  affects  the 
debtor's  moveable  goods  and  effects.  There 
is  a  third  description  of  attachment  which  has 
also  been  termed  poinding,  whereby  cattle 
fonnd  trespassing  on  the  grounds  of  another 
are  detained  until  the  owner  of  the  cattle 
make  satisfaction  for  the  injury.  These  seve- 
ral attachments  will  be  shortly  considered  in 
their  order. 

I.  Rbal  PoiiTDive,  OB  Ponnwwa  of  th« 
Gkovnd. 

This  species  of  poinding  commences  with 
an  action,  and  proceeds  on  an  heritable  se- 
curity, or  such  other  dfbilum  fundi  as  may 
be  the  warrant  of  the  action ;  which  is  of  the 
nature  of  a  real  diligence  or  execution  for 
poinding  all  the  goods  on  the  lands  over  which 
the  security  extends.  This  action  is  competent 
to  a  superior  for  his  feu-duties,  to  an  annual- 
renter  for  the  arrears  of  his  interest,  or  to 
an  heritable  creditor,  and,  in  general,  to  all 
creditors  in  debts  which  constitute  a  real 
burden  or  lien  on  lands.  An  assignee  and 
dispones  to  an  heritable  bond  on  which  sasine 
had  been  taken,  though  not  himself  infeft  on 
the  conveyance  in  his  favour,  was  found  en- 
titled to  pursue  a  poinding  of  the  ground ; 
Tweedie,  Jan.  22, 1836, 14  S.  A  D.  337.  But  it 
is  not  competent  to  proprietors,  or  even  to 
creditors  or  others  in  possession  of  the  ground; 
for  it  is  incompetent  to  poind  the  grounds  of 
the  lands  possessed  by  the  poinder  himself — 
an  action  of  maills  and  duties  being  the  proper 
action  for  recovering  what  is  due  to  such 
possessors  by  the  tenants  in  the  natural  pos- 
session. This  rule  of  law  has  given  rise  to 
the  question  how  far  it  is  competent  to  an 
heritable  creditor  who  has  taken  his  security 
in  the  form  of  an  absolute  disposition,  qualified 
by  a  back-bond,  to  poind  the  ground.  The 
principle  recognised  in  one  old  case  is,  that 
the  absolute  disponee  cannot  competently  poind 
the  ground ;  because,  in  virtue  of  his  absolute 
title,  he  may  enter  into  the  natural  possession. 
In  that  case,  a  person  had  wadset  his  lands 
and  taken  a  back-tack  of  them,  binding  him- 
self to  pay  to  the  wadsetter  a  yearly  rent, 


equal  to  the  interest  of  the  sum  borrowed. 
The  wadsetter,  considering  himself  a  creditor, 
bronght  an  action  for  payment  of  the  back 
tack-duty,  and  added  a  conclusion  for  poind- 
ing the  ground  in  time  coming.  This  was 
refused,  "  because  the  pursuer,  being  infeft  in 
the  property,  could  not  ask  his  own  ground 
to  be  poinded  for  any  sum  due  to  him  out  vS 
the  said  lands ;"  L.  Garthland,  March  2, 1632, 
M.  10,545 ;  Rot^s  Leet.  ii.  430.  The  efiet 
of  this  diligence  is  to  give  the  user  of  it  a 
right  to  the  rents ;  but  he  cannot,  in  virtue 
of  it,  assume  the  natural  possession  of  the 
lands.  And  not  only  the  tenants,  but  the 
proprietors  must  be  made  parties  in  the  action. 
There  is  no  personal  conclusion  against  the 
defender,  the  object  being  to  make  the  goods 
on  the  ground  subject  to  the  diligence.  Hence, 
when  decree  is  given,  and  letters  of  poinding 
issued,  they  are  executed  without  any  previoot 
charge  against  the  tenants  to  make  payment; 
for  there  being  no  decree  against  the  tenants, 
there  can  be  no  warrant  for  a  charge.  Hence, 
also,  after  letters  of  poinding  are  once  granted, 
they  may  be  put  in  execution  as  long  as  the 
pursuer  lives,  though  the  original  defender 
be  dead  or  removed.  The  goods  falling  under 
this  diligence  must  be  the  goods  of  the  owner 
or  of  the  tenants ;  other  goods  on  the  land 
are  not  subject  to  the  diligence.  But  by  the 
act  1469,  e.  36,  the  goods  of  tenants  cannot 
be  poinded  for  their  landlord's  debt  to  any 
greater  extent  than  the  amount  of  the  term'a 
rent  due  by  the  tenant,  or  the  arrears  which 
he  may  be  due  at  the  time.  In  a  competition 
of  poindings  of  this  nature,  the  superior  poind- 
ing the  ground  for  unpaid  feu-duties  and 
casualties  will  be  preferred.  Where  there  is 
no  such  ground  of  preference,  the  proces 
having  the  first  citation  is  preferred.  The 
sheriff's  jurisdiction  is  cumulative  with  that 
of  the  Court  of  Session  in  poindings  of  the 
ground.  It  has  been  questioned  whether  a 
poinding  of  the  ground  is  to  be  considered  of 
the  nature  of  a  diligence  or  an  action.  In 
one  case  it  was  laid  down  that  it  is  a  "process 
of  execution;"  Thonuon,  Feb.  1^  1828,  6  S. 
d  D.  526.  In  a  more  recent  case  it  was  con- 
tended by  an  heritable  creditor,  that  the 
raising  and  executing  a  summons  of  poinding 
the  ground  was  snfScient  to  give  him  a  right 
to  the  moveables,  preferable  to  that  of  a 
trustee  subsequently  confirmed,  on  the  ground 
that  the  creditor's  infeftment  in  the  land  gives 
him  a  real  though  accessory  right  in  the 
moveables  on  the  lands.  To  this  the  Lord 
Ordinary,  in  his  note,  objected — l«t,  That  the 
creditor  had  not,  in  virtue  of  his  infeftment 
alone,  a  right  to  the  moveables  preferable  to 
that  of  a  confirmed  trustee ;  and,  2d,  That  if 
it  required  diligence  to  complete  the  prefer- 
ence, that  diligence  must  be  complete,  and  not 


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inchoate  merelj.  The  Court  concarred  with 
the  Lord  Ordinary  on  the  first  point;  but 
with  respect  to  the  second,  they  held  that  the 
accessory  real  right  which  a  debitum  fundi 
confers,  is  sufficiently  preserved  by  its  being 
exercised  iempestive ;  and  that  the  mere  exe- 
cuting a  summons  of  poinding  the  ground  was 
such  a  timeons  exercise.  And  this  step  having 
been  taken  before  the  confirmation  of  the 
trustee,  they  held  it  to  constitute  a  right  pre- 
ferable to  that  of  the  trustee.  One  of  the 
judges  stated  it  as  his  opinion,  that  a  poinding 
of  the  ground  is  "  not  so  much  a  diligence  as 
a  declaratory  real  action ; "  Campbdl's  Trustees, 
Jan.  13,  1835,  13  S.  d  D.  237 ;  Ertk.  B.  iv. 
tit.  1,  §§  11-18 ;  BeWs  Com.  ii.  58 ;  Rott't  Lect. 
vol.  ii.  p.  392,  et  seq.;  Stair,  B.  iv.  tit.  23 ; 
tit.  47,  §  26,  et  $eq.;  Mor^s  Notes,  pp.  ccv.-xi.; 
Bank.  vol.  i.  p.  648;  BelPs  Prine.  §S  699, 
2369 ;  lUust.  §  699  ;  Kames'  Stat.  Law  Abridg. 
A.  t.;  Hunter's  Landlord  and  Tenant,  818-20; 
Jvrid.  Styles,  2d  edit.,  iii.  457-61 ;  Ross's 
Led.  ii.  392. 

2.    PeBSOKAL  PoiNOUfO. 

Personal  poinding — that  is,  the  poinding  of 
moveables  for  debt — may  proceed  either  in 
virtue  of  the  ordinary  letters  of  horning  issuing 
from  the  signet,  or  on  the  decrees  of  inferior 
courts  as  to  moveables  within  the  inferior 
judge's  jurisdiction.  The  first  step  is  to  charge 
the  debtor  to  pay  the  debt;  and  the  days  of 
the  charge  being  elapsed,  the  poinding  may 
proceed.  The  necessity  of  this  previous  charge 
was  enacted  by  the  statute  1669,  c.  4.  But 
there  is  an  exception  in  the  statute  in  favour 
of  landlords,  who  are  entitled  not  only  to 
poind  for  bygone  rents,  on  a  decree  of  their 
own  baron-court,  without  a  charge,  but  even 
to  poind  instanter  after  pronouncing  the  de- 
cree. There  is  also  an  exception  in  the  statute 
in  favour  of  superiors  poinding  the  efiects  of 
their  vassals  for  feu-duties.  A  debtor's  goods 
may  be  poinded  by  one  creditor,  though  pre- 
viously arrested  by  another  creditor.  Grow- 
ing com  may  be  poinded;  but  it  has  been 
found  that  poinding  of  a  growing  crop  only 
brairded,  and  of  clover-grass,  is  ineifectnal; 
Elders,  July  5, 1833,  11  S.  <*  D.  902.  The 
goods  of  tenants  cannot  be  farther  poinded 
than  to  the  extent  and  in  the  manner  pointed 
out  in  the  preceding  article;  neither  can 
plough-goods  (where  the  debtor  has  other 
efifects)  be  poinded  during  the  period  of  tillage. 
See  Plcugh-Goods.  With  those  exceptions,  all 
moveable  goods  and  effects  belonging  to  the 
debtor  may  be  affected  by  this  diligence.  It 
is  not  necessary  that  the  execution  of  poinding 
be  written  on  a  stamp,  or  signed  by  the  ap- 
praiser. A  poinding  was  held  to  be  inept  as  to 
certain  trunks  containing  a  variety  of  articles, 
where  the  appraisemeut  was  of  the  trunk  and 


its  contents  in  a  slump  sum,  without  a  valua- 
tion of  the  several  articles;  M'Knight,  Jan. 
27, 1835,  13  S.  A  D.  342.  The  goods  were 
formerly  adjudged  to  the  creditor  by  the  mes- 
senger on  appraisements  by  two  valuators 
chosen  by  himself,  once  at  the  place  where 
they  were  poinded,  and  once  at  the  market- 
cross,  whereby  great  injustice  was  done  to 
the  debtor.  But  now,  in  place  of  the  two 
appraisements,  only  one  is  necessary.  The 
goods  remain  in  the  hands  of  the  debtor,  and 
a  schedule  of  them,  with  their  appraised 
values,  is  also  left  with  him.  The  messen- 
ger then  reports  his  execution  of  the  letters 
to  the  sheriff  or  other  judge-ordinary,  who 
grants  warrant  to  sell  the  goods  by  public 
roup,  at  such  time  and  place,  and  after  such 
previous  advertisements,  as  circumstances  may 
require.  Should  any  person  carry  off  the 
poinded  goods,  or  any  part  thereof,  he  is  de« 
clared  by  the  statute  liable  in  double  the 
value  of  the  articles  abstracted.  The  net 
amount  of  the  sales  is  directed  to  be  paid 
over  to  the  creditor ;  or,  if  no  purchaser  ap- 
pear, the  goods  are  to  be  delivered  at  their 
appraised  value.  A  minute  of  the  transac- 
tion is  kept  by  the  clerk  of  court,  open  to  the 
inspection  of  all  concerned  for  the  fee  of  one 
shilling.  An  erroneous  notion  prevails,  that 
if  a  party  has  betaken  himself  to  the  dili- 
gence of  poinding,  he  is  not  also  entitled  at 
the  same  time  to  follow  out  personal  dili- 
gence against  his  debtor,  and  to  incarcerate 
him.  But  there  is  no  foundation  in  law  for 
this  notion.  A  creditor  may  poind,  arrest, 
inhibit,  incarcerate,  and  adjudge,  unieo  eon' 
textu,  for  one  and  the  same  debt ;  the  only 
exception  being  in  the  case  of  a  special  adjudi- 
cation, as  to  which  the  rule  is,  that  the  cre- 
ditor, after  he  has  attained  possession  under 
that  diligence,  shall  have  no  farther  execu- 
tion against  his  debtor,  by  arrestment,  cap- 
tion, or  otherwise.  The  special  adjudication, 
however,  is  never  resorted  to  in  practice,  and 
there  is  no  other  restraint  on  the  simulta- 
neous use  of  every  legal  form  of  diligence. 
See  Adjudication  for  Debt.  In  a  poinding 
under  letters  of  horning,  the  sheriff's  powers 
are  merely  ministerial,  and  he  cannot  inquire 
into  the  justness  of  the  debt ;  Clerk,  June  15, 
1824,  3  S.diD.  143.  See  Ersk.  B.  iii.  tit.  6, 
§20,  et  seq. ;  BelPs  Com.  ii.  60,  d  seq. ;  Stair, 
B.  i.  tit.  9,  §  21 ;  B.  iv.  tit.  30 ;  tit.  47,  §  29, 
et  seq. ;  More's  Notes,  pp.  ccccxxx.-i. ;  Bank. 
vol.  iii.  p.  23,  et  seq. ;  Bell's  Prine.  p.  673 ; 
Kame^  Prine.  of  Equity ;  Beli  on  Leases,  ii. 
313 ;  Ross's  Lect.  i.  385,  «/  seq. ;  Hunter's 
Landlord  and  Tenant,  667 ;  Madaurin's  She- 
riff-Court  Process  ;  Jurid.  Styles. 

3.  PoiKDiso  OF  Stbat  Cattle. 
The  poinding  of  cattle  found  trespassing 


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on  incloBures,  or  committing  depredations  on 
eom,  grass,  or  plantations,  is  of  a  different 
description  from  the  above-mentioned  poind- 
ings. Such  a  poinding  does  not  transfer  the 
property,  but  merely  gives  a  right  of  deten- 
tion to  the  person  who  seizes  the  cattle  on 
his  grounds,  until  satisfaction  is  made  to  him 
for  the  damage.  Where  the  parties  do  not 
agree  about  the  amount  of  the  damage,  it 
may  be  ascertained  by  the  appraisers  of  the 
barony,  with  the  expense  of  keeping  the 
cattle.  The  statute  1686,  c.  11,  which  con- 
firms this  right  in  the  proprietor,  gives  a 
penalty  of  half  a  merk  Mia  quoties  for  each 
of  the  cattle  found  trespassing,  over  and 
above  the  damage ;  and  for  these  claims — ^viz., 
the  damage,  penalty,  and  expense  of  keeping 
the  cattle — the  proprietor  is  understood  to 
have  right.  The  poinder  must  take  care 
that  the  cattle  poinded  be  put  into  a  proper 
place,  where  they  may  have  fodder  and  water. 
Such  poindings  may  be  made  hrevi  manu,  and 
without  judicial  warrant.  Enk.  B.  iii.  tit.  6, 
§  28 ;  Bank.  vol.  iii.  p.  27 ;  HuU^.  Justice, 
ii.  513 ;  TaiVs  Justice,  voce  Planting.  See 
Brevi  Manu. 

Poison.  By  the  act  1450,  c.  30  and  31, 
the  importers  of  poison,  by  which  bodily 
harm  may  be  taken,  are,  over  and  above 
death,  to  forfeit  lands  and  goods.  But  this 
law  is  in  desuetude.  Death  by  poisoning  is 
the  most  difficult  to  distinguish  from  natural 
death.  The  best  proof  is  the  existence  of 
poison  in  the  body  of  the  deceased  ;  but  this 
is  by  no  means  essential,  and  there  have  been 
many  convictions  of  murder  by  poisoning 
without  such  proof.  See  Burnett,  546 ;  Ali' 
son's  Princ.  75,  167  ;  Steele,  89-90.  In  Mr 
Steele's  excellent  work,  a  description  will  be 
found  of  the  symptoms  which  the  various 
kinds  of  poison  exhibit. 

Tlie  sale  of  arsenic  is  regulated  by  the  act 
14  Vict.  c.  13, 1851. 

Police.  This  terra,  in  a  large  accepta- 
tion, has  been  applied  to  the  due  regulation 
and  domestic  order  of  the  kingdom,  though 
it  is  more  generally  applied  to  the  internal 
regulations  for  watching,  lighting,  cleaning, 
and  also  for  punishing  minor  delinquencies  in 
great  cities.  A  system  of  police  has  been 
established  both  in  Edinburgh  and  Glasgow, 
and  in  other  considerable  towns  in  Scotland, 
by  special  statutes,  the  details  of  which  are 
foreign  to  a  work  like  the  present.  And  in 
1833  (3  and  4  Will.  IV.  c.  46)  a  general 
statute  was  passed,  enabling  burghs  in  Scot- 
land to  establish  a  general  system  of  police, 
which  however  was  superseded  by  the  act  13 
and  14  Vict.  c.  33, 1850.  The  object  of  the 
particular  statutes  referred  to,  generally 
speaking,  is  to  secure  the  watching,  lighting, 
and  cleaning  of  the  streets,  and  the  summary 


conviction  and  punishment  of-  minor  oiTenoei. 
The  expense  of  those  establishments,  where 
introduced  in  Scotland,  is  provided  for  by 
an  assessment  on  the  inhabitants ;  and  tbe 
superintendence  of  the  whole  system  of  eipei- 
diture  and  management  is  entrusted  to  eertsis 
commissioners  chosen  by  the  inhabitants  pay- 
ing assessment.  Ersk.  B.  iv.  tit  4,  §  38,  <( 
seq.;  Karnes'  Print,  of  Equity  (1825),  341; 
Karnes'  Stat.  Law  Abrtdg.  h.  L 

Policy  of  Insurance;  is  an  obligation  is 
writing,  specifying  the  nature  of  the  risk  is- 
sured  against,  and  the  premium  of  insurance; 
and  in  marine  insurance  the  noderwriten 
oblige  themselves  to  warrant  the  ship  tnd 
cargo,  to  the  extent  of  the  sums  annexed  to 
their  names,  against  all  dangers  arising  fiDm 
the  sea,  enemies'  ships,  pirates,  or  other  mis- 
fortunes whatsoever.  Those  who  nnilertai^e 
this  obligation  put  down  their  names,  andtlie 
sum  for  which  they  respectively  become  boand; 
and  it  is  from  thus  uTiderwriting  the  oUig*- 
tion  that  they  are  called  underwriters.  Bdft 
Com.  i.  599,  ei  seq. ;  BelPs  Princ.  124 ;  Komif 
Princ.  of  Equity.  See  Insurance.  Open  Pelitf- 
Waqer  Policy.     Valued  Policy. 

Poll.    See  Deed  PoU. 

Poll ;  is  the  taking  of  the  votes  of  the  el<^ 
tors  per  capita,  or  individually.  For  the  reg»- 
lations  regarding  the  polling  of  electors,  aee 
Reform  Act. 

Poor ;  those  destitute  persons  who  are  able 
but  unwilling  to  labour,  or  those  who,  byres- 
son  of  age  and  infirmity,  have  become  a  bur- 
den on  society. 

1 .  Idle  Poor.  — Several  acts  have  been  nude 
for  the  punishment  of  sturdy  beggars  tnd 
vagabonds— e.  y.,  1424,  c  42;  1535,  «.  22; 
1579,  c.  74,  all  of  which  are  ratified  by  the 
act  1698,  c.  21.  Under  the  descriptioos  is 
those  acts  are  comprehended  all  who  pretend 
to  tell  fortunes,  jugglers,  minstrels,  and  sQ 
who  can  give  no  good  account  of  the  msoner 
in  which  they  gain  their  subsistence,  and  »bo, 
though  able-bodied,  are  idle,  and  shun  Isboir; 
those  also  are  included,  who,  without aojssffi- 
cient  testimonials,  allege  that  they  have  been 
shipwrecked,  burned  out  of  their  houses,  or 
berried.  The  punishment  provided  forthfm 
by  those  statutes  is  whipping  and  burning  in 
the  ear ;  and  by  1579,  c.  74,  a  repetition  of 
the  crime  is  made  punishable  with  destb. 
The  execution  of  those  acts  is  entrusted  to 
magistrates  of  burghs,  and  sheriffs,  and  to 
justices  of  the  peace ;  1661,  c.  38 ;  ^«t  B.  '»• 
tit.  4,  §  39.  But,  except  as  to  some  minor 
penalties  kept  up  against  vagabonds,  these 
statutes  may  be  considered  in  total  desuetude. 
See  Vagtd>onds. 

2.  Infirm  Poor. — ^Those  who,  from  age  w 
infirmities,  are  unable  to  maintain  thew- 
selves,  are  ordered  to  be  muntiuned  by  a  tax 


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levied  on  the  parish  (1536,  c.  22) ;  and  by  an 
•ot,  1663,  c  16,  a  power  is  given  to  the 
landholders  in  landward  parishes  to  assess 
themselves  for  the  maintenance  of  such  of  the 
poor  as  cannot  fully  maintain  themselves,  and 
to  demand  relief  of  one-half  of  the  sum  from 
their  tenants.  The  acts  1695,  c.  43,  1696, 
c.  29,  and  1698,  c.  21,  which  relate  to  the 
same  subject,  ratify  the  former  acts,  give  di- 
rections for  carrying  them  into  execution, 
grant  power  for  that  purpose  to  the  Privy 
Council,  and  ratify  their  proclamations.  Un- 
der this  authority,  four  proclamations  were 
issned  by  the  Privy  Council,  on  August  11, 
1692;  August  29,  1693;  July  31,  1694; 
and  March  3, 1698. 

The  relief  of  the  poor  is  now  administered 
ande*  the  act  8  and  9  Vict.  c.  83, 1848.    A 
general  Board  of  Supervision  is  established, 
and  assessments  are  imposed  by  the  parochial 
boards  of  the  several  parishes  respectively, 
according  to  one  or  other  of  the  three  modes 
authorised  by  the  statute.    By  one  mode, 
one-half  of  the  assessment  is  imposed  upon 
the  owner,  and  the  other  half  upon  the  ten- 
ants or  occupants  of  all  lands  and  heritages 
within  the  parish,  according  to  the  annual 
value  of  the  lands  and  heritages.    In  esti- 
mating the  annual  value  of  lands  and  herit- 
ages, the  value  is  taken  to  be  the  rent  at 
which,  one  year  with  another,  the  lands  and 
heritages  may  in  their  actual  state  be  rea- 
sonably expected  to  let  for  from  year  to  year, 
under  deduction  (1.)  of  the  probable  annual 
average  cost  of  the  repairs,  insurance,  and 
other  expenses,  if  any,  necessary  to  maintain 
the  lands  and  heritages  in  their  actual  state ; 
and  (2.)  all  rates,  taxes,  and  public  charges 
payable  in  respect  of  the  lands  and  heritages. 
By  another  mode  of  assessment,  one-half  of 
the  assessment  is  imp(»ed  upon  the  owners  of 
the  lands  and  heritages  in  the  parish,  and  the 
other  half  is  imposed  upon  the  whole  inhabi- 
tant«  of  the  parish,  according  to  their  means 
and  substance  other  than  lands  and  heritages 
situated  in  Great  Britain  or  Ireland.     By  a 
third  mode  of  assessment,  the  assessment  is 
imposed  as  an  equal  per-centage  upon  the 
annual  value  of  aU    lands  and  heritages 
within  the  parish,  and  upon  the  estimated 
annual  income  of  the  whole  inhabitants  of 
the  parish  from  means  and  substance  other 
than  lands  and  heritages  situated  in  Great 
Britain    or  Ireland.     When  the  parochial 
board  of  any  parish  has  resolved  on  the 
manner  in  which  the  assessment  is  to  be  im- 
posed, the  resolution  is  reported  to  the  Board 
of  Supervision  for  approval ;  and  if  approved 
of,  is  adopted  and  acted  upon,  and  cannot  be 
altered  or  departed  from  without  the  sanc- 
tion of  the  Board  of  Supervision.  If  the  mode 
of  assessment  resolved  on  shall  not  be  ap- 
2s 


proved  of  by  the  Board  of  Supervision,  the 
pai-ochial  board  must  meet  and  resolve  upon 
another  of  the  three  modes ;  and  the  mode  so 
resolved  on  is  reported  to  the  Board  of  Super- 
vision, and  cannot  be  altered  or  departed 
from  without  the  sanction  of  the  board.  The 
property  formerly  vested  in  the  heritora  and 
kirk-session  for  behoof  of  the  poor  of  a  pa- 
rish is  now  admiuistered  by  the  parochial 
board  of  the  parish  ;  but  church  collections 
continue  to  be  disposed  of  by  the  kirk-session 
of  each  parish  in  the  same  manner  as  for- 
merly. The  assessments  may  be  applied  to  the 
relief  of  the  occasional  as  well  as  of  the  per- 
manent poor;  but  able-bodied  persons  out  of 
employment  have  no  right  to  demand  relief. 
In  Parie  V.  Ueek,  March  4,  1859,  21  D. 
1612,  it  was  found  that  a  parochial  board 
were  not  entitled  to  give  relief  to  an  able- 
bodied  man  out  of  employment,  and  that  such 
a  person  receiving  relief  was  not  thereby  pre- 
vented from  acquiring  an  industrial  residence. 
It  is  the  parish  within  which  a  man  has 
been  bom,  unless  he  shall  have  formed  a 
new  settlement  for    himself   by  residence, 
which  is  bound  to  support  him ;  but  where 
a  man  has  resided  five  years  in  another  pa- 
rish, it  is  the  parish  within  which  he  has 
resided  for  the  five  years  preceding  his  ap- 
plication for  charity  which  is  bound  to  sup- 
port him.    A  woman,  by  marriage,  imme- 
diately acquires  the  settlement  of  her  hus- 
band; and  she  cannot,  during  the  subsistence 
of  her  marriage,  acquire  a  settlement  inde- 
pendent of  him. '   Children  under  fourteen 
years  of  age  cannot  acquire  a  settlement  by 
residence.    It  is  su£Scient  residence  in  a  pa- 
rish if  the  pauper  has  had  his  most  common 
resort  there,  although  he  may  have  been 
absent  for  a  considerable  part  of  each  year, 
and  even  although  he  has  never  had  a  house 
in  the  parish.    Where  a  settlement  has  once 
been  acquired,  it  formerly  could  not  be  lost 
but  by  the  acquisition  of  a  new  settlement ; 
bat  now  a  person  loses  his  acquired  settlement 
if,  during  any  subsequent  period  of  five  years, 
he  shall  not  have  resided  continuously  for  at 
least  one  year.    The  settlement  of  children 
not  forisfamiliated  does   not  depend  upon 
the  place  of  their  birth,  but  upon  the  set- 
tlement of  their  parents.     Lawful  children 
follow  their  father's,  natural  children  their 
mother's  settlement    This  settlement  is  lost 
as  soon  as  the  child  acquires  a  settlement  by 
residence  or  marriage,  and  it  never  revives, 
paupers  cannot  come  upon  the  parish  of  their 
birth  if  they  have  acquired  a  settlement  by 
residence,  or  during  the  subsistence  of  a  set- 
tlement by  marriage  or  by  parentage. 

The  subject  of  poor-laws  has  been  ably 
treated  by  Mr  Dunlop  in  his  Treatise  on 
ParochialLaw,  p.  161,  d  seq.  See  also  Moni/m 


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jMnny  {Lord  Pitmilltf)  on  Poor-Law;  Caird's 
Poor-Law  ManwU;  Guthrie  Smith's  Digttt  of 
the  Poor-Law ;  Ertk.  B.  i-  tit.  7,  §  61,  «<  teq., 
and  Notes  hy  Mr  Ivory ;  Stair,  B.  ii.  tit  1,  §  6 ; 
Bank.  i.  p.  61 ;  Bell's  Prine.  p.  304  ;  Kames' 
StaL  Law  Abridg.  voce  Vagrant. 

Id  England,  the  poor-law  is  principally 
regulated  by  4  and  5  Will.  IV.  c.  76,  com- 
monly called  the  Poor-Lav  Amendment  Act. 
This  statnte  authoriRes  the  appointment  of 
commissioners  (who  form  a  central  board  of 
control)  and  aasistant-commissioners,  to  carry 
the  act  into  effect.  The  details  of  the  sys- 
tem ai%  managed  by  guardians  of  the  poor, 
churchwardens,  and  overseers.  See  Oversoers. 
By  3  and  4  Will.  IV.  c.  40,  altered,  amend- 
ed, and  continned  by  7  Will.  IV.  c.  10,  pro- 
vision is  made  for  the  removal  of  poor  per- 
sons bom  in  Scotland  and  Ireland,  and  charge- 
able to  parishes  in  England. 

Foor'a-Boll ;  the  roll  of  litigants  who,  by 
reason  of  poverty,  are  privileged  to  sue  or 
defend  «n  forma  pauperis.  This  privilege  is 
conferred  by  the  Court,  on  being  satisfied 
of  the  poverty  of  the  applicant,  and  that  he 
hM  probabilis  causa  litigandi ;  and  the  advan- 
tage of  being  admitted  to  the  benefit  of  the 
poor's-roll  is,  that  the  party  has  his  cause 
thereafter  conducted  gratuitously  by  the 
counsel  and  agents  for  the  poor,  and  is  re- 
lieved from  the  fee-fund  and  enrolment  fees, 
and  from  all  other  Court  fees  and  charges. 
This  being  a  privilege  which  exposes  the 
adverse  party  in  the  suit  to  the  hardship  of 
litigating  with  a  pauper  opponent,  the  Court 
has  guarded  against  the  abuse  of  conferring 
the  privilege  except  upon  good  grounds.  With 
that  view,  the  A.  S.  16th  June  1819  pro- 
vides that  the  Faculty  of  Advocates  shall  ap- 
point six  of  their  number  annually  to  b«  ad- 
vocates for  the  poor ;  and  that  the  vriters  to 
the  signet,  and  agents  and  solicitors,  shall 
each  nominate,  in  the  month  of  December 
annually,  four  of  their  number  respectively 
to  be  writers  and  agents  for  the  poor ;  and 
shall  immediately  after  s«ch  nomination  give 
in  to  the  senior  clerk  of  each  Division  of  the 
Court  a  list  of  the  persons  so  appointed ; 
which  list  is  entered  in  the  books  of  Sederunt. 
No  person  is  entitled  to  the  benefit  of  the 
poor's  roll,  unless  he  produce  a  certificate, 
under  the  hands  of  the  minister  and  two 
elders  of  the  parish  where  he  resides,  setting 
forth  his  circumstances,  according  to  a  for- 
mula annexed  to  the  act.  The  formula  states 
the  applicant's  age,  whether  he  (or  she)  be 
married  or  not,  the  number  of  his  children,  the 
length  of  his  residence  in  the  parish,  the  pro- 
perty of  which  he  is  possessed,  his  trade  and 
earnings,  and  whether  he  have  any  other 
lawsuit.  If  the  party's  health  adroit  of  it, 
he  must  appear  personally  before  the  minis- 


ter and  elders,  to  be  examined  as  to  the  facti 
required  by  the  formula;  and  the  minister 
and  elders  must  then  certify  how  far  the 
statement  of  the  party  consists  with  their  own 
knowlege,  or  that  of  any  one  of  them,  or 
whether  its  credit  rests  solely  on  the  stste- 
ment  of  the  applicant;  in  which  case  thejmmt 
certify  whether  he  or  she  be  of  good  ehsrac- 
ter  and  worthy  of  credit.     Where  the  clergy- 
man or  elders  refuse  to  give  a  certificate  to  » 
party  applying  for  the  benefit  of  the  poor's- 
roll,  the  Court  will  cite  them  to  give  evidence 
at  the  bar  as  to  the  applicant's  condition; 
Craigie,  Feb.  10, 1832, 10  S.  <b  D.  315 ;  Glats, 
March  7, 1833,  11  S.AD.  543 ;  Smith,  h\j 
8, 1834, 12  S.  A  D.  890.    In  several  former 
instances,  the  Court,  on  the  minister's  refusal 
to  give  a  certificate,  remitted  to  the  sheriff  of 
the  county  to  inquire  and  report;  Rattnf, 
July  8, 1824,  »  S.  d;  D.  232.     See  also  7  & 
d;D.  301;   9  S.  d;  D.  308.    This  was  dose 
in  a  more  recent  case,  where  there  were  no 
elders  in  the  parish ;  A.  B.,  June  30, 1836, 
14  D.  B.  M.  1040.    In  such  cases,  the  sheriff 
may  remit  to  the  procurators  for  the  poor  to 
inquire  into  the  poverty  of  the  party.  Where 
a  kirk-seauon  obstinately  refuse  to  take  tlie 
declaration  of  an  applicant  for  the  poor's-roll, 
in  terms  of  the  Act  of  Sederunt,  and  thereby 
occasion  unusual  delay  and  expense  to  the 
pauper,  the  Court  will  subject  them  in  ex- 
penses to  him  ;  Morris,  July  10,  1835, 13  S, 
<tZ).  1092.    A  certificate  by  the  minister  and 
elders  of  a  dissenting  congregation  is  not  suf- 
ficient to  support  an  application  for  the  beoe- 
fit  of  the  poor's-roll ;  ElphintUme,  Feb.  11, 
1836,  14  S.  d  D.  463.    The  subscription  of 
the  minister  implies  his  attestation,  that  the 
other  subscribers  designing  themselves  elden 
are  really  so ;  and  a  petitioB  was  ordered 
to  be  remitted  to  the  lawyers  for  the  poor, 
notwithstanding  an  allegation  that  these  par- 
ties never  had  been  ordained  elders ;  A.  B., 
Nov.  26,  ]  833,  12  -S.  «t  D.  127^    The  kirii- 
session  has  nothing  to  do  with  the  merits  of 
the  action ;  Smith,  July  8,  1834,  12  S.  *D. 
890.     Ten  days'  previous  intimation  mnst  b* 
given  to  the  adverse  party  of  the  time  and 
place  fixed  for  making  the  declaration  or 
statement  before  the  minister  and  elders ;  and 
evidence  of  the  intimation  must  be  produced 
to  the  minister,  under  the  hands  of  a  notarj- 
pnblie,  messenger-at-arms,  sheriff  or  ton 
officer,  or  other  officer  of  the  law.    The  de- 
claration of  the  party,  and  certificate  of  Hm 
minister  and  elders,  and  of  intimation  to  the 
opposite  party,  are  the  warrant  for  a  peti- 
tion to  the  Court  for  the  benefit  of  the  poor's- 
roll.    The  petition  need  be  in  writing  only, 
and  mnst  be  boxed  to  the  Lord  President  of 
the  Division.    A  copy  of  the  declaration  of 
the  party,  and  certificate  by  the  minister  and 


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elders,  must  be  appended  to  the  copy  so 
boxed.     On  moving  this  petition,  if  the  above 
requisites  have  been  complied  with,  the  Court 
pronounce  an  interlocutor,  ordering  intima- 
tion in  the  Minute-book,  and  on  the  walls  for 
ten  days  ;  after  which  the  petition  is  again 
moved  by  the  Lord  President,  and  remitted 
to  the  lawyers  and  agents  for  the  poor,  to  re- 
port whether  the  petitioner  has  a  prolabiliit 
eausa  litigandi.    It  is  the  exclusive  privilege 
of  the  counsel  for  the  poor  to  judge  whether 
there  be  probabilu  causa,  although  the  agents 
nay  differ  from  them;  Clark,  July  6,  1833, 
11  S.  A  D.  908.    And  it  is  incompetent  for 
the  Court  to  review  the  judgment  of  the 
counsel  for  the  poor  as  to  the  probabilit  eama  ; 
Currie,  Jan.  21, 1829,  7  S.  d  D.  302 ;  A.  B. 
Nov.  19,  1833,  12  S.  A  D.  58.    It  is  no  ob- 
jection to  effect  being  given  to  a  report  by  the 
lawyers  and  agents  for  the  poor,  as  to  proba- 
bilis  causa,  that  the   Lord  Ordinary  before 
trhom  the  cause  depended  had  decided  against 
the  applicant ;  Gibb,  June  15, 1833, 11  S.  d 
D.  132.    After  a  remit  to  the  lawyers  for 
the  poor,  and  a  report  that  there  was  pro- 
babilit eausa,  it  was  held  too  late  to  object 
that  the  certificate  of  poverty  was  informal, 
in  respect  of  the  ministers  and  elders  omitting 
to  state  whether  any  of  the  applicant's  allega- 
tions were  within  their  own  knowledge ;  and 
that  objection  was  not  allowed  to  be  stated ; 
Oal,  July  9, 1836, 14  S.  «*  D.  1120.    Besides 
eonsidering  the  eausa  litigandi,  the  counsel 
and  agents  to  whom  the  remit  is  made  must 
hear  all  objections  offered  by  the  adverse 
party  to  the   truth  of  the  statements  con- 
tained in  the  declaration  and  certificate  of 
poverty,  and  are  entitled  to  demand  addi- 
tional evidence  in  regard  to  any  particular 
which  they  may  require  to  be  proved,  and 
to  report  thereon  to  the  Court.    If  the  Court 
find  the  petitioner  entitled  to  the  benefit  of 
the  poorVroU,  the  counsel  and  agent  who 
have  made  the  report  are  appointed  to  con- 
duct the  petitioner's  cause,  and  must  continue 
to  do  so  till  its  conclusion,  or  as  long  as  the 
petitioner  remains  on  the  poor's-roll,  although 
they  may  have  ceased  to  be  advocates  and 
agents  for  the  poor.     No  warrant  for  the 
benefit  of  the  poor's-roll  remains  in  force 
longer  than  two  years  from  its  date,  except  to 
the  effect  of  entitling  the  poor  person  to  a 
gratis  extract  of  any  decree  which  may  have 
been  pronounced;   and  the   subsequent  re- 
newal, after  an  interval  from  the  date  of  ex- 
piration, will  not  draw  back  in  its  effects  to 
the  intervening  period ;  A.  S.  Aug.  10,  1784, 
§  5 ;  Murdoch,  June  3,  1825,  4  S.  A  D.  68. 
An  application  for  a  renewal  must  be  made 
by  note  to  the  Lord  President  of  the  Division, 
accompanied  by  a  report  from  the  counsel  in 
the  cause,  stating  whether  it  appears  that 


the  petitioner  has  still  a  probabxlis  causa  liti- 
gandi, and  giving  a  concise  detail  of  the  steps 
which  have  been  taken  for  bringing  the  pro- 
cess to  a  conclusion,  and  the  cause  which  ap- 
pears to  have  prevented  a  final  determination. 
This  note  must  be  duly  intimated  to  the 
agent  for  the  adverse  party  in  common  form, 
before  boxing  it  for  the  Lord  President.    On 
or  before  the  sixth  sederunt-day  of  each 
winter  session,  the  advocates  and  agents  for 
the  poor  must  box  a  report  to  the  Lord  Presi- 
dent of  each  Division  of  the  state  of  the 
poor's-roll  of  that  Division  ;*  the  number  and 
names  of  the  persons  enjoying  the  benefit  of 
it,  with  the  dates  of  their  several  warrants  of 
admission  or  renewal,  and  any  special  matter 
relating  to  that  roll  generally,  or  to  any  par- 
ticular case,  which  they  may  think  the  Court 
ought  t«  know.     The  principal  clerks  of 
each  Division  must,  on  or  before  the  sixth 
sederunt-day  in  each  winter  session,  make  up 
and  report  to  the  Lord  President  of  each 
Division  an  abstract  of  the  number  of  appli- 
cations which  have  been  presented  for  tlw 
benefit  of  the  poor's-roll  during  the  year  pre- 
ceding, with  the  manner  in  which  they  have 
been  disposed  of.     When  the  Court  remit  a 
petition  to  the  advocates  and  agents  for  the 
poor  to  consider,  it  is  the  duty  of  the  writer 
to  the  signet,  or  agent  named  in  the  remit,  to 
procure  from  the  petitioner,  or  his  former 
agent,  information  as  to  the  circumstances  of 
the  case,  and  to  draw  np  a  full  memorial 
thereof,  and  lay  the  same  before  the  advocates 
and  agents  named  in  the  remit,  for  enabling 
them  to  make  their  report ;  and  if  further 
evidence   or  explanation   appear  necessary, 
such  agent  must  direct  and  assist  the  peti- 
tioner  in  procuring  it     The  names  of  the 
advocates  and  agents  to  whom  the  cause  ig 
remitted  must  be  narked  on  the  margin  of 
the  summons  or  defences,  or  letters  of  advo- 
cation or  suspension,  and  on  the  back  of 
every  subsequent  paper  given  in  for  that 
party  in  the  cause.    No  enrolment  can  be 
made  except  by  the  agent  appointed  as  above, 
nor  in  the  name  of  any  advocate  except  of 
the  counsel  so  a^^inted.    The  word  "  Foot" 
must  be  prefixed  to  the  name  of  the  party  on 
every  paper  given  into  Court.    No  other  ad- 
vocate or  agent  than   those   appointed  as 
above  can  be  employed,  or  allow  their  names 
to  be  used  in  any  stage  of  the  caiuse ;  unless, 
on  application  to  the  Lord  Ordinary  or  the 
Court,  by  a  note  signed  by  the  advocate  and 
agent  already  appointed,  the  assistance  of  one 
of  the  other  advocates  or  writers  for  the  poor 
is  specially  authorised ;  in  which  case,  those 
first  appointed,   and  those  so  added,  shall 
thereafter  act  conjunctly  in  the  cause.     Not- 
withstanding this  provision,  it  has  been  de- 
cided, that  senior  counsel  is  entitled,  on  appli> 

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cation  by  the  counsel  for  the  poor,  to  act  in 
the  poor's  cause  without  the  special  authority 
of  the  Court;  BeU,  Dec.  7, 1833, 12  S.  dt  D. 
187.  In  case  of  neglect  or  failure  in  any  of 
the  particulars  above  specified,  the  Court,  on 
the  application  of  the  adverse  party,  open  up 
and  set  aside  the  pveTions  proceedings  in  the 
cause,  and  deprive  the  party  of  the  benefit  of 
the  poor's-roll,  or  apply  such  other  remedy  as 
the  circumstances  of  the  case  require.  If  a 
party  on  the  poor's-roll  gain  his  cause  with 
expenses  generally,  this  will  be  held  to  include 
the  expense  of  getting  on  the  roll ;  Cameron, 
June  25, 1814,  F.  G.  But  if  this  expense  be 
not  charged  at  the  time,  and  the  accounts  be 
audited  and  decerned  for,  it  cannot  be  after- 
wards  claimed  ;  Gentles,  Nov.  15,  1827, 6  S. 
tt  D.  50.  A  party  on  the  poor's-roll  is  liable 
to  be  subjected  in  expenses  of  process  like 
other  litigants.  But  a  party  on  the  poor's- 
roll  residing  beyond  the  jurisdiction  of  the 
Court,  is  not  bound  to  sist  a  mandatarr  who 
shall  be  liable  for  expenses.  See  Mandatary. 
A  party  on  the  poor's-roll  is  equally  liable 
with  other  litigants  to  sufler  the  penalties 
imposed  in  consequence  of  the  neglect  of 
agents.  Thus,  a  party  on  the  poor's-roll  can- 
not be  reponed  against  a  decree  in  absence 
without  payment  of  previous  expenses  like 
other  litigants,  unless  itappear,  upon  investi- 
gation, that  the  decree  so  pronounced  has 
gone  out  fi'om  the  inability  of  the  party  to 
furnish  information,  and  not  from  any  fault 
or  neglect  of  the  agent  in  the  cause,  or  the 
wilful  neglect  of  the  pauper  himself;  A.  S. 
Dee.  23, 1825,  and  llth  My  1 828,  §  73.  The 
Court  exercise  the  same  discretion  in  award- 
ing expenses  in  regard  to  the  causes  of  parties 
on  the  poor's-roll  as  to  those  of  other  liti- 
ganta. 

A  further  Act  of  Sederunt  concerning  the 
poor's-roll  was  passed  21st  December  1842, 
by  which  the  proc«dure  is  now  regulated. 
By  this  act,  in  addition  to  the  counsel  and 
agents  appointed  for  conducting  the  causes  of 
the  poor,  two  advocates,  one  writer  to  the 
signet,  and  one  solicitor,  are  directed  to  be  ap- 
pointed each  year  to  act  exclusively  as  re- 
porters on  the  probabilis  cauta  of  the  pauper 
applicants  for  the  benefit  of  the  poor's-roll. 
This  Act  of  Sederunt  also  regulates  the  mode 
of  recovering  and  accounting  for  the  dues  of 
Court  and  professional  charges,  where  the  ad- 
verse party  has  been  found  liable  in  expenses. 

The  poor's-roll  in  the  Sheriff  Court  is  regu- 
lated by  the  A.  S.  12th  Nov.  1825,  part  1, 
c.  21,  which  directs  the  procurators  of  court 
annually  to  appoint  one  or  more  of  their 
number  to  act  as  procurators  for  the  poor 
gratis,  and  that  the  appointment  be  approved 
of  by  the  sheriff.  Application  for  the  benefit 
of  the  poor's-roll  is  made  by  petition,  along 


with  which  there  mast  be  produced  a  certifi- 
cate, signed  by  the  minister  of  the  parish,  or 
by  the  heritor  on  whose  lands  the  psnper  re- 
sides, or  by  two  elders,  bearing  that  it  con- 
sists with  their  personal  knowledge  that  the 
person  prosecuted,  or  who  means  to  bring  the 
action,  is  not  possessed  of  funds  for  paying  the 
expense  thereof.  This  petition  is  remitted 
to  the  procurators  for  the  poor,  who  most 
intimate  it  to  the  other  party;  and  after 
hearing  both  parties,  or  inquiring  into  the 
case,  report  their  opinion  specially  to  the 
sheriff,  whether  the  petitioner  has  a  pro- 
babilit  causa  litigandi.  On  considering  this 
report,  the  sheriff  either  refuses  the  petition, 
or  remits  to  one  or  more  of  the  procoraton 
for  the  poor,  who  must  attend  to  and  condact 
the  cause  to  its  final  issue.  The  panper  is 
not  liable  in  payment  of  any  of  the  does  of 
court,  or  fees  to  the  procurator,  or  to  the 
officer,  except  actual  outlay,  unless  expenses 
are  awarded  to  him  in  the  process.  The  Act 
of  Sederunt  of  the  same  date  (12th  Nor. 
1825,)  relative  to  Burgh  Courts,  makes  the 
same  provisions  with  regard  to  the  poor's-roll 
in  such  courts. .  See  on  the  subject  of  the 
poor's-roll  generally,  1424,  c  45;  A.  S. 
March  2,  1534 ;  April  27,  1635 ;  Nw.  20, 
1686  ;  June  9, 1710  ;  June  16, 1742 ;  iw. 
10,  1784;  Jtdy  11,  1800;  June  16,  1819; 
and  Nov.  12,  1825 ;  Bank.  ii.  489 ;  ErsL 
Princ.  593-6  ;  Karnes'  Stat.  Law,  A.  t;  Mae- 
laurin's  Sheriff  Prae.  295  ;  DutUep's  PariA 
Law,  279. 

In  the  House  of  Lords  parties  are  admitted 
to  plead  in  forma  pauperis,  upon  a  petition 
setting  forth  their  poverty,  accompanied  by 
an  aflSdavit  thereof,  and  a  certificate  from  the 
minister  and  two  elders  of  the  parish  where 
they  reside ;  and  if  the  prayer  of  the  petition 
be  granted,  the  cause  proceeds  in  all  other 
respects  like  any  other  cause,  except  that  the 
fees  of  ofBce  and  all  other  fees  are  avoided. 
See  the  forms  of  such  petition  and  affidavit. 
Smith's  Procedure  upon  Scotdt  Appeals,  p.  82, 
etseq. 

Pope.  The  Pope,  before  the  abolition  of 
Popery  in  Scotland,  exercised  an  absoiale 
jurisdiction  over  churchmen,  independent); 
altogether  of  the  civil  magistrate.  In  order 
to  check  a  disposition  on  the  part  of  the  Pro- 
testant clergy  to  claim  a  similar  independence 
of  the  Crown,  the  stat.  1584,  c.  129,  posterior 
to  the  Reformation,  declared  that  the  King's 
authority  extended  over  all  the  estates,  and 
that  he,  by  himself  and  his  council,  should  be 
judge  competent  to  all  persons,  spiritual  and 
temporal,  in  all  matters  on  which  they  might 
be  charged.  ErsL  B.  i.  tit.  5,  $  6  ;  Bank.  i. 
12  ;  Kame^  Stat.  Law  Abriig.  h.  t. 

Popular  Actum.  In  the  Roman  law  there 
were  certain  actions  which  might  have  been 


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insisted  in  by  any  person.  Hence,  an  action 
of  this  description  was  termed  an  actio  pop'u- 
lari*  :  bat  in  Scotland  there  is  no  such  civil 
action,  unless  the  actions  competent  to  the 
nearest  of  kin  of  a  minor  be  so,  where  the 
next  of  kin  may  pursue  in  the  action  of  sus- 
pect tutory,  or  in  the  reduction  of  such  deeds 
as  a  minor  may  have  ratified  by  his  oath; 
1681,  c.  19.  There  are  other  actions  arising 
ex  delicto,  where  statutory  penalties  are  in- 
curred, which,  under  special  statutes,  may  be 
prosecuted  by  any  person,  the  person  availing 
himself  of  that  privilege  being  nsually  called 
a  common  informer ;  to  whom  a  certain  share 
of  the  penalty  is  generally  allowed  by  the 
statute  under  which  the  action  is  laid.  Hume, 
ii.  115;  Batik.  B.  iv.  tit.  24,  §  10,  et  teq.; 
Ersk.  B.  ir.  tit  1,  §  17 ;  Katnes'  Eqaity,  237. 

PorteOTis  EolL  This  was  a  roll  of  the 
names  of  offenders,  which,  by  the  old  practice 
of  the  Justiciary  Court,  was  prepared  by  th6 
Justice-Clerk  from  the  informations  of  crimes 
furnished  to  him  or  his  deputies,  by  the  local 
authorities,  in  the  different  districts  compre- 
hended within  the  circuits.  The  Justice-Clerk 
in  former  times  seems  also  to  have  prepared 
the  indictments,  and  to  have  taken  the  other 
steps  necessary  for  briuging  offenders  to 
justice.  See  1487,  c.  99.  This  practice  was 
altered  by  the  statute  8  Anne,  c.  16,  §§  3,  4. 
See  Hume,  ii.  24,  et  seq.;  Ersk.  B.  iv.  tit,  4,  §  86; 
Kame^  Stat.  Laic,  voce  Dittay ;  Skene,  De  verb. 
sig.  h.  t.,  and  voce  Traistis.  See  Dittay.  Cri- 
minal Prosecution.     Traistit. 

Portenr  of  a  Bill ;  the  payee  or  holder  of 
a  bill  of  exchange.  Ersk.  B.  iii.  tit.  2,  §  25. 
See  Bill  of  Exchange. 

Fortioner ;  is  the  proprietor  of  a  small  feu 
or  portion  of  land. 

PortionerB,  Heirs.    See  Heirs-Portumers. 

Porta  and  Harboun.  Free  ports  are  inter 
regalia,  or  t»  pcUrimonio  principis.  The  sole 
right  of  erecting  or  of  holding  public  ports 
and  harbours  is  vested  in  the  Crown ;  unless 
when  this  right  is  limited  by  royal  or  parlia- 
mentary grants  to  communities  or  subjects. 
One  who  obtains  a  grant  of  a  harbour  is 
bound  to  keep  it  in  sufficient  repair,  and  is 
entitled  to  levy  harbour-dues  for  that  purpose. 
Such  dues  are  leviable  as  are  warranted  by 
immemorial  usage.  The  grantee  is  not  bound 
to  repair  or  improve  the  harbour  out  of  hb 
own  means ;  neither  is  he  entitled,  without 
authority  of  Parliament,  to  exact  additional 
dues,  in  order  to  indemnify  himself  for  any 
extraordinary  expenditure  or  iniprovementg. 
The  public  are  entitled  to  insist  that  the 
harbour  shall  be  kept  up  so  far  as  the  means 
afforded  by  the  dues  extend.  Ersk.  B.  ii. 
tit.  6,  §  17;  Stair,  B.  ii.  tit.  1,  §  5;  Mr 
Brodie's  Supp.  949 ;  Bank.  vol.  i.  p.  S3 ;  Bell's 
Com.  i.  506;  BeWs  Pmc.  §654;  Bust.  ib. 


See  also  the  case  of  Officers  of  State  v.  Christie, 
Mar.  4,  1856, 18  D.  727. 

PositiTe  Presoription.    See  Prescription 

PositiTe  Servitade.    See  Servitude. 

Posse  Comitatns ;  the  power  or  force  of  the 
county,  which  the  sheriff  has  a  right  to  call 
out  for  the  enforcement  of  the  diligence  of 
the  law. 

Possession ;  is  accounted  the  chief  test  of 
property ;  but  there  is  a  distinction  between 
the  effect  of  possession  in  heritable  aud  in 
moveable  property.  The  title  to  heritable 
property  must  be  instructed  scripto,  aud  regu- 
larly by  charter  and  sasine.  Without  such 
evidence,  possession  of  heritage  will  not  confer 
property;  neither  will  the  want  of  possession 
deprive  a  person  of  his  property,  whose  title 
is  founded  on  charter  and  sasine ;  unless  pre- 
scriptive possession  on  an  adverse  title  has 
taken  place.  Mere  possession  without  a 
written  title  confers  no  right  in  heritage. 
The  possession  of  moveables,  again,  is  regu- 
lated by  a  different  rule ;  for  where  things 
have  never  belonged  to  any  one,  (e.  g.,  pearls 
or  pebbles  found  on  the  sea-shore,  or  wild  fowl, 
or  beasts  of  the  chase,)  the  possession  or  occu- 
pancy of  them  creates  property.  In  things, 
again,  which  have  had  an  owner,  possession 
has  the  effect  of  raising  a  presumption  in 
favour  of  the  holder,  which  will  require  from 
the  fonner  proprietor  not  only  evidence  that 
they  were  his,  but  also  of  the  manner  in  which 
be  came  to  lose  his  possessiou.  Hence,  where 
a  disputed  article  has  been  taken  out  of  the 
possession  of  the  holder  vi  aut  clam — that  is, 
by  force  or  fraud — the  judge  will  first  of  all 
restore  it  to  the  person  who  was  in  possession 
of  it,  before  he  decides  the  point  of  right. 
On  this  subject,  see  Bona  Fides  and  Mala  Fides. 
Possession  is  divided  into  natural  and  civil. 
Natural  possession  is  where  the  proprietor  is 
himself  actually  in  possession,  as  of  lands  by 
cultivation,  and  by  sowing  and  reaping  tho 
crops ;  of  a  house,  by  inhabiting  it ;  of  move- 
ables, by  having  them  in  his  hand  or  in  his 
custody.  Civil  possession,  on  the  other  hand, 
is  possession  not  by  the  owner,  but  by  another 
in  his  name,  or  for  his  behoof,  as  of  lands  by 
a  tenant,  the  rents  of  which  are  drawn  by 
the  proprietor  or  his  factor,  or  of  property  by 
a  trustee  or  by  a  liferenter,  or  of  a  pledge  by 
the  creditor.  There  is  a  further  division  of 
possession,  into  that  which  is  acquired  lawfully 
and  that  which  is  acquired  v«  aut  clam.  But 
a  distinction  is  taken  between  force  and  fraud. 
Possession  attempted  to  be  acquired  by  force 
may  be  resisted  by  force;  but  possessiou, 
being  once  obtained  in  this  way,  must  be  re- 
claimed by  the  true  owner  judicially;  the 
party  who  has  ceased  to  posses  being  bound 
to  trust  to  the  protection  of  thj  law  for  resti- 
tution, aud  not  to  the  strength  of  his  own  arm. 

Digitized  byLjOOQlC 


646 


POS 


;>os 


In  the  case  of  fraud,  there  can  be  no  appeal 
to  force ;  and  where  possession  has  been 
acquired  by  either  of  these  means,  it  is  the 
duty  of  the  judge  to  restore  it  to  him  from 
whom  it  has  been  taken,  without  waiting  to 
settle  the  question  of  right ;  Ertk.  B.  ii.  tit.  1, 
$  20,  et  teq.;  Stair,  B.  ii.  tit.  1,  §  8,  e(  teq. ; 
Mor^s  Notes,  p.  cl. ;  Bank.  toL  i.  p,  510, 
ei  seq. ;  BelVs  Com.  i.  249,  et  teq.;  Bell  on 
Leases,  i.  52,  60,  88, 124, 185,  303,  323, 451, 
472 ;  Hwntei's  Landlord  and  Tenant,  290,  337, 
0t  teq.  {'Brown  on  Sale,  18, 20-4-6, 537 ;  Ross's 
Led.  ii.  81-8,  383,  488,  506.  See  Delivery. 
Reputed  Ownership,   Sasine.   Lease.    Vesting. 

PouOMione  Beteate.  See  RepvAed  Owner- 
ship.   Assignation. 

FOUtMOij  Action.  A  possessory  action 
is  one  in  which  the  point  of  right  is  not 
directly  concerned,  but  barely  that  of  posses- 
sion. Such  actions  are  competent  either  for 
attaining,  retaining,  or  recovering  possession. 
An  action  of  molestation,  by  which  a  proprie- 
tor of  heritage  complains  of  being  disturbed 
in  his  possession,  is  an  instance  of  this  form 
of  action.  Ersk.  B.  ir.  tit.  1,  §  47 ;  Stair, 
B.  iT.  tit.  26 ;  Bank.  ii.  619 ;  BeWs  Prine. 
.»»  §  2249 ;  Rott't  Led.  ii.  279.  See  Ejection 
mnd  IntrutioM,    MoUttation. 

FotMMory  Judgment.  A  possessory  judg- 
ment is  one  which  entitles  a  person,  who  has 
been  in  uninterrupted  possession  for  seven 
years,  to  continue  his  possession  until  the 
question  of  right  shall  be  decided  in  due 
course  of  law.  Thus,  for  example,  a  tenant 
who  has  been  in  the  peaceable  possession  of 
lands  for  seven  years  under  a  written  lease 
of  a  longer  endurance  than  seven  years,  is 
entitled  to  the  benefit  of  a  possessory  judg- 
ment, whereby  he  will  be  maintained  in 
possession  until  his  title,  if  it  be  defective,  is 
regularly,  reduced  and  set  aside  in  the  proper 
action.  It  has  been  held  that  a  party  may 
be  entitled  to  the  benefit  of  a  possessory  judg- 
ment regarding  a  servitude  of  ish  and  entry 
to  sTplot  of  ground,  though  he  held  the  ground 
under  a  bounding  charter  making  no  refer- 
ence to  such  servitude,  and  containing  no 
clause  of  parts  and  pertinents ;  Liston,  Dec.  3, 
1836, 14  S.  A  D.  97.  But  a  party  who  pos- 
sessed a  piece  of  ground  from  1821  to  1828, 
an^er  a  disposition  reserving  a  servitude  of 
road  in  favour  of  a  third  party,  having  then 
got  a  new  disposition  from  his  author  (whom 
he  guaranteed  against  the  consequences) 
omitting  the  clause  of  servitude,  and  having 
burnt  the  prior  disposition,  was  found  not 
entitled,  in  1831,  to  a  possessory  judgment,  in 
a  question  with  the  party  in  whose  favour  the 
servitude  was  reserved ;  Ross,  Feb.  28, 1833, 
W  S.tt  D.  467.  The  origin  of  this  right, 
according  to  Erskine,  is  supposed  to  have 
ta||gn,  that  wh^re  there  are  subaltern  rights 


of  the  same  lands  gratfted  to  vassals,  and  by 
them  to  sub-VRSsals,  th^  vassal  or  snb-vaasal 
not  being  master  of  the  original  title-deeds, 
which  commonly  rem^n'  with  the  highest 
superior,  might  be  turned  out  of  his  posses- 
sion by  one  who,  though  he  had  no  good  right 
at  bottom,  might  yet  produce  a  title  prior  to 
any  in  tlie  hands  of  the  possessor  himself. 
This  remedy  relives  .the  proprietor  from  all 
risk  of  being  deprived -of  his  possession  by  one 
who  has  no  title  to*  hie  property.  If  he  is 
dispossessed,  it  must  be  by  one  who,  in  law, 
is  truly  vested  with  a  preferable  right.  ErA, 
B.  iv.  tit.  1,  §  5p,  and.B.  ii.  tit.  6,  §  28; 
Stair,  B.  ii.  tit.  1,  §  25  ;  tit.  3,  §  73 ;  tit.  8, 
§  29  ;  B.  iv.  tit.  23,  §  16';  Bank.  vol.  i.  p.  513; 
BdVs  Prine.  6  2251  ;  Bell  on  Leases,  i.  89; 
Hunter's  Landlord  and  Thiant,  481,  657. 

Fort  Prozimmn  Tenniiinm  Kinime  Yalt 
tnnu.  Precel^  from  Chancery  for  infefting 
the  heir  of  a  deceased  Crown  vassal  must  Iw 
executed  before  the  lapse  of  the  first  term  of 
Whitsunday  or  Martikmas  after  the  date  of 
the  precept;  under  th^ sanction  of  nullity. 
Such  precepts  were  formerly  directed  to  the 
sheriff  of  the  county;  and  the  sheriff-clerk 
only  (except  under  sp^ial  circumstances) 
could  oCBciate  as  notar^^t  giving  infeftment. 
The  limitation  of  the^rdcept  in  point  of  time 
is  thus  expressed :  "  Post  proximum  terminim 
minime  wuiturus."  The  reason  assigned  for 
this  limitation  fs,  that  the  casualties  are  net 
calculated  beyond  the  teftn  preceding  the  spe- 
cial service  of  the  heir  f  and  if  another  term 
were  suffered  to  elapse  hefore  executing  the 
precept,  a  new  precen^and  an  additional 
calculation  of  the  casu^^es  would  be  neces- 
sary. 1540,  c.  77 ;'  1606,  c.  15 :  A.  S.Feh.  16th, 
1678  ;  DaUas"  Stfies,  folio  ed.  883 ;  4th  edit. 
ii.58S;  Jurid.  S^,\.^l,2A  edit;  Mac 
kay  r.  Camphelfs  TrusUHs,  13th  Jan.  1835, 
13  S.  A  D.  246,  not  rej^rted  on  this  point, 
bnt  see  it  argued  in  theiapers.    See  Preufi. 

By  the  *fct  8  >nd  9  TM.  o.  35, 1845,  pre- 
cepts from  Chanc^  may  be  addressed  to  any 
notary-puUic ;  al&'by  the  Titles  to  Lands  Act, 
1858,  the  precept' may  J)e  recorded  in  the 
Register  o^  Sasines,  in  p^ace  of  expeding  in- 
feftment oh  fhe  warrant  '^f  sasine  or  the  pre- 
cept.   See  Tiliet  to  Lat^- 

FotthnmoiiB  CMld;  is  a  child  bom  after 
the  deatlybf  the  father.  tThis  does  not  make 
any  difference  in  the  legal  rights  of  the  child. 
A  posthnmuis  child  cannot  be  charged  to 
enter  heir  til  a  y^r  after  his  birth  ;  Livivg- 
stoun,  28th  Feb.  1628,  M.  4870.  Brown's  Svpp. 
i.  375.  A  bond  of  provision  in  favour  of  two 
daughters,  as  the  grantor's  younger  children, 
and  executed  in  virtue  of  a  power  given  by 
an  entail  to  provide  for  younger  children, 
was  extended  to  a  posthumous  child;  Oli- 
phant,  10th  Dec.  1794;  Bell's  Cases,  125; 

Digitized  byCjOOQlC 


PO*. 


POW 


647 


Brown's  Supp.  v.  648. '  See  Conditio  n  tine 
Liberii,     Venire  inspiciindb. 

Postiiminii  Jus.  By  the  Roman  law, 
when  one  was  taken  in  war,  and  made  a  slave, 
his  rights  as  a  freeman  were  not  eptirely 
destroyed :  they  were  only  suspended — and  if 
be  made  his  escape,  they  eo  ipso  revived ;  so 
that  he  could  not  be  reclaimed,  unless  again 
enslaved  in  the  regular  w»y.  This  right 
which  snch  slaves  enjoyed  was  called  jus 
postiiminii;  and  the  term  has  been  employed, 
in  modern  times,  in  questions  respecting  the 
right  to  retake  a  ship  which  has  been  captured 
and  made  its  escape.  Inst,  of  Just.  B.  i.  tit. 
12,  §  5.    See  Slave. 

FortnatoB  Filius ;  a  second  son.  Skene  k  t. 

Postnaptial  Contraet  See  Contract  of 
Marriage.  • 

Pott4)ffioe ;  the  office  for  the  conveyance 
of  letters  through  the  kingd^n,  both  from 
foreign  countries,  and  from  place  to  place 
within  Great  Britain.'  The  existing  statutes 
which  relate  to  the  Ptat-oflSce  are — 1  Vict. 
0. 32,  33, 34, 35,  36 ;  -3  and  4  Vict.  c.  96  j  10 
and  11  Vict.  c.  85 ;  a<d  11  and  12  Vict.  c.  88. 

PoteststiTC  Cuidition.  See  Conditional 
Obligation. 

Potior  est  Conditio.  Possidetis,  vol  De- 
fendentis.    See  Pactum -Illicitum. 

Pound ;  in  Engladd,  an  inclosed  place  of 
strength,  in  which  cattle  distrained  for  rent 
or  for  damage  feasant  are  kept  until  they  are 
redeemed  or  replevied^     Tomliruf  Diet.  h.  t. 

Pound  Scots.    SedtScoteA  Money. 

"Bowvt  of  Attorney ;  is  a  power  given  by 
one  man  to  another  tQ  act  for  him.  This  is 
properly  an  English  ^rm  :  the  Scotch  deed 
is  called  a  factory  or  commission.  For  the 
form  of  a  power  of  attorney,"  see  Jurid.  Styles, 
ii.  293,  et  seq.  See  Agent.  .Factor.  Procura- 
tor.   Mandate. 

Power  of  Sale.  In  heritable  securities  for 
debt,  whether  in  the  form  of  heritable  bonds, 
or  of  bonds  and  dispMitions  in  security,  it  is 
now  almost  the  invariable  practice,  to  insert 
a  clause  conferring  on  the  creditoi;  a  power 
to  sell  the  heritable  subject  of  the  security, 
in  the  event  of  the  debt  not'being  paid  within 
a  certain  time  (commonly  six  months)  after 
a  formal  demand  ofvpayment.  This  clause 
formerly  took  the  creditor  bound  to  make  the 
demand  of  payment  On  the  debtor  pe.rsonaIly, 
or  at  his  dwelling-house,  if  he  were  in  Scot- 
land, or  edictally  if  hs  were  furth  of  Scotland. 
If,  after  such  requisiuon,  aj^d  the  lapse  of  the 
limited  time,  the  (^ebt  was  not  repaid,  the 
creditor  was  then  empowered  to  sell  the  sub- 
ject of  the  secnrity  by  public  roup,  after  due 
advertisement  (generally  for  two  months)  in 
certain  specified  newspapers.  The  clause 
conferring  this  power  farther  authorised  the 
creditor,  in  name  of  the  debtor,  to  enter  into 


articles  of  roup,  and  to  grant  a  disposition  or 
dispositions  to  the  purchasers,  containing  the 
usual  clauses,  and  binding  the  debtor  and  his 
heirs  in  absolute  warrandice,  as  also  obliging 
him  and  them  to  corroborate  and  confirm  the 
sale,  and  to  grant  all  deeds  requisite  for 
rendering  it  effectual.  There  was  then  a 
declaration,  that  the  sale  should  be  equally 
good  to  the  purchaser  as  if  the  debtor  himself 
had  made  it — a  power  to  adjourn  the  roup — 
to  fix  the  upset  price,  and  so  forth;  and 
finally,  the  debtor  bound  himself,  and  his  heirs 
and  successors,  to  ratify  and  confirm  the  sale, 
and  to  execute  and  deliver  to  the  purchaser, 
if  necessary,  all  requisite  deeds.  As  to  the 
purchaser,  it  was  declared  that  he  was  to  have 
no  concern  with  the  application  of  the  price ; 
while,  on  the  other  hand,  the  creditor,  in  the 
event  of  making  a  sale,  was  taken  bound  to 
account  to  the  debtor  for  the  surplus  of  the 
price,  after  repayment  of  the  debt,  with  inte- 
rest and  the  necessary  expenses  of  the  sale. 

In  virtue  of  the  act  10  and  11  Vict.  c.  50, 
1847,  the  clause  is  now  in  these  terms — "And 
on  default  in  payment,  I  grant  power  of  sale ;" 
and  the  clause  so  framed  has  the  effect  speci- 
fied in  the  third  section  of  the  act,  and  which 
is  the  same  as  that  authorised  by  the  clause 
in  the  old  form. 

The  power  of  sale  is  held  to  be  so  far  of 
the  nature  of  a  mandate;  but  quoad  the 
creditor,  he  is,  as  it  were,  procurator  in  rem 
suam ;  and  hence  the  mandate  is  not  revocable 
by  the  debtor,  nor  does  it  expire  either  by  his 
death  or  bankruptcy.  Neither  can  the  cre- 
ditor, when  exercising  a  power  of  sale  regu« 
larly  and  fairly,  be  interrupted  by  a  process 
of  ranking  and  sale  at  the  instance  of  the 
other  creditors  of  the  debtor,  or  by  a  mercan- 
tile sequestration  of  his  estates.  Simson  v. 
Graham,  25th  Nov.  1831,  10  S.  A  D.  66. 
But  the  precautions  which  are  necessary  to 
secure  a  fair  sale,  at  an  adequate  price,  must 
be  punctually  observed;  and  the  Court  of 
Session,  at  the  suit  of  any  party  having  inte- 
rest, will  interpose  and  order  all  reasonable 
precautions  to  be  taken.  It  is  held,  how- 
ever, that  the  creditor  with  a  power  of  sale 
is,  to  a  certain  extent,  a  trustee  for  the 
debtor,  bound  to  act  with  due  regard  to  his 
reversionary  interests  and  hence  the  Court 
holds  that  it  can  competently  interfere  ex 
cequitate,  where  the  creditor  is  proceeding 
uimiously,  or  with  undue  selfishness,  in  the 
exercise  of  the  power  of  sale.  See  the  case  of 
Bemidgey.  WUson,  17th  Jan.  1629,  7  .8.271 
It  has  been  decided,  that  advertisement  of  the 
sale  in  a  newspaper  containing  advertisements 
only  is  sufficient  compliance  with  a  general 
obligation  on  the  creditor  to  advertise  in  a 
newspaper;  Dickson,  15th  Jan.  1831,  9  S.  d 
D.  282. 

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PRA 


PRE 


By  the  act  10  and  11  Vict.  e.  50, 1847, 
a  creditor  who  exercises  a  power  of  sale  is 
bound  to  count  and  reckon  for  the  surplus  of 
the  price,  and  to  consign  it  in  bank  in  the 
joint  names  of  himself  and  the  purchaser. 
On  this  being  done,  the  disposition  by  the  cre- 
ditor to  the  purchaser  has  the  effect  of  com- 
pletely disencumbering  the  lands  of  all 
securities  and  diligences  posterior  to  the 
seourity  of  the  creditor,  as  well  as  of  his  own 
security  and  diligence.  Bell't  Print.  §  891 ; 
lUuit.  ib. ;  Jurid.  StyleB,  272.  2d  edit.  See 
Burdens. 

Praoticki.    The  reported  decisicms  of  the 
Court    of    Session    were    anciently    called 
Praetickt,  on  account  of  their  authority  in 
fixing  and  proving  the  practice  and  consue- 
tudinary rules  of  law.     See  Decisions. 
FrsBceptioHareditatij.  SeoPauive  Titles. 
PrsBoipaiim.    See  Heirt-Portioners. 
Pradial  Serritades;  are  real  servitudes, 
affecting  heritage,  and  taking  the  name  from 
pradium,  a  tenement  of  land  or  houses.    See 
Servitudes, 

Pnedial  TithM ;  are  tithes  arising  from 
land,  in  contradistinction  to  the  tithes  arising 
from  animals.     See  Teinds. 

PnwiraniTe ;  is  the  forfeiture  of  lands  and 
tenements,  goods  and  chattels,  and  imprison- 
ment during  the  Sovereign's  pleasure.  The 
term  is  derived  from  prmmunire,  an  ancient 
English  writ,  introduced  for  the  purpose  of 
repressing  the  papal  encroachments  on  the 
power  of  the  Crown.  It  was  authorised  by 
statutes  passed  with  a  view  to  extinguish  that 
power ;  and  from  the  first  words  of  the  writ, 
prmnunire  facias,  both  the  writ  and  the  pun- 
ishment received  the  name  of  a  praemunire. 
Persons  who,  by  preaching,  teaching,  or  ad- 
visedly speaking,  maintain  that  any  person 
has  right  to  the  Crown  of  these  realms,  other- 
wise than  according  to  the  Act  of  Settlement, 
or  that  the  King  (or  Queen)  of  this  realm, 
with  the  authority  of  Parliament,  is  not  com- 
petent to  make  laws  to  bind  the  Crown  and 
the  descent  thereof,  subject  themselves  to  the 
penalties  of  prcemunire;  6  Anne,  c.  7.  And 
by  c.  23,  it  is  declared  to  be  a  prcemunire  for 
the  Peers  of  Scotland,  assembled  to  elect 
their  representatives,  to  presume  to  treat  of 
any  matter  but  the  election.  It  is  more  than 
a  centur}  since  there  was  an  instance  of  a 
prosecution  for  a  prcemunire.  Hume,  i.  523. 
See  Election  Laws ;  also  Tomiins'  Diet.  h.  t. 
Fn^Ofitor.  See  Instiior. 
FrsBpoutnra  of  a  Wife.  Where  a  wife  is 
prceposita  negotiis  by  her  husband — that  is,  in- 
trusted with  the  management  either  of  a  par- 
ticular branch,  or  of  his  whole  affairs — all  the 
contracts  she  enters  into,  and  even  the  debts 
due  by  her  for  goods,  though  not  constituted 
by  writing,  but  arising  from  furnishings  made 


to  her,  are  effectual  against  the  hasbaDd,t]iongh 
not  against  herself;  for  she  acts  for  her  hut- 
band.  This  power  given  to  the  wife  may  be  con- 
stituted either  by  a  written  factory,  or  tacitlj 
by  use,  where  the  husband  has  seen  and  ap- 
proved of  her  actings.     The  wife,  in  domestic 
matters, is  presumed,  while  she  resides  withher 
husband,  to  be  prceposita  negotiis  domestidt— 
that  is,  invested  with  the  management  of  the 
family — in  which  character  she  may  pnrchate 
whatever  the  family  requires ;  and  the  hat- 
band will  be  liable  for  the  price,  though  the 
article  may  have  been  otherwise  applied,  or 
although  the  husband  may  have  given  hu 
wife  money  for  the  purchase.     When  monej 
is  borrowed  by  the  wife  in  the  character  Jf 
prceposita  negotiis,  the  lender  must  show  both 
that  it  was  needed  at  the  time,  and  expended 
on  necessary  furnishings.     The  wifa's  pre- 
sumed right  to  superintend  her  huaband't 
family  ceases  if  she  abandon  her  family,  and 
may  be  put  an  end  to  at  the  pleasure  of  the 
husband  by  inhibition.    Ersk.  B.  i.  tit.  6, 
§  26 ;    Stair,    B.    i.  tit.  4,  §    17  ;    Jfore** 
Notes,   p.   xxii.;    BelFs   Com.    i.    479-90; 
BeWs  Prine.  §   1565  ;  lUust.  ib.    See  Jitki- 
bition,  a  Husband  against  his  Wife.   Marring 
PnBpontns ;  was  the  head  of  a  collegiat« 
church,  under  whom  were  canons  or  preben- 
daries, so  called  because  they  had  a  stated 
portion  or  prcebenda,  each  according  to  his 
degree  in  the  church.    Ersk.  B.  i.  tit.  5,  §  3. 
PnBTento  Tflnnino ;  an  obsolete  form  of 
action,  formerly  in  use  in  the  Court  of  Ses- 
sion,-and  rworted  to  by  a   charger  agaioxt 
whom  a  bill  of  suspension  had  been  presented. 
The  object  of  this  action  was  to  defeat  a  d«- 
vice  sometimes  fallen  upon  by  the  suspender, 
who,  in  order  to  obtain  delay,  got  distaot 
day  of  compearance  assigned  in  the  deliver- 
ance on  the  bill  of  suspension ;  and  as  the 
suspender  could  not  insist  to  get  the  reasons 
of  suspension  discussed  until  the  day  of  com- 
pearance specified  in  the  deliverance  had  ar- 
rived, the  object  of  the  Mtion  prcevento  (ersitM 
was   to  accelerate  the  term   for  discnssiog 
the  suspension  or  advocation,  by  getting  au 
earlier  day   fixed.      The   present  forms  of 
the  Bill-Chamber  supersede  the  necessity  of 
such  an  action,  and  it  has  been  long  disused. 
Ersk.  B.  iv.  tit.  3,  §  21 ;  Hank.  iL  62S.    See 
Suspension. 

Preamble  of  Statotet.  The  preamble  of 
the  statute  is  the  narrative,  which  recites  the 
inconveniences  which  it  is  the  object  of  the 
new  enactment  to  remedy.  In  questions  of 
construction  of  the  enacting  clauses^  infer- 
ences drawn  from  the  preamble  are  exceed- 
ingly liable  to  error.  ErsL  B.  i.  tit.  1,  §  49; 
Stair,  B.  iv.  tit.  45,  §  13.    See  Statute. 

Piebend ;  in  the  Episcopal  Church,  is  a 
benefice  appropriated  for  the  maintenance  of 


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s  clerk,  or  member  of  a  collegiate  or  cathedral 
church.  The  prebendary  is  the  clerk  or 
clergyman,  and  is  one  of  the  chapter  or  coun- 
cU  of  the  dean  who  enjoys  the  benefice.  Stair, 
B.  ii.  tit.  8,  §  15;  Jirtk.  B.  i.  Ut.  5,  §  3; 
Bank.  i.  558 ;  ii.  6. 

Pramiie ;  were  agreements  by  which  pro- 
prietors yielded  up  their  lands  to  the  Church, 
and  received  them  back  on  payment  of  a 
rent,  which  varied  according  to  circumstances. 
The  form  of  a  precaria  is  given  in  Bell  on 
Leases,  i.  7.  See  also  HuuUr't  Landlord  and 
Tenant,  14. 

Pneuinm.  The  contract  of  precarium  is 
&  gratuitous  loan,  in  which  the  lender  gives 
the  use  of  the  subject  in  express  words,  revoc- 
able at  pleasure.  In  such  a  loan,  the  lender 
is  entitled  to  demand  back  the  subject  lent  at 
any  time ;  and  as  the  borrower  is  thus  at  all 
times  bound  to  redeliver  it,  he  is  liable  for  its 
preservation  only  dedclo  et  culpa  lata — that  is, 
lor  gross  omissions  or  culpable  negligence. 
But  if,  after  the  subject  has  been  demanded, 
the  borrower  delays  to  return  it,  he  must 
make  it  good,  should  it  be  destroyed  even  by 
accident.  On  the  death  of  the  borrower  the 
loan  terminates,  and  his  heir  must  account 
for  the  profits  while  the  subject  of  the  loan 
continues  in  his  possession.  But  the  death  of 
the  lender  does  not  put  an  end  to  the  loan, 
nor  does  it  terminate  until  the  article  is  de- 
manded by  the  heir  of  the  lender.  Ertk.  B. 
iii.  tit.  1,  §  25;  iStoir,  B.  i.  tit.  11,  §  10; 
Bank.  1.  327  ;  Bell's  Princ.  §  196.  See  Loan. 
Mutuum.    Commodate. 

Preoentor ;  in  the  Presbyterian  Church,  is 
the  person  whose  duty  it  is  to  lead  the  con- 
gregatiun  in  the  singing  of  psalms.  He  is,  in 
the  ordinary  case,  appointed  by  the  kirk-ses- 
sion ;  bat  this  rule  may  be  altered  by  circum- 
stances conferring  the  patronage  on  an  indi- 
vidual or  a  corporation ;  or  it  may  be  other- 
wise provided  by  the  decree  of  erection  of  the 
parish.  Precentors  areremoveable  at  pleasure. 
Although  in  country  parishes,  the  same  indi- 
vidual is  frequently  precentor,  schoolmaster, 
and  session-clerk,  there  is  no  necessary  con- 
nection between  these  offices;  and  a  party 
holding  one  of  them  cannot  be  compelled  to 
do  the  duties  of  any  of  the  others,  unless  by 
upecial  engagement.  There  is  no  general 
provision  for  the  precentor's  remuneration, 
bat  in  practice  he  usually  receives  certain 
fees.  As  preparatory  to  a  process  of  augmenta- 
tion, the  precentor  must  furnish  a  certificate, 
tibat  on  three  several  Sundays  he  announced 
the  minister's  intention  to  raise  the  process. 
The  form  of  the  certificate  is  given  in  Jurid, 
Styles,  iii.  488.  See  Vunlop^s  Parochial  Law. 
See  Church  Officers.    Augmentation. 

Preoept  of  Airettment ;  is  a  warrant 
issued  by  the  judge  of  an  inferior  court,  au- 


thorising the  officers  of  court  to  arrest  for  the 
amount  of  the  debt  contained  in  the  decree  to 
.which  the  precept  refers,  in  the  hand  of  any 
person  residing  within  the  jurisdiction  of  the 
judge.    See  Arrestment. 

^ecispt  of  Clare  Constat.  S>w>  Glare  Constat. 

Precept  of  Poinding.    See  Poinding. 

Preoept  of  Sasine.  A  precept  of  sasine  is 
the  order  of  a  superior  to  his  bailie  to  give 
infeftment  of  certain  lands  to  his  vassal. 
Prior  to  the  act  1672,  c.  7,  the  precept  of 
sasine  was  a  separate  deed  from  the  grant  or 
charter ;  bnt  that  act  required,  that  in  all 
Crown  charter8;,the  precept  should  be  inserted 
before  the  conclusion  of  the  charter;  aad 
thenceforward  the  practice  prevailed,  of  in- 
serting the  precept  immediately  before  the 
testing  clause  of  the  charter <or  other  deed  in 
which  the  grant  or  conveyance  is  made. 
The  precept  is  in  the  form  of  a  mandate  au- 
thorising a  mandatary,  whose  name  is  left 
blank,  and  who  is  appointed  bailie  in  that 
pai-t,  to  give  infeftment  to  the  vassal  in  the 
lands  described  in  the  deed.  But,  as  such 
mandates  fell  by  the  death  of  either  the 
granter  or  receiver,  that  great  practical  in- 
convenience was  removed  by  the  act  1693,  c. 
35,  which  declares  a  precept  of  sasine  to  be 
a  sufficient  warrant  for  giving  sasine  as  well 
after  as  before  the  death  either  of  the  granter 
or  grantee,  or  both,  provided  the  sasine  taken 
after  the  death  of  either  party  deduce  the 
title  of  those  in  whose  favour  the  sasine  is 
given.  The  unexecuted  precept  of  snsine 
may  be  assigned.  Ersk.  B.  ii.  tit.  3,  §  33. 
Precepts  of  sasine  are  contained  not  only  in 
original  charters  and  charters  by  progress, 
but  in  dispositions  by  sellers  to  purchasers, 
even  though  it  is  not  meant  that  the  pur- 
chaser should  be  the  vassal  of  the  seller  ;  but 
this  peculiarity  in  our  practice  has  been  ex. 
plained  under  the  articles,  Disposition  ;  Char- 
ter ;  Confirmation ;  Consolidation.  There  is 
also  another  precept  of  sasine,  called  &  precept 
of  dare  constat,  which  is  a  warrant  granted  by 
a  superior  authorising  his  bailies,  whose 
names  are  also  left  blank,  to  give  infeftment 
to  the  heir  of  his  vassal.  This  precept  cannot 
be  transferred  or  assigned  like  the  precept  in 
a  charter  or  disposition.  It  necessarily  is,  by 
its  nature  and  express  terms,  a  warrant  for  a 
sasine  in  favour  of  the  heir  in  whose  favour  it 
is  given,  and  of  no  one  else.  Hence,  precepts 
of  clare  constat  are  excepted  from  the  act 
1693,  c.  35.  Ersk.  B.  iii.  tit.  8,  §  71.  See 
Clare  Constat.  See  generally,  on  precept  of 
sasine,  Ersk.  B.  ii.  tit.  3,  §  38 ;  Stair,  App.  § 
1  ;  BdPs  Com.  i.  674-5,  696-7  ;  BeWs  Princ. 
§§  764, 876  ;  Blust.  876 ;  Kames'  Stat.  Law 
Abridg.  h.  t. ;  Bell  on  Purchaser's  Title,  71-4  ; 
Ross's  Lect.  ii.  131, 161.  See  TiUes  to  Land. 
Post  Froximvm  Terminum. 


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Precept  of  Waning  and  B«moTing.   See 

framing.     Removing. 

Premgnition ;  in  criminal  law,  is  an  eza- 
minatioa   by  the  judge-ordinary  or  justices 
of  peace,  usually  conducted  under  the  super- 
intendence of  the  procurator-tiscal,  where  any 
crime  has  been  committed,  in  order  that  the 
facts   connected  with  the   offence  may  be 
ascertained,  and  full  and  perfect  information 
given  to  the  public  prosecutor,  to  enable  him 
to  prepare  the  libel  and  carry  on  the  prose- 
cution. In  this  investigation,  which  is  entirely 
«r  parte,  the  witnesses  are  not  usually  put 
upon  oath,  and  they  must  be  examined  sepa- 
rately ;  nor  is  the  accused,  or  any  person  on 
his  behalf,  admitted  to  be  present  when  the 
precognition  is  taken.     It  is  competent,  how- 
ever, to  put  the  witnesses  on  oath  in  their  pre- 
cognition, with  the  exception  of  the  party 
accused,  or  one  to  whose  testimony  there  is  a 
legal  objection.     Neither  is  the  accused  al- 
lowed to  cite  witnesses  in  exculpation,  or  to 
see  a  copy  of  the  precognition  after  it  is  taken. 
Those  who  know  anything  of  the  fact  may 
be  compelled  to  come  forward ;  and,  for  this 
purpose,  the  magistrate  officiating  at  the  pre- 
cognition grants  a  warrant  to  summon  them, 
which,  should  they  disobey,  will  be  followed 
by  a  warrant  of  imprisonment  until  they  com- 
ply.   The  precognition  must  be  taken  prior 
to  the  service  of  the  indictment  or  criminal 
letters;  for  after  that,  communications  be- 
tween the  prosecutor  and  the  witnesses  are 
improper.    Jiut  although  this  inquiry  is  ex 
parte,  and  for  the  use  of  the  public  prosecu- 
tor, yet,  if  tho  accused  make  a  reasonable 
suggestion  as  to  the  propriety  of  precognos- 
cing  any  particular   individual,  the  judge- 
examinator,  in  the  ordinary  case,  attends  to 
that  suggestion,  and  cites  and  examines  such 
persons  as  may  be  named  by  the  accused  as 
likely  to  establish  his  innocence.    The  pre- 
cognition should  be  reduced  into  writing,  and 
signed  by  the  witnesses,  according  to  their 
usual  mode  of  spelling ;  and  their  correct  and 
full  designation  should  be   inserted  at  the 
commencement  of   their  declaration.     The 
duty  of  conducting  precognitions  now  belongs 
to  sheriffs,  magistrates  of  burghs,  and  justices 
of  peace.  Their  responsibility  is  limited  by 
special  statute,  and  they  are  liable  in  damages 
only  where  they  can  be  proved  to  have  acted 
maliciously  and  without  probable  cause.  Hume, 
ii.  78  et  teq.,  and  366  ;  Aliton't  Prac.  134  ; 
Ertk.  B.  iv.  tit.  4,  §  86  ;  fort's  Justice,  voce 
Arrest;  Blair's  Justice,  h.  t.;  Hutch.  Justice, 
X.  257,  450.     See  Procurator-Fiscal.    Crimi- 
nal Prosecution. 

In  precognoscing  witnesses  preparatory  to  a 
proof  in  a  jury  trid  in  a  civil  cause,  the  agent 
ought  to  avoid  everything  likely  to  raise  ob- 
jections against  their  admissibility.  He  should 


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confine  tiimself  to  the  asking  of  questions, 
and  ought  not  to  give  or  read  to  the  propueed 
witnesses  any  parts  of  the  process,  or  commu- 
nicate to  them  any  version  of  facts  of  his 
own,  or  state  to  them  the  nature  of  the  ac- 
tion, the  views  of  it  favourable  to  his  client, 
or  the  respective  pleas  of  the  parties.  If  the 
precognition  is  reduced  into  writing,  it  should 
not  be  subscribed  by  or  read  to  toe  witness, 
or  given  him  to  read.  Affidavits  should  not 
be  taken  from  witnesses,  nor  should  they  be 
precognosced  upon  oath.  Neither  ought  one 
witness  to  be  present  at  the  precognition  of 
another.  But  it  was  held  not  to  be  a  good 
objection  to  a  witness,  that  she  had  been  pre- 
cognosced in  presence  of  her  husband,  who 
was  also  a  witness,  it  having  appeared  that 
her  presence  was  accidental.  By  the  act  15 
and  16  Vict,  c  27,  1862,  no  person  can  be 
excluded  from  giving  evidence  by  reason  of 
having  appeared  without  citation,  or  by  rea- 
son of  having  been  precognosced  after  the  date 
of  citation.  Macfarlan^s  Jury  Prac  114; 
Maclaurin's  Sheriff  Prac  168.  See  Evidem. 
Partial  Counsel.     Citation. 

Pre-emption,  Clauie  o£  See  Clause  if 
Pre-emption. 

Preierenoei;  take  place  in  the  different 
competitions  of  titles  and  diligences,  as  adja- 
dications,  inhibitions,  arrestments  and  poind- 
ings, which  are  regulated  by  certain  laws 
peculiar  to  each,  and  by  which  their  priority 
is  determined.  Bank.  iii.  p.  34 ;  BdPs  Cm. 
i.  760,  et  seq. ;  ii.  201,  et  seq. ;  BtU  on  JV- 
chaser's  Title,  235 ;  Ross's  Ltd.  i.  102 ;  ii. 
262.  See  Competition.  Hypothec.  PrtvUeftd 
Debt  Retention.  Ranking  and  Sale.  Bank- 
rupt.    Conjunct  and  Confident. 

Preg^nanoy.  A  woman  who  conceals  ber 
pregnancy,  and  does  not  call  for  help  in  the 
birth,  and  whose  child  is  amissing,  is  held, 
under  the  act  1690,  c.  21,  to  be  guilty  of 
murder.  See  Concealment  of  Pregnancy.  Vf  hen 
a  pregnant  woman  is  convicted  of  a  ca'piiti 
crime,  sentence  will  be  delayed ;  or,  if  sen- 
tence have  been  pronounced,  the  execution  of 
it  may  be  suspended  until  after  the  birth  of 
the  child  ;  Hume,  ii.  452,  ei  seq.  Pregnam^, 
where  the  child,  if  born,  would  be  the  heir  to 
an  estate,  will  stop  a  service  by  a  remoter 
heir ;  and  the  child  «»  utero  will  not  only  be 
presumed  to  be  in  life,  but  will  be  presumed 
to  be  a  male.  But  the  mere  possibility  that  a 
nearer  heir  may  be  begotten  will  not  have  this 
effect :  the  service  of  the  nearest  heir  for  the 
time  will  proceed,  though  a  nearer  heir  un- 
der the  destination  may  possibly  come  to 
exist.  ErsL  B.  iii.  tit.  8,  \  76.  See  VeiUre 
inspiciendo.    Posthumous  Child. 

Prelacy.     See  Episcopacy. 

Preliminary  Defences.  See  D^e»ces.  Re- 
duction. 


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fxemiseB;  is  properly  an  English  law 
term,  and  is  said  to  be  "  that  part  in  the  be- 
ginning of  a  deed  the  office  of  which  is  to 
express  the  granter  and  grantee,  and  the  land 
or  thing  granted."  It  is  further  said,  that 
no  person  not  named  in  the  premises  can  take 
any  "  thing  by  the  deed,  though  he  be  after- 
ward named  in  the  habendum."  This  term 
has  no  snch  acceptation  in  the  law  of  Scot- 
land ;  but,  with  us,  the  term  premitet  is  ap- 
plied generally  to  the  subject-matter  of  the 
deed,  and  sometimes  it  is  used  to  signify  the 
lands  or  houses  which  are  the  subject  of  the 
right  or  conveyance.  See  Tomlins'  Diet.  h.  t. ; 
Boss's  Led.  ii.  141,  231,  344. 

Premium  of  Insurance.    See  Inswrance. 

Premonition ;  is  the  first  step  in  the  order 
of  redemption  against  a  wadsetter  or  herit- 
able creditor.  The  premonition  is  an  act  of 
the  law,  whereby  the  reverser  or  his  pro- 
curator gives  notice  to  the  wadsetter,  under 
form  of  instrument,  to  appear  at  the  time 
and  place  pointed  out  by  the.  clause  of  re- 
demption, and  then  and  there  to  receive  pay- 
ment of  the  debt.  If,  on  this  premonition, 
the  wadsetter  accepts  of  the  money  and  re- 
nounces the  right,  the  redemption  is  said  to 
be  roluntary.  If  he  refuse  to  receive  the 
money,  or  if  he  be  abroad  or  incapacitated 
fi-om  acting,  it  must  be  consigned  in  the 
hands  of  the  consignee  pointed  out  by  the 
clanse  of  redemption ;  and  if  no  consignee 
be  named,  then  in  the  hands  of  a  responsible 
person ;  and,  in  evidence  of  what  takes  place, 
a  notarial  instrument,  setting  forth  the  pro- 
cedure, called  an  instrument  of  consignation, 
is  executed.  This  stops  the  currency  of  in- 
terest on  the  heritable  debt  against  the  re- 
verser, and  renders  the  wadsetter  or  heritable 
creditor  accountable  for  the  rents  from  the 
time  the  order  was  used,  and  becomes  the 
foundation  of  a  declarator  of  redemption  of 
the  lands.  Ersk.  B.  ii.  tit.  8,  §  17,  et  seq. ; 
Stair,  B.  ii.  tit.  10,  §§  15  and  17  ;  B.  iv.  tit. 
6,  §  1 ;  Bank.  ii.  226 ;  Jurid.  Styles,  i.  609 ; 
Bmi^s  Led.  ii.  362.  See  Wadset,  Consigna- 
tion. 

Prerogative.  The  royal  prerogative,  in 
a  large  acceptation,  includes  all  those  rights 
of  which,  by  law,  the  Sovereign  (as  exercising 
the  executive  powers  of  government)  is  pes-" 
sessed.  The  Sovereign,  by  virtue  of  the  pre- 
rogative, is  exempted  from  all  taxes  collected 
personally  from  the  subject,  and  not  mingled 
with  the  price  of  the  commodity  before  it  is 
known  by  whom  it  is  to  be  used.  Hence,  an 
express  sent  on  Government  service  is  not 
liable  to  pay  post-horse  duty.  In  like  man- 
ner, in  virtue  of  the  royal  prerogative,  royal 
palaces  are  privileged  against  the  intrusion 
of  the  ofBcers  of  the  law,  to  execute  civil  pro- 
cess against  the  effects  of  persons  having  the 


use  of  apartments  therein.  Tomlini?  Did. 
h.  t. ;  Bank.  ii.  666.  See  King.  Government. 
Sanduary. 

Prerogative  Prooeu.  See  Crown  Debt. 
Extent. 

Prerogative  Court ;  is  the  court  in  Eng- 
land wherein  all  wills  are  proved,  and  all 
administrations  taken,  which  belong  to  the 
Archbishop  of  Canterbury  by  his  preroga- 
tive ;  that  is,  in  the  case  where  the  deceased 
had  goods  of  any  considerable  value  out  of 
the  diocese  wherein  he  died.  The  Arch- 
bishop of  York  has  also  a  similar  court, 
termed  his  Exchequer,  but  inferior  to  the 
other  in  power  and  profit.  Tomlins'  Did.  h.  t. 
See  Executor.     Gonjirmation. 

Presbytery ;  one  of  the  judicatories  of  the 
Church  of  Scotland.  A  presbytery  includes 
a  number  of  parishes,  the  number  varying 
according  to  circumstances ;  in  some  cases 
there  being  no  less  than  thirty,  in  others  no 
more  than  four  parishes  in  a  presbytery.  The 
General  Assembly  has  power  to  disjoin  and 
erect  presbyteries  at  pleasure.  In  order  to 
get  a  new  presbytery  erected,  or  to  have  one 
or  more  parishes  disjoined  from  one  presby- 
tery and  annexed  to  another,  a  petition  is 
presented  to  the  General  Assembly,  or  a  re- 
presentation is  made  to  it,  setting  forth  the 
circumstances  which  make  these  objects  de- 
sirable. The  Assembly  makes  the  necessary 
inquiries,  and  judges  accordingly.  There  are 
at  present  eighty-two  presbyteries  in  the 
Church  of  Scotland.  Each  parish  within  a 
presbytery  sends  a  minister  and  a  lay  elder 
to  the  Presbytery  ;  and  the  professors  of  di- 
vinity (if  ministers)  in  any  university  within 
the  bounds  of  the  presbytery,  are  also  mem- 
bers. A  moderator  of  the  presbytery,  who 
must  be  a  minister,  is  chosen  twice  a  year,  at 
which  times  the  roll  is  made  up.  The  func- 
tions of  the  presbytery  are,  to  judge  in  the 
references  for  advice,  the  complaints  and 
appeals  which  come  from  the  kirk-sessions 
within  the  bounds,  to  examine  schoolmasters 
on  their  appointments,  to  provide  for  the 
annual  examination  of  the  parochial  and 
other  schools  of  the  district,  and  to  make  an 
annual  report  on  this  subject  to  the  General 
Assembly.  It  belongs  to  presbyteries  to 
grant  licenses  to  preach  the  gospel,  and  to 
judge  of  the  qualifications  of  those  who  apply 
for  them.  It  also  belongs  to  presbyteries  to 
receive  and  investigate  charges  against  the 
characters  of  ministers.  See  Fama  Glamosa. 
Presbyteries  have  the  power  of  meeting  when 
they  please ;  but  it  is  necessary,  before  the 
meeting  is  closed,  to  resolve  when  the  next 
meeting  is  to  be  held,  to  enter  this  resolution 
in  the  minutes,  and  to  cause  it  to  be  publicly 
intimated  by  the  officer,  otherwise  the  pres- 
bytery is  defunct,  and,  without  the  interven- 

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tion  of  the  superior  court,  has  no  power  to 
reassemble  for  business.  A  pro  re  nata  meet- 
ing of  presbytery  is  called  by  the  moderator, 
either  ex  propria  motu,  when  anything  has 
occurred  which  appears  to  him  to  require  the 
assembling  of  the  presbytery  before  the  time 
of  the  ordinary  meeting,  or  on  application 
made  to  him  by  some  of  the  members  of  pres- 
bytery, with  a  statement  of  the  grounds  on 
which  the  application  is  made.  No  other 
business  but  that  for  which  the  pro  re  nata 
meeting  has  been  called  can  be  transacted  at 
such  meeting.  The  clerk  and  officer  of  the 
presbytery  are  of  its  own  appointment.  See 
HiWt  Theological  Institute,  214  ;  HilPe  Ghurdt 
Prae.  40 ;  Gillan't  Ads  of  Assembly,  209 ; 
CooVs  Ghvrdt  Law  Society  Styles,  52 ;  Ersk. 
B.  i.  tit.  5, 5  24;  Gonttell  on  Parishes,  246, 253. 
See  ChurA  Judicatories.  Minister.  Manse. 
OMk,    Designation.    Deposition.    Schools. 

Pretoripaon.  Prescription  has  been  said 
by  lawyers  to  be  a  method  both  of  acquiring 
and  of  losing  a  right.  Hence  it  has  been 
divided  into  positive  and  negative  ;  the  former 
being  the  mode  of  acquiring  property,  or 
rather  of  protecting  the  right  from  farther 
challenge,  by  reason  of  the  possessor's  having 
continued  his  possession  for  the  legal  period : 
the  laiteir,  which  is  the  converse  of  the  former, 
is  the  loss  of  a  right  by  neglecting  to  follow 
it  forth,  or  use  it  during  the  whole  time  li- 
mited by  law.  In  the  article  Limitation,  the 
distinction  drawn  by  some  writers  between 
the  loss  of  rights  by  prescription,  properly  so 
called,  and  the  loss  by  limitation,  has  been 
adverted  to.  In  the  present  article  it  will 
be  sufficient,  with  reference  to  each  particular 
prescription,  to  state  whether  it  is  classed  as 
a  prescription  proper  or  a  limitation.  The 
subject  will  be  briefly  considered  here  under 
the  following  arrangement  :— 
I.  Of  the  Fositivb  Presoriptioit. 
II.  Or  THB  Neoativb  Pbbsoriftiok. 

III.  Or  THK  Lbsseb  Presgriptiobb  ;  as, 

1.  Of  the  Vicennial  Prescription. 

2.  Of  the  Decennial  Prescription. 

3.  Of  the  Septennial  Prescription. 

4.  Of  the  Sexennial  Prescription. 

5.  Of  the  Quinquennial  Prescription, 

6.  Of  the  TriennicU  Prescription. 

7.  Of  Prescription  of  Crimes. 

IV.  Or    THB    CCRSBBCT    OB    PbBSCBIPTIOX, 

AND  or  ITS  Intebruftiob. 

1.  Or  THB  PosiTivB  Pbescbiptiob. 

The  positive  prescription  was  introduced 
by  the  act  1617,  c.  12,  which,  on  the  pre- 
amble of  the  inconveniences  arising  from  the 
loss  of  titles,  and  the  danger  of  forgery,  after 
the  means  of  improbation  are  lost  by  the 
lapse  of  time,  and  the  numerous  lawsuits 


which   are    thus  engendered,   enacts    that, 
whatever  heritages  the  lieges,  their  prede- 
cessors and  authors,  have  possessed  by  them- 
selves,  or   others    in    their    names,    lands, 
annualrents,  or  other  heritages,  peaceably, 
in  virtue  of  infeftments,  for  the  space  of  forty 
years,  continually  and  together,   from  the 
date  of  their  said  infeftments,  and  without 
any  lawful  interruption  therein,  daring  the 
said  space,  that  sach  persons,  their  heirs  and 
successors,  shall  never  be  troubled,  pursued, 
nor  inquieted  in  the  heritable  right  and  pro- 
perty of  the  said  heritages,  by  their  superiors 
or  others  pretending  right  to  the  same  by 
virtue  of  prior  infeftments,   or   any  other 
ground  except  forgery ;   provided  they  be 
able  to  show  a  charter  of  the  said  lands  pre- 
ceding the  said  forty  years,  with  the  instra- 
ment  of  sasiue  following  thereon  ;  or,  where 
there  is  no  charter  extant,  that  they  show 
instruments  of  sasine,  one  or  more,  continued 
and  standing  together  for  the  said  space  ti 
forty  years,  either  proceeding  upon  retonrs, 
or  npon   precepts  of   clare  constat ;   which 
rights  (being  clad  with  forty  years'  contmnsl 
and  peaceable  possession  without  interruption) 
shall  be  valid  and  sufficient  rights  for  enjoy- 
ing the  said  heritages.    Such  is  tiie  nature 
of  the  enactment  on  which  the  positive  pre- 
scription  is   founded.      It    extends    to  all 
heritable  subjects,  even  to  tacks  and  servi- 
tudes, which  do  not  require  nor  admit  of 
sasine  ;  and  as  to  those  rights  which  do  not 
require  sasine,  forty  years'  possession  is  by 
itself  sufficient.    There  are  certain  peculiari- 
ties in  prescription  of  the  right  of  patroa- 
age,  as  to  which  see  Paironagt.    The  posses- 
sion must,  by  the  words  of  the  statute,  be 
continued  from  the  date  of  the  infeftments; 
but  practice  has  explained  this  to  mean  pat- 
session  as  far  back  as  memory  can  go ;  for 
where  there  is  evidence  of  possession,  consis- 
tently with  the  terms  of  a  sasine,  as  far  back 
as  memory  goes,  without  evidence  of  asj 
interruption,  the  presumption  of  l&w  is,  that 
it  must  have  reached  to  the  date  of  tiie 
sasine.     See  Immemorial,    In  this  qnestioo, 
the  possession  of  the  liferenter  is  that  of  the 
fiar ;  NeOson,  Feb.  26, 1823,  2  S.  *.  D.  247. 
It  seems  to  have  been  the  idea  at  one  time, 
that  the  possession  must  have  stood  daring 
the  whole  space  of  the  forty  years  on  infeft- 
ments; but  that  has  been  explained  more 
consistently  with    the    expressions   of  the 
statute  in  the  case  of  Caitcheon,  Jan.  2^ 
1791,  Mor.  10810,  in  which  it  was  held  that 
possession  by  an  apparent  heir  oninfefl  was 
possession  under  the  sasine  of  the  ancestor, 
within  the    meaning   of   the   statute,  sod 
therefore  was  to  be  computed  as  part  of 
the   forty  years,    contrary  to    the    former 
opinion  on  that  point ;  Ersk.  B.  iii.  tit.  7,  \ 


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5.  The  possession  must  be  nninterrnpted ; 
there  must  be  neither  an  instrument  of  pro- 
test nor  an  attempt  on  the  part  of  those 
claiming  the  subject  to  enter  into  possession  ; 
this  is  expressly  required  by  the  act.  With 
regard  to  the  titles  to  be  produced,  a  dis- 
tinction is  made  between  the  case  of  an  heir 
and  of  a  purchaser.  The  purchaser  must 
produce  not  only  a  sasine,  but  the  disposition 
in  his  own  favour,  or  in  favour  of  his  author, 
on  which  it  proceeds,  dated  previously  to  the 
forty  years'  possession  ;  the  heir  is  required 
to  produce  only  sasines,  one  or  more.  The 
forty  years  being  elapsed,  it  is  only  requisite 
that  the  charter  and  sasine,  or,  in  the  case  of 
an  heir,  the  sasine  alone,  shall  be  regular 
and  valid  deeds.  Whether  the  title  of  the 
grantor  was  good,  or  whether  a  preferable 
title  is  not  now  in  competition,  are  questions 
which  will  not  be  entertained.  It  is  sufficient 
that  the  title  of  possession  is  ex  facie  regular, 
and  that  it  has  been  followed  by  forty  years' 
possession,  to  silence  all  possible  objections, 
save  that  of  frand  in  the  titles ;  for  where 
the  titles  have  been  forged  or  fabricated, 
they  cannot  be  the  ground  of  prescription. 
An  adjudication  with  sasine  is  a  good  title 
to  ground  prescription ;  and  if  followed  by 
forty  years'  possession,  it  confers  an  effectual 
and  irredeemable  right.  It  is  not  competent, 
after  forty  years'  possession  has  followed 
upon  a  title  ex/aeie  absolute,  to  allege  that 
the  right  originally  flowed  from  a  title  quali- 
fied with  a  power  of  redemption.  See  Ad- 
judication. A  clause  of  part  and  pertinent 
may  form  a  prescriptive  title  to  a  subject  not 
specially  named  in  the  charter.  And  titles 
to  a  barony  form  a  sufficient  title  on  which 
to  acquire  by  prescription  a  right  of  property 
in  an  island  situated  in  a  river  opposite  to 
it,  as  part  and  pertinent,  though  the  island 
be  included  per  exprettum  as  a  separate 
tenement  in  the  titles  of  a  third  party; 
Magittratet  of  Ferth,  Nov.  19,  1829,  8  S.  d 
D.  82.  See  also  E.  of  Fifis  Truttees,  Jan.  16, 
1830,  BS.dbD.  326,  and  Jan.  25,  1831,  9 
S.  S  D.  336.  See  Part  and  Pertinent.  Pos- 
session on  apparency  may  go  to  make  np  the 
years  of  prescription :  thus,  if  a  party  has, 
by  himself  and  his  authors,  possessed  an 
estate  on  a  retonr,  with  sasine  prior  and 
posterior  to  a  possession  on  apparency,  for  a 
period,  including  the  apparency,  of  more 
than  forty  years,  but  not  so  exclusive  of  the 
apparency,  he  has  a  good  prescriptive  pos- 
aeesion;  NeiUon,  Feb.  26,  1823,  2  S.  itD. 
247.  W  hen  one  has  more  than  one  title  in 
his  person,  it  is  sometimes  of  importance  to 
determine  on  which  title  he  is  to  be  held  as 
having  possessed  during  the  years  of  prescrip- 
tion. This  question  depends  very  much  upon 
the  circumstances  of  the  case,  a«  whether  the 


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holder  of  two  titles  is  under  any  obligation 
to  adopt  either  of  them  in  preference  to  the 
other,— whether  he  has  shown  an  obvious 
intention  to  possess  upon  one  title  rather  than 
upon  the  other,— which  of  the  titles  is  more 
beneficial,  &c.  No  invariable  rule,  there- 
fore, can  be  laid  down  upon  the  point. 
Cases  in  which  this  question  has  occurred  are 
cited  in  Bell's  Princ.  §  2020,  and  lUust.  ib. 
See  also  Ersk.  B.  iii.  tit.  7,  §  6.  A  person 
having  more  than  one  title  in  his  person  is  to 
be  held  as  possessing  on  them  all,  to  the 
effect  of  preserving  his  own  right.  It  has 
been  already  observed  that  prescription  runs 
in  favour  of  heritable  rights,  though  not 
feudal.  A  party  holding  a  fee-simple  assig- 
nation of  a  lease  in  his  own  favour,  and 
being  also  institute  under  an  entailed  assig- 
nation, granted  by  the  same  party  of  the 
same  lease,  and  having  enjoyed  possession  of 
the  subjects  for  forty  years,  and  done  certain 
a«ts,  referring  his  possession  to  the  fee- 
simple  assipation,  was  held  to  have  acquired 
a  prescriptive  fee-simple  right,  the  entailed 
assignation  being  held  extinguished.  The 
same  party  having  right  in  fee-simple,  as 
heir  of  his  father,  to  the  lease  of  another 
subject,  and  also  as  institute  under  an  en- 
tailed assignation  made  by  his  father,  and 
having  possessed  for  more  than  forty  years, 
his  possession  was  imputed  to  the  entailed 
assignation,  and  he  was  held  not  to  have 
acquired  a  prescriptive  right  under  the  fee- 
simple  title  ;  Mauie,  March  4,  1829,  7  S.  d: 
D.  527,  and  App.  On  the  subject  of  the 
positive  prescription  generally,  consult  the 
following  authorities :  Ertk.  B.  iii.  tit.  7,  § 
2  ;  Stair,  B.  ii.  tit.  12.  §  19,  et  teq.;  More't 
Notes,  p.  cclxxvi. ;  Bank.  vol.  ii.  p.  159,  et 
seq.;  Bell's  Princ.  554;  Kames'  Princ.  of 
Equity  (1825),  35,  356-6 ;  Karnes'  Stat.  Law 
Ahridg.  h.  U,  239  ;  Napier  on  the  Law  of  Pre- 
scription. Ross's  Leading  Cases,  vol.  iii.  p. 
310,  et  seq.  See  also  the  case  of  M'Neill 
y.  MaeneaU,  March  4, 1858, 20  D.  736 ;  Sand- 
ford^t  Heritable  Svecession,  ii.  124-74. 

II.  Of  the  Nxoative  Pbisckiptioit. 
■  The  negative  prescription  of  obligations, 
by  the  lapse  of  forty  yeai-s,  was  first  intro- 
duced by  the  statute  1469,  c.  29,  which  de- 
clares that  the  person  having  interest  in  an 
obligation  shall  follow  the  same  within  the 
space  of  forty  years,  and  take  document 
thereupon ;  and  if  he  does  not,  that  it  shall 
prescribe  and  be  of  no  avail.  This  enact- 
ment was  repeated  and  enforced  by  the  act 
1474,  c.  65.  These  acts  were  at  first  con- 
fined to  simple  obligations.  Practice,  how- 
ever, extended  this  prescription  to  mutual 
obligations ;  and  the  act  1617, c.  12,  included 
heritable  bonds  and  other  heritable  rights. 


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The  act  1617,  c.  12,  ordains  "  that  a]l  actions 
competent  by  law  upon  heritable  bonds,  re- 
versions,   contracts,    or    others  whatsoever, 
either  already  made  or  to  be  made,  after  the 
date  hereof,  shall  be  pursued  within  the  space 
of  forty  years  after  the  date  of  the  same, 
except  the  said  reversions  be   incorporate 
within  the  body  of  the  infeftments  produced 
by  the  possessor  of  the  lands,  for  his  title  of 
the  same,  or  registered  in  the  Clerk  Registra- 
tor's books ;  in  which  case,  seeing  all  suspi- 
cion of  falsehood  ceases,  the  actions  on  the 
said  reversions  should  be  perpetual,  excepting 
actions  of  warrandice,  which  shall  not  pre- 
scribe from  the  date  of  the  bond  or  infeft- 
ment,  but  only  from  the  date  of  the  eviction, 
from  which  date  the  forty  years  shall  run." 
And  it  is  further  declared,  "  That  in  the 
course  of  the  forty  years'  prescription,  the 
years  of  minority  and  less-age  shall  in  no- 
wise be  counted,  but  only  the  years  during 
which   the  parties  against  whom  the  pre- 
scription is  used  and  objected  were  majors, 
and  past  twenty-one  years  of  age."     The 
principle  of  this  prescription  is  grounded  on 
the  same  salutary  reasons  on  which  the  posi- 
tive prescription  is  founded  ;   and  the  object 
of  both  is  to  free  parties  from  the  effect  of 
rights  which  may  evict  property  ;  and  from 
claims  of  debt,  after  such  a  lapse  of  time  as, 
from  the  age  of  the  title  or  of  the  voucher, 
may  be  likely  to  introduce  fraud  or  forgery ; 
or  where,  although  the  debt  may  have  once 
existed,  yet  it  may  have  been  discharged,  and 
all  traces  of  the  discharge  of  it  lost.    The 
negative  prescription  does  even  more ;  for  it 
not  only  presumes  the  debt  to  have  been  ex- 
tinguished, but  considers  the  silence  for  forty 
years  as  a  dereliction  of  the  debt  on  the  part 
of  the  creditor,  and  refuses  to  raise  it  up, 
even  were  the  debtor  to  acknowledge  that  it 
never  had  been  paid;   or  that  he  did  not 
know  whether  it  had  been  paid  or  not.    The 
lapse  of  the  forty  years,  in  short,  raises  a 
prcestHnptio  jurU  et  de  jure  against  the  exist- 
ence of  the  debt  tantamount  to  the  most  for- 
mal discharge.     The  act  declares,  that  the 
years  of  prescription  shall  commence  from 
the  date  of  the  obligation  ;  but  on  the  prin-* 
ciple  that  the  loss  of  the  debt  is  the  penalty 
of  the  creditor's  negligence,  practice    has 
made  the  currency  of  the  prescription  com- 
mence from  the  term  of  payment  as  the 
period  at  which  the  negligence  of  the  credi- 
tor commences ;  and  the  payment  of  interest, 
or  even  a  partial  payment  of  the  debt,  inter- 
rupts this  prescription.    See  Partial  Payment. 
In  the  case  of  obligations,  this  produces  no 
difficulty ;  the  debtor  is  entitled  to  plead  the 
negative  prescription.     Bat  as  this  prescrip- 
tion has  been  extended  so  as  to  strike  against 
actions  competent  on  heritable  securities,  and 


other  claims  on  heritage  not  sned  within  the 
forty  years,  questions  of  nicety  have  arisen  at 
to  what  persons  are  entitled  to  plead  the  pre- 
scription.  On  more  occasions  than  one,  it  has 
been  held  that  actions  founded  on  rights  of 
property  in  land  cannot  be  lost  by  the  nega- 
tive prescription,  nuless  they  be  excluded  bj 
a  positive  right  in  the  person  who  pleads  the 
prescription ;  because,  as  the  negative  pre- 
scription confers  no  right  on  him  who  pleads 
it,  but  merely  extinguishes  his  adversarr's 
right,  so  no  one  but  he  who  has  himself  ac- 
quired a  positive  right  of  property  in  the 
lands  can  have  an  interest  to  plead  that  bis 
adversary  has  lost  his  right,  since  that  het 
is  not  of  itself  sufficient  to  transfer  the  right 
to  the  person  pleading  it ;  Ersk.  B.  iii.  tit  7, 
§  8.    This  point  was  again  discussed  in  a  re- 
cent case  respecting  a  right  of  patronage; 
and  it  was  found  that  the  right  of  patronage 
could  not  be  lost  by  the  negative  prescrip. 
tion  unless  another  acquired  it  by  the  posi- 
tive ;  Macdonell,  Feb.  26,  1828,  6  S.  <t  D. 
600.    The  right  of  setting  aside  a  deed  upon 
objections  not  appearing  on  the  face  of  the 
deed,  as  a  reduction  ex  capite  lecti,  is  lost  if 
not  used  within  forty  years.    Improbation  on 
the  head  of  forgery  is  not  lost  by  the  nega- 
tive   prescription — neither   is  the   right  of 
blood  or  title  as  an  heir  lost  by  not  using  it ; 
and  the  heir  may  enter  heir  forty  years  after 
the  right  has  opened  to  him.     See  J%$  Sm- 
guinit.    The  right  to  exact  feu-duties  and 
casualties  of  superiority  cannot  be  lost,  though 
all  arrears  beyond  forty  years  may  be  lost  by 
silence  during  that  time.     A  servitnde  may 
be  lost  by  the  lapse  of  the  forty  years.  With 
regard  to  tithes,  vicarage    and   parsonage 
tithes  are  not  in  similar  circumstances ;  the 
smaller  vicarage  tithes  are  not  nniremlly 
due ;  the  right  to  exact  them  is  established 
by  usage,  and  may  be  lost  by  contrary  usage; 
and  therefore  they  fall  under  the  negatke 
prescription.    But  patronage  tithes,  which 
are  due  by  law,  cannot  be  lost  by  a  neglect 
to  demand  them  for  any  length  of  time, 
though  the  demand,  when  it  is  made,  camiot 
extend  to  arrears  beyond  the   forty  years. 
In  the  same  way,  the  right  to  an  annnity, 
whether  for  life  or  for  a  certain  period,  will 
not  be  lost  by  the  negative   prescription, 
though  each  year's  annuity  will  run  the  eonne 
of  the  negative  prescription.    On  the  subject 
of  the  negative  prescription  generally,  see 
^rsifc.  B.  iii.  tit.  7,  §§8-15  ;  Stair,  B.  ii.  tit. 
12,  §  12  ;  Mor^s  Notes,  p.  cclxv. ;  Bant.  vol. 
ii.  p.  166,  etieq.;  Betl's  Com.  i.  335;  BelTt 
Prime,  p.  157;  KavMs'  Prine.  <f  Equity,  356 ; 
Karnes'  Stat.  Law  Ahridg.  h.  t. ;  Ne^er  o»  &e 
Law  of  Prescription;  Sandford's  Heritable  Sue^ 
cession,  ii.  124,  177  to  186  ;  Ros^s  Leading 
Gases,  vol.  iii.  p.  316,  et  seq.    See  also  the  case 

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of  Bamt  r.  Bams'  Trustees,  March  5,  1857, 
19  D.  626. 

The  case  of  Paterson  v.  Wilson,  Jan.  25, 
1859,  21  D.  322,  was  an  action  of  exhibition 
of  an  alleged  disposition  in  favour  of  the  pur- 
suer's grandfather,  and  of  declarator  of  pro- 
perty founded  on  the  alleged  disposition.  The 
action  was  met  by  the  plea  of  negative  pre- 
scription. The  pursuer  pleaded  in  reply,  that 
the  negative  prescription  could  not  exclude  a 
claim  of  property  in  an  heritable  subject. 
The  plea  of  prescription  was  sustained.  Lord 
Pbesioxnt  observed : — "  I  see  no  answer  to 
the  plea  of  negative  prescription.  The  action 
is  brought  for  the  purpose  of  compelling  pro- 
duction of  an  alleged  deed,  and  then  for  de- 
clarator that  a  certain  property  belongs  to 
the  pursuer.  The  plea  of  prescription  seems 
to  me  a  complete  answer  to  the  demand  for 
exhibition."  Lobo  Ivobt  observed: — ^"The 
first  conclusion  is  for  exhibition  of  an  alleged 
title.  I  have  no  doubt  that  the  personal  obli- 
gation to  make  any  title  forthcoming  falls 
under  the  negative  prescription.  I  am  not  so 
clear  as  to  the  declaratory  conclusion ;  but  as 
no  title  is  produced  entitling  the  pursuer  to 
£all  for  production  of  the  document  said  to 
exist,  I  fear  the  declaratory  conclusion,  with- 
out a  title,  must  fall  to  the  ground  as  com- 
pletely as  the  conclusion  for  exhibition." 

III.  Oir  ■THE  LsssEB  Pbzscbiftions. 

One  distinction  between  the  positive  and 
negative  prescriptions  of  forty  years  and  the 
lesser  prescriptions  is,  that  the  long  prescrip- 
tion is  intended  to  give  stability  to  heritable 
rights,  and  to  put  an  end  to  all  questions 
resulting  from  obscure  and  antiquated  claims, 
AS  well  as  to  sopite  all  claims  which  have 
been  neglected  for  such  a  length  of  time ; 
and  therefore  the  pi-inciple  on  which  those 
prescriptions  rest  is  perfectly  reconcileable 
with  the  idea  of  a  better  claim  existing  in 
the  claimant  than  in  the  possessor.  The 
long  negative  prescription  operates  as  an 
extinction  of  the  claim,  without  regard  to 
any  offer  of  proof  that  the  claim  is  still  un- 
discharged. But  in  the  shorter  prescrip- 
tions, a  different  rule  prevails ;  and  where 
the  existence  of  the  debt  or  claim  can  be 
proved  by  the  writ  or  by  the  oath  of  the 
debtor,  the  debtor  will  be  bound.  The  ob- 
ject of  the  shorter  prescriptions,  in  truth,  is, 
generally  speaking,  to  protect  parties  against 
the  consequences  of  negligence  in  the  pre- 
servation of  vouchers;  and,  after  the  ex- 
piration of  the  period  of  the  prescription,  to 
change  the  onus  probandi,  and  to  restrict  the 
mode  of  proof.  But  in  no  case  has  this  been 
carried  so  far  as  to  sopite  a  debt  justly  due, 
provided  the  prescribed  mode  of  proof  is  fol- 
lowed. 


1.  Of  the  Vicennial  Prescription. 

(1.)  Of  Retours.—'Bj  the  Act  1617,  c.  13,  a 
vicennial  prescription  of  retours  was  intro- 
duced. Previous  to  that  period,  in  conse- 
quence of  the  act  1449,  c.  57,  the  right  of  an 
heir  to  reduce  an  erroneous  retour  was  fore- 
closed by  the  lapse  of  three  years ;  but,  by 
this  act  (1617),  the  lawful  heir  is  allowed  to 
bring  an  action  for  setting  aside  an  erroneous 
retour  at  any  time  within  twenty  years  after 
the  date  of  the  retour.  The  words  of  the 
act  are,  "  If  the  saids  summonds  of  reduction 
be  not  intented,  executed  and  pursued,  be- 
fore the  expiring  of  the  saids  twenty  years, 
that  the  said  action  of  reduction  of  the  said 
retour  and  service  shall  prescrive  in  the 
selfe,  and  no  party  to  be  heard  thereafter  to 
pursue  the  same  reduction."  The  previous 
act  1494  is  continued  by  1617,  c.  13,  in  so 
far  as  it  affects  the  inquest,  it  being  declared, 
that  "  hereafter  it  shall  noways  be  lawful  to 
pursue  the  persons  of  inquest  for  wilful  error, 
except  they  be  sued  therefor  within  the  space 
of  three  years  next  after  the  date  of  the  said 
retour  and  service."  It  would  appear  that 
the  lapse  of  the  vicennial  prescription  does 
not  protect  the  true  heir  against  irregu- 
larities which  may  have  occurred  in  his  ser- 
vice; i)«m«umi,  17th  May  1793,  Jf.  6936.  If 
the  person  served  heir  be  styled  the  second 
son,  the  prescription  can  be  of  no  avail,  since 
the  retour  is  itself  a  mere  nullity,  proving 
ex  facie  that  the  person  retoured  cannot  be 
the  right  heir;  FuUerton,  12th  Feb.  1824, 
F.  C,  2  5.  *  Z).  698 ;  affirmed  June  20, 1825, 
1  W.  S.  410.  The  vicennial  prescription  will 
not  free  one  retoured  as  heir  from  his  obli- 
gation to  denude  in  favour  of  a  nearer  heir 
who  subsequently  comes  into  existence  ;  Mae- 
kinnont,  14th  Feb.  1766,  M,  6279.  In  a  re- 
cent case,  it  was  pleaded,  that  the  vicennial 
prescription  is  no  bar  to  a  reduction  by  a 
nearer  heir,  even  although  he  wAs  in  exist- 
ence at  the  time  of  the  service ;  but  it  was 
found  that  the  act  establishes  an  absolute 
protection  of  retours  against  challenge  by 
parties  alleging  themselves  to  be  the  true 
heirs,  after  the  lapse  of  twenty  years  ;  Neil- 
son  v.  Cochrane' s  Representatives,  Jan.  17,1837, 
16  S.  •*  Z>.  366  ;  affirmed  March  19,  1840, 
1  Roh.  82.  See  also  Wallace,  Feb.  26, 1835, 
13  S.  <t  D.  664.  This  prescription  has  no 
operation  against  the  heir  himself;  for  when 
he  finds  it  necessary  to  reduce  his  own  retour, 
on  the  head  of  minority  and  lesion,  he  may 
insist  in  the  reduction  after  the  expiration  of 
the  twenty  years;  Edinglassy,  27th  July 
1700,  M.  10989. 

In  the  Bargany  cause,  FuUerton  v.  EamU- 
ton,  in  the  opinion  delivered  by  the  consulted 
judge?,  they  observed :  "  We  are  further  of 

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opinion  that  a  retour,  thougb  correct  and 
unexceptionable  ex  facie,  and  therefore  suf- 
ficient to  protect  the  person  serred  as  heir 
after  the  vicennial  prescription,  is  only  of  a 
personal  nature ;  and  though  it  may  protect 
himself  personally,  cannot,  afler  bis  death, 
affect  the  right  of  the  true  heir,  for  such  was 
not  the  meaning  of  the  statute."     There  is 
nothing,  however,  in  the  statute  to  sanction 
such  a  doctrine.     The  words  of  the  statute 
are,  "  And  if  the  saids  summonds  of  reduc- 
tion be  not  intented,  executed,  and  pursued, 
before  the  expiry  of  the  saids  twenty  years, 
that  the  said  action  of  reduction  of  the  said 
retour    and   service    shall  prescrive  in  the 
selfe,  and  no  party  be  heard  thereafter  to 
pursue  the  said  reduction."     The  dictum  of 
the  judges  in  the  Bargany  cause  was  merely 
obiter ;  the  ground  on  which  the  plea  of  vicen- 
nial   prescription  was  repelled  in  that  case 
being,  that  ex  facie  of  the  retonr,  the  party 
served  was  not  the  heir.    In  the  case  of  Neil- 
ton  V.  Cochrane's  Represeniativee,Ja,n.  17, 1837, 
the  service  of  a  deceased  person  was  sought 
to  be  reduced  which  had  been  expede  upwards 
of  twenty  years  prior  to  the  dat«  of  the 
action  of  reduction ;  and  founding  upon  the 
opinion  of  the  consulted  judges  in  the  Bargany 
cause,  the  pursuer  contended  that  the  vicen- 
nial prescription  was  inapplicable.    The  plea 
of  prescription,  however,  was  sustained,  and 
the  judgment  affirmed  on  appeal ;  House  of 
Lords,  19th   March  1840;  1  Robinson,  82. 
See  also  the  subsequent  case  of  Campbell  v. 
Campbell,  Jan.  26, 1848  ;  10  D.  461,  in  which 
also  the  service  sought  to  be  reduced  was 
that  of  a  deceased  person,  expede  upwards  of 
twenty  years  prior  to  the  action.    See  also 
£0$$"!  Leading  Gates,  voL  iii.  p.  583,  et  seq. 

(2.)  Of  Holograph  Writings — This  is  pro- 
perly a  limitation.  By  the  act  1669,  c.  9, 
bonds  or  other  deeds  in  the  handwriting  of  the 
obligant,  to  which  no  witnesses  are  adhibited, 
as  also  holbgraph  missives,  or  books  of  ac- 
counts, prescribe  in  twenty  years  from  their 
dates.  But,  under  this  statute,  the  pursuer 
may  competently  refer  to  the  debtor's  oath, 
in  order  to  prove  that  the  writing  is  holo- 
graph, and  the  subscription  genuine  ;  and, 
on  his  swearing  in  the  affirmative,  the  obli- 
gation will  be  declared  effectual,  unless  the 
debtor  can  prove  that  it  was  discharged. 
The  verity  of  the  handwriting  may  be  re- 
ferred even  to  the  heir  of  the  grantor ;  but 
the  oath  of  the  debtor  is  the  only  mode  of 
proof  admissible.  This  prescription  runs  from 
the  date  of  the  writing,  and  does  not  run 
against  minors.  Some  lawyers  extend  the 
vicennial  prescription  to  obligations  without 
witnesses  below  L.lOO  Scots.  Actions  raised 
within  the  twenty  years  are,  by  1685,  c.  14, 
declared  to  fall,  if  not  awakened  within  five 


years  from  the  time  of  their  foiling  asleep ; 
and  these  wakenings  must  be  renewed  every 
five  years  thereafter.  Ertk.  B.  iii.  tit  7, 
§§  26,  27. 

(3.)  Of  Crimes. — Where  no  sentence  of  fugi- 
tation  has  been  pronounced,  and  no  step  has 
been  taken  to  bring  the  offender  to  trial 
within  twenty  years  after  the  commission  of 
the  crime,  it  would  appear  that  the  right  to 
prosecute  falls.  See  Hume,  ii.  133.  See 
further,  as  to  the  prescription  of  crimes.  Arts. 
VI.  and  VII.,  infra. 

On  the  subject  of  vicennial  prescription 
generally,  see  Ersk.  B.  iii.  tit.  7,  §§  19  and 
41 ;  Mackeniie's  Observ.  p.  350 ;  Stair,  B.  iL 
tit.  12,  §  35 ;  More's  Notes,  p.  cclxx. ;  Bank. 
vol.  ii.  p.  171 ;  BeWs  Com.  i.  330 ;  Beiet  jPrtw. 
§§  690,  2024  ;  Napier  on  the  Law  of  Prescrip- 
tion; Sandford's  Heritable  Succession,  ii.  37; 
Ross's  Leading  Gases,  vol.  iii.  p.  583. 

2.  Of  Decennial  Prescription. 

By  the  act  1696,o.9, prescription  of  ten  years 
was  introduced  in  favour  of  tutors  and  curators; 
by  which  act  it  is  declared,  that  all  actiom 
competent  to  minors  against  their  tutors  and 
curators,  or  to  them  against  the  minor,  shall 
fall  if  not  prosecuted  within  ten  years  fnm 
the  expiration  of  the  office,  whether  it  has 
terminated  by  the  majority  or  by  the  death 
of  the  minor.  A  curator  neglecting  to  m^e 
up  inventories  does  not  forfeit  the  benefit  of 
the  decennial  prescription ;  and  an  extra- 
judicial consent,  afler  the  years  of  prescrip- 
tion, to  afford  information  respecting  the 
affairs  of  a  curatory,  does  not  bar  the  plea  of 
prescription ;  Oowans,  Dec.  6, 1831,  10  S.  A 
D.  144.  Ersk.  B.  iii.  tit  7,  §  2.5 ;  Stair,  B. 
iu  tit  12,  §  34 ;  Mor^s  Notes,  xUr.  cdxxii.; 
BeWt  Prine.  §  635. 

3.  Of  Septennial  Preseription. 

This  prescription  applies — 1.  To  the  case  of 
cautioners ;  and,  2.  to  the  interruption  of  pre- 
scription. 

(1.)  Of  Cautunuuy  Engagements. — A  septen- 
nial limitation  was  introduced  for  the  benefit 
of  cautioners  by  the  act  1695,  c.  5,  whereby  it 
is  enacted  that  no  person  binding,  conjonctlj 
and  severally,  with  or  for  another  in  any  bond 
or  contract  for  a  snm  of  money,  shall  be  bound 
for  longer  time  than  seven  years  after  the 
date  of  the  obligation;  and  whosoever  is  bound 
for  another,  either  as  express  cautioner  or  as 
co-principal,  shall  have  the  benefit  of  the  act, 
provided  he  has  either  a  clause  of  relief  in 
the  bond,  or  a  separate  bond  of  relief  inti- 
mated to  the  creditor  at  his  receiving  th« 
bond.  These,  however,  are  not  required  where 
the  cautioner  is  described  in  the  bond  as  a 
eautumer.  The  intimation  here  spoken  of 
must  be  a  formal  regular  intimation  mads  to 


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the  creditor.  See  this  proscription  fiilly 
treated  of  under  the  article  Cautionary. 

(2.)  OfthelnterrupUomofPraeriptiont. — By 
the  act  1669,  c.  10,  it  is  declared  that  all 
citations  which  maj  in  futare  be  used  for  the 
purpose  of  interruptingthe  prescription,  either 
of  real  or  of  personal  rights,  must  be  renewed 
every  seven  years,  otherwise  they  shall  pre- 
scribe. This  applies  to  mere  citations;  for, 
where  the  action  is  called  in  court  and  parties 
appear,  the  action  continues  in  force  for  forty 
years,  nnless  it  be  otherwise  ordered  by  act 
of  Parliament.  The  executions  for  interrupt- 
ing prescription  must  be  made  by  a  messenger- 
at-arms;  and  by  act  1696,  c.  19,  it  is  declared, 
that  all  summonses  for  interrupting  the  pre- 
scription of  real  rights  shall  pass  on  a  bill, 
stating  all  the  grounds  on  which  they  proceed, 
and  be  registered  within  sixty  days  in  a  re- 
gister kept  at  Edinburgh ;  and  that  no  inter- 
ruption of  the  prescription  of  real  rights  via 
Jacti  shall  be  of  force  unless  an  instrument  be 
taken  on  it,  and  the  same  be  recorded  in  the 
same  register,  and  within  the  same  period. 

On  the  subject  of  septennial  prescription 
generally,  see  Ertk,  B.  iii.  tit.  7,  §  44 ;  Stair, 
B.  ii.  tit.  12,  §  33 ;  B.  iv.  tit.  35,  J  15;  Mor^t 
Notea,  pp.  cxv.  cclxxii. ;  Baiik.  vol.  ii.  p.  170 ; 
BdTs  Com.  L  356 ;  EdPs  Princ.  §  600 ;  Rott's 
Led.  i.  81, 172. 

4.  Of  Sexennial  Prescription. 
This,  which  is  properly  a  limitation,  extends 
to  bills  and  promissory-notes  only,  and  was  in- 
trodnced  by  the  act  12  Geo.  III.  c.  72,rendered 
perpetual  by  23  Geo.  III.  c.  18,  §  55.  By 
those  statutes  it  is  declared  that  bills  and  pro- 
missory-notes shall  not  he  effectual  to  produce 
diligence  or  even  action,  unless  the  same  shall 
have  commenced  or  been  executed  within  six 
years  from  and  after  the  term  of  payment  of 
the  bills  or  notes.  From  this  enactment  there 
is  an  exception  of  bank-notes  and  post-bills ; 
and  after  the  expiration  of  the  six  years  the 
creditor  is  permitted  to  prove  the  existence 
of  the  debt  by  the  writ  or  oath  of  the  debtor. 
The  years  of  the  minority  of  the  creditors  are 
not  computed  in  the  six  years.  The  six  years 
of  prescription  run  from  the  date  at  which 
the  bill  or  note  is  exigible ;  that  is,  when  the 
bill  is  payable  at  a  fixed  term,  the  last  day 
of  grace.  When  the  bill  is  payable  on  de- 
mand, the  prescription  runs  from  its  date.  In 
a  bill  or  note  payable  at  sight,  the  bill  is  not 
exigible  till  presentment,  and  if,  as  has  been 
thought  to  be  the  rule,  days  of  grace  are 
allowed  on  such  bills,  it  would  appear  that 
the  prescription  cannot  begin  till  the  last  day 
of  grace.  This  is  undoubtedly  the  rule  in 
the  case  of  bills  or  notes  payable  at  a  certain 
time  after  sight  or  presentment.  See  Ertk. 
B.  iii.  tit.  7,  §  29,  and  notes;  Move's  Notes  to 
2t 


Stair,  p.  cccxxiii. ;  BeWs  Com.  i.  393-5 ;  BelPs 
Prine.  §  594 ;  Earned  Princ.  of  Equity,  252, 
510 ;  Thomson  on  BUU,  625 ;  N<^ier  on  the 
Law  of  Prescription.  See  also  the  case  of 
Damley  v.  Richmond,  March  6,  1845,  7  D. 
695.    See  Bill  of  Exchange. 

5.   Of  the  Quitiquennial  Prescription. 

This  prescription  is  extended  to  the  fol- 
lowing cases : — 

(1.)  Arrears  of  rent  in  an  agricultaral  lease 
prescribe  within  five  years  from  the  time  of 
the  tenant's  removal  from  tlie  lands ;  multures 
prescribe  in  five  years  after  they  become 
due ;  so  do  ministers'  stipends;  and  the  same 
rule  is  extended  to  the  case  of  vacant  stipend. 
All  bargains  concerning  moveables,  which 
may  be  proved  by  witnesses,  as  sales,  locations, 
and  other  consensual  contracts,  to  the  con- 
stitution of  which  writing  is  not  necessary, 
prescribe  in  five  years.  But  these,  even 
after  the  five  years,  may  be  proved  by  the 
writ  or  oath  of  the  party.  In  the  same 
manner,  arrestments  prescribe  in  five  years 
from  the  date  of  the  arrestment,  unless  it  has 
been  used  on  a  depending  action ;  in  which 
case  the  five  years  begin  to  run  from  the  date 
of  the  decree  in  the  action.  All  of  these  pre- 
scriptions were  introduced  by  the  act  1669, 
c.  9.  See  Ersk.  B.  iii.  tit.  7,  §  2D ;  Stair,  B. 
ii.  tit.  12,  §  32;  Mor^s  NoUs,  p.  cclxxiii.; 
Bank.  vol.  ii.  p.  170 ;  BelVs  Com.  i.  330 ;  Bdl's 
Princ.  pp.  162  and  164;  Hunter's  Landlord 
and  Tenant,  752-4 ;  Bell  on  Leases,  ii.  48, 51 ; 
Ross's  Lect.  ii.  549 ;  Napier  on  the  Law  of 
Prescription.    See  Arrestment. 

(2.)  The  right  of  appeal  to  the  House  of 
Lords,  formerly  prescribed  in  five  years  from 
the  time  of  signing,  enrolling,  or  extracting 
of  the  decree,  and  the  end  of  fourteen  days, 
to  be  computed  from  the  first  day  of  the 
meeting  of  Parliament  next  ensuing  the  said 
five  years.  This  is  founded  on  a  standing 
order  of  the  House  of  Lords,  of  date  March 
24, 1725.  But,  by  the  stat.  6  Geo.  IV.  o. 
120,  §  25,  the  time  within  which  an  appeal 
to  the  House  of  Lords  may  be  entered  is 
limited  to  two  years  from  the  day  of  signing 
the  last  interlocutor  appealed  from,  and 
fourteen  days  as  above.  See  Appeal. 
6.  Of  the  Triennial  Prescription. 

This  prescription  extends  to  several  cases, 
as — (1.)  The  act  1579,  c.  81,  has  introduced  a 
triennial  prescription  in  actions  of  spuilzie, 
which  is  restricted  to  the  violent  profits  prove- 
able  by  the  oath  of  the  pursuer ;  for,  in  so  far 
as  .the  action  concludes  for  mere  restitution,  it 
may  be  brought  at  any  time  within  the  forty 
years.  By  this  act,  actions  of  ejection  at  the 
instance  of  the  person  violently  dispossessed, 
and  other  actions  founded  on  acts  of  violence, 
where  the  damages  may  be  proved  by  the  pur- 


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cuer's  oath  in  litem,  are  subjected  to  the  game 
short  prescription.    Ersk.  B.  iii.  tit.  7,  §  16. 

(2.)  By  the  act  1579,  c.  83,  a  triennial  pre- 
icription  is  introduced  in  all  claims  for  mer- 
chants' accounts,  serrants*  fees,  honsc'rents 
(where  the  lease  is  rerbal),  and  men's  ordi- 
naries,  and  such-like  debts,  under  which  are 
comprehended  debts  due  to  artificers  or 
tradesmen  for  their  work  or  wages,  accounts 
to  writers,  agents,  surgeons.  But  a  dis- 
tinction arises  between  house-rents,  dec.  and 
accounts.  Each  year's  rent  runs  a  separate 
course  of  prescription  ;  but,  in  accounts,  the 
prescription  does  not  begin  to  run  till  the 
date  of  the  last  article  of  the  account. 
Those  debts  may  be  proved  at  any  time  after 
the  expiration  of  the  three  years,  by  the  oath 
of  the  debtor,  or  by  any  writing  signed  by 
him,  acknowledging  the  debt,  but  not  by 
partial  payments.  Proof  is  required,  not 
only  of  the  constitution,  but  also  of  the  sub- 
sistence of  the  debt. 

At  one  time  a  distinction  was  taken  between 
the  case  of  a  debtor  dying  before  and  that  of 
hisdying  after  the  expiration  of  the  throe  years. 
In  the  former  case,  proof  of  the  constitution  of 
the  debt,  with  the  heir's  oath,  negative  of  pay- 
ment, was  held  sufficient  to  support  the  action ; 
in  the  latter,  the  heir's  oath,  negative  of  pay- 
ment, did  not  overturn  the  presumption  that 
the  debt  was  paid.  In  the  case  of  Auld  v. 
Aikman,  July  7,  1842,  where  a  debtor  had 
died  within  three  years  of  the  last  article  of 
an  open  account,  it  was  held  that  prescription 
did  not  apply  so  as  to  render  it  necessary  to 
prove  the  constitution  by  the  writ  or  oath  of 
his  representative.  This  case,  however,  was 
overruled  by  the  whole  Court,  in  the  case  of 
Cullen  V.  Smtal,  July  12,  1853,  15  D.  868 ; 
and  it  was  decided  that  the  rule  by  which  it 
was  necessary  to  prove,  not  merely  the  con- 
stitution, but  the  resting-owing  of  the  debt, 
by  the  writ  or  oath  of  the  debtor,  was  appli- 
cable to  the  case  of  the  debtor's  representatives 
as  well  as  to  that  of  the  debtor  himself. 

(3.)  By  the  act  1573,  c  82,  actions  of  re- 
moving prescribe  within  three  years  from  the 
term  at  which  the  tenant  has  been  warned 
to  remove. 

(4.)  By  the  act  1663,  c.  6,  it  is  declared, 
that  where  houses  within  a  royal  burgh 
have  gone  to  ruin,  and  been  uninhabited  tor 
three  years,  the  magistrates  may  warn  the 
proprietors  to  rebuild  or  repair  them  within 
a  year ;  and  on  failure,  the  magistrates  may 
value  them  by  sworn  appraisers,  sell  them  by 
public  roup,  and  deliver  the  price  to  the 
proprietors. 

(5.)  By  the  act  1701,  c.  6,  no  person  can  be 
prosecuted  for  wrongous  imprisonment  after 
three  years,  computed  from  the  last  day  of 
the  prisoner's  confinement.     Hume,  ii.  113. 


(6.)  By  7  Will.  III.  c.  3,  §  5,  high  treasoi 
committed  within  the  Queen's  dominiou 
suffers  a  triennial  prescription,  if  indictment 
be  not  found  against  the  offender  by  a  grand 
jury  within  that  time;  Ertk.  B.  iv.  tit. 4,  §  110. 

On  the  subject  of  triennial  prescription 
generally,  see  Erik.  B.  iii.  tit.  7, 1 16 ;  BdTt 
Com.  L  331 ;  Stair,  B.  ii.  tit  12,  §30  ;  Jfare't 
Notet,  p.  colxxir. ;  Batik,  ii.  p.  169 ;  BdTt 
Prine.  p.  162  ;  Karnes'  Princ  of  Eq^Hf: 
Napier  <m  the  Law  of  Preteriptiom  (1825), 
254 ;  Hwiier's  Landlord  and  Teiuu^  pp. 
751-2.  See  also  the  case  of  AkoA  t. 
EoMon,  Dec.  20, 1842,  5  D.  356. 

7.  Of  the  Praeriptitm  of  Grimes. 
All  actions  upon  penal  statutes,  where  the 
penalty  is  appropriated  to  the  Crown,  must  be 
brought  within  two  years  from  the  time  of 
committing  the  offence ;  and  where  the  penalty 
goes  to  the  Crown  or  other  prosecutor,  the  pro- 
secutor must  pursue  within  one  year,  and  the 
Crown  within  two  more ;  31  Elii.  c.  5,§  5.  This 
limitation  has  been  held  to  apply,  in  so  far 
as  regards  the  tr^le  penalties,  to  prosecutiois 
for  usury,  but  not  to  the  action  for  setting 
aside  the  usurious  transaction  ;  Hume,  i.  499. 
See  also  Paul,  Jan  20,  1824,  2  S.  <t  D.  626. 
Prosecutions  on  the  Riot  Act  cannot  be  prose- 
cuted after  the  lapse  of  one  year ;  1  Geo.  I. 
c.  5,  §  8.  Treason  inferred  by  statute  from 
making  certain  instruments  employed  in  coio- 
ing,  must  be  prosecuted  within  six  months; 
7  Anne,  c.  25,  §  2.  To  maintain,  by  advised 
speaking,  that  the  Pretender  has  any  right 
to  the  Crown  of  these  realms,  is  an  offence 
which  must  be  prosecuted  within  three 
months ;  6  Anne,  c.  7,  §  3 ;  Ersk.  ib.  By 
an  old  law,  now  obsolete,  the  crimes  of  rape, 
robbery,  or  hamesucken  were  not  heard  after 
a  silence  of  twenty-four  hours ;  Hume,  i.  304, 
et  seq.  See  Rape.  Petty  riots  and  slighter 
delinquencies,  when  not  prosecuted  immedi- 
ately, must,  at  the  discretion  of  the  judge, 
be  held  to  prescribe;  Ervk.  B.  iv.  tit  4,  § 
110.    See  Penal  Actions. 

IV.  Or  THE  Cdkrexct  of  Pbbsckiftios, 
AKD  or  lis  Intkkrcption. 
Prescription  runs  continually  from  its  com- 
mencement to  its  close,  disregarding  holidays 
and  times  when  there  is  no  court  sitting. 
Even  those  times  when,  from  public  disorder, 
there  is  a  total  surcease  of  justice,  will  not 
be  deducted  from  the  years  of  prescription, 
unless  under  the  authority  of  a  particular 
statute.  The  whole  period  of  the  prescrip- 
tion must  have  elapsed  in  order  to  give  it 
effect.  Hence,  an  interruption  on  the  last 
day  of  the  forty  years  will  be  effectual. 
From  the  currency  of  the  long  positive  and 
negative  prescriptions,  the  years  of  minority 
arc  deducted  ;  but,  with  regard  to  the  lesser 


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prescriptions,  the  years  of  minority  form  no 
exception,  unless  where  this  is  expressed  in 
the  act  constituting  the  prescription.     A  re- 
mote heir-substitute  under  an  entail  is  not 
entitled  to  have  his  minority  deducted  during 
the  part  of  the  prescriptive  period  during 
which  he   had  no  immediate  right  to  the 
estate ;  MaiUe,  March  4,  1829,  7   S.  d  D. 
527,  and  Aj^.    As  the  loss  arising  from  the 
earrency  of  prescription  is  considered  as  the 
penalty  of  negligence,  the  period  of  pre- 
scription does  not  ran  against  one  under  a 
legal  incapacity  to  sue,  neither  can  prescrip- 
tion have  its  course  against  one  who  can,  at 
the  time,  have  no  benefit  by  the  suit.     The 
currency  of  prescription  may  be  interrupted 
in  various  ways ;  as  by  any  act  by  which  a 
proprietor  asserts  bis  right  to  property  in 
the  possession  of  another,  or  by  which   a 
creditor  prosecutes  for  payment  of  a  debt  due 
to  him,  or  where  the  debtor  promises  pay- 
ment.   It  is  interrupted  by  citation  on  an 
action,  or  by  a  charge  on  letters  of  horning, 
and  by  every  diligence  used  on  the  debt.    In 
the  same  manner  partial  payments  interrupt 
the  long  prescription,  which  proceeds  on  a 
presumed  dereliction  of  the  debt,  which  is 
not  reconcileable  with  a  partial  payment.  But 
partial  payments  strengthen  the  shorter  pre- 
scriptions, which  proceed  on  a  presumption  of 
payment,   which  is  strengthened  instead  of 
being  weakened  by  the  partial   payment; 
Ersk.  B.  iii.  tit.  7,  §  39.     Independently  of 
these  interruptions,  there  is  an  interruption 
termed  civil  interruption,  because  itis  attended 
with  no  violence.   It  is  also  called  interruption 
viafaeti,  because  founded  on  the  extrajudicial 
deed  of  him  who  interrupts.     This  inter- 
ruption is  made  by  a  protest  or  notarial 
instrument,  where  the  person  protests  that 
the  possession  shall  not  hurt  the  interest  of 
the  protester.    But  prescription  is  not  inter- 
rupted by  the  registration  of  an  obligation, 
nor  by  its  transmission   from  one  hand  to 
another :  even  intimation  does  not  interrupt 
the  prescription.     Where  possession  has  been 
abandoned  by  the  person  claiming  on  a  pre- 
scriptive title,  or  where  possession  has  been 
taken  from  him,  although  he  has  a  second 
time  acquired  possession,  he  cannot  connect 
.  the  two  periods ;   his  prescriptive  possession 
must  run  a  new  course.    Formerly,  all  cita- 
tions on  actions  had  the  effect  of  interrupting 
the  course  of  prescription;  but,  by  the  act 
1669,  c.  10,  citations  for  this  purpose  must 
be  renewed  every  seven  years ;  and,  by  1676, 
e.  19,  they  must  be  recorded.    This  applies  to 
citations  only;  for  where  the  parties  have 
appeared  in  court,  or  where  any  judicial  act 
has  been  performed,  the  process  becomes  a 
depending  action,  which  may  be  wakened  at 
any  time  within  forty  years,  if  the  particular 


action  be  not  otherwise  limited.  A  submis- 
sion applicable  to  the  claim  in  question  will 
operate  as  an  interruption  ;  Vant,  14th  June 
1816,  Fac.  GoU.  The  septennial  limitation  of 
cautionary  engagements  is  not  affected  by  a 
mere  citation.  See  Citation.  Cautionary. 
Production  of  the  ground  of  debt  or  certified 
account,  with  the  oath  of  verity  as  required 
by  the  Bankrupt  Statute,  in  the  hands  of  the 
interim  factor,  sheriff-clerk,  or  trustee,  or  in 
the  Court  of  Session,  has  the  same  effect  in 
interrupting  prescription  of  every  kind,  from 
the  period  of  such  production,  as  if  a  proper 
action  had  been  raised  against  the  bankrupt 
and  against  the  trustee.  The  same  effect  is 
given  to  the  lodging  of  a  claim  in  a  process 
of  ranking  and  sale.  The  effect  of  an  inter- 
ruption of  prescription  is  to  make  it  begin  a 
new  course,  commencing  from  the  date  of  the 
interruption  in  the  negative  prescription,  and 
from  that  of  the  recovering  of  possession  in 
the  positive.  Where  diligence  is  done  within 
the  forty  years  against  one  of  two  co- 
obligants,  that  is,  where  two  or  more  are 
bound  jointly  and  severally,  or  as  co-obligants, 
it  saves  the  obligation  against  the  whole.  But 
where  the  right  of  the  creditor  is  divided, 
either  by  succession  or  assignation,  the  obli- 
gation may  be  prescribed  as  to  one  part  of 
the  debt  in  the  person  of  the  one  creditor, 
while  it  may  be  effectual  as  to  the  other  part 
of  the  debt  in  the  person  of  the  other  creditor. 
See  Ersk.  B.  iii,  tit.  7,  §  SS,  et  seg.,  and  the 
auHtorities  cited  in  the  article  Interrvption.  See 
also  Napier  on  the  Law  of  Prescription^  and  the 
oaso  of  M'Neill  v.  Macneai,  Mar.  4,  1858,  20 
D.  735. 

FreBentation ;  the  act  by  which  the  patron 
of  a  church  appoints  the  minister,  and  pre- 
sents him  .to  the  presbytery  for  induction. 
Patrons  are  required  by  statute,  at  or  before 
signing  a  presentation,  to  tr.ke  the  oaths  ap- 
pointed to  be  taken  by  persons  in  public 
trust ;  and  those  suspected  of  Popery  must 
purge  themselves,  by  subscribing  the  formula 
introduced  by  1700,  c.  3  (see  Oaih);  other- 
wise the  presentation  is  void,  and  the  right  of 
patronage  devolves  for  that  vice  upon  the 
Crown;  and  failing  the  Crown's  presenting 
within  six  months,  from  the  neglect  or  refusal 
of  the  patron,  on  the  presbytery jare  devoUito; 
10  Anne,  c.  12 ;  5  Oeo.  I.  c.  29.  See  Roman 
Catholics.  It  is  not  the  law,  as  the  terms  of 
the  act  seem  to  import,  that  the  granting  a 
presentation,  without  having  taken  the  neces- 
sary oaths,  implies  an  absolute  forfeiture  to 
the  Crown  of  the  right  of  presentation  for 
that  vice.  In  one  case,  the  Court  overruled 
the  objection  to  the  exercise  of  the  right  of 
patronage,  that  the  patron  had  granted  and 
lodged  a  prior  presentation  without  taking  the 
necessary  oaths ;  Presbytery  of  Paisley,  August 

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10, 1770,  M.  9966.  A  patron  may  delegate 
the  power  of  presentation  to  a  commissioner ; 
and  in  a  late  case,  the  General  Assembly 
sustained  a  presentation  by  a  commissioner, 
where  only  the  commissioner  had  qualified, 
and  not  the  patron  himself.  The  soundness 
of  this  determination  has  been  doubted,  on 
the  ground  that  it  would  open  a  way  of  evad- 
ing the  enactments  against  presentations  by 
unqualified  patrons ;  and  the  matter  has  never 
been  decided  in  the  civil  court.  A  presenta- 
tion to  a  church,  of  which  the  Crown  is 
patron,  is  obtained  by  a  letter  passing  under 
the  Privy  Seal,  iu  consequence  of  a  warrant 
superscribed  by  her  M^esty,  and  subscribed 
by  the  Secretary  of  State  for  the  Home  De- 
partment. Along  with  the  presentation,  there 
should  be  laid  twfore  the  presbytery  a  certifi- 
cate of  the  patron's  havmg  qualified  by  taking 
the  oaths  to  Government ;  an  extract  of  the 
presentee's  license,  unless  already  an  ordained 
minister  of  another  parish ;  a  certificate  of 
his  having  taken  the  necessary  oaths;  and  bis 
letter  of  acceptance.  As  to  the  requisite 
qualifications  of  a  presentee,  see  the  articles 
Minitter.  Admisnon.  License  to  Preaek.  Ac- 
cording to  Brskine,  no  patron  can  present  to 
the  expectancy  of  a  benefice ;  his  power  of 
presentation  depending  on  the  vacancy, 
whether  that  be  produced  by  the  death, 
translation,  deprivation,  or  resignation  of  the 
former  incumbent ;  Ersk.  6.  i.  tit.  5,  §  11. 
A  practice  has,  however,  long  subsisted,  of 
presenting  assistants  and  successors  to  in- 
cumbents who  are  incapable,  on  account  of 
old  age,  or  of  permanent  ill  health,  of  dis- 
charging all  the  duties  of  their  office.  The 
legality  of  this  practice,  and  the  validity  of 
such  presentations,  have  been  sustained  by  a 
decision  of  the  Court  of  Session,  affirmed  on 
appeal ;  Lvke.  Feb.  10, 1832, 10  S.  <t  D.  307, 
affirmed  August  14,  1832.  The  patron  must 
present  within  six  months  from  the  vacancy, 
otherwise  the  presbytery,  on  the  expiration  of 
the  six  months,  may,  in  virtue  of  the  ./us 
dewlvium,  supply  the  vacancy  by  presenting 
to  the  charge.  If  the  patron,  within  the  six 
months,  praseat  a  persen  qualified  in  terms  of 
6  Geo.  I.  c.  29f  who  accepts  the  presentation, 
but  is  afterwards  rejected  on  good  grounds  by 
the  church  courts,the  time  occupied  in  judging 
of  his  eligibility  is  not  reckoned,  and  the 
patron  is  allowed  a  period  equal  to  that  part 
of  the  six  months  which  was  unexpired  at  the 
time  of  the  presentation.  Stair,  B.  ii.  tit.  8, 
§  27 ;  Mor^t  Notes,  ccxli. ;  Erdc.  B.  i.  tit. 
5,  §  16;  Bank.  ii.  pp.  23,  31;  Duvlop  on 
Patrontufe,  §  86,  et  teq. ;  Church  Law  Society 
Sti/les ;  GooVt  Styles.  See  Admission.  Patron- 
age.   Jus  Devolutum. 

Preteutation,  Bond  of.    See  Bond  of  Pre- 
seutat'on. 


PrMentment  of  Billi.  See  BiU(^Es<Aa»gt. 
ProtesL    Noting  of  Bills.    Place  of  Pcu/^ent. 

Presea  of  Meeting.  The  business  of  a 
meeting  of  creditors  cannot  proceed  witboot  a 
preses ;  and  although  the  person  first  elected 
cannot  dissolve  the  meeting  by  leaving  the 
chair,  the  creditors  must  elect  another  pres^ 
to  make  their  further  proceedings  valid; 
Anderson,  12th  Dec  1827,  G  S.  d:  D.  235. 
The  preses  has  no  power  beyond  that  of  con- 
stituting the  meeting,  and  preserving  order 
in  it.  His  vote  is  only  that  of  a  single 
creditor.  This  rule  is  not  confined  to  meet- 
ings of  creditors ;  it  has  been  held  to  be  a 
general  rule,  that  the  preses  of  an  ordinary 
meeting  is  not  entitled  to  a  double  vote; 
Gampbdl,  March  4,  1813,  P.  C,  affirmed  on 
appeal.  He  superintends  the  making  out  of 
the  minutes,  and  his  veracity  is  pledged  for 
the  truth  of  the  record.  It  is  his  duty  to  see 
whether  the  advertisements  have  been  duly 
published,  in  terms  of  the  statute;  BeWs  Com. 
iL  352,  365.    See  M^ority. 

Preetfttion ;  payment,  performance. 

Precuned  Payment.    See  Payment. 

Premmption  of  OeatL  Human  liie  is 
presumed  in  law  to  last  until  the  age  of  100 
years;  to  the  effect  «f  laying  the  burden  of 
proving  the  death  on  him  who  alleges  it.  The 
onus  probandi  is  transferred  to  the  other  party 
where  the  alleged  deceased,  if  alive,  must  b« 
upwards  of  100  years  of  age.  In  one  case,  a 
petition,  proceeding  upon  the  assumption  that 
a  party  abroad  was  dead,  was  refused,  it  being 
observed  by  the  Court,  that  where  an  absent 
party  of  middle  age  is  shown  to  have  been 
alive  in  1819,  and  to  have  then  had  two  sons, 
the  mere  lapse  of  time  and  want  of  further 
intelligence  concerning  them  will  not  afford  s 
presumption  per  se,  either  that  the  party  or 
his  children  are  dead;  and  that  a  service 
being  an  ex  parte  proceeding,  does  not  rsiss 
the  presumption  of  death  in  these  cirenn- 
stances ;  Reid,  Jan.  14, 1834, 12  S.  AD.  278. 
A  sailor,  in  the  prime  of  life,  who  suddenly 
disappeared  at  a  seaport-town  in  England, 
about  four  months  prior  to  his  father's  death, 
was  presumed  to  have  survived  his  father; 
Bruce,  Feb.  25, 1834, 12  S.  d;  D.  486.  See 
also  Lapsley  v.  Griersoa,  Nov.  19,  1845,  8  D. 
34.  See,  for  circumstances  held  to  amount  to 
a  proof  of  death,  GampbeWs  Tmstees,  Feb.  1, 
1834, 12  S.  d  D.  382.  See  also  Life,  and 
authorities  there  cited. 

Prenimption  of  SnrviTordiip.  When 
two  or  more  persons  have  died  within  a  very 
short  period  of  each  other,  and  no  witnesses 
have  been  present  to  note  the  exact  instant  of 
dissolution,  it  is  necessary  to  have  recourse  to 
presumptions,  in  order  to  determine  which  v( 
them  survived  the  others.  Writers  on  medi- 
cal jurisprudence  lay  it  down,  that  the  pre- 

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gumption  of  snrvirorship  is  with  the  mother, 
where  she  dies  in  childbed,  and  her  child  is 
also  found  dead.  By  the  Roman  law,  where 
two  persons  above  the  age  of  puberty  perished 
by  the  same  accident  or  fatality,  the  younger 
was  presumed  to  have  been  the  survivor ;  but 
if  one  was  under  the  age  of  puberty,  the 
other  was  presumed  to  have  been  the  sur- 
vivor; Digett,  B.  34,  tit.  5,  §§  9,  22,  and  23. 
The  rules  of  the  Code  Napoleon  (now  the 
civil  code),  which  have  been  considered  very 
equitable,  are,  1.  "If  those  who  perished 
together  were  under  fifteen  years  of  age,  the 
eldest  shall  be  presumed  to  have  been  sur- 
vivor. 2.  If  they  were  all  above  sixty  years, 
the  youngest  shall  be  presumed  to  have  been 
survivor.  3.  If  some  were  under  fifteen,  and 
others  above  sixty,  the  former  shall  be  pre- 
sumed to  have  been  the  survivors.  4.  If 
those  who  have  perished  together  had  com- 
pleted the  age  of  fifteen,  and  were  linder  sixty, 
the  male  shall  be  presumed  to  have  been  the 
survivor,  where  the  ages  are  equal,  or  where 
the  difference  does  not  exceed  one  year.  5. 
If  they  were  of  the  same  sex,  that  presump- 
tion shall  be  admitted  which  opens  the  succes- 
sion in  the  order  of  nature— of  course,  the 
younger  shall  be  considered  to  have  survived 
the  elder ;  "  Civil  Code,  §§  720-1-2.  To  these 
rules,  although  in  general  founded  on  correct 
physiological  principles,  two  objeciions  have 
been  made  :  1st,  That  the  third  is  imperfect, 
since  a  man,  even  although  above  sixty  years 
of  age,  must  be  held  to  have  survived  a  mere 
mfant ;  and,  2d,  That  no  provision  is  made  for 
the  case  of  persons  under  fifteen  years  of  age, 
and  under  sixty,  perishing  together.  See 
Back's  Medical  Jurisprudence,  p.  208,  and 
authorities  there  cited.    See  Evidence. 

Presnmptiona.  Presumptions  are  either 
juris  et  dejure,  or  juris,  or  hominis  vel  judicis. 
The  prasumptio  juris  et  de  jure  is  that  where 
law  or  custom  assumes  the  fact  to  be  so,  on  a 
presumption  which  cannot  be  traversed  by 
contrary  evidence.  Thus,  a  minor,  with 
curators,  cannot  legally  act  without  their  con- 
sent, on  a  presumption  of  incapacity,  which 
cannot  be  traversed  by  proof  of  his  ability. 
So  also  the  law  of  deathbed  rests  on  a  pre- 
sumed incapacity  in  the  deceased,  which  can- 
not be  redargued  by  proof  that  he  was  of  a 
disposing  mind.  Tlie  prcesumptio  juris  is  a 
presumption  established  in  law,  until  the 
contrary  be  proved;  as  the  presumption  that 
possession  of  moveables  proves  property  in 
them — that  he  who  pays  interest  is  due  a 
capital  corre^ouding  to  .  it,  and  the  like. 
These,  and  every  presumption  of  the  same 
kind,  of  which  there  are  many,  may  be  elided 
by  contrary  proof.  'HhQ  prcesumptio hominis  vel' 
judicis  is  tliat  conviction  which  arises  from 
tiic  circumstances  of  a  case ;  and  it  is  some- 


times of  sufficient  force  to  overcome  the  pr<r- 
tumptio  juri*.  Ersk,  B.  iv.  tit.  2,  §  35,  et  seq.  ; 
Stair,  B.  iv.  tit.  45,  §  9,  e<  seq. ;  Bank  ii.  pp. 
667-9  ;  BeWs  Princ.  p.  656 ;  Karnes'  Stat.  Law 
Ahridg.  h.  t. ;  Tait  on  Evidence,  3d  edit.,  447  to 
491.    See  Evidence. 

Fretinm  Affectionis;  is  the  imaginary 
value  put  upon  a  subject  by  the  fancy  of  the 
owner,  or  by  the  regard  in  which  be  held  it. 
Damage  is  never  estimated  by  this  standard, 
when  the  injury  has  been  done  without  fraud 
or  dole.  Stair,  B.  i.  tit.  9,  §  4;  Ersk.  B.  iii. 
tit.  1,  §  14  ;  Bank.  i.  408 ;  Karnes'  Equity,  65. 
See  Evidence.    Price. 

FreTOiicatioii.  Prevarication  upon  oath 
is  the  wilful  concealment  or  misrepresentation 
of  truth,  by  giviug  evasive  and  equivocating 
evidence.  It  is  in  practice  dealt  with  as  a  con- 
tempt of  court,  and  is  cognisable  summarily  by 
any  judge  before  whom  it  is  committed.  The 
proper  punishment  is  imprisonment.  Stair, 
B.  iv.  tit.  86,  §  8 ;  Hume,  i.  374 ;  Blait^s  Jus- 
tice, h,  t. ;  Alison's  Princ.  484 ;  Prac.  549. 

Prevention.     See  Jus  Proevantionis.    . 

Price;  the  equivalent  paid  for  a  thing 
purchased.  A  price  is  an  essential  of  the 
contract  of  sale ;  sine  pretio  nulla  venditio  est. 
The  price  must  be  an  onerous  price,  and  not 
merely  elusory.  If  the  buyer  is,  by  the  con- 
tract of  sale  itself,  discharged  from  paying  the 
price,  it  is  no  sale.  The  same  rule  holds  if 
the  price  bear  no  reasonable  proportion  to  the 
value  of  the  thing  sold,  as  if  a  valuable  estate 
should  be  sold  for  a  crown.  But  it  is  not 
necessary,  by  the  law  of  Scotland,  as  it  was 
by  the  Roman  law,  that  the  price  shonld  be 
just,  that  is,  that  it  should  correspond  witlt 
the  value  of  the  thing  sold.  Where  the  form 
of  a  sale  has  beoir  gone  through,  without  a 
price  being  exigible,  or  with  a  merely  elusory 
price,  the  contract  resolves  into  a  donation. 
The  price  must  be  certain — i.e.,  it  must  either 
be  fixed  at  a  certain  sum,  or  it  mast  be  re- 
ferred to  a  certain  standard,  ov  to  the  judg- 
ment of  referees,  so  that  it  may  be  capable  of 
being  ascertained ;  eertum  est  ^ptod  eertum  reddi 
potest.  The  price  must  consist  of  current 
money.  The  price  of  land  sold  may  be  re- 
tained until  the  seller  is  ready  to  give  a  good 
title.  Stair,  B.  i.  tit.  9,  §§  11 ;  tit.  14,  §  I, 
et  seq.;  More's  Notes,  Ixxxiv.;  Ersk.  B.  iii.  tit. 
3,  §  4  ;  Bank,  i.  407  ;  Bell's  Com.  i.  169,  232, 
437 ;  BeWs  Princ.  §§  11, 92, 100,  103,  127  ; 
Broum  on  Sait,  147 ;  Bell  #n  Completing  Titles, 
See  Excamhion.    Sale. 

Primage.    See  Bat-Money. 

Primate*  During  the  times  of  Episcopacy 
there  were  two  Archbishops  :  the  Archbishop 
of  St  Andrews,  who  had  the  title  of  the  Pri- 
mate of  all  Scotland;  and  the  Archbishop  of 
Glasgow,  who  was  styled  the  Primate  of  Scot- 
land.    Ersk.  B.  i.  tit.  5,  §  7. 

Digitized  byCjOOQlC 


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Primog^enitnre ;  is  the  name  given  to  the 
rule  of  law,  wliereby  tho  eldest  son  is  pi'e- 
ferred  to  the  younger  ones  in  the  suwession 
to  heritage.  This  rule  was  introduced  by  the 
feudal  law.  It  does  not  appear  to  have  been 
the  rule  in  soccage  land  ;  neither  does  it  take 
place  in  female  succession  to  heritage,  nor  in 
the  succession  to  moveables.  In  all  of  those 
the  rule  of  the  Roman  law  prevails,  and  an 
equal  succession  amongst  those  in  an  equal 
degree  of  relationship  takes  place.  Ersk.  B. 
iii.  tit.  8,  §  6 ;  Stair,  B.  iii.  tit.  4,  §  22 ;  Bank. 
ii.  429,3;  Sandford  on  Entails,  18.  See  Hue- 
eetsion.    Ejceeuton.    Heir. 

Primni  Aotns  Jndioii  est  Jndiois  Appro- 
batorins ;  a  maxim  importing,  that  if  one  take 
any  judicial  proceeding  before  a  judge,  such 
as  proponing  defences,  he  will  not  afterwards 
be  entitled  to  deeline  the  jurisdiction  of  the 
judge.  If,  however,  the  declinature  be  pro- 
poned simultaneously  with  other  defences 
(which,  under  the  Judicature  Act,  is  now  re- 
quired), the  judge's  jurisdiction  will  not  be 
thereby  prorogated.  Stair,  B.  iv.  tit.  37,  §  12. 
See  Defences. 

Prince  of  Scotland;  was  the  title  given  to 
the  eldest  son  of  the  King  of  Scotland.  JErsk. 
B.  i.  tit.  4,  §  12. 

Principal  and  Accessory.     See  Accessory. 

Principal  and  Agent.  Under  this  title 
arc  classed  the  various  questions  which  occur 
between  mercantile  agents  and  their  em- 
ployers, as  to  the  extent  of  their  duties  and 
responsibilities.  Indeed,  all  cases  of  delegated 
powers,  as  well  in  mercantile  as  in  other  mat- 
ters, may  be  included  under  this  general  head ; 
and  hence,  any  summary  even  of  the  general 
doctrines  would  exceed  the  proper  limits  of 
an  article  in  this  work.  Besides,  the  details 
of  the  subject  have  been  considered  in  a  variety 
of  separate  articles,  and  therefore  it  is  enough 
here  to  refer  to  those  articles,  and  to  the  fol- 
lowing list  of  authorities: — Ersk.  B.  iii.  tit. 
3,  §  34,  e<  seq. ;  Bank.  i.  392,  <i  seq. ;  BeWs 
Com.  i.  476,  et  seq.,  183,  200,  275 ;  BeWs 
Princ.  §5  216,  1445;  Ilhst.  ib.;  HunUr't 
Landlord  and  Tenant,  146,  et  seq.;  Bdl  on 
Leases,  i.  134 ;  ii.  61  ;  Brown  on  Sale,  184, 
et  seq. ;  Thomson  on  Bills,  721;  Shaw's  Digest, 
voce  Agetit  and  Principal ;  Brown's  Synop,  h.  t. 
See  Factor.  Procurator.  Mandatary.  Del 
Credere.     Trust.    Agent  and  Client. 

Principality.  The  principality  or  ap- 
panage of  the  Prince  of  Scotland  consisted  of 
lands  in  the  shires  of  Ayr,  Renfrew,  and  Ross, 
which  had  been  erected  into  a  principality  so 
early  as  the  reign  of  Robert  III.  Lands 
holding  of  the  Prince  afforded,  nnder  the  old 
election  law,  a  freehold  qualilication,  in  the 
same  manner  with  lamU  held  of  the  Crown  ; 
and  as  the  right  of  the  Prince,  on  his  succes- 
sion to  the  Crown,  continnes  to  be  vested  in 


him  until  the  birth  of  a  son,  the  vassals  dorio; 
those  intervals  may  be  said  to  hold  of  the 
Crown ;  and  the  rents  of  the  principality  are 
then  levied  for  the  use  of  the  Sovereign.  Ersk. 
B.  i.  tit.  4,  §  12 ;  Bank.  i.  539 ;  ii.  430 ;  B^s 
Prine.  §  674;  SvsinU  Ahidg.  K.  t. ;  Kames'  StfL 
Law,  h.  t. 

Printers.  A  printer  has  no  right  to  pub- 
lish a  work  in  his  hands.  He  has,  however, 
a  lien  on  the  printed  sheets  for  the  price  of 
his  labour,  and  on  the  last  sheets  undelivered 
for  the  price  of  the  whole.  It  has  even  been 
decided  in  England,  that  his  lien  extends  over 
subsequent  volumes  or  numbers  for  the  price 
of  those  which  have  already  been  printed  and 
delivered.  Bell's  Com.  i.  118;  ii.  104.  In 
order  to  repress  seditious  publications,  tbe 
statute  39  Qeo.  III.  c.  79,  §25,  provides  that 
every  typefounder  and  printing-press  maker 
must,  under  a  penalty  of  L.20,  before  com- 
mencing business,  give  notice  to  tbe  clerk  of 
peace,  who  grants  him  a  cerUficate.  Such 
persons  must  also,  under  the  same  penalty, 
keep  and  produce  to  any  justice,  on  his  writ- 
ten demand,  an  accoont  in  writing  of  the 
buyers  of  their  types  or  presses.  Any  per- 
son (except  the  Queen's  printers)  who  gets 
a  printing-press  or  types,  must,  under  like 
penalty,  giv^e  similar  notice,  and  mnst  use 
the  press  or  types  only  in  the  place  named 
in  the  notice.  The  printer  mnst,  nnder  a 
penalty  of  L.20,  print  his  name  and  resi- 
dence on  every  paper  or  book,  and  on  both 
the  first  and  last  leaf,  if  there  be  more  than 
one  :  he  must  write  upon  one  copy  of  every 
paper  he  prints  the  name  and  residence  t( 
bis  employer ;  and  keep  that  copy  for  six 
months,  to  be  shown  to  any  justice  of  peace 
requiring  it.  The  same  penalty  is  incurred 
by  persons  dispersing  papers  not  having  tbe 
printer's  name  and  residence.  Whoever  sees 
any  paper  offered  for  sale,  or  graiis,  or  ex- 
posed to  view,  with  no  printer's  name,  or  mik 
a  false  one,  may  seize  the  offender,  and  carry 
him,  or  deliver  him  to  a  constable  to  be  car- 
ried, before  a  justice,  who  may  determine  re- 
specting him.  The  same  person  is  not  liable 
in  above  twenty-five  forfeitures  oo  account  of 
the  same  paper  or  book,  printed  or  disperMd 
without  the  printer's  name ;  51  Geo.  III.  c.  65, 
§  1.  Certain  papers  are  exempted  from  tke 
operation  of  the  act,  such  as  papers  printed 
for  the  use  of  Parliament,  by  their  authority ; 
or  by  authority  of  any  public  board  or  officer ; 
or  law  proceedings,  bankrupts'  bills,  receipts, 
securities  for  money,  policies  of  insurance,  let- 
ters of  attorney,  deeds  of  agreement,  bills  of 
lading,  impressions  of  engravings,  advertise- 
ments of  tradesmen,  or  of  sales,  &c.  On  cause 
of  suspicion,  from  sworn  information,  that 
any  press  or  types  are  illegally  used,  being 
shown  to  any  one  justice,  he  may  issue  a  war- 
Digitized  byCjOOQlC 


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rant  to  search  the  premises  in  the  day-time,  and 
seize  sach  press,  types,  and  furniture,  with  all 
printed  papers  found  in  the  premises.  There 
are  directions  for  proseeution,  the  levying  of 
penalties,  &c.,  for  which  reference  is  made  to 
the  act  itself.  Abstracts  are  given  of  the  act  in 
Tait's  Juitice,  p.  343;  Blair's  Justice,  p.  293. 
Prior.  The  prior  under  the  Popish  sys- 
tem had  the  charge  of  the  monastery  in  the 
absence  of  the  abbot  (who  was  the  head  or 
governor),  or  while  the  office  of  the  abbot 
was  vacant.     Ersk.  B.  i.  tit.  5,  §  4. 

Prior  Tempore,  Potior  Jure;  a  maxim, 
importing  generally,  that  priority  in  time  or 
in  date  affords  the  criterion  of  preference  in 
competitions.  Stair,  B.  iv.  tit.  35,  §  8 ;  Bank. 
iii.  37. 

PriSM;  a  French  word,  signifying  cap- 
tion, poinding,  distress,  or  moveable  goods 
taken  for  execution  of  a  decreet.  <Sib«n«,  A.  t. 
Prison.  Formerly,  it  was  the  duty  of  the 
magistrates  of  a  burgh  to  render  the  prison 
for  the  reception  of  debtors  sufficient  for  its 
purpose ;  and  if  a  debtor  escaped  from  the  in- 
sufficiency of  the  prison,  the  magistrates  were 
held  liable  for  the  debt.  In  case  of  an  escape, 
the  burden  of  proving  security  and  vigilance 
lay  upon  the  magistrates.  They  were  not 
liable  where  the  prison  was  opened  by  superior 
external  force,  and  the  debtor  made  his  escape. 
Ertk.  B.  iv.  tit.  3,  §  14,  and  B.  i.  tit.  4,  §  28  ; 
BelFs  Com.  ii.  545 ;  Smnt.  Abridg.  L  t. ; 
Karnes'  Slat.  Law  Abridg.  h.  t. ;  Blair's  Jus- 
tice of  Peace,  h.  t.;  Ritchie,  June  27, 1817,  5 
Dow,  87.  See  Escape.  Baron.  Imprisonment. 
Breaking  of  Prisons.    Act  of  Grace. 

By  act  2  and  3  Viet.  c.  42,  the  manage- 
ment of  prisons  was  transferred  to  a  "  General 
Board  of  Directors  of  Prisons  for  Scotland ;" 
and  this  act  was  extended  and  amended  by 
two  subsequent  acts — 7  and  8  Vict.c.34,1844, 
and  14  and  15  Vict.  c.  27, 1851.  By  these 
acts  it  is  provided,  that  the  general  board  shall 
have  "  full  power  of  administration  and  man- 
agement of  all  prisons  in  Scotland ;"  but  all 
rales  made  by  them  must  be  submitted  to, 
and  approved  by,  the  Secretary  of  State,  to 
whom  also  the  board  must  render  annnal 
refjwrts  of  all  their  proceedings.  It  is  further 
enacted  that,  with  the  exception  of  the  general 
{l^ison  at  Perth,  each  prison  shall  be  under 
the  immediate  superintendence  and  manage- 
ment of  a  county  board,  to  bo  appointed  an- 
nually by  the  commissioners  of  supply  for 
the  county,  but  subject  to  the  control  of  the 
general  board.  The  obligations  on  magis- 
trates, in  respect  of  prisons  and  prisoners,  are 
now  removed  ;  and  all  fees  payable  to  teepers 
or  officers  of  prisons  are  abolished.  The  ex- 
penseof  bnildingand  maintainingprisons  is  de- 
frayed by  assessment  on  counties  and  burghs  in 
manner  provided  by  the  before-recited  statutes. 


Prisoner.    See  Liberation. 

Private  Acts  of  Parliament.  The  pri- 
vate acts  of  the  Scotch  Parliament  were  not, 
properly  speaking,  laws;  but  might  have 
been  reduced  in  the  Court  of  Session  at  the 
instance  of  any  third  party  whose  interest 
suffered  from  them.  Indeed,  posterior  to  tho 
year  1606,  there  was  passed  at  the  end  of 
each  session  of  Parliament  an  act,  salvo  jure 
cujuslibet,  for  the  purpose  of  saving  third  par- 
ties against  the  effect  of  these  private  acts  of 
Parliament.     Ersk.  B.  i.  tit.  1,  §39. 

Private  Bills,  or  Acts  of  Parliament. 
Under  this  title  are  comprehended  those  mea- 
sures in  their  progress  through  Parliament 
which  relate  to  private  and  personal  interests, 
such  as  naturalisation,  restitution  of  honoui's, 
change  of  a  family  name  and  arms,  exchange 
or  sale  of  entailed  property,  and  the  like ;  or 
to  private  or  public  local  interests,  such  as 
making,  maintaining,    or    repairing   roads, 
bridges,  canals,  railways,  gaols,  harbours,  and 
similar  objects  of  a  public,  local,  or  municipal 
nature.    Of  the  bills  for  these  objects,  some 
originate  in  the  House  of  Lords,  and  some  in 
the  House  of  Comm<»is,  exclusively.    Tho 
Lords  claim  the  introduction  of  those  in  any 
way  partaking  of  a  judicial  character.  Hence, 
bills    for    restitution  of  honours  or  blood, 
estate  bills,  and  (in  England)  divorce  billi<, 
originate  in  the  Lords,  while  all  bills  which 
in  any  way  can  be  construed  as  imposing  a 
pecuniary  tax,  of  whatever  description,  or  in 
whatever  shape,  originate  exclusively  in  the 
Commons.     Those  partaking  of  neither  of 
those  characters    originate   indiscriminately 
in  either  House,  at  the  option  of  applicants. 
All  private  bills  must  be  introduced  upon  pe- 
tition, "  truly  stating  the  case,"  and  the  rea- 
sons of  the  application,  signed  by  the  parties 
who  are  suitors  for  the  bill.   [Lords'  Standing 
Orders,  7th  December  1669  ;  Commons'  do. 
No.  2.  "  Private  BiUs  in  general."]    Petitions 
for  estate  bilb  (almost  the  only  private  per- 
sonal bills  now  required  in  Scotland),  are  re- 
ferred to  two  of  the  judges  of  the  Court  of 
Session,  who  are  forthwith  to  summon  before 
them  all  parties  concerned  in  the  bill,  and, 
after  hearing  them,  are   to  report  to  the 
House  the  state  of  the  case,  atltt  their  opinion 
thereon,  under  their  hands,  and  to  sign  the 
proposed  bill.    [Lords'  Standing  Orders,  16th 
May  1792,  and  amendments.]     The  consent 
of  all  persons  concerned  in  tho  consequences 
of  such  private  bills  is  required  to  be  given 
in  person,  by  signing  a  copy  either  before  the 
judges  in  Scotland,  or  the  committee  on  tho 
bill ;  but  such  consents  shall  be  sufficient  in 
the  following  proportions,  in  the  cases  speci- 
fied, viz.—"  Four-fifths  of  the  ten  next  in  suc- 
cession to  the  person  or  persons  applying  for 
such  private  bill,  provided  it  is  satisfactorily 


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proved  to  the  committee  that  those  of  tbU, 
the  first  ten,  whose  consent  has  not  been  ob- 
tained, are  absent,  abroad,  or  cannot  be  found 
in  the  kingdom  of  Great  Britain  ;  two-thirds 
of  the  next  twenty  in  succession  after  the 
said  ten ;  one-half  of  the  twenty  next  in  suc- 
cession after  the  said  twenty ;  and  one-third 
of  all  the  other  persons  concerned  in  the  said 
bill,  without  prejudice,  nevertheless,  as  hereto- 
fore, to  every  person  concerned  to  petition 
against  the  said  bill,  and  to  be  heard  for  his 
interest  therein."  [Lords'  Standing  Orders, 
5th  May  1818.]  The  report  of  the  judges 
being  returned,  and  a  rx>py  of  it  and  of  the 
petition  delivered  to  the  Chairman  of  the 
Lords'  Committees,  the  bill  is  read  a  first 
time,  and  thereafter  proceeds  as  other  bills 
through  both  Houses.  See  also  additional 
Standing  Orders  made  by  the  House  of  Lords, 
6th  July  1837.  Evidence  of  compliance  with 
the  whole  orders  applicable  to  the  particular 
ease  is  given  by  production  of  such  docu- 
ments as  are  producible,  and  parole  testi- 
mony (except  in  some  few  stated  instances, 
where  written  affidavits  will  suffice)  is  required 
of  fulfilment  of  the  other  requisites,  such 
as  lodging  papers,  affixing  notices,  or  seeing 
them  affixed,  application  to  owners  and  occu- 
piers, tte.  The  allegations  of  the  petition 
must  also  be  proved  by  a  witness  or  witnesses; 
ami  upon  satisfactory  proof,  the  committee 
reports  that  the  Standing  Orders  have  been 
complied  with,  and  the  petition  proved.  Upon 
such  report,  leave  is  given  to  bring  in  the 
bill,  which  has,  of  course,  been  previously  pre- 
pared in  MS.  according  to  the  forms  of  the 
House ;  and  it  must  now  be  printed  and  de- 
livered to  members  (unless  a  naturalisation 
or  name  bill),  and  it  may  be  read  a  first  time 
on  the  following  day.  It  is  then  taken  to  the 
Private  Bill  Office,  where  it  remains  till  the 
second  reading,  seven  clear  days  afterwards, 
if  a  bill  for  navigations,  railways,  tunnels, 
ferries,  or  docks,  aud  three  clear  days  if  any 
other  bill.  But  no  private  bill  can  be  read 
a  second  time  until  the  expiration  of  two  ca- 
lendar months  fiom  the  day  of  the  last  notice 
given  in  the  newspapers.  The  bill,  if  unop- 
posed, is  read  a  second  time  on  the  appointed 
day,  and  referiTd  to  a  committee  similar  to 
that  upon  the  petition.  Seven  clear  days 
must  intervene  between  the  second  reading 
and  the  meeting  of  the  committee  on  the 
bill.  At  this  committee,  proofs  of  compli- 
ance with  such  Standing  Orders  as  have 
not  been  necessarily  exhausted  in  the  com- 
mittee on  the  petition,  of  consents  not  yet 
signified,  and  of  allegations  of  the  preamble 
of  the  bill,  are  given,  and,  if  satisfactory,  the 
vommitteo  discuss  its  ju  ovisioiis,  and  make 
any  amendments,  or  listen  to  any  opposition 
that  may  be  ofi'ered  by  counsel  or  otherwise. 


One  clear  day  must  intervene  between  the 
last  day  of  sitting  of  the  committee,  and  the 
report  being  made ;  and,  when  relating  to 
navigations,  railways,  tunnek,  ferries,  and 
docks,  seven  clear  days  must  intervene  between 
its  being  presented  and  being  taken  into  con- 
sideration. The  bill,  as  amended,  is  printed 
and  delivered  to  members  as  before ;  and  upon 
the  report  being  agreed  to,  the  bill  is  ordered 
to  be  engrossed  on  parchment  and  examined, 
and  it  may  be  read  a  third  time  as  soon 
as  ready.  It  is  immediately  afterwards 
passed,  and  carried  by  the  member  who  has 
conducted  it  to  the  House  of  Lords.  The 
procedure  in  the  House  of  Lords,  as  well 
upon  bills  originating  there  as  in  those  sent 
from  the  Commons,  is  very  nearly  similar  to 
that  above  described,  with  some  difference  as 
to  intervening  periods.  Notices  in  news- 
papers, application  to  owners  and  occnpiers, 
plans,  Sic,  and  perhaps  a  little  more  security 
of  ultimate  completion  of  the  undertaking, 
and  evidence  of  amounts  subscribed,  where 
subscribers  are  contemplated,  are  required  by 
the  Standing  Orders,  compliance  with  which, 
and  the  truth  of  the  allegations  of  the  bill, 
must  be  proved  in  committee  by  witnesses 
upon  oath.  Amendments  made  by  the  Lords 
must  be  returned  to  the  Commons  for  assent 
or  dissent ;  and  in  the  event  of  non-agree- 
ment, a  rare  occurrence  in  a  private  bill,  the 
proposed  measure  is  either  entirely  aban- 
doned or  renewed,  upon  permission,  in  a  way 
that  can  be  agreed  to  by  both  Houses.  It  is 
competent  to  any  person  having  interest  to 
offer  opposition  to  any  private  bill  in  whole  or 
in  part,  and  at  any  stage  of  the  procedure  ; 
but  as  Parliament  does  not  admit  private  par- 
ties to  oppose  in  committee  on  the  petition, 
and  as  the  merits  of  the  measure  cannot  fairly 
be  judged  of  iu  the  fii'st  stage,  it  is  usual  to 
defer  opposition  till  the  motion  for  second 
reading,  and  generally  till  the  committee  on 
the  bill ;  when,  under  due  restriction  as  to 
grounds  and  principles,  every  opponent  is 
heard,  and,  if  possible,  consistently  with  good 
policy,  his  objections  removed,  or  his  interests 
reconciled  with  the  declared  purposes  of  the 
bill.  The  royal  assent,  from  the  date  of  which 
the  act  commences,  unless  otherwise  provided 
in  the  act  itself,  is  the  concluding  ceremony 
of  private,  as  of  all  other  legislation. 

FriTateen;  private  ships  of  war  commis- 
sioned by  the  Admiralty,  and  fitted  out  by 
the  owners  at  their  own  expense.  Instead  of 
receiving  pay,  the  owners  are  allowed  to  keep 
what  they  take  from  the  enemy,  giving  the 
Admiral  his  share.  Privateei-s  must  find 
caution  for  good  behaviour  to  the  amonnt  of 
L.1500,  or  L.3000  if  the  crew  exceed  fifty 
men.  Besides  these  private  commissions,  there 
are  special  commissions  for  privateers,  granted 


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to  coiniuanders  of  ships,  who  take  pay,  and 
are  under  mariDe  discipliue.  Stair,  B.  ii.  tit. 
2,  §  4 ;  Bank.  i.  524  ;  Tomlins'  Diet.  h.  t.  See 
Prize-Law.    Letters  of  Marque. 

FiivatiTe  Jurisdiction.  A  court  is  said  to 
have  privative  jurisdiction  in  a  particular  class 
of  causes,  when  it  is  the  only  court  entitled 
to  adjudicate  in  such  causes.    Ertk.  B.  i.  tit. 

Fnvies ;  in  English  law,  those  who  partake 
or  have  an  interest  in  any  action  or  thing: 
thus,  every  heir  in  tail  is  privy  to  recover  the 
landentailed.  There  are  five  kinds  of  privies: 
of  blood,  as  the  heir  to  the  ancestor;  in  re- 
presentation,  as  executors  or  administrators  to 
the  deceased;  in  estate,  between  donor  and 
donee,  lessor  or  lessee;  in  respect  of  contract; 
and  on  account  of  estate  and  contract.  There 
is  another  division — into  privies  in  estate,  in 
blood,  and  in  law.    Tomlins'  Diet.  h.  t. 

FriTilege,  Personal;  against  imprisonment 
for  civil  debt.  Minors  witiiin  the  years  vfpu- 
pilarity  are  not  liable  to  imprisonment  for 
debt;  1696,  c.  41.  Lunatics,  idiots,  and  all 
who  are  incapable  of  acting  for  themselves, 
have  a  similar  exemption;  Bell's  Com.  ii.  567. 
The  privilege  of  Parliament  protects  all  peers 
of  the  realm  and  all  members  of  the  House 
of  Commons  from  arrest  for  debt.  Members 
of  the  House  of  Commons  are  free  from  arrest 
during  the  sitting  of  Parliament,  and  for  forty 
days  after  every  prorogation,  and  forty  days 
before  the  next  appointed  meeting.  Formerly, 
the  domestics,  lands,  and  goods  of  the  members 
enjoyed  a  similar  exemption;  but  this  was 
abolished;  10  Geo.  III.  c.  50.  See  Parliament. 
A  married  woman  not  being  capable,  in  the 
ordinary  case,  of  contracting  a  personal  obli- 
gation, cannot  be  subjected  to  personal  dili- 
gence, unless  her  husband  has  abandoned  the 
country,  and  left  her  in  a  state  of  constructive 
widowhood.  See  Husland  and  Wife.  Per- 
sons who  have  been  sequestrated,  under  the 
Bankrupt  Statute,  may  obtain  a  personal  pi'o- 
tection,  renewable  during  the  subsistence  of 
the  sequestration,  by  consent  of  the  creditors. 
And,  finally,  immunity  from  personal  diligence 
may  be  obtained  by  taking  refuge  within  the 
precincts  of  the  sanctuary  of  Holyroodhouse. 
Ersk.  B.  iv.  tit.  3,  §§  24,  25 ;  Brown's  Synop. 
pp.  1547, 1667.  See  also  Sequestratum.  Per- 
sonal Protection.     Sanctuary. 

Privilege  of  Speech.  See  Libel.  Defama- 
tum. 

Privileged  Debts;  are  those  which  human- 
ity has  rendered  preferable  on  the  funds  of 
a  deceased  person,  and  which  an  executor  may 
paywithoutdecree;as — 1.  Sickbed  and  funeral 
expenses,  consisting  of  physicians'  fees,  medi- 
cines, and  surgeons' accounts,  with  the  expense 
of  such  decorations  and  state  in  the  funeral 
as  the  rank  and  circumstances  of  the  deceased 


waiTant.  2.  Moornings  for  the  widow  and 
such  of  the  children  as  are  present  at  the 
funeral.  3,  A  year's  rent  of  the  house,  and 
servants'  wages  since  the  last  term.  See 
Bkecutor.  Mournings.  Funeral  Expenses.  On 
the  death  of  a  clergyman  of  the  Church  of 
Scotland,  the  sums  due  by  him  to  the  Widows' 
Fund  form  a  privileged  and  preferable  debt ; 
19  Geo.  III.  c.  20.  Ersk.  B.  iii.  tit.  9,  §  43 ; 
^anit.  ii.  p.  399 ;  Bell's  Com.  ii.  166-9 ;  Bell's 
Princ.  p.  386 ;  Ilhst.  i.  446 ;  Karnes'  Stat.  Law 
Ahridg,  h.  t.  See  Widows'  Fund.  Friendly 
Society. 

Privileged  Deeds.  A  legal  deed  requires 
certain  statutory  solemnities;  but  from  this 
rule  exceptions  have  been  made  in  favour  of 
certain  deeds  and  writings  on  grounds  of  neces- 
sity or  expediency.  Of  these  exceptions  the 
foUowiugare  examples:— (1.)  Holograph  deeds, 
which  are  deeds  in  the  handwriting  of  the 
grantor,  do  not  require  witnesses,  on  account 
of  the  difficulty  in  forging  the  handwriting 
of  a  whole  deed.  But  such  deeds  do  not  prove 
their  own  dates ;  Ersk.  B.  iii.  tit.  2,  §  22.  See 
Holograph  Deeds.  (2.)  A  deed  subscribed  by  a 
nitmier  of  persons  has  been  sustained,  though 
wanting  witnesses.  But  if  this  decision  be  an 
authoritative  precedent,  it  ought  to  apply 
only  in  the  case  where  all  the  parties  have 
signed  the  deed  at  one  and  the  same  time, 
and  in  presence  of  each  other;  Ersk.  ib.  §  23. 
(3.)  Testaments.  Where  the  testator  cannot 
himself  execute  the  deed,  one  notary  and  two 
witnesses  are  sufficient  to  authenticate  it> 
whatever  extent  of  property  may  be  conveyed 
by  it,  although  the  general  rule  is,  in  all 
deeds  of  importance  where  notarial  subscrip- 
tion is  resorted  to,  to  require  two  notaries 
and  four  witnesses.  See  Testing  Clause.  (4.) 
Receipts  and  discharges  to  t&ianis  for  rent  need 
not  be  signed  in  the  presence  of  witnesses. 
See  Discharge.  (5.)  Missive  letters  in  re  mer- 
catoria  are  valid  though  not  holograph ;  and 
mercantile  commissions  are  effectual  though 
they  want  witnesses.  See  Letters.  (6.)  Ac- 
counts  amongst  merchants  may  be  effectually 
doqueted,  though  neither  the  writer's  name 
be  mentioned,  nor  witnesses  adhibited ;  Ersk. 
B.  iii.  tit.  2,  §  24.  (7.)  BiUs  and  promissory- 
notes  neither  require  witnesses  nor  that  they 
should  be  holograph ;  Ersk.  ib.  See  Bill  of 
Exchange.  Deed.  Evidence.  See  generally, 
Ersk.  uf  supra ;  Moris  Notes  on  Stair,  p.  ccccv. ; 
BelPs  Princ.  §  21. 

Privileged  Summonses.  This  name  is 
given  to  a  class  of  summonses  in  whlbh,  from 
the  nature  of  the  cause  of  action,  the  ordi- 
nary inducice  are  shortened.  Such  sum- 
monses formerly  required  a  bill  to  be  parsed 
in  the  Bill-Chamber,  but  this  was  altered  by 
the  act  13  and  14  Vict  c.  36,  1850.  The 
privileged  summonses  formerly  were  sum- 
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monses  of  removing,  recent  spuilzies,  and  re- 
cent ejectiona  (where  the  summons  was  exe- 
cuted within  fifteen  days  after  committing 
the  deed),  intrasions,  and  succeeding  in  the 
vice,  causes  alimentary,  exhibitions,  sam- 
mouses  for  making  arrested  goods  furthcom- 
ing, transferences,  poindings  of  the  ground, 
wakenings,  special  declarators,  suspensions, 
preventoi-s,  and  transumpts.  Of  those,  ro- 
cent  spuilzies,  ejections,  intrusions,  and  suc- 
ceeding in  the  wee,  were  directed,  by  an  old 
Act  of  Sederunt,  to  be  executed  on  a  diet  of 
fifteen  days,  and  all  others  upon  two  diets  of 
six  days  each :  A.  S.  21st  June  1672.  Be- 
sides the  summonses  above  enumera^d,  sum- 
monses of  multiplepoinding  and  of  cesiio  bo- 
nontm  may,  by  practice,  1^  executed  on  one 
diet  of  six  days,  as  also  wakenings,  where  not 
combined  with  a  transference.  Where  the 
defender  resides  in  Orkney  or  Shetland,  or 
where  he  is  furth  of  the  kingdom,  the  privi- 
lege does  not  apply ;  Ivory's  Form  of  Process, 
vol.  i.  p.  167,  et  seq.  By  the  stat.  6  Geo.  IV. 
c.  120,  §  53,  it  is  enacted,  that  after  the  11th 
November  1825,  the* practice  of  citing  de- 
fenders on  two  diets  shall  in  all  cases  cease ; 
and  that  privileged  summonses  against  de- 
fenders within  Scotland  shall  proceed  on  one 
diet  of  six  days ;  other  summonses  against 
defenders  residing  in  Orkney  and  Shetland, 
on  a  diet  of  forty  days ;  and  for  all  other 
persons  within  Scotland,  a  diet  of  twenty- 
seven  days ;  and  for  defenders  out  of  Scot- 
land, one  diet  of  sixty  days.  By  the  act  13 
and  14  Vict.  c.  36, 1850,  all  summonses  may 
proceed  on  fourteen  days'  warning  where  the 
defender  is  within  Scotland,  unless  in  Orkney 
and  Shetland ;  and  on  twenty-one  days  when 
in  either  of  these  places,  or  furth  of  Scot- 
land. But  privileged  summonses,  which  for- 
merly proceeded  on  shorter  induciw  than 
these,  continue  to  do  so.  Stair,  B.  iv.  tit.  3, 
§§  4  and  32 ;  Ersk.  B.  iv.  tit.  1,  §  6,  and 
Note  by  Mr  Ivory;  Bank.  vol.  ii.  p.  600; 
Shand's  Prac.  230;  Jurid.  Styles,  2d  edit, 
iii.  3,  4,  8,  971-2 ;  Brown's  Synop.  p.  1033  ; 
Ross's  Led.  ii.  519.  See  Citation.  Edictal 
Citation,     Bills  of  Signet  Letters. 

Privy  ConnoiL  The  Privy  Council  of 
Scotland  was  so  termed,  in  contradistinction 
to  the  Parliament,  which  was  the  King's 
Oreat  Council.  The  Privy  Council  consisted 
of  persons  chosen  by  the  King  to  advise  with 
in  matters  of  government  and  police.  They 
had  also  a  supreme  jurisdiction  in  all  ques- 
tions of  Vrong  which  were  found  to  be  beyond 
the  cognisance  of  the  courts  of  common  law, 
and  in  all  cases  where  the  public  peace  was 
concerned.  These  powers  remained  with  the 
Scotch  PrivyConncil  until,  by  the  act  6  Anne, 
c.  6,  that  council  was  absorbed  in  the  British 
Privy  Council,  who  are  by  that  act  declared 


to  have  no  other  or  higher  powers  than  were 
possessed  by  the  English  Privy  Council  at 
the  time  of  the  Union.  Ersk.  B.  i.  tit.  3, 
§  9 ;  Karnes'  Stat.  Law,  k.  t. 

Privy  Connoil  of  Oreat  Britain ;  the  prin- 
cipal council  of  the  Queen,  the  members  of 
which  are  chosen  at  her  pleasure.  It  is  from 
them  that  the  Ministers  of  State  forming  the 
Cabinet  are  selected.  They  hold  their  offices 
for  life,  hut  are  subject  to  removal  at  the 
Queen's  pleasure.  The  Privy  Council  has 
power  to  inquire  into  all  offences  against  the 
Government,  and  to  commit  the  offenders  to 
prison,  to  be  dealt  with  according  to  law. 
Tomlins'  Did.  k.  t. 

Privy  SeaL  This  seal  is  used  in  authen- 
ticating royal  grants  of  assignable  or  per- 
sonal rights.  The  rights  which  a  subject 
transmits  by  assignation,  the  Sovereign 
transmits  by  the  PHvy  Seal.  The  writs 
which  pass  the  Privy  Seal  are  of  two  classes : 
such  as  paais  by  warrants  superscribed  by  the 
Sovereign,  and  such  as  pass  by  warrants 
signed  by  the  Baron  of  Exchequer.  Of  the 
first  kind  are  all  gifts  of  pensions,  presenta- 
tions to  churches  and  professorships  of  which 
the  Crown  is  patron,  commissions  to  inferior 
officers,  and  the  like.  Of  the  second  kind 
are  precepts  directed  to  the  Keeper  of  the 
Great  Seal  for  expeding  tacks  of  teinds  be- 
longing to  the  Crown.  Ersk.  B.  ii.  tit.  5, 
«  84 ;  Jurid.  Styles,  i.  430  ;  Muirhead,  16th 
May  1809,  F.  C. ;  Brown's  Synop.  p.  386. 

Prixe-Law.  The  jurisdiction  of  all  mat- 
ters relative  to  prize  and  capture  in  war  is 
now  vested  exclusively  in  the  High  Court  of 
Admiralty  f  f  England.  (See  Capture.)  The 
rules  of  proceeding  in  prize  causes,  as  stated 
in  a  report  by  Sir  Geo.  Lee  to  the  King  in 
1753,  are  as  follow  :  Before  the  ship  or  goods 
can  be  disposed  of  by  the  captor,  there  most 
be  a  regular  judicial  proceeding,  in  which 
both  parties  may  be  heard,  and  condemnation 
may  follow  therenpon  as  a  prize,  in  a  Court 
of  Admiralty.  The  proper  court  for  these 
condemnations  is  the  court  of  that  state  to 
which  the  captor  belongs.  Every  ship  ought 
to  be  provided  with  complete  and  genuine 
papers,  and  the  master  at  least  should  be 
privy  to  the  truth  of  the  transaction.  And 
if  there  be  false  or  colourable  papers — if  any 
papers  be  thrown  overboard — if  the  master 
and  officers  examined  in  prcsparatorio  grossly 
prevaricate— or  if  there  be  other  suspicions 
circumstances,  the  law  of  nations  allows,  ac- 
cording to  the  different  degrees  of  misbe- 
haviour or  suspicion,  costs  to  be  paid,  or  not 
to  be  received  by  the  claimant,  in  case  of  ac- 
quittal and  restitution.  But  if  a  seizure  is 
made  without  probable  cause,  the  captor 
must  pay  costs  and  damages,  for  which  pur- 
pose pi'ivatcers  are  obliged  to  find  caution. 

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Bee  Privateen.  If  the  sentence  of  tlie  Court 
of  Admiralty  is  thought  to  be  erroneous, 
there  is  in  every  maritime  country  a  superior 
court  of  review,  to  which  the  parties  who 
th  ink  themselves  aggrieved  lAay  apply.  Stair, 
B.  ii.  tit.  2 ;  Moris-  Notes,  clii.,  where  the 
report  of  Sir  Oteo.  Lee  is  quoted  at  length  ; 
^anfc.  i.  520-3;  Bell's  Priw.  ^1295;  Brown's 
Synop.  h,  t.,  and  483.  See  Capture.  Letters 
of  Marque.     Privateers. 

Prize-Money.  The  payment  of  army 
prize-money  has  been  the  subject  of  several 
statutory  enactments.  These  are  consoli- 
dated and  amended  by  2  Will.  IV.  c.  63.  It 
is  provided  that  all  captures  made  by  the 
army  shall  be  disposed  of  as  the  Sovereign 
thinks  fit.  Deserters  are  not  entitled  to 
prize-money.  Provision  is  made  for  the  sale 
of  prizes,  for  the  assignment  of  shares,  &c., 
for  the  details  of  which  reference  is  made  to 
the  act  itself.    See  Soldier. 

Pro  Coafesso.  Where  a  party  in  a  cause 
is  cited  to  appear  and  give  bis  oath  on  the 
reference  of  his  adversary,  or  where  the 
judge,  ex  officio,  has  required  his  oath,  it  is 
under  certification  that,  if  he  fail  to  appear 
and  depone,  he  will  be  held  as  confessed,  and 
decree  pronounced  as  if  he  had  admitted  the 
fact  referred  to  his  oath.  But  a  summons, 
containing  a  reference  to  oath,  and  on  which 
decree  in  absence  was  pronounced,  was  not 
held  to  be  a  judicial  reference  on  which  the 
party  could  be  held  conclusively  as  confessed ; 
Nicolsm,  23d  Nov.  1810,  F.  G.  Against  this 
certification  the  party  will  be  reponed,  upon 
his  showing  good  reason  why  he  did  not  ap- 
pear. If  there  was  any  irregularity  in  the 
citation,  the  party  is  said  to  be  reponed  ex 
jusiitia,  and  the  effect  of  the  holding  as  con- 
fessed is  then  as  completely  at  an  end  as  if  it 
never  had  been  pronounced.  But  where  the 
party  is  reponed  ex  gratia,  and  dies  without 
having  deponed  on  the  reference,  his  heir  will 
not  be  relieved  from  the  holding  as  confessed. 
Ersk.  B.  iv.  tit.  2,  §  17 ;  Tlumson  on  Bills, 
658.     Shand's  Prac.  388.    See  Evidence. 

Ito  £ata.    See  Solidum  et  Pro  Rata. 

Pro  Be  Hata.  A  pro  re  nata  meeting  or 
proceeding,  is  a  meeting  called  or  a  pro- 
ceeding  taken  on  the  emergence  of  some  oc- 
currence or  circumstance  requiring  it.  As 
to  pro  re  nata  meetings  of  presbytery,  see 
Presbytery. 

Probabilis  Canaa.    See  Foot's  Roll. 

Probable  Cause.  In  actions  of  defama- 
tion, the  justification,  or  plea  in  defence,  that 
the  defender  had  probable  cause  for  what  he 
stated,  is  founded  on  the  necessity  which 
sometimes  exists,  that  persons  should,  in  the 
exercise  of  official,  professional,  or  personal 
duty,  give  information,  or  state  facts  not  yet 
absolutely  certain.     In  such  circumstances  it 


will  be  a  sufficient  justification  if  the  defender 
be  able  to  show  that  he  had  probable  cause 
for  believing  and  making  his  accusation. 
This  defence  is  not  competent  in  cases  of  or- 
dinary or  popular  scandal,  where  nothing 
short  of  Veritas  convicii,  and  sometimes  not 
even  that,  affords  a  defence.  See  Veritas 
Convicii.  But  a  statement  made  by  an  ad- 
vocate at  thp  bar,  by  a  master  in  giving  the 
character  of  a  servant,  or  by  any  one  in  the 
performance  of  a  duty  in  a  like  privileged 
situation,  may  bo  justified  by  the  defence  of 
probable  cause.  Probable  cause  is  auxiliary 
to  the  defence  of, privilege.  Even^in  a  pri- 
vileged situation,  if  the  accusation  turn  out 
to  be  false,  malice  will  be  presumed,  or,  at 
all  events,  the  defence  of  privilege  will  be 
neutralised,  and  the  malice  will  be  doubtful. 
But  the  allegation  and  proof  of  probable 
cause  removes  the  presumption  of  an  inten- 
tion to  defame.  Probable  cause  may  be 
proved  either  upon  a  separate  issue  taken  by 
the  defender,  or  upon  the  general  issue.  In 
practice,  a  separate  issue  is  seldom  taken. 
Borthwick  on  Libel,  311 ;  Macfarlane's  Jury 
Prac.  222.  See  Defamcdion.  Damages.  In- 
juries.    Libel.     Veritas  Convicii. 

Probate  of  Testaments;  in  English  law, 
the  exhibiting  and  proving  of  wills  and'  tes- 
tattients  before  the  ecclesiastical  judge,  dele- 
gated by  the  bishop,  who  is  Ordinary  of  the 
place  where  the  party  dies.  See  Testament. 
Prerogative  Court.    Ordinary. 

Probatio  Probata;  proof  which  is  not 
permitted  to  be  impugned  or  redargued. 
The  verdict  of  a  jury  is  in  some  cases  not 
liable  to  review,  and  it  is  then  called  probatio 
probata.    Ersk.  B.  iv.  tit.  2,  §  33. 

Probation.    See  Evidence. 

Probationers.    See  License  to  Preach. 

Process.  Stair  defines  a  process  to  be 
"  an  action  sustained  by  a  judge,  that  there- 
upon either  an  act  or  definitive  sentence  may 
follow ;"  and  he  adds,  that  an  action  not  sus- 
tained is  no  process.  {Stair,  B.  iv.  tit.  3, 
§  21.)  But  under  this  term,  in  a  larger  ac- 
ceptation, may  be  comprehended  all  those 
writs,  forms,  and  pleadings,  whereby  an  ac- 
tion or  a  prosecution,  whether  criminal  or 
civil,  is  brought  under  judicial  cognisance, 
including  all  that  takes  place  from  the  first 
step  down  to  the  final  decree  in  a  civil  action, 
and  to  the  conviction  or  acquittal  in  a  cri- 
minal prosecution.  Bank.  ii.  598 ;  Karnes' 
Stat.  Law,  h.  t.  This  comprehensive  subject 
is  necessarily  treated  of  in  a  variety  of  sepa- 
rate articles  in  this  Dictionary.  Thus,  under 
the  articles  Criminal  Prosecution — Criminal 
Letters — Indictment — Concourse — King's  Ad- 
vocate —  Justiciary  Court  —  Circuit  Court  — 
Dittay — Bail — and  some  others,  all  that  re- 
lates to  criminal  process,  in  so  far  as  thought 

Digitized  byCjOOQlC 


6Gg 


PRO 


PRO 


suitable  fur  the  present  work,  will  be  found. 
In  regard  to  civil  process,  in  like  manuer, 
the  t'oUowing  articles  may  be  consulted  : 
A  etions  —  Summons  —  Privileged  Summons  — 
Caliing  of  a  Summons — D^eacei — Exceptiotu 
— Edictal  Citation — Diet — Advocation — Sus- 
pension —  Wakenings  —  Transference  —  Conde- 
scendence—  Pleas  in  Law — Record — Diligence 
— Hearing —  Gases —  Interlocutor — Prorogation 
— Decree — Protestation — Appeal — Jury  Trial 
— Issues — Evidence — New  Trial — Exceptions, 
Bill  of — Replies — Duplies — Session,  Court  of 
— BiU-Ckamber — College  of  Justice — Advocate 
— Clerk  to  the  Signet — Admiralty — Reduction 
— Ranking  and  Sale — Adjudication — MuttipU- 
poinding — Divorce — Desertion — Tdnd  Court — 
Augmentation — Locality —  Commissary  Court- 
Sheriff— Justice  of  Peace — Dean  of  Ouild — 
Registration — Uomiitg —  Caption —  hypothec — 
Sequestration.  These  articles,  if  read  in  their 
order,  and  others  which  will  readily  suggest 
themselves,  will  convey  to  the  reader  some 
idea  of  the  course  of  procedure,  and  of  the 
multifarious  details  of  a  suit  or  process. 

Proohvia  Ami ;  in  English  law,  the  next 
flriend ;  a  term  used  for  the  nest  of  kin  who 
sues  for  an  infant  in  any  suit  affecting  the 
infant's  rights.     Tomlins'  Diet.  h.  I. 

Proonratioii  to  8ubaorib«  Bills.  A  party 
is  said  to  draw,  indorse,  or  accept  a  bill  by 
procuration,  when  it  is  done  by  his  agent  act- 
ing under  bis  authority.  Procuration  may 
be  constituted  by  a  written  mandate,  and  in 
England  by  a  verbal  mandate ;  or  by  deliver- 
ing to  any  person  a  blank  bill-stamp  sub- 
scribed, which  may  be  considered  as  a  mandate 
to  fill  up  the  blank  in  any  way  he  pleases ;  or 
rebus  ipsis  etfadis,  as  it  is  expressed — that  is, 
by  acts  of  the  principal,  implying  hisauthority, 
such  as  allowing  a  person  to  sig^  instruments 
habitually  for  him,  or  in  his  name,  though 
his  approbation  should  not  be  directly  proved ; 
or  by  subsequent  assent  to  the  agent's  sub- 
scription. Procuration  may  also  be  conferred 
by  an  express  factory,  either  general,  or  im- 
plying the  power  of  signing  bills.  The  pro- 
curator does  not  bind  his  principal,  unless  he 
write  his  principal's  name  per  his  procuration, 
or  sign  his  namo  as  agent  for  the  principal, 
or  in  some  other  way  indicate  his  character  of 
agent.  When  the  principal  is  bound,  the 
agent  is  not  personally  liable ;  but  he  may  be 
liable  when  the  principal  is  not  bound.  Thus, 
one  who  subscribes  |>er  procuration,  without 
authority  from  the  principal,  is  personally 
liable.  Policies  of  insurance  are  sometimes 
subscribed  by  procuration.  BeU's  Com.  i.  399, 
479,  600 ;  BeWs  Princ.  §§  321,  357  ;  Thomson 
on  Bills,  220  ;  Davidson,  19th  April  and  4th 
July  1815,  3  Dow,  218. 

Procurator ;  a  general  term  for  a  person 
who  acts  for  or  instead  of  another,  and  under 


his  authority.  Thus,  the  person  whom  the 
vassal  directs  to  make  resignatiou  in  the 
hands  of  the  superior  is  termed  his  procurator. . 
Agents  practising  before  the  inferior  conrti 
are  also  called  procurators.  When  the  Ad- 
miralty Court  was  abolished,  the  Admiralty 
procurators  were  allowed,  during  their  re- 
spective lives,  to  conduct,  as  agents,  before  the 
Court  of  Session,  any  causes  competent  to 
that  Court ;  1  Will.  IV.  c.  69,  §  28.  In  eases 
under  the  Small  Debt  Act,  no  professional  man 
is  allowed  to  appear  for  a  party.  Ordma^ 
procurators  may  be  suspended  or  struck  olf 
the  list  for  improper  conduct.  Stair,  B.  i. 
tit.  12,  §  12 ;  Ersik.  B.  iii.  tit.  3,  §  33 ;  Jfaclm- 
«■«•»  Sheriff  Prae.  73  ;  Bank.  ii.  492  ;  Blair's 
Justice,  h.  t. ;  Ross's  Lect.  ii.  136, 245 ;  Brom't 
Synop.  h.  t.    See  Agent. 

FroewatlHNFiMMl ;  is  the  officer  appointed 
by  the  sheriff,  magistrates  of  burghs,  or 
justices  of  peace,  at  whose  instance  criminal 
proceedings  before  such  judges  are  carried  on. 
The  procurator-fiscal  may  prosecute  in  his 
own  name,  and  for  the  public  interest,  all 
crimes  which  such  tribunals  may  competently 
try ;  but  where  he  has  reason  to  suspect  that 
any  complaint  made  to  him  tends  more  to 
vindicate  the  private  than  the  public  interest, 
his  duty  is  to  decline  giving  his  instance,  and 
to  offer  his  ctmcurrence.  This  last  he  is 
bound  to  give  to  all  applications  or  libels,  at 
the  instance  of  the  private  party  aggrieved; 
every  party  being,  by  the  law  of  Scotland, 
entitled  to  sue  not  only  for  his  private  inte- 
rest, whether  to  the  effect  of  restitution  of  his 
stolen  property  or  reparation  of  damage 
sustained  by  any  crime  committed  against 
him,  bat  also  for  the  public  interest,  to  re- 
press crime  by  punishment  of  the  delinquent. 
And  to  this  effect  the  procurator-fiscal's  con- 
course must  be  given,  if  the  complaint  be 
regularly  drawn.  Where  the  procurator- 
fiscal  gives  his  concurrence,  and  even  acts  as 
the  informer's  agent,  he  is  not  liable  to  an 
action  for  malicious  prosecution ;  Arbuddt, 
27th  April  1815,  3  Dow,  160.  All  precogni- 
tions as  to  persons  accused  of  crimes  are  now 
taken  by  the  procurator-fiscal,  either  before 
the  sheriff  or  sheriff-substitute,  or  the  magis- 
trates of  the  different  counties.  But  when 
declarations  of  accused  parties  are  taken 
before  the  justices  of  peace,  the  proceedings 
should  be  remitted  to  the  sheriff,  and  com- 
pleted by  the  procurator-fiscal  in  that  judge's 
court.  By  the  Jurisdiction  Act,  which  abo- 
lishes the  mode  of  taking  precognitions  by  the 
Porteous  Roll  clerk,  sheriffs,  exclusively,  are 
required  to  exercise  the  duty,  when  crunos 
are  committed,  or  reported  to  them.  The 
sheriff  and  his  procurator-fiscal,  therefore, 
should  immediately,  or  as  soon  as  the  exigency 
of  the  case  permits,  take  and  report  precogni- 

Digitized  byCjOOQlC 


PRO 


PRO 


G69 


tions.     In  all  cases  where  information  as  to 
any  crime  has  been  lodged  with  the  procura- 
tor-fiscal, it  is  his  duty  immediately  to  ascer- 
tain the  truth  or  falsehood  of  the  iuformatiou 
given ;  to  obtain  correct  evidence ;  to  secure 
the  accused ;  to  prevent  the  oppression  of  the 
innocent,  and  the  escape  of  the  guilty ;  to 
preserve  from  corruption  the  sources  of  evi- 
dence and  to  make  a  true  report  to  the  judge  ; 
and  the  officers  of  the  Crown.    There  being 
no  coroner  in  Scotland,  it  is  the  duty  of  the 
sheriff  and  his  procurator-fiscal,  in  cases  where 
there  is  reason  to  suspect  that  any  individual 
has  met  his  death  by  violence,  or  from  other 
than  natural  causes,  immediately  to  have  the 
body  examined  by  medical  men,  and  to  take  a 
precognition  regarding  the  circumstances  of 
the  case.    And  where  murder,  fire-raising,  or 
any  of  the  greater  crimes  have  been  com- 
mitted, these  officers  frequently  repair  to  the 
spot,  for  the  purpose  of  better  ascertaining, 
and  of  being  able  to  report  upon  the  dif- 
ferent circumstances  and  appearances  which 
the  case  may  exhibit.    Of  late,  it  has  been 
the  practice  of  Crown  counsel  to  send  many 
cases  of  a  description  which  were  formerly 
tried  in  the  Court  of  Justiciary  to  be  tried 
before  the  sheriff  with  a  jury  ;  and  in  these 
eases  the  procurator-fiscal  is  the  prosecutor. 
Although  appointed  by  the  sheriffs,  the  pro- 
curators-fiscal of  counties,  from  their  cumula- 
tive and  extensive  jurisdiction  over  the  whole 
county,  are  accountable  to  the  Crown  counsel 
for  the  proper  discharge  of  the  criminal  duties ; 
and  in  all  cases  of  difficulty,  it  is  their  duty 
to  commnnicate  with  the  Crown-agent,  for 
the  advice  of  the  Crown  counsel ;  all  the  cor- 
respondence of  the  fiscals  being  through  the 
Crown-agent.    The  procurators-fiscal  are  now 
paid  by  salaries.     To  sustain  an  action  of 
damages  against  a  procurator-fiscal,  malice 
must  be  averred.    Munro  v.  Taylor,  Feb.  25, 
1845,  7  D.  500.    All  the  fines  imposed  by  the 
court  as  punishments  are  payable  to  the  fiscal, 
who  is  bound  to  account  for  them  to  the  Ex- 
chequer in  cases  which  have  been  reported  to 
the  Crown  counsel ;  and  to  the  county  and 
sheriff  in  other  cases.    Bank.  ii.  492 ;  nuteh. 
Justice,  i.  96;  Taies  Justice,  voce  Parties ;  Tait 
on  Evidence,  272.   M'Glashan'e  Prac  88. 

Froonratory  of  Sesignatioii.  A  procura- 
tory  of  resignation  is  a  written  mandate  or 
authority,  granted  by  a  vassal,  whereby  he 
authorises  his  feu  to  be  returned  to  his  supe- 
rior, either  to  remain  with  the  superior  as  his 
property — in  whidi  case  it  is  said  to  be  a 
resignation  ad  remaneutiam — or  for  the  pur- 
pose of  the  superior's  giviug  out  the  leu  to  a 
now  vassal,  or  to  the  former  vassal,  and  a  new 
series  of  heirs ;  which  is  termed  a  resignation 
iafavorem.  The  prociiratory  of  resignation  is 
usually  inserted  as  a  clause  in  the  deed  of 


conveyance ;  or,  with  the  addition  of  a  testing 
clause,  a  procuratory  of  resignation  may  con- 
stitute the  entire  deed.  The  procuratory 
authorises  a  certain  person  or  persons  (the 
name  being  left  blank)  to  appear  in  presence 
of  the  superior  or  of  his  commissioners,  author- 
ised to  receive  resignations,  and  there,  as 
procurators  for  the  granter  of  the  procura- 
tory, to  resign  the  subject  into  the  hands  of 
the  superior,  by  delivery  of  staff  and  baton, 
and  that  either  ad  remanentiam  or  infavorem; 
and  for  new  infeftments  to  be  given  in  favour 
of  the  disponee  or  of  the  vassal  himself,  and  a 
new  series  of  heirs.  Hence,  entails  are  fre- 
quently executed  in  the  form  of  procuratories 
of  resignation.  The  procuratory  of  resigna- 
tioB  is  the  warrant  to  the  superior  to  give 
out  of  new  the  property  of  tlie  vassal.  On 
the  death  of  the  vassal,  the  superior  may 
voluntarily  renew  the  right  in  favour  of  the 
heir  of  investiture  by  a  precept  of  dare  con- 
stat ;  or,  under  statutory  authority,  he  may  be 
required  to  grant  a  charter  of  adjudication, 
or  a  charter  of  sale.  But,  with  those  ex- 
ceptions, the  resignation  made  under  author- 
ity of  the  procuratory  of  resignation  is  the 
only  form  by  which  the  superior  is  vested  with 
any  title  to  give  out  a  new  right  Prior  to 
the  passing  of  the  act  1693,  c.  35,  procura- 
tories of  resignation,  as  being  mandates  to 
the  procurators  of  the  vassal,  fell  by  the  death 
either  of  the  granter  or  receiver.  But  by  that 
statute,  it  was  declared  that  the  procuratory 
of  resignation  might  be  the  warrant  of  resig- 
nation, after  the  death  either  of  the  granter 
or  of  the  receiver.  The  procuratory  of  re- 
signation necessarily  forms  part  of  the  dispo- 
sition of  sale,  because  it  is  requisite  that  the 
purchaser  should  be  enabled  to«nter  with  the 
seller's  superior  by  resignation.  It  is  inserted 
also  in  a  disposition  by  a  superior  to  his  vas- 
sal ;  and  in  a  disposition  of  the  feu  by  a  vassal 
in  favour  of  his  superior,  the  procuratory  of 
resignation  is  the  regular  form  by  which  the 
restoration  of  the  property  to  the  superior  is 
authorised.  See  Ersk.  B.  ii.  tit.  7,  §  17, 
et  seg.,  and  B.  iii.  tit.  3,  {  42 ;  Bdl's  Princ. 
p.  288,  et  seg. ;  Bell  on  Purchaser's  Title,  35, 
42 ;  Jurid.  Styles,  i.  211 ;  Ross's  Lect.  ii.  223, 
234,245.  Seb  Resignation.  Charter.  Dispo- 
sition. 

By  the  act  10  and  11  Vict.  c.  48,  1847, 
the  procuratory  of  resignation  in  a  disposi- 
tion is  now  framed  in  tliese  terms :  "  And  I 
resign  the  said  lands  and  others  for  new 
infeftment ;"  and  the  clause  so  framed  is 
equivalent  to  a  procuratory  of  resignation  in 
the  old  form,  and,  in  the  case  of  conveyances 
by  a  vassal  to  his  superior,  is  equivalent  to  a 
procuratory  of  resignation  ad  remanentiam. 
See  Tillcs  to  Land. 

FrodigalB;   are  those- of  a  profuse  and 

Digitized  byCjOOQlC 


670 


PRO 


PRO 


facile  disposition — the  fit  gobjects  of  volun- 
tary, or  of  legal  interdiction.  See  Inter' 
diction.    Curatory, 

Prodnetion.  In  judicial  proceedings,  writ- 
ten documents  produced  in  process,  tn  modum 
probalionis,  or  in  support  of  the  action  or  de- 
fence, are  technically  called  produdioni.  So 
also  in  an  action  of  reduction,  the  writ,  or 
deed,  or  decree,  called  for,  in  order  to  its  bein^ 
judicially  set  aside  or  reduced,  is  called  iMe 
production  ;  which,  unless  the  defender  have  a 
good  objection  to  the  pursuer's  title,  or  some 
other  valid  preliminary  defence,  he  must 
tatiify  (as  it  is  expressed),  that  is,  judicially 
produce.  See  the  practical  rules  on  this 
point  explained,  voce  Redwtion, 

Documents  intended  to  be  founded  on  by  a 
party  must  be  produced  before  the  record  is 
closed,  ifin  his  possession,  or  within  his  power. 
This  rule,  however,  does  not  apply  to  pro- 
ductions at  a  jury  trial.  See  the  case  of 
Cameron  v.  Cameron' t  Trustee*,  Dec  21,  1850, 
13  D.  412. 

Production  of  articles  at  criminal  trial. 
Writings  and  other  articles,  such  as  the  pri- 
soner's declaration,  the  forged  writings,  the 
stolen  goods,  the  instruments  of  murder,  tie. 
produced  at  a  trial,  do  not  constitute  evidence, 
unless  authenticated  by  the  testimony  of  wit- 
nesses. In  theft,  the  goods  stolen  ought  to  be 
described  by  the  owner  before  being  put  into 
his  hands  to  be  sworn  to  by  him  ;  and  he  must 
state  his  reasons  for  certain  knowledge,  if  he 
identify  the  goods  absolutely.  It  must  like- 
wise be  proved  that  the  goods  produced  were 
found  upon  the  prisoner.  Where  the  articles 
are  of  such  a  nature  that  they  cannot  be  pro- 
duced, the  question  of  identity  must  rest  on 
the  description  given  by  the  owner  and  wit- 
nesses, of  the  property  said  to  have  been 
stolen,  and  of  that  found  on  the  prisoner.  In 
forgery,  the  forged  writing  must  be  produced, 
if  in  existence.  If  destroyed  by  the  panel, 
the  trial  may  proceed,  proof,  of  course,  being 
rendered  more  difficult.  If  lost  or  destroyed, 
but  not  by  the  panel's  fault,  it  is  a  question 
undecided,  whether  the  trial  may  proceed  ; 
but  it  is  settled,  that  the  trial  cannot  proceed 
if  the  non-production  is  in  any  way  owing  to 
the  prosecutor.  Notice  must  be  given  to  the 
panel  of  the  articles  to  be  produced,  that  he 
may  examine  them.  Sometimes  a  particular 
description  is  necessary,  which,  if  erroneous, 
bars  their  production.  Sometimes,  as  in  the 
case  of  stolen  goods,  general  mention  is  suf- 
ficient. A  witness,  to  illustrate  his  evidence, 
may  produce  an  article  unnoticed  in  the  libel ; 
but  such  an  article  cannot  be  left  to  become 
part  of  the  process,  and  to  be  sworn  to  by  the 
other  witnesses.  JBume,  i.  164  ;  ii.  349,  388, 
635 ;  Burnett,  200,  606,  668 ;  Steele,  21-6, 
128, 160  ;  Alison's  Prac.  688. 


Profiuiity.  The  profanation  of  the  Sab- 
bath by  any  occupation  of  labour,  bosineas,  or 
sport,  or  other  secular  employment,  has  been 
prohibited  by  several  statutes,  from  1503, 
c.  83,  to  1672,  c.  22.  Justices  of  the  peace 
are  charged  with  the  execution  of  these  laws, 
and  any  person  amay  prosecute.  Blaii't 
Justice,  h.  t. ;  Tail's  Justice,  k.  t.  See  Blas- 
phemy.    Sundtuf. 

Profits,  "Solent     See  Violent  Profits. 

Progreu  of  Titiai.  A  progress  of  titles, 
in  its  most  ordinary  acceptation,  signifies  such 
a  series  of  the  title-deeds  of  a  landed  estate, 
or  other  heritable  subject,  as  is  sufficient  in 
law  to  constitute  a  valid  and  effectual  feudid 
title  thereto.  In  the  caee  of  a  sale  at  a  fell 
price,  the  seller  is  bound,  unless  it  be  other- 
wise stipulated,  to  give  the  purchaser  not  only 
a  disposition,  or  other  effectual  deed  of  cod- 
veyance,  but  also  to  give  him  a  sufficient  pro- 
gress of  titles.  And  in  practice,  the  seller 
usually  comes  under  an  express  obligation  to 
that  effect ;  the  legal  import  of  which  is,  that 
he  must  deliver  to  the  purchaser,  along  with 
his  disposition,  a  progress  of  deeds,  showing 
that  the  seller  has  in  his  person,  by  inherit- 
ance or  otherwise,  an  unimpeachable  feudal 
title.  But  where  the  seller  is  able  to  show 
an  unencumbered  title  complete  in  his  person, 
and  that  of  his  predecessors  or  authors,  ex- 
tending backwards  for  forty  years,  and  stand- 
ing on  charter,  or  disposition  and  sasine,  the 
purchaser  is  bound  to  accept  of  this  as  a  suf- 
ficient progress,  unless  he  can  point  out  specific 
objections.  Where,  however,  the  title  rests 
mainly  on  mere  possession  for  forty  years,  such 
a  progress  will  not  amonht  to  implement  of 
the  seller's  objection.  Thns,  where  a  seller 
had  possessed  during  the  long  prescription, 
but  there  were  the  following  objections  to  bis 
title: — thatacharterconfirmed  by  the  superior 
was  wanting  in  the  progress ;  that  some  char- 
ters had  no  sasines  following  on  them ;  while 
the  warrants  of  certain  sasines  wereawanting; 
it  was  held  that  this  was  a  title  which  a 
purchaser  was  not  bound  to  accept;  i^^oifii, 
June  13,  1676,  M.  14,  169.  Where  the 
exposer  in  articles  of  roup  has  taken  the 
purchaser  bound  to  satisfy  himself  with  the 
progress,  but,  at  the  same  time,  has  boond 
himself  to  give  a  "  valid  disposition,"  it  seems 
to  be  settled  that  the  purchaser  is  not  barred 
from  pleading  that  the  title  offered  is  legally 
objectionable.  See  Waddell  v.  PoUodt,  19th 
June  1828,  6  S.  A  D.  999.  But,  on  the 
other  band,  and  in  connection  with  the  same 
subject,  see  also  Rowand,  24th  Nov.  1769, 
Mor.  14,  178 ;  Hay,  10th  July  1783,  Mor.  14, 
183;  Anderson,  4th  Dec.  1818,  F.  C;  Car- 
ruthers,  26th  May  1825,  4  S.  <fc  Z>.  34;  Did, 
12th  Dec.  1826,  2  W.  it  S.  622.  Questions 
frequently  arise  on  the  effect  of  minority,  and 


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other  interruptions,  of  prescription  on  a  pro- 
gress of  titles.  Stair,  B.  iv.  tit.  38,  §  19 ; 
Er$k.  B.  ii.  tit.  3,  §  20 ;  Bank.  ii.  218,  688 ; 
Bell  <m  Completing  Titles,  154 ;  Ross's  Led.  ii. 
296.  See  Disposition.  Sale.  Search  of  In- 
cumbrances. 

ProhibitioiL    See  Tailzie. 

Promiae  and  Offer.  An  offer  ia  a  proposal 
made  by  the  offerer  to  the  person  to  whom 
the  offer  is  addressed,  to  give  or  to  do  some- 
thing, either  gratuitously,  or  on  an  onerous 
consideration.  A  promise  is  an  offer,  with 
this  addition,  that  the  promiser,  from  the 
nature  of  his  proposal,  thinks  it  unnecessary 
to  wait  for  the  other  party's  assent,  which  he 
takes  it  for  granted  will  be  given  as  soon  as 
the  offer  is  known.  In  the  case  of  an  offer, 
therefore,  there  is  no  consensus  in  idemplaci- 
ium  until  the  offer  is  expressly  agreed  to. 
But  as  soon  as  a  promise  is  made,  there  is 
consensus  in  idem  placitum  implied,  although 
not  expressed.  An  offerer  is  not  bound  until 
his  offer  is  accepted.  A  promiser  is  bound  as 
soon  as  the  promise  reaches  the  party  to  whom 
it  is  made.  According  to  Stair,  the  neces- 
sity of  acceptance  in  the  one  case  and  not  in 
the  other  is  to  be  accounted  for  in  this  way — 
that  an  offer  accepted  is  the  deed  of  two, 
while  a  promise  is  but  the  deed  of  one,  and 
has  not  implied  in  it,  "  as  a  condition,"  the 
acceptance  of  another ;  Stair,  B.  i.  tit.  10,  §§ 
3  and  4.  Whatever  supposition  is  adopted, 
the  practical  result  is  the  same ;  but  it  seems 
more  in  accordance  with  the  general  doctrine 
of  agreements  to  hold,  that  obligation  can  only 
spring  from  consent;  and  that  this  consent 
exists  in  the  case  of  a  promise,  as  well  as  of 
an  accepted  offer.  The  presumption  does  not 
always  hold,  that  a  person  in  whose  favour  a 
proposal  is  made  to  give  or  to  do  something 
gratuitously,  is  willing  to  accede  to  that  pro- 
posal. And  when  the  proposer  expresses  any 
doubt  upon  this  point,  he  is  not  bound,  unless 
by  the  express  acceptance  of  the  other  party. 
Thus,  a  person  offered  by  letter  to  become 
debtor  for  a  sum  due  by  his  mother,  but  re- 
quested to  know  whether  the  creditor  agreed 
to  this.  The  creditor  did  not  expressly  ac- 
cept the  offer,  and  the  offerer  was  held,  after 
his  mother's  death,  not  bound  to  implement 
it ;  Allan  v.  GoUier,  June  26, 1664,  M.  9428. 
But  a  letter,  in  which  a  brother  promised  to 
give  a  bond  of  provision  in  favour  of  bis  sis- 
ters, and  two  bonds  for  L.250  each  in  favour 
of  his  brother,  was  held  binding ;  Madachlan, 
June  1, 1821,  1  S.  <bD.  45.  A  promise  does 
not  require  writing  for  its  constitution:  it 
may  be  either  verbal  or  by  letter.  It  cannot, 
however,  be  proved  by  witnesses :  the  writ  or 
oath  of  the  debtor  is  necessary.  Formerly, 
a  promise  might  be  proved  by  witnesses,  if  it 
was  of  the  nature  of  a  cautionary  engage- 


ment, and  was  entered  into  at  the  same  time 
with  a  principal  obligation,  proveable  by  pa- 
role testimony ;  but  by  the  Mercantile  Law 
Amendment  Act,  19  and  20  Vict.  c.  60, 1856, 
all  guarantees  and  cautionary  obligations 
must  now  be  in  writing. 

A  simple  offer  may,  in  ordinary  cases,  be 
accepted  at  any  time,  if  not  withdrawn.  But 
in  mercantile  transactions,  on  account  of  the 
danger  of  delay,  and  the  risk  that  the  market 
may  alter,  there  is  an  implied  condition  in  au 
offer  to  buy  or  sell  that  it  be  accepted  imme- 
diately, or  at  least  without  undue  delay,  and 
while  there  is  no  change  injurious  to  the 
offerer.  If  a  time  be  fixed  within  which  ac- 
ceptance must  be  made,  it  must  be  attended 
to.  An  offer,  bearing  that  an  answer  is  ex- 
pected in  course  of  post,  is  not  binding  after 
the  arrival  of  that  post  without  an  accept- 
ance. A  letter  by  the  first  mail-packet  from 
abroad  is  held  to  he  in  course  of  post,  though 
private  ships  may  have  sailed  previously.  An 
acceptance  making  a  change  upon  the  pro- 
posed bargain  is  equivalent  to  a  new  offer, 
and  must,  in  its  turn,  be  agreed  to  by  the 
offerer.  An  order  for  goods  must  either  be 
complied  with,  or  rejected  without  delay ;  but 
in  this  case,  a  formal  acceptance  is  not  ne- 
cessary to  bind  the  person  sending  the  order. 
A  lady  wrote  to  another  to  engage  a  servant, 
and  thereafter  not  to  do  so ;  the  two  letters 
were  delivered  through  the  post-office  si- 
multaneously to  the  servant.  It  was  held 
that  there  was  no  completed  contract,  and 
that  the  servant  was  not  entitled  to  wages ; 
Countess  of  Dunmore,  Dec.  15,  1830,  9  iS.  <fc 
D.  490.  Where  the  acceptance  of  au  offer 
and  the  retractation  of  an  offer  are  posted  on 
the  same  day,  and  both  letters  are  delivered  ou 
the  following  day,  there  is  a  completed  con- 
tract. See  the  case  of  Thomson  v.  James, 
July  12, 1855,  1  D.  1.  Ersk.  B.  iii.  tit.  2,  § 
1 ;  tit.  3,  §  88 ;  Stair,  B.  i.  tit.  3,  §  9  ;  tit. 
10,  §§  3-6  ;  More's  Notes,  p.  Ixxii. ;  Brodi^s 
Sup.  907  ;  Bank.  vol.  i.  pp.  98,  323-5 ;  Bell's 
Com.  1.  326, 397  ;  BeU's  Princ.  §§  73-82 ;  II- 
lust.  ib. ;  Karnes'  Princ.  of  Equity  (1826), 
127,  316-8,  63  ;  Huntm^s  Landloid  and 
Tenant,  276,  327,  444:;  Bdl  on  Leases,  ii. 
115-7;  Thomson  on  Bills,  6,  336,524.  See 
Obligation.  Contract.  Locus  Pcenitentiai.  Evi- 
dence. 

Promiflsoiy-Kote.  A  promissory-note  is 
a  written  obligation  by  one  person  to  pay  to 
another  a  certain  sum  of  money  on  demand, 
or  at  a  specified  time  after  the  date  of  the 
note. 

The  following  is  an  example  of  the  ordi- 
nary form  of  such  a  promissory-note : — 

"L.lOO  sterling.  Edinburgh,  [date). 

Three  months  alter  ilat«,  I 

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promise  to  pay  C.  D.  or  order,  at  (specify  a 
place)  the  sum  of  One  Hundred  Pounds  ster- 
ling, value  received." 

(Signed)        "  A.  B." 

Such  a  note  must  be  written  on  the  proper 
stamp,  any  error  in  that  respect  not  being 
snppliable  afterwards;  and  the  note,  when 
completed,  possesses  adl  the  privileges  of  a 
bill  of  exchange  as  regards  authentication, 
negotiation,  and  diligence ;  23  Geo.  HI.  c. 
18,  §  56.  See  BiU  of  Exchange.  An  acknow- 
ledgment for  the  i-ecolpt  of  money,  ''/or 
wkick  J  shall  account,"  is  not  a  promissory- 
/  note.  See  on  this  subject  generally.  Pine  v. 
y/  Smith,  23th  Feb.  1833^5.  <t  D.  473 ;  Thorn- 
ton on  Bittt,  p.  35,  2d  edit.;  Rott't  L. 
C.  C,  p.  62. 

Pionnilgstioii.  The  acts  of  the  Scottish 
Parliament  were  promulgated  by  proclama- 
tion in  all  the  couuty  towns  ia  the  kingdom. 
They  were  afterwards  ordered  to  be  printed ; 
154U,  c.  127  ;  and  the  proclamation  of  them 
fell  into  disuse.  But,  by  the  act  1581,  c. 
128,  they  were  ordered  to  be  published  at  the 
market-cross  of  Edinburgh.  British  statutes 
come  into  operation  from  the  date  of  their 
receiving  the  royal  assent,  unless  it  be  other- 
wise provided  in  the  act.  Brtk.  B.  i.  tit.  1, 
§  37 ;  and  ttat.  33  Geo.  III.  c.  13.  See 
Atient,  RoyM. 

Promntamn.  One  is  said  to  have  a  quati 
loan,  or  promvtuun,  of  a  sum  which  has  been 
paid  to  him  when  it  was  not  due,  and  which 
he  is  therefore  bound  to  restore.  Stair,  B.  i. 
tit.  7,  §  9 ;  tit.  2,  §  6.    See  Condietio  Indebiti. 

Proofl    See  Evideuee. 

Proper  Jnriidietioii.  Proper  jurisdiction, 
as  contradistinguished  from  delegated  juris- 
d.ction,  is  that  which  belongs  to  the  judge  or 
magistrate  himself,  in  virtue  of  his  ofDoe ; 
whereas  delegated  jurisdiction  is  that  which 
is  communicated  by  a  judge  to  another  who 
acts  in  his  name,  called  a  depute  or  deputy ; 
Ertk.  B.  i.  tit  2,  §  13.  See  Delegated  Jurit- 
diction. 

Propntjr ;  U  the  exclusive  right  of  using 
and  disposing  of  a  subject  as  one's  own.  Hence, 
the  proprietor  of  a  subject,  whether  heritable 
or  moveable,  may  give  it  away,  or  sell,  or 
burden,  or  pledge  it,  or  create  a  servitude 
over  it.  So  also  the  same  subject  may  be- 
long to  two  equally,  which  is  termed  joint 
property,  or  common  property.  Moveable  pro- 
prty  once  vested  in  a  person  must  remain 
his  until  it  ceases  to  be  so  by  bis  voluntary 
act,  by  delinquency,  or  by  dereliction.  But 
heritable  property  is  not  lost  by  dereliction 
alone.  In  order  to  give  effect  to  the  derelic- 
tion of  heritage,  there  must  be  a  title  in 
another  founded  in  the  positive  prescription. 
See  Dereliction.     Pretcripticn.     Occupaucy  is  ( 


PRO 

admitted  by  the  law  of  Scotland  as  a  mode 
of  acquiring  property  as  to  those  subjects 
only  which  have  continued  in  their  original 
state  unappropriated,  whether  the  snbjeet 
be  animate  or  inanimate,  as  precious  stones 
which  never  have  had  an  owner,  wild  beasts, 
fowls,  or  fishes.  But  with  this  exception, 
property,  both  heritable  and  moveable,  is  re- 
gulated by  the  rules  of  law  in  its  constitution 
and  transmission.  Difficult  questions  some- 
times occur  as  to  the  right  of  conterminoas 
proprietors  to  make  alterations  upon  tbeir 
own  property,  which  may  affect  the  property 
of  their  neighbours.  Some  of  these  questions 
have  been  already  considered  under  the  ar- 
ticles Common  Property,  and  Common  htertA 
A  proprietor  has  the  exclusive  right  to  the 
occupation  and  use  of  his  property,  a  aik 
usque  ad  centrum.  He  may  therefore  prevent 
any  encroachment,  however  inoffensive,  and 
on  whatever  pretence.  Contrirances  hare 
been  employed  for  the  purpose  of  preventing 
encroachments,  as  to  the  legality  of  whick 
see  Sprin^-yuns.  Every  proprietor  may  do 
what  he  likes  with  his  own,  provided  that  lie 
does  not  thereby  injure  the  property  of  an- 
other; the  remedy  to  the  sufferer  being 
damages  for  an  iigury  inflicted,  and  interdict 
against  any  injury  threatened.  Neither  ii  a 
proprietor  entitled  to  exercise  his  right  of 
property  solely  for  the  purpose  of  incommod- 
ing his  neighbour.  See  ^ulatio  vicini.  But 
one  cannot  be  restrained  in  the  beneficial  or 
legal  use  of  his  property,  merely  because  in- 
convenience may  result  to  a  neighbour.  A 
proprietor  may  build  to  the  very  vei^e  of  his 
ground,  even  though  he  should  stop  all  his 
neighbour's  lights.  See  Light.  Land  locally 
inferior  must  receive  the  water  of  the  supe- 
rior land ;  but  the  inferior  proprietor  is  not 
entitled  to  dam  np  the  water  so  as  to  send  it 
back  upon  the  higher  ground.  A  proprietor 
may  dig  his  ground  and  remove  the  earth  to 
the  very  verge  of  his  property ;  but  if  his 
operations  injure  a  neighbouring  property, 
or  remove  the  support  from  a  neighbouring 
tenement  so  as  to  cause  it  to  fall,  or  put  it  in 
danger  of  falling,  he  may  be  interdicted  from 
proceeding,  or  made  liable  for  the  loss.  This 
matter  must  necessarily  depend  upon  the  cir- 
cumstances of  each  particular  case.  A  pro- 
prietor who,  in  digging  up  an  old  wall,  went 
lower  than  the  foundation  of  his  neighbour's 
house,  which  was  thei-eby  injured,  was  found 
liable  for  damages ;  Kobertton,  May  12, 1825, 
4:  S.  <t  D.  6.  Damages  were  awarded  in 
the  Jury  Court  for  injury  done  to  .a  house 
by  improperly  excavating  the  foundation  of  an 
adjoining  one ;  CaUender,  July  19,  1826,  4 
Mur.  108 ;  aud  Douglas,  Sept.  19,  1826,  4 
Mur.  130.  A  person  who  had  purchased  a 
building-stance  adjoining  a  tenement  which 


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Lad  no  sunk  storey,  intimated  his  intention  of 
excavating  his  ground  for  the  purpose  of 
having  a  sunk  stoi'ey.  This  was  resisted,  and 
interdict  against  it  granted  by  the  Lord  Ordi- 
nary, and  his  judgment  adhered  to  by  the 
Court,  on  the  ground  that  the  excavation 
irould  endanger  the  safety  of  the  neighbour- 
ing tenement,  and  that  the  buildings  in  that 
street  all  wanted  snnk  areas ;  Murray,  Dec. 
4, 1834, 13  S.  tt  D.  119 ;  Enh  B.  ii.  tit.  1.  § 
1,  ei  »eq.;  BdPs  Prine.  §  938;  lUust.  940; 
Bank.  vol.  i.  pp.  10,  84,  604,  529 ;  iii.  61 ; 
Brovm't  Synop.  h.  t.  and  p.  857 ;  Shaw's  Di- 
gest, h.  t.    See  Jiu  in  Re.    Common  Property. 

Property  Tax.  The  income  or  property 
tax  was  first  imposed  by  39  Geo.  III.  c.  13 
(9th  January  1799) ;  and  after  having  been 
the  subject  of  various  statutes,  it  finally  ex- 
pired on  5th  April  1816.  See  66  Qeo.  IIJ. 
c.  66.  An  income  tax  was  again  introduced  by 
the  act  5  and  6  Yict.  c.  35,  and  still  continues. 
The  last  act  on  the  subject  is  22  and  23  Vict. 
c.  18, 1859. 

Propinquity.  See  Kindred.  Suceession. 
Executors. 

Proponed  and  Repelled.  Pleas  proponed 
and  repelled  are  those  pleas  which  have  been 
stated  in  a  court  and  repelled  previous  to  de- 
cree being  given ;  and  in  the  Uonrt  of  Session 
no  reduction  of  a  decree  on  such  grounds  will 
be  allowed.  Stair,  B.  iii.  tit  1,  §46 ;  tit.  62, 
§  7 ;  Ersk.  B.  iv.  tit.  3,  §  3 ;  Bank.  vol.  ii.  p. 
679 ;  Belt's  Princ.  p.  666.  See  Competent  and 
Omitted.    Decree. 

Proporoitas ;  proportatio  assisa;  "  the  pro- 
port,  report,  declaration,  deliverance,  verdict, 
or  suithsaying  of  an  assize."     Skene,  h.  t. 

Prorogation.  In  judicial  proceedings,  a 
prorogation  is  a  prolongation  of  the  time  ap- 
pointed for  reporting  a  diligence,  lodging  a 
paper,  or  obtempering  any  other  judicial 
order.  By  the  act  13  and  14  Vict  c.  36, 
1850,  prorogations  may  always  take  place  by 
the  written  consent  of  parties,  either  before 
or  after  the  lapse  of  the  period  appointed  for 
lodging  any  paper.  A  prorogation  may  also 
be  granted  by  the  Lord  Ordinary  once  with- 
out the  consent  of  parties,  on  special  cause 
shown,  and  the  nature  of  the  cause  must  be 
set  forth  in  the  interlocutor  granting  the 
prorogation ;  but  the  Lord  Ordinary  cannot 
grant  prorogation  oftener  than  once,  even 
npon  cause  shown,  unless  such  course  shaillhave 
been  allowed  by  the  Inner  House  on  the 
report  of  the  Lord  Ordinary. 

Prorogation  of  Jnrisdietion ;  is  that  juris- 
diction which  is,  by  the  consent  of  the  parties, 
conferred  on  a  judge  otherwise  incompetent. 
The  consent  may  be  either  express  or  implied, 
as  by  proponing  defences  «n  caiua,  or  the  like. 
But  a  clause  consenting  to  registration  in  a 
particular  judge's  court- books,  does  not  imply 
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a  prorogation  of  that  judge's  authority  as  to 
questions  afterwards  arising  concerning  the 
legal  import  of  the  writing  so  registered;  and 
in  general,  in  order  to  render  prorogation 
effectual,  the  judge  must  have  a  jurisdiction 
susceptible  of  prorogation.  Thus,  it  is  inad- 
missible where  his  jurisdiction  is  excluded  by 
statute;  or  when  the  judge's  judicial  commis- 
sion is  vacated  or  has  expired;  or  where  he  is 
acting  extra  territorium.  A  defender,  how- 
ever, whose  domicile  is  beyond  a  particular 
judge's  territory,  may,  if  cited  within  that 
territory,  subject  himself  to  the  jurisdiction 
by  appearing  in  court  and  offering  peremptory 
defences.  Prorogation  of  juri^iction  from 
causes  of  one  description  to  those  of  a  totally 
different  description  is  inadmissible.  Yet, 
where  the  cause  is  of  the  same  nature  with 
those  to  which  the  judge  is  competent,  proro- 
gation is  admitted.  Thus,  where  the  proper 
jurisdiction  of  the  judge  is  confined  to  causes 
amounting  to  a  certain  value,  parties  may 
prorogate  the  jurisdiction  to  causes  above  that 
value,  unless  the  statute  conferring  the  juris- 
diction prohibits  it,  or  expressly  limits  the 
jurisdiction.  Prorogation  is  not  admitted  in 
the  Queen's  causes,lestthe  Crown  should  suffer 
by  the  negligence  of  its  officers.  Ersk.  B.  i.  tit. 
2,  §  27,  et  seq. ;  see  Ivory's  Notes;  Bank.  ii.  471. 
See  also  Declinature.    Justices  of  Peace. 

Prorogation  of  a  Lease ;  is  the  extension 
of  it.  In  strict  phraseology,  a  prorogation 
has  been  said  to  differ  from  a  renewal  in  this, 
that  the  former  is  simply  an  extension  of  a 
lease  which  has  expired,  and  which  it  ought 
to  recite ;  while  a  renewal  commences  prior 
to  the  expiration  of  the  old  lease,  and  makes 
some  alteration  on  it.  This  distinction  hag 
not  been  observed  in  practice;  and  proroga- 
tion and  renewal  are  used  indiscriminately. 
The  same  legal  requisites  are  necessary  to 
constitute  a  prorogation  as  tu  constitute  the 
original  lease.  Stair,  B.  ii.  tit.  8,  §  12 ; 
Mor^s  Notes,  p.  ccxlv.;  Ersi.  B.  ii.  tit.  6,  § 
25,  Note;  Bank.  ii.  52,  64,  72 ;  BeWs  Com.  i. 
68 ;  Ross's  LecU  ii.  600  ;  Bdl  on  Leases,  i.  66, 
60,  88,  117,  284;  Hunter's  Landlord  and 
Tenant,  341, 391.    See  Lease. 

Prorogne.  The  Parliament  is  said  to  stand 
prorogued  when  it  is  continued  from  one 
session  to  another.  The  prorogation  is  made 
by  the  royal  authority,  either  by  royal  com- 
missioners, who,  in  the  Sovereign's  name, 
prorogue  the  Parliament,  or  the  prorogation 
may  be  made  by  royal  proclamation.  See 
Parliamewt. 

Proseention,  Criminal  See  Criminal  Pro- 
seeution. 

Progpeot    See  Light. 

Protection  against  Personal  Diligence. 
This  is  given  by  the  law  in  the  following 
cases : — 1.  The  persons  of  peers,  ar.d  of  the 

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widows  of  peers,  are  exempted  from  diligenee. 
2.  Members  of  Parliament  are  protected 
against  personal  execution  by  privilege  of 
Parliament.  8.  Married  women  for  ciTil 
debts.  4.  Minors  under  the  age  of  pupiUarity. 
The  Palace  of  Holyrood  House anditsprecincts 
afford  a  sanctuary  to  debtors.  Besides  the 
protection  against  arrest  for  civil  debt  thus 
obtained,  the  execntion  of  a  caption  may  be 
stayed  by  the  judge,  whenever  it  is  necessary 
to  call  the  person  against  whom  sack  a  dili- 
gence has  issued  or  may  issue  to  give  his 
evidence  in  a  canse.  For  this  purpose  the 
judge  may,  under  the  acts  1663,  c.  4,  and 
1681,  e.  9,  grant  a  personal  protection  for 
such  time  as  may  be  requisite — the  same  not 
exceeding  a  month ;  and  as  a  safeguard  against 
fraud,  the  party  calling  the  witness  must,  by 
the  act  1681,  c  9,  make  oath  that  be  believes 
the  witness  to  be  a  material  one,  and  the 
ereditor  must  also  be  called  to  object  to  the 
protection  if  he  sees  proper.  Under  the  Bank- 
rupt Statute,  a  personal  protection  may  be 
given  by  the  Court  on  awarding  sequestration 
«ntil  a  meeting  of  creditors,  and  a  minority  in 
number  and  value  of  the  creditors  may  after- 
wards renew  the  protection.  Lastly,  Decree 
in  an  action  of  eeuio  honontm  may  be  regarded 
as  a  protection  to  the  debtor  who  has  made 
the  cusio,  u^til  his  circumstances  improve. 
Enk.  B.  iv.  tit.  3,  §§  24-25 ;  boss's  Lxt.  L  329. 
See  Cam  Bonorwn.  Privilege.  Personal 
Protection.     Sanetuaty. 

Protatt,  VotariaL  Requisitions  and  inti- 
mations are  often  made  under  form  of  notarial 
Instrument;  in  which  the  notary  protests 
that  the  party  against  whom  it  is  directed 
shall  be  liable  to  certain  effects  set  forth  in 
the  instmment ;  but  all  those  notarial  instru- 
ments which  are  not  held  in  law  to  be  re- 
quisite as  legal  solemnities  require  to  be 
supported  by  the  parole  evidence  of  the  notary 
and  witnesses  present.    See  Evidence. 

ProtMtation.  Whereapnrsuer, advocator 
er  suspender,  after  having  raised  an  action, 
tails  to  insist  in  it,  his  opponent,  by  means  of 
protestation,  may  compel  him  either  to  pro- 
ceed or  to  suffer  the  action  to  fall.  After  the 
lapee  of  the  inductee  of  a  summons,  if  the  pur- 
suer does  not  proceed  to  call  and  enrol  it,  the 
defender,  if  he  pleases,  may  put  up  protesta- 
tion, which  is  done  by  delivering  to  one  of  the 
Outer-House  clerks  a  note  for  insertion  in 
the  Minute-book  of  the  Court  of  Session, 
specifytDg  the  namw  of  the  parties  and  the 
date  of  the  summons,  with  the  names  of  the 
defender's  counsel  and  agent.  This  note, 
which  is  called  a  protestation,  and  which  must 
be  dated  on  a  sedemnt-day,  is  then  inserted 
in  the  Minute-hook  by  the  keeper,  and  thus 
published  or  notified  to  the  profession.  If, 
within  aine  flree  days  after  its  date,  a  certifi- 


cate is  produced  to  the  Minute-hook  Keeper; 
from  a  depute-clerk  of  Session  or  his  aasistaot, 
that  the  summons,  suspension,  or  adrocation 
in  question  (as  the  case  may  be),  has  been 
duly  lodged  with  him  for  calling,  the  Minnte- 
book  Keeper  is  bound  to  score  the  protestation, 
as  it  is  expressed,  and  the  clerk  issuing  the 
certificate  is  bound  to  call  the  summons,  ke., 
regularly  and  immediately.  But  if  no  ssdi 
certificate  is  produced  within  the  nine  dsjs, 
the  Minute-book  Keeper,  on  the  applieatioB 
of  the  party  putting  up  the  protestation,  will 
give  it  oat  to  be  extracted,  after  which  it 
cannot  be  scored.  When  the  extract  is  signed, 
nnless  the  defender  chooses  voluntarily  to  pus 
from  his  protestation,  the  action  is  at  an  end, 
and  the  defender  cannot  be  called  on  to  answer 
till  cited  on  a  new  summons,  or  until  a  new 
advocation  or  suspension  has  been  raised.  The 
same  course  may  be  followed  when  the  psr- 
suer,  after  calling  the  summons,  fails  to  enrol 
it.  Where  the  summons  has  not  beea  eaUei, 
the  protestation  must  be  put  up  within  year 
and  day  of  the  diet  of  compearance ;  for  siler 
that  period  the  instance  falls,  and  protestation 
is  unnecessary.  But  where  the  sumbom  his 
been  called  and  not  enrolled,  the  protestatioa 
may  be  put  up  at  anytime  within  forty  years; 
— attending  to  this,  however,  that  lAer  the 
lapse  of  one  year  from  the  date  of  the  calling 
the  process  is  asleep,  and  before  patting  up 
protestation  a  summons  of  wakening  mnst  to 
raised  against  the  pursuer,  the  protestation 
in  that  case  being  called  a  "protestation  upon 
a  wakening."  The  difference  In  this  reject 
between  a  summons  and  a  su^tension  or  ad- 
vocation is,  that,  until  called,  a  summons,  sl> 
though  it  may  fall,  cannot  &11  asleep;  wberess 
letters  of  suspension  or  of  advocation,  whetlier 
executed  or  called  or  not,  within  a  year  after 
the  date  of  signeting  or  compearance,  naj 
fall  asleep.  There  were  formerly  technicsl 
differences  between  protestations  in  ordinary 
actions  and  in  suspensions  and  advocations;  bat 
now  the  procedure  in  both  cases  is  very  mudi 
alike.  See  the  subject  learnedly  exponnded  by 
Mr  Beveridge,  Form  of  Process,  i.  270-81. 
See  also  A. S.  llth  July  1828,  §§  30,24;  A.  S. 
8ih  July  1831,  and  Shand's  Prae.  i.  172,  et  «f. 
By  the  act  13  and  14  Vict.  c.  36, 1860,  the 
extract  protestation  contains  a  decree  for 
L.3,  3s.  of  protestation-money,  if  it  is  a  pro- 
testation for  not  calling.  If  it  is  a  protester 
tion  for  not  enrolling,  but  after  the  ealliag 
and  return  of  the  summons  or  other  initiid 
writ,  with  or  without  defences  or  answers,  ss 
the  case  may  require,  the  defender  or  respon- 
dent is  entitled  to  his  just  expenses  as  between 
party  and  party.  A  pursuer  may  be  reponed 
against  a  protratation  for  not  calling  at  any 
time  not  later  than  ten  days  after  die  same 
has  been  given  put  for  extraet,  whether  ex- 


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tract  bas  been  issaed  or  not,  by  lodging  witb 
the  clerk,  in  order  to  calling,  the  anmnionB  or 
other  writ,  with  the  relative  documents,  ac- 
oompanied  by  the  receipt  of  the  agent  for  the 
defender  for  the  sam  of  L.3,3s.  of  protestation- 
money,  or  consigning  the  money  itself  in  the 
hands  of  the  clerk  for  the  use  of  the  agent, 
and  payable  to  him  on  demand.  A  pursuer 
may  also  be  reponed  for  not  enrolling  and 
insisting,  by  enrolling  his  summons  and  other 
writ  in  the  Outer-House  Roll,  and  forthwith 
lodging  the  writ,  with  the  enrolling  clerk's 
certificate  of  enrolment  annexed,  in  the  hands 
of  the  clerk,  accompanied  by  the  receipt  of 
the  agent  for  the  defender  for  the  total 
amount  of  the  protestation-moiiey  and  expense 
of  extract,  or  consigning  the  money  itself  in 
the  hands  of  the  clerk  for  the  use  of  the  agent. 
Whenever  a  summons  or  other  writ  shall  have 
been  duly  enrolled  by  the  pursuer  in  the 
Outer-House  Roll,  whether  protestation  shall 
have  been  put  up  or  not,  it  becomes  to  all  in- 
tents and  purposes  a  depending  process,  under 
control  of  the  Lord  Ordinary  and  of  the 
Court,  until  finally  disposed  of  by  interlocutor. 
In  the  inferior  courts,  the  defender,  on  the 
day  of  compearance,  or  on  any  subsequent 
conrt-day  within  the  year,  may  produce  the 
copy  summons  and  citation  served  on  him, 
and,  by  motion  minuted  in  the  roll-book  of 
the  court,  crave  protestation.  On  this,  the 
inferior  judge  admits  the  protestation,  and 
assoilzies  the  defender  with  a  certain  sum  in 
name  of  costs ;  and  after  the  lapse  of  seven 
free  days  (or  of  forty-eight  hours,  where 
arrestments  have  been  used),  the  defender 
may  extract  the  protestation,  and  the  action 
falls.  But,  at  any  time  before  extract,  the 
pnrsoer  may  produce  the  summons,  and  get  it 
called,  on  payment  of  the  expenses  decerned 
for ;  A.  S.  \2ih  Nov.  1825 ;  Madaurin's  Form 
of  Process,  p.  109.  See,  on  protestation  under 
the  former  law,  and  generally,  Ersk.  B.iv.  tit. 
1,  §  7,  and  tit.  3,  §  21 ;  Ivory's  Form  of  Pro- 
cess, p.  185 ;  Stair,  B.  iv.  tit.  1,  §  52,  et  seq. ; 
Bank.  ii.  513,  615 ;  BeU's  Prine.  664. 

Protesting  of  Bills.  The  protest  of  a  bill 
is  the  notarial  evidence  of  a  demand  for  pay- 
ment having  been  made,  by  a  notary,  in  pre- 
sence of  witnesses,  at  the  place  where  the  bill 
is  payable.  In  order  to  preserve  recourse 
against  the  drawer  and  indorsers,  this  protest 
must  be  taken  on  the  last  day  of  grace.  See 
Days  of  Grace.  Noting  a  BilL  But  as  against 
the  acceptor,  the  bill  may  be  protested  at  any 
time  within  six  months  of  the  term  of  pay- 
ment, to  the  effect  of  recording  such  protest, 
and  expeding  summary  diligence  against  tlie 
acceptor.  Where  there  is  no  place  of  pay- 
ment, the  demand  must  be  made  in  presence 
of  the  acceptor,  or  at  his  dwelling-house.  A 
bill  may  also  be  protested  for  non-acceptance. 


A  copy  of  the  bill  is  prefixed  to  the  protest ; 
and  the  notary,  in  his  instrument,  states  the 
proceedings,  and  the  protest  against  the  ao« 
ceptor,  and  all  concerned,  for  payment,  da-i 
mages,  &c.  This  protest  may  be  recorded 
within  six  months,  and  become  the  warrant 
of  letters  of  horning,  &c.  Ersk.  B.  iii.  tit.  2, 
§  83;  Stair,  B.  i.  tit.  11,  §  7  ;  Bdl's  Prine. 
p.  91 ;  Illust.  236 ;  Thomson  on  Bills,  442, 786, 
ei  seq. ;  Tail  on  Evidence,  3d  edit.  22,  33-4 ; 
Jurid.  Styles,  2d  edit.  ii.  10,  et  seq.  See  Bill 
of  Exchange.  Decree  of  Registration,  Noting 
a  Bill.    Diligence.    Days  of  Grace. 

ProtoooL  On  the  admission  of  a  notary, 
he  receives  from  the  clerk-register  a  book, 
marked  by  the  clerk,  called  a  protocol,  in 
which  the  notary  is  directed  to  insert  copies 
of  all  the  instruments  he  may  have  occasion 
to  execute,  to  be  there  preserved  as  in  a 
record.  These  protocols  were  at  one  time 
attempted  to  be  made  serviceable  as  records 
of  sasines ;  but  this,  from  many  causes,  failed, 
and  their  principal  use  was  to  supply  the  loss 
of  any  instrument,  which  they  were  allowed 
to  do  where  the  protocol  had  been  regularly 
kept ;  but  the  protocol  was  seldom  regularly 
kept,  and  is  now  entirely  in  disuse.  Ersk.  B.  ii. 
tit.  3,  §  39,  ef  seq.;  Ross's Leet.  vol.  ii.p.20], 
et  seq. ;  Stair,  B.  ii.  tit.  3,  §  26  ;  Bank.  ii.  601 ; 
Tait  on  Evidence,  35.     See  Notavy-Pttblic. 

Pro-Tator.  Pro-tutors  aM  pro^surators 
are  those  who  act  as  tutors  or  curators  to  a 
minor  without  having  a  regular  title  to  the 
oflBce.  By  Act  of  Sederunt,  June  10,  1665, 
such  persons  are  declared  liable  not  only  for 
their  actual  intromissions  as  tutorsor  curators, 
but  for  what  they  ought  to  have  intromitted 
with  ;  and  they  may  at  any  time  be  called  to 
account  by  the  minor.  Those  acting  with 
them,  or  making  payment  to  them,  of  the 
minor's  money,  do  so  at  their  peril,  and  are 
not  released  by  such  payment,  unless  in  so  far 
as  the  money  has  been  tn  rem  verstim  of  the 
minor — «.  e.  profitably  expended  for  his  use. 
And  the  same  principle  regulates  the  claim  of 
a  pro-tutor  or  pro-curator  against  the  minor 
for  reimbursement  of  money  expended  for  the 
minor.  It  must  have  been  profitably  ex- 
pended, otherwise  no  action  lies  for  reimburse- 
ment. Ersk.  B.  i.  tit.  7,  §  28  ;  Stair,  B.  i. 
tit.  6,  §  12  ;  Mor^s  Notes,  xliv. ;  Bank.  vol.  i. 
p.  168 ;  BeU's  Prine.  684.    See  Curatory. 

Proat  de  Jure.  A  proof  j^rout  dejure  is  a 
proof  by  all  the  legal  means  of  probation — viz., 
writ,  witnesses,  and  oath  of  party ;  although, 
in  practice,  the  phrase  is  usually  applied  to 
a  proof  of  facts  and  circumstances  by  parole, 
in  contradistinction  to  a  proof  limited  to  writ 
or  oath  of  party.  Ersk.  B,  iv.  tit.  2,  §  1 ; 
Madmrin's  Sheriff  Prac  167.  See  Evidence. 

Proven  Rental.  When  tlie  heritors,  in  a 
process  of  augmentation,  do  not  admit  the 

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aecnraey  of  the  minister's  rental,  and  take  a 
eommiggion  for  deponing  on  the  actual  rental 
«f  their  several  lands,  the  scheme  of  the 
rental,  prepared  under  a  judicial  remit  from 
the  Lord  Ordinary,  according  to  the  proof 
which  has  been  led,  and  the  certificates  of 
rental  and  decrees  of  Taluation  produced,  is 
called  the  proven  rental.  A.  8.  5(&  July, 
1809,  §  4.  See  Augmentation,  So  also  the 
rental  of  the  subjects  of  a  judicial  sale,  proved 
in  the  manner  explained  under  the  article 
Ranking  and  Sale,  is  called  the  yroven  rental. 

Proring  of  the  Tenor.  The  terms  of  a 
deed  which  has  been  lost  or  destroyed  may  he 
proved  in  an  action  peculiar  to  the  Conrt  of 
Session,  called  an  action  of  promng  the  tenor. 
In  this  action  it  is  necessary  to  prove  the 
accident  by  which  the  deed  was  l<«t,  or  the 
easui  amitiumie,  as  it  is  termed ;  and  this  is 
more  requisite  in  such  deeds  as  remain  pri- 
vate, or  where  the  destruction  of  the  deed  is 
usually  relied  on  as  a  discharge.  The  tenor 
of  the  deed  most  be  proved  to  the  Court  by 
writing,  or  by  the  oath  of  the  granter,  or  by 
witnesses ;  but  where  parole  proof  is  resorted 
to,  there  must  be  adminicles  in  the  general 
case — that  is,  relative  writings.  Where,  from 
the  circumstances  of  the  case,  no  adminicle  is 
to  be  expected,  the  Court  will  give  to  the 
evidence  that  degree  of  credit  to  which  it 
may  (4>pear  to  be  entitled.  As  drafts  or 
scrolls  are  received  as  adminicles,  it  is  proper 
for  every  man  of  business  to  preserve  the 
drafts  of  the  deeds  he  may  have  prepared,  as 
well  as  to  mark  on  the  draft  the  date  of  the 
execution  of  the  deed,  and  the  circumstances 
attending  it.  He  ought  also  to  fill  up  th« 
testing  clause  in  the  draft  as  it  is  actually 
filled  up  in  the  engrossed  deed.  The  care- 
lessness of  practitioners  in  this  respect,  and 
where  they  make  copies  of  deeds,  cannot  be 
too  severely  reprobated.  A  very  common 
practice,  in  copying  a  deed,  is  to  stop  short  at 
the  testing  clause,  and  thereby,  in  the  event 
of  the  loss  or  accidental  destruction  of  the 
principal  deed,  to  deprive  the  party  of  very 
valuable  evidence,  in  caae  a  proving  of  the 
tenor  should  become  necessary.  This  action 
is  chiefly  necessary  where  the  deed  to  be 
proved  is  part  of  a  progress  of  title-deeds ; 
Eriik.  B.  i.  tit.  3,  §  19,  and  B.  iv.  tit.  1,  §  54. 
As  to  the  action  of  proving  the  tenor  of  a  lost 
bill  or  note,  see  the  article  Lott.  Bank.  vol.  ii. 
p.  641 ;  BelPt  Prine,  §  883  ;  Thornton  on  Bill*, 
319;  Darling't  Prae.  505;  Tait  on  Evidence, 
203  to  214 ;  Jurid  Style$.  2d  edit.  iii.  207-8, 
521.    See  Catut  Amittionit. 

Provisioiu  to  Widows,  Hnabandi,  and 
Children.  On  this  subject,  the  following 
articles  in  this  work  may  be  consulted: — Con- 
tract  of  Marriage.  Terce.  Courtett/.  Jus 
Relicta.     Legitim,     Conjunct  Rights.      Con- 


dition, st  tine  liberit.    Conditioned  OhUjatum. 
Donation.    Destination.    Tailzie. 

PrOTOet.  The  chief  magistrate  of  a  royal 
hnrgh  ;  BeWs  Prine.  §  2176.  As  to  tht 
election  of  the  provost,  see  Burgk-RoyoL 

ProvMti  of  uie  Church.  Before  the  He- 
formation,  when  a  collegiate  ehoreh  wis 
founded  and  endowed,  the  headof  the  collegi- 
ate church  was  termed  prceposHus,  or  provost 
Erst.  B.  i.  tit  6,  §  3 ;  Stair,  B.  ii.  tit  8,  §  15. 

Proxy.  Members  of  the  House  of  Lords, 
and  the  electors  of  the  sixteen  representstire 
peers  of  Scotland,  may  vote  by  proxy.  See 
Election  Laxos,  343-4;  Parliament,  704. 
Neither  members  of  the  House  of  Commoni 
nor  their  electors  can  vote  by  proxy. 

Puberty ;  is  the  interval  between  the  sge 
of  fourteen  years  in  males,  and  of  twelvt 
years  in  females,  and  majority.  In  qnestiom 
as  to  crime,  the  age  of  puberty  in  females  as 
well  as  males  is  fourteen ;  Erik.  B.  L  tit  7, 
§  1.     See  Infants.    Minor.    Crime. 

Pablic  Bordena.  Public  burdens  affeetisg 
land  may  be  defined  generally  as  all  taxations 
or  assessments  impc«ed  in  respect  of  the  pro- 
perty or  possession  of  land,  including  the  land 
tax  or  cess,  minister's  stipend,  manse  sod 
glebe  assessments,  schoolmaster's  salary,  poor'a- 
rates,  rogue-money,  road  and  bridge  ataesB- 
ments,  and  others  the  like  public  and  eousty 
burdens.  Feu  and  blench  duties,  though 
sometimes  erroneously  so  described,  are  not 
public  burdens.  In  the  disposition  to  a 
purchaser,  a  clause  is  usually  inserted,  bind- 
ing the  seller  to  pay  the  feu-duty  and  the 
public  burdens  up  to  a  certain  date  (gene- 
rally the  term  of  entry),  and  the  purchaser  to 
pay  them  thenceforward.  Independently  of 
stipulation,  public  burdens  fall  upon  the  land- 
lonl,  and  not  upon  the  tenant,  except  in  the 
case  of  the  schoolmaster's  salary,  which  ia 
payable  one-half  by  the  landlord  and  the 
other  half  by  the  tenant  A  stipulation  is 
sometimes  introduced  into  a  lease,  declaring 
the  lessor  or  the  lessee  liable  for  the  paUie 
burdens.  If  the  landlord  be  bound  to  pay 
them,  and  if  the  tenant  pay  them  in  the  fint 
instance,  he  may  claim  a  corresponding  de- 
duction from  the  rent  The  tenant  ought  to 
deliver  the  receipts ;  and  the  discharge  for 
the  rent  ought  to  specify  that  so  much  was 
paid  in  money,  and  so  much  accounted  for  by 
those  receipts.  Under  an  agreement  between 
a  landlord  and  tenant,  that  the  latter  should 
pay  public  burdens,  the  income-tax,  as  having 
been  a  personal  tax,  was  held  not  to  be  in- 
cluded ;  Wilson,  Feb.  15, 1828,  6  S.dD. 
561.  A  general  clause  of  exemption  from 
taxations  in  favour  of  heritors  does  not  em- 
brace an  exemption  from  the  burden  of  manae 
and  glebe ;  Nifol,  Feb.  27, 1829,  7  S.*D. 
479.    A  public  burden  must  be  constituted 


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either  by  a  statute  or  an  uninterrupted  uni* 
form  practice  for  a  sufficient  time ;  Scott,  Feb. 
4, 1829,  5  Mur.  57.  It  is  provided  by  statute, 
that  no  one  shall,  in  virtue  of  any  diligence, 
take  away  the  goods  of  another,  unless  he 
pay,  or  see  paid,  all  the  public  taxes  to  which 
the  proprietor  of  the  goods  is  liable;  43 
Geo.  III.  c.  150.  Conveyancers  usually  em- 
ploy the  expression  ^lie  mid  parodtial 
burdens,  but  the  general  expression  "public 
bttrdens"  is  sufficient  to  cover  local  as  well  as 
general  taxes  and  assessments;  although  it 
does  not  follow  that  the  expression  "parochial 
burdens"  includes  general  or  national  taxa- 
tions and  assessments.  Stair,  B.  ii.  tit.  6, 
§  20 ;  Ersk.  B.  ii.  tit.  6,  §  42 ;  Bank.  i.  666 ; 
li.  576 ;  BeU's  Com.  i.  700  ;  ii.  40 ;  Karnes'  Stoi. 
Law,  h.  t.;  Bdl  on  Leases,  i.  321 ;  ii.  129  ; 
Hunter's  Landlord  and  Tenant,  640 ;  Ross's 
LeeL  ii.  495 ;  BeU  on  Completing  Titles,  61 ; 
Brown's  St/nop,  h.  t,  and  p.  1185 ;  Shav/s  Di- 
gest, h.  t.    See  Land-Tax. 

By  the  act  10  and  11  Vict.  c.  48, 1847,  a 
clause  binding  the  disponer  to  relieve  the  dis- 
ponee  of  all  feu-duties,  casualties,  and  pub- 
lic burdens,  imports  a  relief  of  duties  payable 
to  the  superior,  and  of  all  public,  parochial, 
and  local  burdens  due  from  or  on  account  of 
tlie  lands  disponed,  prior  to  the  date  of  entry. 

Fnblio  Caniages.  The  responsibility  of 
persons  engaging  to  carry  goods  for  hire  is 
treated  of  under  the  articles  Carrier;  and 
Nautce,  Caupones.  Under  the  present  article 
will  be  considered  the  obligations  of  such  as 
engage  to  convey  passengers  by  land  or  water. 
The  proprietors  of  stage-coaches,  hackney- 
coaches,  or  post-chaises,  and  all  masters  and 
owners  of  ships,  ferrymen,  bargemen,  and 
other  carriers  by  water,  are  liable  for  any 
injury  which  passengers  sustain  from  the  in- 
sufficiency of  the  vehicle,  or  the  carelessness 
or  nnskilfulness  of  the  driver  or  other  person 
employed.  With  regard  to  the  vehicle,  it 
will  exonerate  the  owner  if  it  can  be  proved 
to  have  been  sufficient,  so  far  as  the  human 
«ye  could  discover.  Yet  in  one  English  case, 
where  an  iron  axletree  was  so  imbedded  in 
wood  that  it  could  not  be  inspected  without 
removing  certain  iron  clamps,  the  proprietor 
was  held  liable,  the  axletree  having  been  de- 
fective in  the  part  which  was  hidden,  and 
having  broken  on  the  journey.  By  the  nature 
of  the  contract,  ordinary  care  must  be  be- 
stowed by  those  employed.  But  in  the  case 
of  stage-coaches,  the  responsibility  extends  to 
accidents  arising  even  from  the  slightest  fault 
— culpa  levissitna ;  neglect  of  the  rules  of  the 
road  (see  Furious  Driving) ;  going  too  near 
any  obstruction,  or  the  edge  of  the  road; 
want  of  skill  in  driving ;  racing  against  other 
coaches ;  taking  up  more  passengers  than  the 
law  allows,  where  the  injury  arises  from  over< 


loading;  will  all  make  the  principals  re- 
apouoible  for  injury  sustained  by  any  accident 
thereby  occasioned.  But,  strict  as  the  re- 
sponsibility is,  it  differs  from  the  liability  of 
carriers  of  goods  nuder  the  edict  Nautce,  Cau- 
pones, in  not  being  absolute.  It  requires  some 
fault,  however  slight ;  and  an  accident  which 
human  care  and  foresight  could  not  have  pre- 
vented will  not  subject  the  owner.  In  Eng- 
land, when  injury  is  occasioned,  neglect  is 
presumed ;  and  it  is  necessary  for  the  owner 
to  redargue  this  presumption,  by  proving  that 
it  was  a  mere  accident.  A  passenger  getting 
alarmed  and  leaping  from  the  coach  when 
truly  there  was  no  danger,  has  no  claim  for 
damages  against  the  coach  proprietor.  But 
if  such  a  step  was  a  natural  and  prudent  pre- 
caution against  real  danger,  the  owner  is 
liable.  A  shipmaster  has  been  found  to  have 
alien  for  passage-money,  not  on  the  passenger 
or  his  wearing  apparel,  but  on  his  luggage ; 
and  it  is  thought  that  a  similar  lien  would 
be  admitted  for  the  fare  of  a  land  passenger. 
Bdl't  Com.  i.  462 ;  ii.  102  ;  Bdl's  Princ.  §  170 ; 
Illust.  ib. ;  Hutch.  Justice  of  Peace,  ii.  480. 
For  the  special  regulations  as  to  stage-coaches, 
see  that  article.  See  also  Nautce,  Caupones. 
Carrier.     Steam-boats. 

Fnblio  Harket    See  Marktt  Ouvert. 

Public  Ofloer.    See  Offices. 

Pnblio  Property ;  consists  of  such  things  as 
belong  to  the  State,  as  navigable  rivers,  with 
their  banks,  in  so  far  as  navigation  is  con- 
cerned, highways,  bridges,  harbours, — the 
sea-shore,  in  as  liar  as  it  can  be  of  service  to 
trade  and  navigation.  Ersk.  B.  ii.  tit.  1,  §  5. 
See  Regality.    Sea.    Highways. 

Pubuo  Bight ;  is  the  technical  name  given 
in  feudal  law  to  an  heritable  right  granted 
by  a  vassal  to  be  held  not  of  himself  but  of 
his  superior,  ^rsi.  B.  ii.  tit.  7,  §  9 ;  Ross's 
Lect.  ii.  269.  This  subject  has  been  fully 
treated  of  under  the  following  articles: — Base 
Rights.  Charter.  Disposition.  ConfirmcUion. 
Consolidation, 

Publioation  of  Inhibition.  The  publica- 
tion of  an  inhibition  is  the  intimation  made 
to  all  and  sundry  by  the  messenger,  prohibiting 
them  from  dealing  with  the  inhibited  person. 
This  execution  or  intimation  must  be  made 
by  a  messenger  at  the  head  borough  of  the 
debtor's  domicile.  It  is  from  the  date  of  the 
publication  that  the  litigiosity  of  the  inhi- 
bition commences.  Bel^s  Com.  ii.  142 ;  Rosi^t 
Lect.  i.  478.    See  Inhibition.    Litigiosity. 

Publication  of  Interdiotion.  An  inter- 
diction, to  have  full  effect  against  the  lieges, 
must  be  duly  published ;  which  is  done  by 
letters  of  publication,  proceeding  on  a  bill, 
the  warrant  of  which  is  the  decree  pronounced 
in  the  action  in  the  case  of  a  judicial  in- 
terdiction; or  the  registered  bond,  in  the 

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case  of  a  voluntary  interdiction.  For  the 
styles  of  these  letters,  see  Jrtrid,  Styla,  iii. 
544.  See  InUrdiction. 
Puffer.  See  White-Bmiutk 
Prniishment.  The  puntshment  of  crimes  is 
intended  not  only  as  a  penalty  on  the  trans- 
gressor, but  to  operate  so  as  to  deter  others 
from  committing  the  like  crimes.  Punish- 
ment is  either  capital,  which  reaches  the  life 
of  the  criminal,  or  it  consists  in  imprisonment, 
transportation,  whipping,  or  fine.  The  ex- 
tent of  the  punishment  is  sometimes  regulated 
by  statute  ;  at  other  times  the  punishment  is 
what  is  termed  arbitrary — that  is,  in  the  dis- 
cretion of  the  judge.  But  an  arbitrary  pun- 
ishment can  never  reach  the  life  of  the  crimi- 
nal— it  is  in  no  case  a  capital  punishment. 
It  is  a  necessary  consequence  of  a  capital  eon- 
Tiction  and  sentence,  that  the  single  escheat 
of  the  criminal  falls.  See  Eteheat.  See  Erdc. 
B.  iv.  tit.  4,  §  2,  «<  seq. ;  Alison't  Prac.  664. 
et  seq. ;  Bank.  i.  242 ;  Kamei'  Equity,  40,  227, 
802,  491.    See  Criminal  PresecutioH. 

PupiUaritj ;  is  the  interval  between  the 
birth  and  the  age  of  fourteen  in  males  and 
twelve  in  females.  See  Tutor.   MiMr.    Cura- 
ton. 
Pnpillaty  Snbititation.    See  Std>ttitution. 
Pnpilf'  Proteetion  Act    The  act  12  and 
13  Vict.  c.  51, 1849,  was  passed  for  the  bet- 
ter protection  of  the  property  of  pnpils,  ab- 
lent  persons,  and  persons  under  mental  in- 
capacity.   By  this  act,  every  judicial  factor 
must  find  caution  for  his  duly  accounting  for 
bis  intromissions,  and  for  the  proper  perfor- 
mance of  every  duty  incumbent  on  him  as  fac- 
tor.    He  must  also,  within  six  months  at  far- 
thest from  the  date  of  his  appointment,  lodge 
with  the  Accountant  of  Court  a  distinct  Mntal 
of  all  lands  committed  to  his  management,  and 
a  list  of  all  moneys  and  funds  belonging  and 
debts  due  to  the  estate,  and  also  an  inventory 
of  all  moveables  forming  part  of  the  estate. 
He  must  close  his  account  of  charge  and  dis- 
charge once  in  every  year,  and  must  lodge 
his  account  in  the  office  of  the  Accountant, 
with  the  Touchsi's,  mentioned  and  referred  to 
in  the  accounts  by  number.    He  must  lodge 
the  moneys  in  his  hands  in  some  one  of  the 
banks  of  Scotland  established  by  act  of  Par- 
liament or  royal  charter,  in  a  separate  ac- 
count or  on  deposit,  the  account  or  deposit 
being  in  his  own  name  as  judicial  factor  on 
the  estate  committed  to  him.     The  duty  of 
the  Accountant  of  Court  is  to  superintend 
generally  the  conduct  of  all  judicial  factors, 
and  tutors  and  curators,  coming  under  the 
provisions  of  the  act,  and  to  see  that  they 
duly  observe  all  rules  and  regulations  affectr 
ing  them  for  the  time.    His  duty  also  is  to 
andit  the  accounts  of  factors  on  the  general 
principles  of  good  ordinary  management  for 


the  real  benefit  of  the  estate  and  of  those  it'* 
terested  therein,  and  to  consider  the  invest- 
ments of  the  estate  and  the  sofficieney  thereof. 
The  provisions  of  the  act  relating  to  judicisl 
factors,  except  as  to  the  mode  of  appointment 
and  caution,  or  relating  to  the  office,  powers, 
and  duties  of  the  Accountant^  *9V^y>  ^  *> 
far  as  they  can  be  applied,  to  every  person 
who  after  the  passing  of  the  act  shall  be 
served  tutor  of  law  to  any  pupil,  or  appointed 
tutor-dative  to  any  pupil  or  insane  person  or 
idiot,  or  served  curator  to  any  insane  person 
or  idiot.  Tutors  and  curators  served  or  ap- 
pointed before  the  passing  of  the  act  may  plsM 
themselves  under  the  provisions  of  the  set 
The  rental,  list,  and  inventory  lodged  with 
the  Accountant  in  terms  of  the  act  by  any  ta- 
tor  or  curator  is  equivalent  to  the  tutorisl 
or  curatorial  inventory  directed  to  be  given 
up  by  the  act  1672  concerning  pnpils  and 
minors,  and  their  tutors  and  curators.  The 
Court  is  empowered  to  remove  or  accept  Hit 
resignation  of  any  tutor  or  curator  coming 
under  the  provisions  of  the  act,  and  to  appoint 
a  factor  loco  tutoris  or  atrator  bonis  in  hit 
room. 

Pnrohawr ;  the  buyer  or  onerons  aqnirer 
of  a  subject,  whether  heritable  or  movesblt. 
See  Sale.     Singular  Sncceuor. 

Foie  Obligatioa ;  an  unconditional  ohligs- 
tion.  A  condition  is  said  to  be  pwrified  when 
it  is  fulfilled.  See  Obligation.  CondiUml 
Obligation. 

Purging  an  Initaaoy.  Where  a  pnud 
irritancy  is  incurred  by  the  perfbrmance  of  a 
prohibited  act,  or  by  the  failure  to  perfonn 
some  act  which  is  enjoined,  an  action  of  de- 
clarator of  the  irritancy  must  be  raised;  and 
when  the  action  comes  into  Court,  the  de- 
fender may  appear  at  the  bar,  and  pay  or  per- 
form,in  terms  of  hisobligation,  whereby  he  will 
avoid  the  irritancy.  This  is  called  pviyi's; 
the  irritancy.  Stair,  B.  i.  tit.  17,  5  16 ;  Mcrft 
Notes,  oxc. ;  Ersk.  B.  ii.  tit.  6,  §  27 ;  tit.  6, 
§44;  Ivorj/'s  Notes;  Hunter's  Landlord aU 
Tenant,  524 ;  Ros^s  LacL  ii.  497.  See  /rn- 
tanetf.    Clauses  Irritant. 

PnrprMtnre ;  is  a  feudal  delinquency,  b- 
ferring  a  total  forfeiture  of  the  fee.  It  wss 
incurred  by  the  vassal  encroaching  on  the 
streets,  highways,  or  commonties  belonging  to 
the  superior.  Ersk.  B.  ii.  tit.  5,  §  52,  sod 
tit  6,  §  17  ;  Stair,  B.  ii.  tit  11,  §  30 ;  Bank. 
vol.  ii.  p.  149 ;  Bell's  Print.  §  730 ;  Ktmi 
Stat.  Law,  k.  t. ;  Brown's  Synop.  L  t. 

Purpresture,  or  purprision ;  according  te 
Skene,  is  the  wrongous  usurpation,  taking,  or 
occupation  of  another  man's  lands.  There 
are  three  kinds.  The  first  affects  the  King,— 
as  unjustly  occupying  any  part  of  his  domains, 
stopping  the  highway  or  King's  causeway,  di- 
verting the  coarse  of  a  rnnning  stream,  &c.; 


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the  second  kind  affects  the  interest  of  the 
offender's  superior;  and  the  third,  those  of 
any  other  hesides  the  King  or  the  saperior. 
Skene,  h.  t. 

Pnrsiier;  the  party  who  institntes  and  in- 
sists  in  an  ordinary  action.  Except  in  the 
ease  of  copartnerships,  the  general  rtde  is,  that 
two  or  more  persons  cannot  sue  in  the  same 
anmmons  for  enforcement  or  vindication  of 
their  separate  rights,  or  for  sums  due  to  them 
severally.  But  they  may  sue  jmnUy,  when 
they  have  been  injured  hy  the  same  act,  or 
have  a  joint  interest  in  the  matter  libelled. 
Where  an  action  has  been  improperly  raised 
by  several  pursuers,  it  is  not  funditus  void, 
but  may  be  held  good  as  the  summons  of  one 
of  them,  for  his  particular  interest.  In  jury 
triab,  the  party  ordered  by  the  Court  to  con- 
descend is  held  to  be  pursuer ;  A.  S.  29th  Nov. 
1825,  §  1.  Where  both  parties  have  been 
ordered  to  condescend,  the  Court  has  a  dis- 
cretion in  the  matter ;  §§  12  and  IS.  But  it 
is  the  party  on  whom  the  onus  jnvbandi  at  the 
trial  is  laid  who  is  made  to  stand  as  pursuer  in 


the  ifflues.  Sometimes  it  is  necessary  to  de- 
clare a  party  pursuer  in  one,  and  defender  in 
another  issue,  or  set  of  issues.  The  Court 
may  decide  this  matter  at  any  time  before  the 
trial ;  and  the  mode  of  having  it  settled  is  by 
a  motion  on  behalf  of  either  party.  Shand^s 
Prae.  124 ;  Macfarlantfa  Jury  Frac.  100,  281 ; 
Mackmrin't  Sheriff  Prae.  77  ;  Tait't  Justice, 
voce  Parties  in  an  Action.  See  Defender,  Titie 
to  Pursue.  - 

PniBuivants ;  are  ofiScers  under  the  Lyon 
Eing-at-Arms,  by  whose  authority  they  are 
appointed.  Ersk.  B.  i.  tit.  4,  §  32.  See  Arm*. 
Lyon  Court. 

Fiirview ;  the  body,  or  that  part  of  an  act 
of  Parliament  which  begins  with  "  Be  it  en- 
acted."    Tomlins'  Diet.  h.  t. 

Put  Away ;  in  deeds  of  entail  is  equivalent 
to  "alienate."  Hunter's  Landlord  and  Tenant, 
p.  76,  and  authorities  there  cited.   See  Tailzie. 

Pntaginin ;  whoredom  or  fornication.  This 
offence  was  anciently,  in  a  female  unmarried 
or  without  children,  punished  with  forfeiture 
of  her  heritage,    ^cene,  h.  t. 


Q 


Qvadriesniiim  Utile ;  are  the  four  years 
allowed  after  majority,  within  which  an  ac- 
tion of  reduction  of  any  deed  done  to  the 
prejudice  of  a  minor  may  be  instituted.  Ersk. 
B.  i.  tit.  7,  §  35;  Stair,  B.  i.  tit.  6,  §  44 ; 
B.  ii.  tit.  12,  §  31 ;  More's  Notes,  p.  xlvii. ; 
Bank.  i.  184 ;  Bell's  Com.  i.  135 ;  Bell't  Frinc. 
§  2099.    See  Minor. 

QnsBqnidem.  In  charters  by  progress, 
the  clause  which  immediately  follows  the  dis- 
positive clause  is  called  the  quaquidem,  from 
the  words  with  which  it  commences.  This 
clause  deduces  the  fee  irom  the  vassal  who 
stood  last  publicly  infeft,  specially  mention- 
ing the  progress  by  which  it  came  into  the 
person  of  the  present  vassal,  whether  by  re- 
signation or  by  whatever  form  of  conveyance. 
The  progress  ought  to  be  distinctly  set  forth, 
so  as  to  show  that  the  charter  has  been  pro- 
perly expede,  and  that  the  progress  is  com- 
plete. Erdc.  B.  ii.  tit.  3,  §  24 ;  Jurid.  Styles, 
vol.  i.  p.  438;  Bett'e  Princ.  §  799 ;  BeU  on 
Completing  Titles,  278 ;  Ross's  Lect.  ii.  288. 
See  Charter.    Progress. 

QnalcerB.  Quakers,  in  consequence  of  re- 
ligious scruples,  are  permitted,  when  examined 
aa  witnesses  in  civil  or  criminal  cases,  instead 
of  taking  an  oath,  to  make  a  solemn  affirma- 
tion in  these  terms:  "I  do  solemnly,  sin- 
cerely, and  truly  declare  and  affirm."  See 
Affirmation.  A  quaker  wilfully  making  a  false 
afiKrmation  incurs  the  pains  of  perjury.  See 
the  set  22  Viet.  c.  10, 1859. 


Qvalifloatioa  to  Vote.    See  Reform  Act. 

Qualified  Oath ;  is  the  oath  of  a  party  on 
reference,  where  circumstances  are  stated 
which  must  necessarily  be  taken  as  part  of 
the  oath,  and  which  therefore  qualify  the 
admission  or  denial.  Stair,  B.  iv.  tit.  44,  § 
14 ;  More's  Notts,  p.  ccccxviii ;  Ersk.  B.  iv. 
tit.  2,  §  11 ;  Bank.  ii.  659  ;  Taifs  Justice  of 
Peace,  voce  Proof.     See  Evidence.    Extrinsic. 

Qoanti  Minoris  Actio ;  was  a  Roman  law 
action,  by  which,  when  the  buyer  discovered 
a  shortcoming  of  no  great  importance  in  the 
subject  purchased,  he  sued  for  repetition  of  as 
much  of  the  prieo  as  exceeded  what  he  might 
have  reasonably  given  for  the  subject,  had  he 
been  previously  aware  of  the  deficiency.  It 
would  appear  that  the  actio  quanti  minoris  is 
not  admitted  in  the  law  of  Scotland.  At  aH 
events,  where  there  has  been  no  fraud  on  the 
part  of  the  seller,  and  where  the  purchaser 
receives  all  the  land  which  he  actually  pur- 
chased, it  has  been  found  that  he  can  claim 
no  abatement  because  the  number  of  acres  is 
found  to  fall  short  of  what  was  stated  in  the 
description;  Hannay,  26th  Jan.  1785,  M. 
13334;  InglU,  June  27,  1788,  M.  13335; 
Gray,  23d  Jan.  1801,  Jf.  voce  Saie,  App.  No. 
2.  Where,  however,  he  does  not  receive  all 
that  he  actually  purchased,  he  is  entitled 
either  to  have  abatement  or  to  have  the  con- 
tract reduced  ;  and  generally,  wherever  there  is 
error  in  essentialibus,  the  sale  may  be  reduced. 
See  Error  in  Essentialibus.  It  may  be  doubted, 


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supposing  land  were  sold  as  containing  so  many 
aeres,  at  so  much  per  acre,  and  it  turned  out 
that  there  were  not  as  many  acres  as  had 
been  stated,  whether  the  purchaser  would  not 
be  entitled  to  refuse  payment  beyond  the 
price  of  the  actual  number  of  acres  at  the 
specified  price  per  acre.  A  case  something 
similar  to  this,  but  in  which  the  advertised 
fell  short  of  the  actual  measurement,  has  been 
deeded.  In  that  case,  which  was  a  judicial 
sale  by  an  apparent  heir,  the  lands  exposed 
were  limited  by  a  specification  of  their  proren 
rental  to  2^  acres,  and  the  upset  price  was 
fixed  accordingly.  After  the  sale,  howerer, 
it  having  been  discovered  that  the  lands  spe- 
cially enumerated  extended  to  7  acres,  it 
was  held  that  no  more  was  sold  than  2^  acres, 
but  that  the  purrhaser  might  either  hold  or 
reject  the  sale  ;  Hepburn,  4th  July  1781,  M. 
14168.  In  another  case,  where  lands  for- 
merly burdened  with  a  feu-duty,  but  which 
feu-duty  had  been  redeemed,  were  sold  as  if 
still  burdened,  the  purchaser  claimed  to  pos- 
sess the  lands  free  of  the  feu-duty.  It  was 
held  that  the  purchaser  must  either  give  up 
the  purchase  of  the  lands,  or  pay  an  additional 
price,  corresponding  to  the  value  of  the  feu- 
duty  ;  Blair,  16th  July  1790 ;  BdTt  Com.  ii. 
283.  This  question  was  again  discussed  io 
another  case.  There  a  tenant  took  a  lease  of 
a  farm,  which  was  represented  as  containing 
a  few  acres  more  than  it  actually  contained. 
He  brought  a  reduction  of  the  lease  ou  the 
ground  of  fraud,  which  he  failed  to  prove. 
The  case  was  appealed,  and  the  Lord  Chan- 
cellor (Brougham)  was  inclined  to  restrict  the 
lease  to  the  actual  number  of  acres ;  but  find- 
ing some  difiiculties  from  the  objection  that 
this  would  sanction  the  actio  quanii  minoris, 
he  recommended  a  settlement,  which  was  ac- 
cordingly effected  on  the  principle  suggested 
by  the  Lord-Chancellor  ;  the  counsel  for  the 
parties  having  directed  an  abatement  pro- 
portioned to  the  deficiency.  See  Balmer  v. 
Hogarth,  11th  March  1830,  8  S.<tD.  715; 
10  S.  <t  D.  862.  See  also  the  case  of  Gordon 
T.  Hughes,  Juno  15,  1815,  F.  G. ;  reversed, 
March  25, 1819, 1  Bligh,  287.  See  Measwe- 
mtnt.  The  cases  already  noticed  refer  only 
to  land ;  an4  the  question  does  not  seem  to 
have  occurred,  whether  the  actio  ^uand'mt- 
norit  is  recognised  in  the  law  of  Scotland  in 
the  case  of  moveables;  an  article  of  mer- 
chandise for  instance,  sold  as  of  a  certain 
weight  or  measure,  and  discovered  to  be  less. 
Stair,  B.  i.  tit.  9,  §  10  ;  tit.  10,  §  14 ;  Er»k. 
B.  iii.  tit.  3,  §  10,  Ivory'*  Notes  ;  Bank.  B.  i. 
tit.  19,  §  3 ;  Brown  on  Sale,  316,  «<  seq.;  Karnes' 
Equity,  175.     See  Actio  Redhibitoria. 

Quantum  Kemit.  Ifone  employs  another 
to  do  work  for  him,  without  any  certain  agree- 
ment, there  is  an  i;uplied  obligation  on  the 


employer  to  pay  the  person  who  has  per- 
formed the  work  as  much  as  he  deserves,  or 
can  reasonably  ask  for  his  servioes.  See  Tom- 
lins'  Diet.  h.  t. 

Unarantine ;  the  term  of  forty  days,  daring 
which  persons  coming  from  parts  infected  with 
the  plague  are  not  permitted  to  land  or  come 
on  shore.  The  regulations  on  this  subject  is 
former  acts  have  been  superseded  by  those  of 
6  Geo.  IV.  c.  78. 

Qoarenten*  Vidvanmi;  according  to 
Skene,  a  space  of  forty  days,  during  which  a 
widow  might  tarry  and  remain  in  the  chief 
dwelling-place  of  her  husband,  and  be  sus- 
tained upon  the  profits  of  the  heritage  until 
her  dowry  be  assigned  to  her.     Skdne,  A.  t, 

Quarry.    See  Mines.    Minerals. 

Quarter  SeaL  The  seal  is  kept  by  the  di- 
rector of  the  Scottish  Chancery,  it  is  in  shape 
and  impression  the  fourth  part  of  the  grMt 
seal,  and  is  in  the  older  statutes  called  the 
testimonial  of  the  great  seal.  Commissions  of 
tutory  and  brieves  issuing  from  the  Chaucerj, 
pass  by  the  quarter  seal ;  so  do  all  gifts  and 
presentations  to  land,  of  bastardy,  forfeiture 
or  uUimus  hwres,  where  the  lands  hold  of  a 
subject.  Ertk.  B.  ii.  tit  5,  §  85;  Brtm't 
Syn«p.  2649.    See  Seals. 

Qnarter  Sesdons  of  JnttioM  of  the  Peaee. 
By  the  act  1661,  c  38,  the  justices  of  the 
peace  are  directed  to  meet  four  times  in  the 
year,  at  the  county  town,—  that  is,  on  the  first 
Tuesdays  of  May,  August,  and  March,  and 
the  last  Tuesday  of  October ;  with  power  to 
adjourn  these  quarterly  meetings  to  any  other 
day  or  place  they  may  judge  proper.  At  these 
quarterly  courts  the  justices  have  the  power 
of  reviewing  the  sentences  pronounced  at  the 
occasional  meetings  of  justices,  called  special 
or  petty  sessions,  when  the  sentence  is  of  a'ns- 
ture  subject  to  review.  Erdc.  B.  i.  tit  4,  §$ 
15,  18 ;  Tait's  Justice,  vocibus  Sessions,  Re- 
view ;  Dunloffs  Parochial  Law,  305,  317, 321, 
332.    See  Justice  of  Peace. 

Qnan-Contraot.  A  quasi-contract  differs 
from  a  proper  contract  in  this,  that  it  is  not 
constituted  by  express  consent,  but  ex  r«— thst 
is,  by  one  of  the  parties  doing  deeds  which 
import  an  obligation  on  him  in  favour  of  the 
other  party,  or  vice  versa.  Thus,  a  person 
contracts  a  quasi-contract,  which  infers  an  obli- 
gation to  account,  by  entering  on  the  office  of 
tutory ;  from  serving  heir ;  from  negtHerum 
gestio ;  jactus  mercium,  and  the  like.  A  gtuui- 
delict  is  a  term  applied  to  that  degree  of 
culpable  negligence,  amounting  almost  to 
crime,  and  inferring  an  obligation  to  repair 
the  injury,  although  there  may  be  no  ground 
for  a  criminal  prosecution.  ErsL  B.  iii.  tit  3, 
§  61 ;  BeU's  Princ.  §§  625,  531-8-9.  See 
Ddict.    Damages. 

Qvatn.    The  Queen  of  England  is  either 


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QuMn-Regnant,  Queen-Consort,  or  Queen- 
Dowager.    The  Queen  Regnant  is  she  who 
holds  the  Crown  in  her  own  right,  and  with 
the  same  powers,  prerogatives,  rights,  digni- 
ties, and  duties  which  belong  to  the  Sovereign. 
The  Queen-Consort  is  the  wife  of  the  reign- 
ing King ;  and,  by  virtue  of  her  marriage, 
she  possesses  various  prerogatives.    Thus,  she 
is  a  public  person,  distinct  from  the  King, 
with  power  to  acquire  land  by  purchase,  and 
to  convey  it,  and  the  like,  without  her  hus- 
band's concurrence.    She  has  a  separate  court, 
and  officers  distinct  from  the  King's.    She 
may  sue  and  be  sued  alone ;  and,  in  England, 
her  Attorney  and  Solicitor  General  (there  are 
no  such  officers  in  Scotland)  are  entitled  to 
places  within  the  bar,  as  King's  counsel.   The 
Queen-Consort  has  also  some  minor  immuni- 
ties.   Thus,  she  pays  no  toll ;  nor  is  she  liable 
to  any  amerciament  in  any  court.     But,  in 
general,  unless  where  expressly  exempted,  she 
is  on  the  same  footing  with  other  subjects  of 
the  King ;  for  she  is  to  all  intents  and  pur- 
poses the  King's  subject,  and  not  bis  equal, 
i'et  it  is  high  treason  to  compass  or  imagine 
her  death.     The  husband  of  a  Queen-Keg- 
nant  is  her  subject,  and  may  be  guilty  of  high 
treason  against  her.    See  ToTnlins'  Diet.  h.  i. 
See  Dowager,  Queen. 
Queen's  Bench.    See  Ktng'i  Bench. 
Querela  Inoffloiosi  Teatamenti ;  an  action 
given  by  the  Roman  law  to  such  as  were 
disinherited  on  just  grounds,  falsely  alleged. 
This  action  was  given  on  the  assumption  that 
the  testator  was  of  unsound  mind  at  the  date 
of  the  testament.    Jmt.  of  Just.  B.  ii.  tit.  18  ; 
Heinee.  Elem.  §  579 ;  Stair,  B.  iii.  tit.  4,  §  15 ; 
B.  iii.  tit.  8,  §  10 ;  Bank.  ii.  pp.  301,  384. 
Quhateous ;  a  kind  of  bread.    Skene,  h.  t. 
Qui  Taoet,  Consentire  Videtur;  silence 
implies  consent.    See  Tacitumily. 

Qui  Tam.  In  England,  the  plaintiff  in  a 
penal  action  describes  himself  as  one  who 
sues  at  well  for  himself  at  for  the  Queen,  for 
any  penalty  half  of  which  is  given  to  the 
Crown  and  half  to  the  informer.  Henco 
such  actions  are  called  qui  tam  ;  scil.  "  Qui 
tam  pro  teipto  qxtam  pro  Dom.  Reg."  &c.  Tom- 
Ims'  Diet.  h.  t. ;  Taift  Juttice,  vocibus  Excite; 
Pvrtiet.     Game. 

Quia  Emptores.  The  English  statute, 
West  3, 18  Ed.  I.  st.  1,  is  so  called  from  the 
introductory  words.  Its  intention  was  to  put 
a  atop  to  subinfeudations,  by  declaring  that  a 
vassal  might  sell  his  lands,  provided  he  sold 
them  to  be  held  of  his  superior  by  the  tenure 
and  services  due.  This  statute  was  at  one 
time  thought  to  have  been  introduced  into 
Scotland  by  Robert  I.  stal.  2,  c.  24,  §  2 ;  and 
there  have  been  speculations  as  to  the  causes 
of  its  not  having  produced  the  same  effect  in 
Scotland  as  in  England,  where  feudal  forms 


were,  by  the  statute,  rendered  no  longer 
necessary.  But  it  is  very  doubtful  whether 
the  statute  ever  was  really  enacted  or  in  ob- 
servance in  Scotland — the  general  understand- 
ing of  modern  lawyers  being,  that  the  Regiam 
Majettatem  is  not  an  authentic  collection  of 
our  ancient  laws.  See  Regiam  Majettatem. 
A  quotation,  however,  of  part  of  the  Regiam 
Majettatem,  containing  a  verbatim  transcript 
of  the  English  statute,  will  be  found  in  Bell  on 
Purchaser's  Title,  p.  282.  See  also  pp.  8  and 
377  of  the  same  work.  ToitUins"  Diet.  h.  t. ; 
Belts  Prine.  §  676. 

Quinquennial  Preacription.      See   Pre- 
scription, Quinquennial. 

Quo  Warranto;  in  English  law,  a  writ 
brought  against  any  person,  or  corporation, 
usurping  a  franchise  or  liberty  against  the 
Sovereign,  calling  on  the  usurper  to  show  by 
what  right  or  title  he  holds  or  claims  such 
franchise  or  liberty.  This  writ  has  now  fallen 
into  disuse ;  but  its  purpose  is  served  by  the 
Attorney-General  filing  an  information  in  the 
nature  of  a  quo  warranto.  Tomlins'  Diet.  h.  i. 
Quod  Fieri  Hon  Debet,  Quandoque  Pac- 
tum, Valet.  In  a  few  instances  in  the  law  of 
Scotland,  contrary  to  the  rule  of  the  Roman 
law,  an  act  done  contrary  to  law  has  been 
found  not  to  be  null.  See  Pctctit  Privatorum, 
Quoniam  Attaohiamenta ;  one  of  the  old 
books  of  the  law  of  Scotland.  Ertk.  B.  i. 
tit  1,  §  36.    See  Regiam  Majettatem. 

Quorum.  A  quorum,  strictly  speaking,  is 
that  number  of  the  judges  of  a  court,  consist- 
ing of  a  plurality  of  judges,  before  whom  the 
judicial  business  may  be  competently  trans- 
acted. But  the  term  is  also  applied  to  that 
number  of  a  nomination  of  persons  {e.g.  tutors 
or  curators,  or  interdictors  or  trustees,  or  the 
like)  who  are  authorised,  by  the  deed  of 
nomination,  to  exercise  the  functions  vested 
generally  in  the  nominees.  The  quorum  of 
the  Court  of  Session,  in  all  cases  where  meet- 
ings of  the  judges  are  necessary  for  passing 
Acts  of  Sederunt  or  the  like,  or  where  they 
sit  as  Commissioners  of  Teinds,  consists  of 
nine  judges ;  1587,  c.  44.  The  quorum  of  each 
Division  of  the  Court  is  three — 50  Geo.  III. 
c.  1 12,  §  32  ;  and  it  seems  to  be  settled,  that 
if  the  quorum  be  present,  the  judgment  of  the 
Court  will  be  valid,  although  some  of  the 
judges  composing  the  quorum  should  decline 
to  vote ;  RoberUon,  21st  June  1809,  Fac.  CoU. 
In  the  Court  of  Justiciary,  three  judges  con- 
stituto  a  quorum;  1681,  c.  22 ;  23  Geo.  III. 
c.  45.  Two  justices  of  the  peace  are  a 
quorum,  both  under  the  small-debt  acts  and 
tor  ordinary  judicial  business;  Ersk.  B.  i. 
tit.  3,  §§  16,  26,  and  tit.  4,  §  18 ;  Hukh. 
Juttice,  i.  40 ;  DarUnft  Prac.  34.  In  every 
case  where  the  performance  of  a  duty  or  the 
exercise  of  a  power  is  committed  to  several 

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persons,  s  quorum  consisting  of  a  m^ority 
ought  to  be  nominated,  in  order  to  prevent 
the  possibility  of  a  subdivision  into  two 
parties,  each  claiming  the  power  of  the  whole 
nomination.  Where  a  quorum  is  named,  the 
concurrence  of  the  quorum  is  necessary ;  and 
in  no  case  ought  a  quorum  to  be  appointed 
cousisting  of  a  smaller  number  than  the  ma- 
jority of  the  nominees,  unless  where  one  is 
declared  sine  quo  nen,  otherwise  it  might  be 
in  the  power  of  the  majority  not  concurring 
to  overrule  the  former  proceedings  of  the 
minority.  Generally  speaking,  where  the 
quorum  fails  by  death  or  otherwise,  the 
nomination  falk.  Ertk.  B.  i.  tit.  7,  §  15 ; 
Bank.  B.  i.  tit.  7,  §§  21, 63,  132 ;  Stair,  B.  iv. 
tit.  20,  §  31 ;  Karnes'  Equity,  468 ;  Bnwn's 
Synop.  2282,  2292.  See  Curatory.  Tutor. 
Interdictioai  Justice  of  Peace.  Small  Debt. 
Sine  quo  nou. 
Qaot;  was  the  proportion  of  the  moveable 


estate  of  a  deceased  person  due  to  the  bidic^ 
of  the  diocese  within  which  the  person  re- 
sided. This  quot  was  a  twentieth  part  of  the 
moveables  without  deducting  the  debts,  even 
where  the  effects  were  not  more  than  sufficient 
to  answer  the  debts,  and  consequently  the 
quot  was  paid  to  the  injury  of  the  crediton. 
This  injustice  was  remedied  by  1669,  c.  19, 
which  gave  the  quot  from  the  free  estate  only; 
and  at  last,  by  the  act  1701,  c  14,  the  quoi 
was  prohibited.  Still,  however,  certain  com- 
positions continued  to  be  exacted  by  the  com- 
missaries, varying  according  to  the  extent  of 
the  sums  confirmed.  But  by  the  stat.  4  Gleo. 
IV.  c.  97,  §  I,  all  compositions  in  reelect  of 
confirmation,  and  all  fees  termed  consignatiiMi 
and  fee  and  sentence  money,  were  abolished, 
and  certain  other  regulations  substituted.  See 
Ersk.  B.  iu  tit.  9,  §  28 ;  Bank.  iL  388 ;  Rolf's 
Lett.  i.  185;  Karnes'  Stat.  Law, h.  t.  See  Qm- 
Jirmalion,    Executor. 


E 


Babbits.  It  is  usual  in  charters  of  landed 
estates  to  convey  to  the  vassal  the  right  of 
rabbits  and  rabbit-warrens.  Craig  is  of  opinion 
that  warrens  require  to  be  enclosed,  in  order 
to  protect  the  fields  of  neighbouring  proprie- 
tors ;  but  Brskine  maintains  a  contrary  doc- 
trine, founding  on  the  act  1503,  c  74,  which 
enjoins  proprietors  to  make  warrens;  although 
cases  may  easily  be  figured  in  which  this  power 
would  require  to  be  exeroised  with  some  degree 
of  caution ;  Ersk.  B.  ii.  tit  6,  §  7.  Under 
special  statutes  of  the  Scotch  Parliament,,  it 
is  accounted  theft  to  take  rabbits  from  a  war- 
ren, or  to  shoot  them  without  the  proprietor's 
consent ;  Hume,  i.  80.  In  a  farm  where  rab- 
bits were  numerous,  the  tenant  was  found  en- 
titled to  destroy  them  in  order  to  preserve  the 
crops,  and  an  interdict  was  refused  to  the  land- 
lord, rabbits  not  being  game;  Moncrief,  13th 
Feb.  1828,  6  <S^.  <^  Z>.  530.  Devastation  com- 
mitted by  rabbits,  encouraged  by  the  landlord, 
has  been  held  relevant  to  entitle  the  tenant 
to  abandon  his  farm,  where  he  alleged  that 
in  consequence  the  crop  did  not  yield  sufficient 
to  pay  seed  and  labour ;  Riekmond,  May  27, 
1829,  7  S.dD.  664.  This  case  was  subse- 
quently settled  extrajudicially,  the  landlord 
allowing  the  tenant  to  give  up  the  farm.  Some 
proprietors,  with  the  view  of  protecting  their 
game,  are  in  the  custom  of  inserting  a  clause 
in  the  lease,  prohibiting  their  tenants  to  kill 
rabbits.  See  Hunter's  Landlord  and  Tenant, 
554,  745,  831 ;  Hutch.  Justice,  ii.  637,  546 ; 
Tail's  Justice,  vocibus  Pigeons,  Theft;  Blair's 
Justice,  h.  t. 


SMhetnra ;  "  from  the  French,  ransom." 
Skene,  h.  t. 

Kaiik-Beat;  is  a  term  of  Bnglisfa  law,  and 
means  the  full  yearly  value  of  laod  let  on 
lease.     Tomlin^  Diet.  k.  t. 

Bag^Favgh;  applied  to  cn^ping  under  a 
lease ;  signifies  ploughing  tjie  ground  twice 
or  thrice  after  cutting  hay.  WootPt  Parish  of 
Cramond,  p.  102. 

Ba^OUUl's  Soil.     See  Bagimones  RoO. 

Bailway.  Railways  are  generally  projeeted 
and  executed  by  joint-stock  companies;  and 
in  order  to  incorporate  the  company  and  to 
enable  it  to  acquire,  if  necessary  by  compul- 
sory purchases,  the  requisite  ground  along  the 
line  of  the  railway,  and  otherwise  to  facilitate 
the  progress  of  the  work,  as  well  as  to  pro- 
vide for  the  management  of  the  railway  and 
the  levying  of  dues  after  its  completion,  a 
private  act  of  Parliament  is  required.  The 
details  of  the  act  will  depend  on  the  special 
circumstances  of  the  particular-  case ;  but  as 
to  private  acts  of  Parliament  generally,  see 
Private  Bills.    See  Joint-Stodc  Companies. 

Railways  are  regulated  by  the  acts  3  and  4 
Yictc  99, 1840,  and  5  and  6  Vict  c.  55, 1842. 
The  act  7  and  8  Vict.  c.  85, 1844,  attaches 
certain  conditions  to  the  eoDstrnction  o€  fnture 
railways.  The  Companies  Clauses  Consolida- 
tion Act  is  8  Vict  0. 17,  1845  ;  the  Lands 
Clauses  Consolidation  Act  is  8  Vict,  c  19, 
1845;  and  the  Rail  ways  Clauses  Consolidation 
Act  is  8  and  9  Vict  c.  33,  1845. 

Bitiilring  and  Sale.  The  action  of  ranking 
and  sale  u  the  process  whereby  the  heritable 


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proporty  of  an  insolvent  person  is  judicially 
sold,  and  the  price  divided  among  his  credi- 
tors, according  to  their  several  rights  and  pre- 
ferences. This  is  the  most  complex  and  com- 
prehensive process  known  in  the  law  of  Scot- 
land ;  and  both  in  libelling  the  summons  and 
in  following  out  the  action,  much  professional 
circumspection  and  vigilance  are  indispens- 
able. ThefoUowiiigpracticaldirectionsdeserve 
attention :  The  pursuer  of  the  action  must  be 
either  a  creditor  holding  a  real  security  over 
the  debtor's  estate,  or  the  debtor's  apparent 
heir  ;  1695,  c.  24.  See  Apparent  Heir.  But 
the  security  of  the  real  creditor  need  not  have 
been  actually  completed  by  infeftment.  A 
decree  of  adjudication  against  the  debtor  is  a 
sufficient  title  to  pursue  the  action,  although 
the  decree  has  not  been  followed  by  a  charge 
against  superiors,  or  a  charter  and  sasine,  or 
other  step  to  make  the  adjudication  complete 
or  effectual.  It  is  fui-ther  requisite  that  the 
pursuer  or  some  other  of  the  creditors  should 
be  in  possession  of  the  debtor's  heritage  or 
of  some  part  of  it;  1681,  c.  17.  But  real  or 
natural  possession  is  not  necessary :  civil  pos- 
session is  enough.  The  right  to  possess,  along 
with  possession  of  a  part,  will  do.  So  a  de- 
cree of  maills  and  duties  without  actual  intro- 
mission, or  a  sequestration  of  the  rents  by  the 
Court  of  Session,  and  the  appointment  of  a 
judicial  factor,  will  warrant  the  process ;  and 
it  wonid  seem,  on  the  same  principle,  that  a 
poinding  of  the  ground  by  a  real  creditor 
will  have  the  same  effect.  Another  prelimi- 
nary requisite  is,  that  the  debtor  (except  in 
the  case  of  a  ranking  and  sale  by  an  apparent 
heir)  should  be  bankrupt ;  the  test  being,  that 
the  interest  of  the  debts  and  the  other  annual 
burdens  exceed  the  yearly  income  of  the  sub- 
ject under  sale.  The  whole  heritable  estate 
of  the  debtor  mnst  be  included  in  the  sum- 
mons, whether  it  be  held  by  a  complete  title 
in  his  own  person,  or  on  apparency  merely ; 
and  so  strictly  was  this  rule  followed  at  one 
time,  that  an  omission  of  any  portion  of  the 
estate  was  fatal  to  the  proceedings ;  although 
now  the  difficulty  is  obviated  by  specifying 
the  property  in  the  summons,  so  far  as  known, 
and  adding  a  general  clause,  under  which, 
any  property  belonging  to  the  debtor  which 
may  be  afterwards  discovered  maybe  brought 
(in  the  manner  afterwards  explained)  within 
the  operation  of  the  process.  The  debtor,  and 
all  his  real  creditors  in  the  known  actual  pos- 
session of  his  estate,  by  labouring  the  ground 
or  uplifting  the  rents,  must  be  called  in  the 
action ;  and  where  two  or  more  creditors  are 
conjunctly  and  severally  bound  in  one  bond  or 
bill,  the  estates  of  all  the  co-obligants  who 
are  insolvent  may  be  brought  to  sale  under 
one  and  the  same  summons.  But  this  is  not 
competent  where  the  grounds  of  debt  are  se- 


parate and  the  obligations  distinct.  It  is  no 
bar  to  the  action  that  the  debtor  has  exe- 
cuted a  trust-deed  conveying  his  heritage  for 
behoof  of  his  creditors — that  is,  provided  the 
pursuer  is  a  non-acceding  creditor.  If,  how- 
ever, the  trustee  has  been  in  the  undisturbed 
management,  he  will  have  a  preference  ou  the 
price  for  the  sums  beneficially  expended  by 
him ;  nor  is  it  necessary,  in  such  a  case,  to 
reduce  the  trust-deed;  Cruttenden,  2d  Dec. 
1824,  ZS.AD.  347.  In  addition  to  calling 
the  debtor  and  all  his  real  creditors,  there 
must  also  be  an  edictal  citation  of  all  the  cre- 
ditors, and  of  all  others  having  or  pretending 
interest,  and  this  edictal  citation  required 
to  be  at  the  market-cross  of  Edinburgh  and 
the  pier  and  shore  of  Leith,  as  well  as  by 
copies  left  at  the  Record  Office  ;  because  the 
edictal  citation  sanctioned  by  the  Judicature 
Act  was  limited  to  the  case  of  parties  furth 
of  Scotland,  whereas  the  edictal  citation  in 
a  ranking  and  sale  is  intended  for  parties 
whether  within  or  furth  of  Scotland  ;  6  Geo. 
IV.  c.  120,  §  51.  See  Edictd  Citation.  Hence, 
both  forms  of  edictal  citation,  or  one  or  other, 
were  formerly  observed  in  this  process.  This, 
however,  was  altered  by  13  and  14  Vict.  e. 
36,  §  22, 1860. 

The  process  itself,  as  now  known  in  prac- 
tice, is  a  concentration  of  various  actions.  At 
one  time,  a  summons  of  sale  was  required  to 
warrant  the  sale ;  a  mnltiplepoinding  for  di- 
viding the  price  amongst  the  creditors  and 
claimants ;  a  rednction-improbation  to  reduce 
the  securitijes  and  diligences  of  creditors  bar- 
ing or  pretending  claims  on  the  estate,  the 
grounds  of  which  they  had  failed  to  produce; 
and  an  adjudication  by  each  individual  credi- 
tor, to  entitle  him  to  his  share  of  the  price. 
All  these  objects  are  now  embraced  by  the 
summons,  the  purposes  of  which,  generally 
speaking,  are — Itt,  To  declare  the  bankruptcy 
of  the  debtor ;  2d,  To  rank  the  creditors  ;  3d, 
To  sell  the  debtor's  heritage  ;  4tb,  To  reduce 
all  securities  which  are  either  objectionable 
or  which  have  not  been  produced ;  and,  lastly. 
The  decree  of  sale  operates  as  a  decree  of  ad- 
judication in  favour  of  all  the  creditors  in- 
cluded in  the  ranking.  In  furtherance  of 
these  objects,  the  conclusions  of  the  summons, 
which  are  not  arranged  very  consistently  or 
with  much  logical  precision,  are,  that  a  proof 
be  led  of  the  value  of  the  whole  lands  and 
heritages  belonging  to  the  debtor;  of  the 
holding  thereof;  of  the  rental  and  deduc- 
ticns ;  and  that  all  persons  possessed  of  writs 
or  titles  necessary  for  instructing  these  facts 
shall  produce  them ;  that  all  persons  having 
claims  against  the  debtor's  estate  shall  lodge 
them  along  with  the  vouchers,  first  and  second 
diets  for  this  purpose  being  assigned ;  with 
certification  that  the  writs  not  produced  shall 

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be  held  as  fake  and  feigned  as  in  a  reduction- 
improbation,  quoad  the  debtor's  estate  and  bis 
creditors ;  that  a  term  be  assigned  to  the  cre- 
ditors for  deponing  as  to  the  verity  of  their 
debts,  with  certification  that  no  one  shall  be 
ranked  until  he  has  deponed ;  that  the  credi- 
tors be  ranked  on  the  price  and  rents  accord- 
ing to  their  several  rights  and  preferences, 
with  certification  to  those  who  shall  not  be 
ranked  that  they  shall  not  be  afterwards  en- 
titled to  call  the  ranking  in  question  ;  that 
on  any  other  lands  or  heritages  belonging  to 
the  debtor  being  discovered,  they  may  be  in- 
cluded in  the  proceedings;  that  the  debtor  be 
found  bankrupt;  that  the  npset  price  be  judi- 
cially fixed,  and  the  subjects  sold  by  public 
roup,  and  warrant  granted  for  letters  of  publi- 
cation to  intimate  the  sale ;  that  the  subjects 
be  adjudged  to  the  purchaser  on  payment  or 
consignation  of  the  price;  and  that  the  decree 
of  sale  may  be  as  effectual  to  the  purchaser 
as  a  disposition  signed  by  the  debtor  and  the 
creditors  would  be ;  that  it  be  declared  that 
the  purdtaser,  on  making  payment  or  consig- 
nation of  the  price,  be  discharged  thereof,  and 
his  bond  of  caution  delivered  up,  and  the  lands 
declared  free  of  all  incumbrances;  that  the 
purchaser  be  infeft,  and  warrant  granted  for 
letters  of  horning  against  superiors  for  that 
purpose;  and  that  the  real  creditors,  on  re- 
ceiving payment  of  their  several  shares  of  the 
price,  shall  convey  their  debts  to  the  pur- 
chaser, in  farther  security  of  his  purchase, 
allenarly,  with  warrandice  to  the  amount  of 
the  sums  received.  The  summons  formerly 
required  a  bill ;  and  in  respect  of  the  conclu- 
sion for  reduetion-improbation,  the  concourse 
of  the  Lord  Advocate  is  necessary.  The  in- 
ductee against  all  parties  called  nominatim  as 
defenders,  if  resident  within  Scotland,  is  the 
ordinary  indueuz  of  fourteen  days;  if  in  Ork- 
ney or  Shetland,  or  forth  of  Scotland,  twenty- 
one  days.  The  edictal  citation  against  all 
parties  interested  is  also  twenty-one  days.  A 
short  copy  is  sufBcient  for  service ;  but  a  full 
copy  is  occasionally  used.  If  appearance  be 
made  for  the  defender,  the  summons  must  be 
printed  ;  although  this  is  clearly  one  of  the 
summonses  which  ought  to  have  been  excepted 
from  the  regulation  as  to  printing.  The  sta- 
tutes and  Acts  of  Sederunt  regulating  the 
form  of  the  summons  are,  1681,  c  17 ;  1690, 
c.  20 ;  1695,  c.  6 ;  26  Art.  of  RegulatioM,  29th 
April  1695 ;  54  Geo.  III.  c.  137;  A.  S.  31»< 
March  1685 ;  A.  S.  23d  Nov.  1711 ;  A.  S. 
lOih  Aug.  1754 ;  A.  S.  17tt  Jan.  1756 ;  A.  S. 
13tt  Nov.  1793 ;  A.  S.  llth  July  1794.  See 
also  Jurid.  Styles,  iii.  435  ;  Shand^s  Prae.  ii. 
964,  et  tgq.    See  Judicial  Sale, 

The  action  comes  into  Court  in  the  nsual 
way ;  but  being  what  is  technically  called  an 
Inner-House  process,  the  power  of  the  Lord 


Ordinary,  before  whom  the  action  is  called  ia 
the  course  of  the  Outer-House  Roll,  is  bo  far 
limited.  Thus,  he  may  judge  of  the  pursuer's 
title,  and  of  the  competency  and  relevancy  of 
the  action ;  as  also  whether  the  parties  have 
been  properly  brought  into  Court.  But  all 
questions  as  to  the  bankruptcy,  the  value,  the 
possession  and  the  holding,  are  proper  for  the 
consideration  of  the  Inner-House  after  pro- 
bation. As  to  the  procedure  in  the  aetioa 
generally,  the  Art  of  Sederunt  llth  July 
1828,  §  103,  directs  that  it  shall  be  accommo- 
dated as  far  as  practicable  to  the  new  forms 
of  process ;  but  that,  in  so  far  as  compliance 
with  the  new  forms  shall  not  be  specially  re- 
quired, the  old  forms  shall  continue,  except 
as  to  the  power  and  mode  of  review  of  inter- 
locutors, as  to  which  the  new  regulations  are 
to  be  the  rule.  All  the  requisite  forms,  bow- 
ever,  must  be  rigidly  observed ;  because  the 
slightest  deviation(«w<7.,  the  omission  of  a  single 
advertisement)  may  be  fatal  to  the  whole  pro- 
ceedings. 

If  there  be  no  objection  to  the  citations,  the 
relevancy,orcompetency,andno  other  dilatory 
defence,  the  first  interlocutor  is  an  interlocutor 
by  the  Lord  Ordinary  sustaining  the  libel, 
and  allowing  a  proof  of  the  bankruptcy,  of 
possession  by  the  creditors,  of  the  holding, 
rental,  and  deductions,  of  the  value  of  the 
property,  and  of  the  number  of  years'  pur- 
chase at  which  it  may  be  sold  ;  and  for  taking 
this  proof,  commission  and  diligence  is  granted. 
The  same  interlocutor  assigns  a  first  term  at 
the  distance  of  five  or  six  weeks  for  the  credi- 
tors to  lodge  their  grounds  of  debt,  and  grants 
commission  to  the  judge-ordinary,  or  any 
justice  of  the  peace  within  the  bonnd^  to  take 
the  deposition  of  the  creditor ;  and  if,  during 
the  currency  of  this  term,  any  creditor  requires 
a  diligence  for  the  recovery  of  his  grounds  of 
debt,  it  will  be  granted  by  the  Lord  Ordinary 
on  application ;  A.  S.  17tk  Jan.  1756,  §  1. 
The  interlocutor  must  be  inserted  once  a  week, 
for  three  successive  weeks,  in  the  Bdinburgh 
Gazette— il.  S.  llth  July  1794;  and  also  pub- 
lished in  the  Minute-book.  On  the  action 
coming  into  Court,  it  is  usual  to  apply  to  the 
Court  fur  the  appointment  of  a  judicial  factor 
to  manage  the  estate. 

The  limits  of  this  work  do  not  admit  of  any- 
thing more  than  the  following  summary  of 
practical  points  connected  with  this  important 
process: — (1.)  Under  the  commission  and 
diligence  a  proof  of  the  rental  of  the  subjects 
under  sale  is  led,  by  examining  the  tenants, 
and  by  recovering  their  leases ;  or  if  there  be 
no  leases,  by  the  examination  of  farmers  or 
land-valuators  acquainted  with  the  property. 
Servitudes,  thirlages,  services,  &c.,  are  valued 
and  deducted,  also  liferents  and  teinds,  accord- 
ing to  rules  to  be  found  in  all  practiod  books; 


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Tide  Btveridgt,  ii.  638,  et  teq.;  ShaniTt  Prae, 
ii.  871,  et  teq.    (2.)  The  title-deeds  of  the 
subjects  may  be  recovered  under  the  diligence; 
and  if  hypothecated  in  the  hands  of  a  lav- 
agent,  they  are  usually  delivered  under  a  re- 
servation of  his  hypothec,  in  virtue  of  which 
be  will  be  ranked  primo  loco  on  the  price,  or 
may  obtain  a  warrant  on  the  judicial  factor. 
If  the  title-deeds  be  in  the  repositories  of  a 
deceased  person,  warrant  will  be  granted  by 
the  Court  for  opening  such  repositories  at  the 
sight  of  the  judge-ordinary  of  the  bounds. 
The  title-deeds  will  show  the  holding  and  the 
state  of  the  teinds  and  feu-duties,  and  the 
valued  rent  will  be  proved  by  a  certificate 
from  the  clerk  to  the  commissioners  of  supply. 
(3.)  The  deductions  and  annual  burdens  may 
be  proved  by  the  factor  on  the  estate,  or  the 
agent  or  other  person  who  has  been  accustomed 
to  pay  them,  and  the  teind,  minister's  stipend, 
schoolmaster's  salary,  cess,  poor's-rates,  &c., 
will  be  sufficiently  proved  by  the  receipts  for 
these  payments.    (4.)  It  may  be  necessary  to 
prove  the  b%pkruptcy  by  a  search  of  the  re- 
cords ;  but  in  general  the  claims  lodged  prior 
to  the  expiration  of  the  first  term   will  be 
sufficient  for  this  purpose.    (5.)  No  farther 
proof  can  be  led  under  the  commission;  the 
proof  of  the  value  must  be  taken  before  the 
Lord   Ordinary,  the  usual   witnesses  being 
professional  men,  or  land-valuators  in  Edin- 
burgh, who  in  general  depone  as  to  the 
number   of  years'  purchase  of  the  proven 
rental  which  they  consider  the  lands  to  be 
worth.     This  proof  is  conducted  by  the  com- 
mon  agent,  who  is  appointed  immediately 
after  the  lapse  of  the  first  term  assigned  for 
lodging  claims.    See  Common  Agent.    (6.)  The 
next  step  in  the  process  is  to  have  a  second  term 
assigned  to  the  creditors  for  lodging  their 
claims  and  grounds  of  debt;  which  is  done 
by  an  interlocutor  of  the  Lord  Ordinary,  inti- 
mated iu  the  Minute-book,  and  once  every 
week,   for  three  weeks,  in  the  Edinburgh 
Gazette.    All  claims  must  be  accompanied 
by  an  oath  fff  verity,  if  the  creditor  be  in  Great 
Britaio,  or  by  an  oath  of  credulity  by  his 
agent  or  factor,  if  he  be  abroad;  and  the 
grounds  of  debt  must  also  be  produced — the 
effect  of  such  production  being  to  'interrupt 
prescription.    (7.)  On  the  lapse  of  the  second 
term  for  lodging  claims,  the  case  may  be  en- 
rolled and  decree  of  certification  pronounced, 
as  in  a  reduction-improbation  for  reducing  all 
olaims  not  produced.     This  decree,  however, 
is  qualified  with  the  condition  that  claims 
lodged  within  ten  days  thereafter  will  be  re- 
eeived,    and  sometimes  a  longer   period  is 
allowed— «.^.,  the  box-day  in  a  vacation  then 
ensuing.  The  effect  of  such  a  decree  of  certifi- 
cation is  to  cut  down  all  claims  against  the 
estate    in   questions  between  the  claimant 


against  whom  the  decree  strikes  and  tho 
purchaser  at  the  judicial  sale  ;  but  without 
prejudice  to  the  creditor's  claim  against  the 
separate  estate,  if  any  (e.^.,  the  moveable 
estate),  of  the  common  debtor  ;  or  against  the 
other  creditors  who  may  have  received  their 
share  of  the  price,  for  repetition  of  a  rateable 
proportion ;  1696,  c.  6.    (8.)  Where  a  cre- 
ditor has  omitted  to  lodge  his  claim  until  the 
lapse  of  the  time  allowed  by  the  interlocutor, 
he  may  apply  to  the  Court  to  be  reponed  on 
cause  shown,  but  only  on  condition  of  paying 
the  expense  occasioned  by  the  delay,  and  by 
the  production  of  his  claim.     Such  an  appli- 
cation to  be  reponed  may  be  made  at  any  time 
prior  to  the  final  division  of  the  funds,  even 
although  the  debt  of  the  claimant  should  have 
arisen  after  the  action  came  into  Court.    (9.) 
After  the  decree  of  certification  has  been  pro- 
nounced, the  Lord  Ordinary  remits  to  the 
common  agent  to  prepare  a  state  of  the  inte- 
rests and  a  scheme  of  ranking.    This  state 
contains  a  complete  vidimus,  embracing  the 
extent  of  the  lands  or  other  subjects  under 
sale,  the  amount  of  the  funds  in  the  hands  of 
the  factor,  and  an  enumeration  of  the  claims 
and  vouchers,  with  the  objections.     See  the 
form  of  such  a  state  in  Bell't  Styles,  vii.  229. 
The  state  is  signed  by  the   common  agent, 
and  allowed  to  be  seen  by  all  concerned,  and 
objected  to  if  they  see  cause ;  and  if  questions 
arise  in  the  competition,  they  will  be  discussed 
with  reference  to  the  common  agent's  state  by 
the  several  creditors  inter  se,  and  determined 
by  the  Lord  Ordinary.     The  state  is  then 
ordered  to  be  printed  and  boxed  for  the  Inner- 
House,  and  also  distributed  among  the  credi- 
tors or  their  agents,  except  in  cases  of  small 
importance,  and  where  there  are  few  credi- 
tors, when  the  state  is  lodged  in  MS.  and 
intimated  to  the  agents  of  the  creditors,  who 
may  borrow  it,  or  see  it  in  the  clerk's  hands. 
(10.)  After  all  objections  to  the  state  have 
been  decided,  the  common  agent  prepares  the 
draft  of  an  interlocutor  of  ranking,  which  is 
usually  circulated  or  allowed  to  be  seen  for 
eight  days,  before  being  written  out  and 
signed  by  the  Lord  Ordinary.    (11.)  It  was 
formerly  necessary  that  the  ranking  should 
be  concluded  by  a  decree,  before  the  lands 
were  exposed  to  sale ;  but  by  54  Geo.  111.  c. 
137,  §  6,  the  sale  proceeded  whether  the  rank- 
ing is  concluded  or  not.    Hence,  while  the 
ranking  is  in  progress,  the  sale  may  also  go 
on  ;  and  in  that  view,  the  common  agent,  as 
soon  as  the  proof  is  concluded,  may  enrol  the 
cause  for  circumduction  and  great  avizandum. 
A  memorial  and  abstract  of  the  proof  is  then 
prepared,  printed,  and  boxed  by  the  common 
agent,  and  thereafter  remitted  by  the  Court 
to  the  Lord  Ordinary  to  revise ;  who,  after 
having  obtained  the  necessary  explanations 

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from  the  eommoa  agent,  and  from  the  clerk 
of  the  proeoM,  reports  it  to  the  Court  as  cor- 
rect.    The  Court  then  granta  warrant  for 
ktters  of  publication  and  sale,  which  being 
extracted,  are  executed  by  a  meeaenger-at- 
arn»  at  the  Record  Office,  and  also  at  the 
market-cross  of  Edinburgh,  and   pier  and 
shore  of  Leith.     (12.)  When  a  warrant  of 
sale  has  been  obtained,  the  creditors  are  en- 
titled to  proceed  with   the  sale,  unless  the 
whole  of  their  debts  are  paid  off,  and  even 
although  the  price  of  the  property  should  ex- 
ceed the  amoaut  of  the  debts.    In  practice 
the  sale  is  adrertised  in  the  newspapers ;  and 
due  care  must  be  taken  to  procure  erideuce, 
that  all  the  statutory  and  necessary  notices 
hare  been  given,  which  will  be  done  by  pro- 
ducing in  process  the  Gazettes  and  letters  of 
publication,  and  the  executions  by  the  mes- 
senger.   (13.)    The  day  of  sale  is  always  a 
Wednesday  (the  market-day  in  Edinburgh), 
during  the  sitting  of  the  Court  of  Session  ; 
and  the  letters  of  publication  must  be  exe- 
cuted edictally  at  least  twenty-one  days  before 
the  day  of  sale.    The  articles  of  roup  and  the 
inventory  of  the  title-deeds  ought  to  be  pre- 
pared by  theelerk  to  the  process, and  are  always 
authenticated  by  the  signature  of  the  Lord 
Ordinary  on  the  Bills,  who  officiates  as  judge 
of  the  roup.     But  if  any  unusual  conditions 
are  to  be  inserted  in  the  articles  of  roup,  or 
any  alteration  made  thereon,  aftor  they  have 
been  signed  by  the  Lord  Ordinary,  this  must 
be  done  by  the  authority  of  the  Court,  as  the 
Lord  Ordinary  on  the  Bills,  who  acts  merely 
ministerially  in  carrying  through  the  sale, 
has  no  power.     The  sale  must  take  place  in 
the  Parliament  House  at  Edinburgh,  between 
the  hours  of  two  and  fonr  p.m.    The  clerk  to 
the  process  acts  as  clerk  to  the  sale,  and  one 
of  the  macers  acts  as  auctioneer.    It  seems  to 
have  been  thought  that  the  Court  have  power 
to  authorise  the  sale  to  take  place  elsewhere 
than  in  Edinburgh  ;  but  in  the  only  instances 
in  which  such  applications  were  made  they 
were  refused;  and  in  the  last  case  on  the 
subject,  it  was  expressly  held  to  be  incom- 
petent to  authorise  a  sale  at  Glasgow ;  Renny 
and  Cruttenden  d  Co.  22d   Feb.   1834,  12 
S.  ds  D.  479 ;  and  17th  May  1834,  12  S. 
S  D.  602.    (14.)     The  Lord  Ordinary  offi- 
eiating  at  the  sale  has  power  to  adjourn  it, 
without  exposing  the  subjects;  and  neither 
the  common  agent,  nor  the  judicial  factor, 
nor  the  Lord  Ordinary  to  the  process,  nor  the 
Lord  Ordinary  officiating  at  the  sale,  is  en- 
titled to  purchase  ;  although  the  mere  signing 
of  petitions  or  oUter  papers  in  the  cause  as 
counsel    will    not    bar     the    counsel    from 
purchasing.     The  leading  case  on  this  sub- 
ject is  that  of  Th*  York  Buildings  Company  v. 
Maekeniie,  8th   March  1793,  Mor.  13367 ; 


reversed  on  appeal,  4  Dmo,  379.  See  also 
The  Earl  <^  Wmyas,  25th  Feb.  1824,  2  Skmo't 
'  AppeaU,  p.  1.  (15.)  If  no  offerers  appear, 
the  sale  will  be  adjourned ;  and  instead  of  the 
former  practice  of  then  allocating  the  pro- 
perty among  the  creditors,  the  Court  now 
lowers  the  upset  price,  upon  a  petition  duly 
intimated  to  the  agents  of  all  the  creditors 
who  have  claimed ;  and  the  property  is  after- 
wards re-expoeed  at  a  reduced  upset  price, 
after  advertisements  in  the  newspapers,  and 
the  necessary  alterations  on  the  articles  of 
roup.  As  to  the  clause  of  devolution  in  the 
articles,  see  Clause  of  D«v(^uiion.  (16.)  The 
offerer  who  is  preferred  must  find  caution, 
the  bond  of  caution  being  prepared  by  tha 
assistant  of  the  Inner-House  clerk  to  the  pro- 
cess ;  and  it  is  the  duty  of  the  principal  clerks 
of  Session  to  satisfy  themselves  as  to  the  suf- 
ficiency of  the  caution.  The  common  agent 
is  not  bound  to  express  any  opinion  on  tbb 
point ;  and  if  the  principal  clerks  accept  of 
insufficient  caution,  they  will  be  personally 
liable.  Where  the  purchaser,  ffter  finding 
caution,  and  before  decree  of  sale,  has  sold  to 
another,  the  new  purchaser  must  apply  to  the 
Court  by  petition,  for  authority  to  the  clerk 
to  receive  a  new  bond  of  caution,  and  to  de- 
liver up  the  former  one,  and  also  that  the 
decree  of  sale  may  be  issued  in  favour  of  the 
new  purchaser.  (16.)  After  caution  haa 
been  found,  the  sale  is  reported  to  the  Court, 
and  decree  of  sale  pronounced,  which  may  be 
extracted,  and  the  extract  delivered  to  tlia 
purchaser,  in  order  that  he  may  complete  his 
title  ;  and  after  such  extract,  that  part  of  th* 
process  which  relates  to  the  sale  is  sent  to 
the  general  record,  while  the  ranking  re- 
mains in  the  hands  of  the  clerk — a  severance 
of  the  process  which  is  attended  with  some 
practical  inconveniences.  (17.)  The  next  step 
in  the  procedure  is  a  remit  by  the  Lord 
Ordinary  to  the  oommon  agent,  or  to  an  ae- 
conntant,  to  prepare  a  scheme  of  division, 
showing  the  rule  according  to  which  the 
purchaser  and  the  judicial  factor  are  to  pay 
the  funds  in  their  hands;  which  scheme 
having  been  prepared  and  lodged,  and  allowed 
to  be  seen  for  eight  days,  wilt  be  approved  of 
if  not  objected  to,  and  decree  of  division  and 
for  payment  against  the  purchaser  pro- 
nounced. It  is  now  settled  that  claims  ranked, 
principal  and  interest,  are  to  be  accumolated 
into  a  capital  as  at  the  date  of  the  payment 
of  the  price.  (18.)  The  original  rule  as  to 
the  expenses  of  the  process  was,  that  they  were 
to  be  borne  by  the  postponed  creditors.  After- 
wards it  was  held,  that  as  the  process  was  a 
procedure  in  which  the  whole  creditors  were 
interested,  each  ought  to  pay  in  proportion 
to  the  sum  he  drew  ;  A.  S.  23d  Abv.  1711. 
But  it  being  plainly  ultra  viret  of  the  Court 

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to  make  such  a  rule,  thaC  Act  of  Sederunt 
was  repealed  by  A.  S.  10th  August  1754 ; 
and  now  the  whole  expense  is  paid  out  of  the 
funds  in  the  hands  of  the  factor,  or  out  of  the 
price,  and  thas  falls  exclusively  on  the  post- 
poned creditors.  This  expense  includes  that 
of  extracting  the  decree  of  sale  in  favour  of 
the  purchaser,  and  also  the  expense  of  the 
dispositions  and  assignations  by  the  creditors 
in  his  favour.  (19.)  When  there  has  been 
a  judicial  factor  appointed,  it  is  necessary, 
before  preparing  a  scheme  of  division,  to 
apply  to  the  Court  by  petition  for  his  dis- 
eharge.  This  petition  is  intimated  to  the 
agents  of  the  creditors,  and  also  in  the  minute- 
book,  and  on  the  walls  of  the  Parliament 
House,  and  thereafter  remitted  to  the  Lord 
Ordinary  in  the  ranking,  who  in  his  turn 
remits  to  the  clerk  to  the  process,  or  in  com- 
plicated cases  to  an  accountant,  to  audit  the 
factor's  accounts.  Avizandum  with  the  report 
thus  obtained  is  made  to  the  Lord  Ordinary, 
who  makes  a  report  to  the  Court,  and  decree 
of  exonerati^  is  then  pronounced  by  the 
loner-House.  Sometimes  the  common  agent 
concurs  iu  the  factor's  petition,  and  also 
prays  for  a  remit  to  audit  his  accounts.  But 
in  the  ordinary  case,  a  simple  remit  to  the 
auditor  to  tax  the  common  agent's  accounts 
is  made  on  a  motion  to  the  Lord  Ordinary, 
and  the  auditor's  report,  when  returned,  ap- 
proved of  in  common  form.  (20.)  If,  in  the 
course  of  the  process,  the  pursuer  should  die, 
or  cease  to  insist,  or  if  his  debt  should  be 
extinguished,  the  judicial  factor,  or  any  real 
creditor,  may,  on  special  warrant  from  the 
Court,  take  up  the  process  where  it  was  left, 
and  carry  it  on  till  its  final  issue.  So  also, 
if  the  common  debtor  or  any  of  the  creditors 
die,  the  process  only  stops  until  their  apparent 
heirs  are  cited  on  a  diligence,  without  waiting 
the  lapse  of  the  tempu  deliberandi,  or  transfer- 
ring the  process  against  them ;  and  whether 
the  heir  appear  or  not,  the  process  proceeds ; 
A.  S.  23d  Nov.  1711,  §§  4  and  6.  And  any 
creditor  who  is  in  a  situation  to  adjudge  is 
entitled  to  carry  on  the  action  of  sale  to  a 
conclusion,  although  deserted  or  abandoned 
by  the  original  pursuer;  54  Geo,  III.  c.  137, 
§  10.  (21.)  If  any  lands  not  specially  de- 
scribed in  the  summons  be  discovered,  in  the 
course  of  the  process,  to  belong  to  the  bank- 
rupt, the  rental  and  value  of  such  lands  may 
be  proved,  and  the  lands  themselves  included 
in  the  sale,  in  virtue  of  the  general  clause  in 
the  summons  above  referred  to.  On  such 
discovery,  an  application  is  made  to  the  Lord 
Ordinary,  in  the  form  of  a  minute,  who  directs 
notice  of  the  fact  to  be  given  in  the  Edinburgh 
Gazette,  after  which  the  proof  of  the  rental 
and  value,  and  the  sale,  proceed  precisely  as  if 
the  subjects  so  discovered  had  been  specially 


described  in  the  summons.  It  is  too  late,  how- 
ever, to  include  a  discovery  of  this  kind  in 
the  process  after  the  lands  specially  libelled 
on  have  been  sold,  and  the  decrees  of  sale 
and  division  extracted.  See  Rennie,  5th  Feb. 
1828,  6  S.dD.  488.  (22.)  Where,  again, 
subjects  have  been  included  in  the  summons 
which  do  not  belong  to  the  bankrupt,  the 
course  is  for  the  proprietor  of  such  subjects  to 
apply  to  the  Court  by  petition,  to  have  them 
struck  out  of  the  sale ;  which  petition  will  be 
either  advised  by  the  Court  on  answers  by  the 
creditors,  or  remitted  to  the  Lord  Ordinary 
to  be  disposed  of.  See  Cruttendtn,  Maekillop, 
md  Company,  17th  May  1834, 12  S.  db  D.  602. 
(23.)  When  the  price  is  paid,  or  consigned  in 
the  manner  explained  voce  Contignation,  the 
purchaser  may  apply  to  the  Court  by  peti- 
tion for  delivery  of  his  bond  of  caution.  If 
there  be  several  purchasers,  a  separate  appli- 
cation from  each  is  necessary ;  and  the  peti- 
tion, which  must  be  previously  intimated  to 
the  agents  of  the  creditors  who  have  lodged 
claims,  is  also  intimated  upon  the  walls  and 
in  the  Minute-book  for  eight  days ;  after 
which  it  is  remitted  to  the  Lord  Ordinary  in 
the  ranking,  or  to  the  Junior  Lord  Ordinary, 
to  ascertain  whether  the  price  has  been 
paid  or  consigned.  On  ascertaining  the 
fact,  by  a  remit  to  the  clerk  or  otherwise, 
the  Lord  Ordinary  makes  a  report  to  the 
Court',  and  the  prayer  of  the  petition  will 
then  be  granted  by  the  Inner-Honse.  (24.) 
It  is  competent  to  the  creditors  or  their 
agents,  at  the  election  of  the  common  agent, 
to  nominate  three  of  their  number  as  a  com- 
mittee, to  watch  the  progress  of  the  proceed- 
ings ;  and  if  they  are  not  terminated  within 
two  years  after  their  commencement,  to  in- 
quire the  reason.  And  it  is  the  duty  of  the 
common  agent,  after  the  lapse  of  two  years, 
to  print  and  give  in  to  the  Court  a  minute  ex- 
planatory of  the  situation  of  the  process,  and 
of  the  cause  of  delay  ;  and  a  similar  minute 
must  be  lodged  yearly  thereafter,  unless  dis- 
pensed with  by  the  Court;  A.  S.llth  July 
1794,  §  14.  (25.)  It  is  competent  to  prefer- 
able creditors  to  apply  for  interim  warrants 
on  the  judicial  factor,  or  on  the  purchaser,  or 
OB  the  bank  where  the  money  is  consigned. 
But  before  drawing  any  sum  out  of  the  com- 
mon funds  by  interim  warrant,  sufficient  cause 
must  be  shown  to  the  Court.  Nor  will  any 
such  warrant  be  granted,  except  as  to  inte- 
rest or  annuities,  before  decree  of  certification 
is  pronounced ;  and  no  petition  for  a  warrant 
of  this  kind  will  be  received  after  20lh  Feb. 
for  the  winter  session,  or  25th  June  for  the 
summer  session ;  or  during  the  five  sederunt- 
days  preceding  the  rising  of  the  Court  for  the 
Christmas  recess ;  A.  S.  17 Ih  July  1764 ;  21 «« 
Dec.  1765 ;  5th  Juiu  1790  ;  llth  July  1794. 

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The  common  agent  is  also  entitled  to  an  in- 
terim  warrant  on  the  judicial  factor  to  ac- 
count for  the  expenses  of  the  process.  See 
Interim  Warrant.  (26.)  Sometimes,  where  a 
class  of  creditors  are  preferable  on  a  particu- 
lar suhject  which  has  been  sold,  and  where 
the  remainder  of  the  property  remains  unsold, 
an  interim  scheme  of  division  among  these 
preferable  creditors  is  prepared.  But  the 
expense  of  interim  warrants,  as  well  as  in- 
terim schemes,  must  be  borne  by  the  credi- 
tors beneBted  thereby.  See,  however.  Wood's 
Trustee  and  Others,  7th  March  1835, 18  S.  A 
D.  645-.  (27.)  The  rule  as  to  imputing  such 
interim  payments,  in  questions  among  the 
creditors,  is,  that  the  debt  due  to  the  credi- 
tor receiving  the  interim  payment  is  to  be 
stated  as  accumulated  as  at  the  term  of  pay- 
ment of  the  price  by  the  purchaser,  and  that 
the  partial  payments  are  to  be  deducted  from 
this  accumulated  sum.  In  this  way  all  the 
creditors  stand  on  an  equal  footing ;  and  the 
difficulties  about  imputing  partial  payments 
to  account  of  interest,  and  not  of  principal, 
are  avoided.  The  rule  now  uniformly  ob- 
served is,  that  principal  and  interest  are  to 
be  accumulated  as  at  the  term  of  payment  of 
the  price.  (28.)  Adjudications,  during  the 
dependence  of  a  process  of  ranking  and  sale, 
which  were  at  one  time  thought  necessary 
in  order  to  secure  the  benefit  of  the  pari  passu 
ranking,  are  prohibited  by  54  Geo.  III.  c. 
437,  §  10 ;  whereby  it  is  enacted,  that  the 
decree  of  sale  is  to  be  held  as  a  general  de- 
cree of  adjudication  in  favour  of  every  credi- 
tor who  shall  afterwards  be  included  in  the 
decree  of  division  ;  and  the  effect  of  such  ge- 
neral decree,  in  all  competitions  or  questions 
of  ranking  and  preference,  is  declared  to  be 
the  same  as  if  it  had  been  pronounced  and 
extracted  of  the  date  of  the  .first  calling  of 
the  process  of  sale,  before  the  Lord  Ordinary 
in  the  Outer-House ;  and  no  "  separate  ad- 
judication shall  be  allowed  to  proceed  during 
the  dependence  of  a  judicial  sale ;"  the  pro- 
cess not  being  held  in  dependence  until  it  is 
called  in  Court  The  statutory  rule,  how- 
ever, does  not  apply  to  adjudications  in  im- 
plement, which  may  proceed  notwithstanding 
the  dependence  of  the  ranking  and  sale  : — 
See  Bdl's  Com.  ii.  262 ;  Mackintosh,  26th  Mav 

1829,  7  S.  A  D.  649  ;  Hvtchison,  26th  June 

1830,  SS.itD.  982 ;  Wood,  5th  Feb.  1833, 
11  S.AD.  355.  (29.)  In  rankings  and  sales 
at  the  instance  of  apparent  heirs,  it  has  been 
the  practice  to  require  creditors  whose  debts 
are  illiquid  to  constitute  them  before  draw- 
ing their  shares  of  the  price ;  and  in  one 
case  the  same  rule  was  extended  to  an  illi- 
quid debt,  in  a  judicial  sale  at  the  instance  of 
creditors.  But  this  decision  has  been  thought 
extremely  questionable,  and  certainly  is  not 


easily  reeoneileable  with  sound  principle : — 
See,  on  this  subject,  Scott  Moncrieff,  16th  June 
1821, 1  S.<t  D.73;  BeU's  Com.  i.  740,  and 
ii.  277  and  281 ;  and  Shand's  Prae.  ii.  566, 
etseq.  (30.)  The  production  of  the  grounds 
of  a  moveable  debt,  as  the  foundation  of  a 
claim  on  a  ranking  and  3ale,doe8  not  make  the 
personal  debt  heritable,  or  liable  to  be  affected 
by  inhibition.  It  is  still  arrestable ;  Hen- 
derson, 14th  Dec.  1796,  Mor.  1534.  (31.) 
Notwithstanding  the  clause  in  the  articles 
of  roup  binding  the  purchaser  to  accept 
of  the  title  as  it  is,  the  purchaser  cannot 
be  forced  to  pay  the  price  if  it  turns  out 
that  the  bankrupt  had  no  title  whatever 
to  the  subjects  sold.  See  Progress,  and 
authorities  there  cited.  But  it  will  obviate 
any  objection  to  the  title  if  it  be  possible  to 
complete  a  title  in  the  bankrupt's  person ; 
see  Shands  Prae.  ii.  571.  (32.)  In  order  to 
strengthen  the  purchaser's  title,  the  creditors 
who  receive  any  part  of  the  price  are  bonnd 
to  assign  their  debts,  rights,  and  diligences  to 
the  purchaser,  with  absolute  warrandice  to 
the  extent  of  the  sums  received.  Hence,  in 
case  of  eviction,  the  creditors  are  bound  to 
refund  what  they  have  received,  with  interest 
from  the  date  of  the  decree  evicting  the  sub- 
jects from  the  purchaser,  provided  intima- 
tion of  the  action  of  eviction  be  made  to  the 
creditors  before  litiscontestation.  These  as- 
signations, which  are  paid  for  by  the  credi- 
tors, being  merely  corroborative  of  the  pur- 
chaser's right,  cannot  be  assigned  by  tho  pur- 
chaser, or  made  a  separate  fund  of  credit, 
but,  except  in  so  far  as  corroborative  of  his 
title,  are  extinguished.  (33.)  If  there  be  any 
reversion  of  the  price  after  satisfying  the 
claims  of  the  creditors,  the  common  debtor  is 
entitled  to  it  without  making  up  any  title. 
But  in  the  event  of  his  death,  his  heir  most 
make  up  a  real  title  to  the  heritage,  in  order 
to  entitle  him  to  discharge  the  reveraon ;  in 
which  respect  there  is  a  difference  between  an 
ordinary  process  of  ranking  and  sale  and  a 
process  when  pursued  by  an  apparent  heir.  In 
this  last  case  the  apparent  heir  does  not  re- 
quire to  make  up  any  title  in  order  to  entitle 
him  to  receive  the  reversion.  The  preced- 
ing analysis  of  the  procedure  in  the  process  of 
ranking  and  sale  has  been  abridged  from  the 
following  practical  works  :  JurvL  Styles,  iii. 
435-55 ;  Ivory's  Form  of  Process,  i.  317-43; 
Beveridge's  Form  of  Process,  ii.  513-48 ;  and 
Shand's  Prae.  ii.  628-73,  in  which  work, 
in  particular,  there  is  a  valuable  digest  of  the 
rules  of  practice  in  this  important  process, 
accompanied  by  a  very  able  commentary  on  the 
adjudged  cases.  See  also  BdPs  Com.  ii.  250 ; 
Stair,  B.  iii.  tit.  2,  §  65;  B.  iv.  tit.  35,  §  26; 
tit.  36,  §  2 ;  tit  61,  §  4 ;  Mor^s  Notes,  cecvi. ; 
ErA.  B.  ii.  tit.  12,  §  59,  et  seq. ;  Bank.  voL  iii. 

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p.  37 ;  BdPs  Frine.  §S  2263,  2419,  1486 ; 
fitU  on  L«ues,  i.  113 ;  Sunier's  Landlord  and 
Tenant.  See  Judicial  Sale.  Apparent  Heir. 
Scheme  of  Division. 

Ranlnng  and  Sale,  bt/  <m  Apparent  Heir. 
This  action,  which  is  in  almost  all  respects 
analogous  to  the  action  of  ranking  and  sale 
at  the  instance  of  creditors,  is  foanded  on  the 
act  1695,  c.  24,  which  dedares  that  an  ap- 
parent heir  may  bring  the  estate  of  his  an- 
cestor to  roup,  whether  it  be  bankrupt  or  not. 
It  is.  no  good  objection  to  the  heir's  title  to  sue 
this  action  that  he  has  behaved  as  heir,  and 
Uiereby  incurred  a  passive  title,  or  even  that 
he  has  beeir  served  heir  in  general,  cum  hene- 
jieio  inventarii;  provided  that  his  title  has 
not  been  feudally  completed.  Neither  is  it 
any  objection  that  the  heir  has  renounced,  in 
an  action  of  constitution.  Where  the  appa- 
rent heir  dies  during  the  dependence  of  the 
action,  the  next  apparent  heir,  without  mak- 
ing up  any  title,  or  the  purchaser,  if  the  lauds 
have  been  sold,  may  carry  on  the  sale.  lu 
this  proceeding,  the  apparent  heir  is  held  to 
be  acting  for  behoof  of  all  the  creditors ;  and 
therefore,  the  decree  of  sale,  if  pronounced 
within  year  and  day  of  the  first  effectual  ad- 
judication, brings  in  all  the  creditors  pari 
pauu,  whether  they  have  adjudged  or  not. 
And  it  seems  to  be  thought,  that  no  adjudi- 
cation can  be  proceeded  with  after  the  sum- 
mons at  the  heir's  instance  has  been  called  in 
Court.  As  to  the  form  of  the  summons,  it 
differs  very  slightly  from  that  in  a  judicial 
sale  by  creditors,  and  must  be  executed  in 
the  same  manner  against  the  real  creditors  in 
poesession,  and  edictally  against  all  concerned. 
It  is  not  necessary,  however,  to  prove  bauk- 
ruptcy,  or  that  the  creditors  are  in  poesession. 
If  there  be  any  reversion,  the  expenses  of  the 
process  must  be  paid  from  it ;  but  if  not,  then 
from  the  price ;  and  if  the  proceeds  of  one  or 
more  lots  be  sufBcient  to  satisfy  the  debts 
claimed,  the  sale  of  the  remainder  will  be 
stopped.  If  the  pursuer  himself  desires  to 
purchase  any  part  of  the  lands,  he  may  do 
so  by  means  of  a  trustee,  who  will  find  cau- 
tion in  the  ordinary  form.  And  although 
it  is  usual  in  this  particular  process  to  allow 
the  pursuer's  agent  to  conduct  it\without 
naming  a  common  agent,  yet,  if  there  be  any 
improper  delay,  the  Lord  Ordinary,  on  the 
application  of  any  creditor,  will  appoint  a 
meeting  to  be  held  for  choosing  a  common 
agent.  If  there  be  any  rerersion,  the  heir  is 
entitled  to  it,  and  may  validly  discharge  it 
without  making  up  any  title,  the  decree  of 
sale  being  a  sufficient  title  for  the  heir  to  re- 
ceive the  reversion.  The  heir  incurs  no  pas- 
sive title  by  pursuing  such  a  sale ;  and  this 
seems  to  be  one  of  the  reasons  why  he  is  en- 
titled to  receive  the  reversion  without  making 
2x 


up  a  title;  since,  by  so  doing,  he  might  in- 
cur a  universal  liability  for  his  predecessor's 
debts.  The  summons  by  the  heir  sometimes 
contains  a  conclusion  for  cognoscing  the 
amount  of  the  personal  property  of  the  pre- 
decessor, especially  where  the  heir-appareut 
is  a  pupil.  The  object  of  this  is  to  preserve 
evidence  of  the  necessity  of  the  sale ;  and 
hence,  in  such  cases,  it  is  proper  to  have  a 
tutor-at-law  or  a  tutor-dative  appointed  be- 
fore raising  the  action.  In  al^  other  respects, 
the  procedure  in  this  process  resembles  that 
which  has  been  explained  in  the  immediately 
preceding  article.  See  Shand'sPrae.  ii.  864 ; 
Ivory's  Form  of  Process,  i.  343 ;  Beveridge,  ii. 
548-61.  See  Cognition  and  Sale.  Apparent 
Heir. 

Banaom;  a  sum  of  money  paid  for  re- 
deeming any  capture.  Average  is  leviable  on 
the  goods  in  a  ransomed  ship,  for  the  sum 
paid  as  ransom  ;  and  if  any  one  belonging  to 
the  ship  be  detained  as  a  hostage  for  payment 
of  the  ransom,  he  must  be  set  free  at  the  joint 
expense  of  the  owners  of  the  ship  and  cargo. 
Tomlins'  Diet.  h.  t. ;  Ersk.  B.  iii.  tit.  3,  §  55  ; 
Kames'  Equity,  99, 120;  Brown's -Spwp.  319, 
2082.     See  Captive.    Average, 

Bape ;  one  of  the  four  pleas  of  the  Crown. 
It  consists  in  carnal  knowledge  of  a  wo- 
man's person  against  her  will,  and  by  force. 
Forcible  abduction  is  no  longer,  as  it  once 
was,  essential  to  the  crime.  The  crime  is 
the  same  whatever  the  age  of  the  female 
may  be,  and  whether  she  be  maid,  wife,  or 
widow.  A  rape  may  even  be  committed  on  a 
strumpet ;  though,  in  such  a  case,  the  pre- 
sumption of  the  woman's  assent  will  require 
to  be  overcome  by  very  clear  proof  of  vio- 
lence. The  crime  may  be  completed  by 
penetration  without  emission.  See  the  case 
of  Robertson,  March  12, 1836, 1  SwinUm  93. 
The  crime  is  not  altered  although  the  wo- 
man's resistance  has  ceased  through  violence, 
threats,  or  the  effects  of  stvpifying  drugs.  In 
the  case  of  females  under  twelve  years  of  age, 
rape  is  committed  though  actual  violence  has 
not  been  used.  All  those  who  assist  in  sub- 
duing the  sufferer,  or  who  are  present  at  the 
time,  and  approve  of  the  deed,  are  held  equally 
guilty  with  the  principal  perpetrator.  The 
chief  witness  in  such  cases,  usually,  is  the  in- 
jured female  herself;  but  her  testimony  must 
in  all  eases  be  corroborated  as  to  the  using 
of  violence,  which  will  be  best  done  by  the 
signs  of  injury  on  her  person :  the  circum- 
stances and  situation  in  which  the  alleged 
offence  took  place ;  the  testimony  of  those  who 
heard  her  cries  for  help ;  and  evidence  of  her 
subsequent  disclosure  of  the  crime  to  her  re- 
lations, or  to  the  public  authorities.  It  U 
not  now,  as  formerly,  the  law,  that  the  pro- 
secution cannot  be  carried  on  unless  the  coin- 

Digitized  byCjOOQlC 


690 


RAP 


RBA 


plaint  is  made  the  same  day  on  which  the 
crime  is  committed.  See  Rapus.  The  punish- 
ment of  rape  is  death,  unless  the  woman  shall 
acquiesce  in  her  condition,  and  declare  that 
she  went  off  with  the  panel  of  Iyer  own  free 
will ;  in  which  case  the  woman's  kinsfolk  may 
insist  for  an  arbitrary  punishment  to  the  ex- 
tent of  fine,  imprisonment,  or  escheat  of  moTe- 
ables.  Hume,  i.  297 ;  Erfk.  B.  iv.  tit.  4,  § 
65 ;  Burnet,  103  ;  AUion's  Princ.  208 ;  St«de, 
110;  Kamvi'  Stat.  Law.  h.  t.;  Taifs  Jutiice, 
h.  t. ;  Shaw'i  Digest,  p.  152.    See  Abduction. 

Baptu;  rape,  ravishing  or  deforcing  of 
women,  one  of  the  fonrpleas  of  the  Crown. 
Rarishing  is  a  crime  of  which  a  woman  ac- 
cuses a  man,  alleging  she  is  oppressed  or  de- 
filed by  him  against  the  King's  peace.  "  The 
qnhilk  complaint  sulde  be  maid  the  samin 
day  and  night  in  the  quhilk  the  crime  is  com- 
mitted—^m  lapsu  dtei  hoe  crimen  prvucribi- 
turf  Skene,  h.  t.  See  Rape.  Some  authors 
believe  that  the  crime  of  n^tu$,  in  the  Ro- 
man law,  was  not  rape,  but  abduction. 

Batifloation  by  a  Kinor.  A  ratification 
by  a  minor,  made  after  minority,  has  the  effect 
of  discharging  all  claim  of  restitution  on  le- 
sion ;  but  ratification  during  minority  has  no 
such  effect,  and  the  act  1681,  c.  19,  declares 
those  who  persuade  minors  to  ratify  their 
engagements  by  oath  infamous.  Er^  B.  i. 
tit.  7,  §  39 ;  BeWs  Com.  i.  143 ;  Bank.  vol.  i. 
p.  182. 

Batifloation  by  an  Heir ;  bars  him  from 
challenging  his  ancestor's  settlement,  on  the 
ground  of  its  being  reducible  ex  capite  lecti  or 
otherwise,  provided  the  heir  be  of  age,  and 
in  such  circumstances  that  the  ratificatum  can- 
not be  ascribed  to  his  peculiar  situation.  Ersk. 
B.  ii.  tit.  8,  §  39 ;  BeWs  Com.  i.  148. 

Batifloation  by  a  Wifo.  This  is  a  decla- 
ration on  oath,  made  by  a  wife,  in  presence 
of  a  judge  (her  husband  being  absent),  that 
the  deed  she  has  executed  has  been  made 
freely,  and  that  she  has  not  been  induced  to 
make  it  by  her  husband  through  force  or  fear. 
There  are  also  present  a  notary-public  and 
two  witnesses ;  instruments  are  taken  on  what 
passes  by  the  attorney  of  the  person  receiving 
the  right ;  and  the  whole  is  reduced  to  the 
form  of  a  notarial  act,  and  attested  by  the 
subscription  of  the  wife,  the  judge,  the  notary 
and  witnesses.  It  is  indorsed  on  the  deed. 
The  use  of  this  ratification  is,  to  bar  actions 
of  reduction  at  the  instance  of  the  wife,  on 
the  pretence  that  she  had  been  compelled  by 
her  husband  to  execute  the  deed.  But  the 
want  of  a  ratification  by  the  wife  does  not 
render  the  deed  null,  although,  where  it  has 
not  been  ratified,  it  may  be  reduced  on  special 
proof  of  force  or  fsar,  or  of  undue  influence 
on  the  part  of  tjie  husband ;  Budian  v.  Risk, 
Ist  March  1834, 12  S.  <t  D.  511,  an^  authori- 


ties there  cited.  See  also  the  case  of  Priettndl 
T.  Hutchison,  20th  Feb.  1851, 19  D.495.  By 
special  statute,  ratifications  by  married  women 
are  excepted  fi-om  the  operation  of  the  statnte 
cited  in  the  article  Oath,  which  snbstitates  de- 
clarations for  oaths  and  aflSdavits ;  and  it  ii 
provided,  that  mch  ratifications  be  taken  on 
oath  as  heretc^ore ;  but  all  ratifications  taken 
by  declaration  instead  of  oath,  since  the  past- 
ing of  that  act,  are  declsowl  to  be  valid,  sad 
of  the  same  force  and  effect  as  if  they  had 
been  taken  on  oath  ;  6  and  7  WiU.  IV.  c  43. 
Ertk.  B.  i.  tit.  6,  §  33 ;  Bank.  i.  132;  Belft 
Com.  i.  142 ;  BdPs  Princ.  §  1615 ;  Taif$  Jv- 
(ice,  voce  Marriage ;  Jurii.  Sh^;  i.  103. 

Batio  DedcLendi;  the  reason  or  groasd  m 
which  a  judgment  is  rested.  Every  sherif 
ought  to  give  his  rationet  decidendi,  except  io 
the  case  of  mere  interlocutory  orders.  Mat- 
laurin't  Sherif  Prac.  132.    See  JudgmenL 

Be  Keroatoria,  writings  in;  are  privileged 
in  so  far  as  that  they  do  not  require  to  be 
authenticated  with  adl  the  solemnities  of  s 
formal  deed.  BdTt  Com.  i.  324.  See  M. 
Evidence.  Privileged  Deeds. 

Reading  of  Deeds.  A  deed  ought  to  be 
read  over  in  the  presence  of  the  granter,  or, 
at  all  events,  some  means  should  be  taken  to 
make  him  acquainted  with  its  contents  before 
he  subscribes  it  If,  however,  the  deed  be 
regularly  snbicribed  and  executed,  it  will  net, 
in  the  ordinary  case,  be  neceasary  for  the  psrtj 
maintaining  Uie  validity  of  the  deed  to  show 
that  it  was  read  over,  or  that  the  subscriber 
was  acquainted  with  its  contents.  The  cum, 
on  the  contrary,  will  lie  upon  the  opposite 
party,  to  show  that  the  subscriber  was  igno- 
rant of  the  contents,  and  was  deceived  in  the 
execution  of  the  writing  which  he  signed.  As 
it  is  not  a  necessary  solemnity  that  the  deed 
should  be  read  over  to  the  granter  at  all,  w 
neither  is  it  indispensable  that  the  witneewt 
should  be  present  when  it  is  read  ;  but  if  it 
can  conveniently  be  done,  it  would  be  prndeat 
to  have  them  present,  as  they  will  tiieo  be 
ready,  in  case  fraud  be  alleged,  to  prove  tbst 
the  subscriber  knew  what  was  in  the  deed.  Is 
reducing  a  will,  it  is  frequently  an  imfwrtaat 
element  in  the  proof  of  fraud  that  the  tests- 
ment  was  not  read  to  the  testator.  iStor,  B-i. 
tit.  9,  §  1 1 ;  Jfore**  Notes,  p.  cccxl. ;  Ertk.  B.  iii. 
tit.  2,  §  S ;  Ivor^s  Notes;  Tait  on  £mde»u; 
Ross's  LeeU  I  160,  201,  488 ;  ii.  183;  DiA- 
son  on  Evidence.     See  Deed.     Testing  Claust. 

Beal  Action.  A  real  action  is  founded  va 
a  right  of  property  in  a  subject,  the  object  of 
the  action  being  the  recovery  of  the  property. 
It  is  so  termed  in  contradistinction  to  s  per- 
sonal action,  which  is  founded  only  on  a  per- 
sonal obligation,  and  the  object  of  wbidi  ii 
to  enforce  implement  of  the  obligation.  Stair, 
B.  iii.  tit.  4,  §  32 ;  tit  6,  §  24 ;  B.  iv.  tit  3, 

Digitized  byCjOOQlC 


REA 


REC 


691 


§  45 ;  Ertk.  B.  iv.  tit.  1.  §  10 ;  BtlCt  Gtm.  ii. 
152 ;  Darling's  Prac.  127.    See  Actions. 

Baal  Burden.  See  BurdsHS.  Incmibrancss. 
Search  of  Incumbrances. 

Beal  Bight ;  means  a  right  of  property  in 
&  subject,  or,  as  it  is  termed,  a  jus  in  re,  in 
virtae  of  which  the  person  vested  with  the 
real  right  may  pursue  for  possession  of  the 
auhjeet ;  wliereas  a  personal  right,  or  jus  ad 
ran,  entitles  the  person  merely  to  an  action 
for  performance  of  the  obligation.  Erdc  B.  iii. 
tit.  1,  §  2.  See  Real  Action.  Jus  in  Re,  and 
authorities  there  cited. 

Bealty.  See  Personal^  and  Realty. 
Beapera.  Even  though  hired  by  the  day 
or  week,  reapers,  like  other  farm-servants, 
have  a  preference  for  their  wages  over  the 
crop  raised  or  secured  by  their  labour.  Their 
claim  is  preferable  to  the  hypothec  of  the 
landlord,  ffutdt.  Justice,  ii.  174;  Hunter's 
Landlord  and  Tenant.  See  Farm  Servant. 
Hmethec. 

BaaMmable  Came.  A  reasonable  cause 
for  granting  a  deed,  according  to  Erskine,  is 
one  which  is  a  good  ground  for  executing  the 
deed,  though  nut  one  which  could  have  been 
nsed  to  compel  the  granter  to  execute  it.  See 
Consideration. 

Beaaoiu  of  AdTOoatioa.     In  every  advo- 
cation where  the  record  had  not  been  made 
up  in  the  inferior  court,  or  where  the  advoca- 
tion was  of  an  interlocutory  judgment,  or 
where  it  had  been  brought  on  the  ground  of 
contingency,  or  on  some  other  of  the  statutory 
grounds  (with  the  exception  of  advocations 
under  6  Geo.  IV.  o.  120,  §  40,  which  are  in 
this  respect  analogous  to  advocations  against 
final  judgments) ;  and  in  general,  wherever 
the  record  in  the  inferior  court  was  not  to  be 
held  as  the  record  in  the  Court  of  Session, 
reasons  of  advocation  were  lodged  at  the 
lodgment  of  the  letters  for  calling.     These 
reasons  of  advocation,  like  reasons  of  sus- 
pension, resembled  a  condescendence  in  an 
ordinary  action,  with  a  note  of  pleas  in  law 
aabjoined ;  and  this  pleading  having  been  fol- 
lowed by  answers,  and  both  papers  having 
been  revised,  the  record  was  closed,  and  the 
case  disposed  of  in  the  usual  way.    The  form 
of  advocations  is  now  regulated  by  the  act 
1  and  2  Yict.  c.  86, 1838,  and  relative  Act 
of  Sedernnt,  24th  Dec.  1838.  See  Advocation. 
Beawm  of  Sutpenaion.    In  every  suspen- 
sion in  which  the  letters  had  been  expede,  at 
-tho  lodgment  of  the  letters  for  calling,  rea- 
sons of  suspension  were  lodged  therewith; 
which,  so  far  as  depending  on  matter  of  fact, 
'were  stated  in  an  ai'ticulate  form,  with  a  note 
of  pleas  in  law  subjoined ;  and  if  nut  so  lodged, 
t.be  letters  could  not  be  called.    This  pleading 
ivas  substantially  a  condescendence;  and  in 
i>aming  it,  the  correct  practice  was  to  assimi- 


late it  as  far  as  possible  to  a  condescendence 
in  an  ordinary  action.     The  reasons  of  sus- 
pension were  t'oilowed  by  answers  in  a  corre- 
sponding form ;  and  these  papers  having  been 
revised,  the  record  was  closed,  and  the  cause 
disposed  of  in  the  usual  manner.    A.  S.  11(4 
July  1828,  §§  25, 49,66, 57 ;  Stair,  B.  iv.  tit. 
52,  §  4,  et  seq.;  Bank.  vol.  iii.  p.  11 ;  Ross's 
Led.  i.  373.'    The  form  of  suspensions  is  now 
regulated  by  the  act  1  and  2  Vict.  c.  86, 1838, 
and  relative  Act  of  Sederunt.  See  Suspension. 
Bebellion;  a  levying  of  war,  or  forcible 
(^position  made  by  a  subject  against  his  Sove- 
reign.   A  debtor  who  disobeys  a  charge  on 
letters  of  horning,  to  pay  or  perform  in  terms 
of  his  obligation,  is  accounted  in  law  a  rebel, 
in  respect  of  his  disobedience  to  the  Sovereign's 
command,  contained  in  the  wiU  of  the  letters; 
and  it  is  upon  this  basis  that  imprisonment 
for  civil  debt  in  Scotland  chiefly  rests — the 
act  of  warding  in  royal  burghs,  and  the  statu- 
tory authority  given  to  justices  under  the 
small-debt  acts,   being  the  only  exceptions. 
This  disobedience  to  the  royal  command  is 
termed  civil  rebellion;  and  denunciation  on 
letters  of  homing  was  formerly  followed  with 
the  penal  consequences  of  actual  rebellion. 
Thus,  the  debtor's  single  escheat  fell,  bur- 
dened, however,  with  the  debt  on  which  the 
homing  proceeded;  and  the  rebel  was  in  many 
other  respects  put  beyoud  the  protection  of 
the  law.     These  highly  penal  consequences 
were  taken  away  by  the  act  abolishing  ward- 
holding  (20   Geo.  II.  c.  50).     Ersk.  B.  ii. 
tit.  15,  §  60 ;  Bank.  ii.  260 ;  BelPs  Princ.  §  730 ; 
Jwrid.  Styles,  2d  edit.  iii.  569;  Ross's  Led. 
i.  242. 273-9,  323.  Sw  Denunciation.  Escheat. 
As  to  the  effect  of  denunciation  on  account  of 
crimes,  see  Fugitation.  See  also  Act  of  Ward- 
ing. SmaU  Debts. 

Baoeipt.  See  Discharge.  Evidence.  And  as 
to  the  effect  of  a  receipt  for  the  premium  in  a 
policy,  see  Insurance,  p.  508. 

Beeeiving  Stolen  Ciooda ;  the  English  term 
for  reset  of  theft. '  It  is  punishable  with  trans- 
portation for  not  more  than  fourteen  nor  less 
than  seven  years,  or  imprisonment  not  exceed- 
ing three  years.  Tomins'  Diet.  h.  t.  See 
Reset  of  Theft. 

Beceu.    See  Christmas  Recess. 

Beclaiming  Bill.    See  Petition. 

Baolaiming  Bays.  The  period  within 
which  all  interlocutors  of  a  Lord  Ordinary 
might  formerly  be  submitted  to  review  of  the 
Inner-House  was  twenty-one  days ;  or  where 
these  days  expired  in  the  vacation  or  Christ- 
mas recess,  until  the  first  box-day  in  either 
vacation ;  and  if  the  twenty-one  days  had 
expired  before  the  box-day  in  the  recess,  they 
ran  until  the  box-day  ;  if  they  expired  after 
the  box-dsy,  they  ran  to  the  first  sederunt- 
day  in  January;  6  Geo.  IV.  c.  120,  §  18; 

Digitized  byCjOOQlC 


6i>2 


RBC 


REC 


A.  S.  nth  July  1828,  §  79.  By  the  act  13 
and  14  Vict.  c.  36,  §  11, 1850,  the  reclaiming 
days  are  limited  to  ten  days,  except  in  tlie 
case  of  interlocutors  disposing  in  whole  or  in 
part  of  the  merits  of  the  cause,  and  also  in 
the  case  of  decrees  in  absence.  A  decree  on 
failure  to  lodge  any  paper  ordered  by  the 
Lord  Ordinary  is  a  decree  disposing  of  the 
merits.     See  the  cases,  FaUa  v.  Oraham,  Jan. 

14. 1851. 13  D.  482;  Thornton  y,  Innet,  July  1, 
1861, 13  D.  1266 ;  AmM  v.  Winton,  March 
11, 1852,  14  D,  768  ;  tUto  the  same  ease,  May 

25. 1852. 14  D.  769 ;  and  Anderson  v.  Brown, 
Jan.  20,  1854,  16  D.  367.  In  the  Bill- 
Chamber,  interlocutors  passing  or  refusing 
bills  take  effect  as  soon  as  the  clerk  of  the 
bills  delivers  up  the  passed  bill  to  have  the 
letters  expede,  or  issues  a  certificate  of  re- 
fusal. Bat  the  Lord  Ordinary  on  the  Bills, 
either  in  his  interlocutor  passing  or  refusing, 
or  subsequently  on  cause  shown  in  a  note, 
may  prohibit  the  delivery  of  the  bill,  or  the 
issue  of  a  certificate,  during  such  a  time 
as  he  may  think  reasonable,  to  enable  the 
party  to  submit  the  interlocutor  to  review. 
Fourteen  days  is  the  period  allowed  in  the 
Bill-Chamber  for  reclaiming;  Beveridge  on 
BiO-Chamber,  113.  See  also  BiU-Chamber. 
In  the  inferior  courts,  the  reclaiming  days 
in  ordinary  actions  are  fourteen,  and  in  ac- 
tions of  removing  and  aliment,  and  in  all 
summary  cases,  six ;  A.  S.  12th  Nov.  1825. 
The  reclaiming  days  cannot  be  competently 
prorogated  even  of  consent  of  parties.  See 
Ktelaiming  Note.    Redaiming  Petition. 

Etwlaiiwing  Vote.  The  judgment  of  a 
Lord  Ordinary  in  the  Court  of  Session,  either 
in  the  preparation  or  final  decision  of  a  cause, 
has  all  the  efficacy  of  a  judgment  of  either 
Division  of  the  Court.  But  the  Lord  Ordi- 
nary's judgments  or  interlocutors  are  subject 
to  the  review  of  the  Division  of  the  Court  to 
which  the  cause  belongs ;  and  such  review  is 
prayed  for  by  a  reclaiming  note,  the  requisites 
of  which  are  partly  statutory  and  partly  re- 
gulated by  Act  of  Sederunt.  The  statutory 
rule  is,  that  when  either  of  the  parties  is  dis- 
satisfied, he  may  apply  for  review  of  the  in> 
terlocntor,  provided  that,  within  twenty-one 
days  from  the  date  of  the  interlocutor,  he 
prints  and  puts  into  the  boxes  for  receiving 
the  papers,  to  be  perused  by  the  Judges,  a  note 
reciting  the  Lord  Ordinary's  interlocutor,  and 
praying  the  Court  to  alter  the  same  in  whole 
or  in  part.  If  the  interlocutor  has  been  pro- 
nounced on  oases,  the  reclaimer,  along  with 
his  note,  must  print  and  box  not  only  the 
closed  record,  but  also  the  cases  which  have 
been  before  the  Lord  Ordinary ;  if  without 
cages,  the  closed  record  must  be  printed  and 
boxed.  And  notice  of  this  appficatioa  for 
review  must  be  given,  by  delivery  of  six  co- 


pies of  the  reclaiming  note  to  the  known 
agent  of  the  opposite  party ;  6  Geo.  IV.  c 
120,  §  18.    In  addition  to  the  above  statu- 
tory  requisites,  the  Act  of  Sederunt  11th 
July  1828  provides— ls(.  That  where    the 
twenty-one    days    allowed    for    reclaiming 
against  an  interlocutor  of  a  Lord  Ordinary 
in  the  Outer-House  expire  during  vacation 
or  Christmas  recess,  they  shall  continue  open 
till  the  first  box-day  in  the  vacation  or  re- 
cess ;  and  if  they  expire  after  the  box-day  in 
the  recess,  they  shall  continue  open  until  the 
first  sederunt^y  after  the  recess;   A.  B. 
§  79.    2d,  That  the  interlocutor  complained 
of  shall  be  preyed  to,  and  not  embodied  in, 
the  note ;  and  that  in  addition  to  the  reeord 
and  cases  (if  any),  copies  of  the  summons  and 
defences,  letters  of  suspension  or  advocation 
(excepting  summonses  of  multiplepoinding, 
at^ttaication,  and  the  like),  shall  be  i^pmded 
to  the  note ;  the  respondent  being  entitled^ 
at  the  moving  of  the  note  in  Court,  to  ask 
leave  to  print  such  additional  documents  as 
he  may  think  necessary,  provided  those  do- 
cuments are  in  process,  and  have  been  before 
the  Lord  Ordinary ;  A.  S.  §§  77, 110.    Zd, 
That  where  the  reclaiming  note  is  against  an 
interlocutor  pronounced  in  absence  or  by  de- 
fault, it  must  have  the  summons  appended, 
and  must  be  accompanied  by  defences,  or  with 
the  paper  ordered,  the  failure  to  lodge  which 
led  to  the  interlocutor ;  A.S.^  74, 69, 112. 
And  other  reg^ulations  of  minor  importance 
will  be  found  in  the  Act  of  Sederunt.     As  to 
Biil'Chamber  interiocutors,  the  statute  (§  46) 
enacts  that  they  may  be  reviewed,  in  like 
manner,  by  a  reclaiming  note ;  and  the  Act 
of  Sederunt  requires  the  reclaimer  to  append 
to  his  note  a  copy  of  the  bill,  or  of  the  bill 
and  answers,  which  have  been  before  the 
Lord  Ordinary  on  the  Bills;   A.  S.  §  75. 
But  where  the  Lord  Ordinary  on  the  Bills 
reports  the  case  to  the  Court,  the  interlocutor 
pronounced  on  such  report  is  to  be  held  as  the 
judgment  of  the  Inner-House,  not  of  the  Lord 
Ordinary;  A.  S.  §  76.     So  also  an  inter- 
locutor of  the  Lord  Ordinary  on  the  Bills, 
pronounced  on  a  remit  from  the  Inner-House, 
after  considering  a  reclaiming  note,  and  di- 
recting him  to  pass  or  refuse  a  bill,  is  final ; 
A.  S.  §  46.     See  Bill-Chamber.    Reclaiming 
Days.    Reclaiming  notes,  after  being  boxed^ 
are  set  down  and  moved  in  what  is  called  the 
roll  of  Single  Bills  of  the  Division  of  the 
Court  to  which  they  are  presented;   and 
(except  in  the  case  of  notes  praying  t«  be  re- 
poned  agaiiist  decrees  in  absence,  or  by  de- 
fault, which  are  disposed  of  in  that  roll)  are 
forthwith  ordered  to  the  Long  or  to  the  Sum- 
mar  Roll,  as  the  case  may  be.    And  when 
they  afterwards  appear  in  this  roll,  the  coun- 
sel for  the  reclaimer  and  respondent  must  be 

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mutually  prepared  to  argue  the  case,  after 
whieh  it  will  be  disposed  of  by  the  Court, 
either  by  affirming  or  altering  the  interlocu- 
tor reclaimed  against,  or  by  ordering  cases 
or  minutes  of  debate,  or  making  such  other 
order  as  the  justice  of  the  case  requires ;  6 
Geo.  IV.  c.  120,  §§  18  and  .46 ;  A.  S.  §§  77, 
78.  A  simple  remit  to  the  jury-roll,  unac- 
companied by  findings,  cannot  be  brought 
under  review  by  reclaiming  note,  nor  even  by 
appeal  to  the  House  of  Lords ;  59  Geo.  III. 
0. 35,  §  15.  See,  on  the  subject  of  this  article, 
Shand's  Prac.  i.  192;  ii.  685,  etseg.;  Mae- 
/arlan^t  Jury  Prac.  39,  et  $eq.  The  reclaim- 
ing days  are  now  limited  to  ten  days,  except 
in  cases  disposing  in  whole  or  in  part  of  the 
merits,  and  in  decrees  of  absence.  See  Pro- 
teu.     Inner-House.    Reclaiming  Days. 

SeelaimiBf  Fetitioii.  Reclaiming  peti- 
tions were,  prior  to  the  Judicature  Act,  1825, 
a  well-known  mode  of  submitting  the  inter- 
locutors of  Lords  Ordinary  to  the  review  of 
the  Inner-House,  and  also  of  submitting  the 
interlocutors  of  the  Inner-House  to  their  own 
review.  In  the  Court  of  Session,  this  form 
of  process  is  now  unknown  ;  but  it  still  pre- 
vails in  the  sheriff  and  other  inferior  courts. 
Any  interlocutor  pronounced  in  a  sheriff- 
court  may  be  brought  under  review  by  a  re- 
claiming petition,  except  interlocutors  simply 
repelling  dilatory  defences,  or  disposing  of 
objections  stated  in  the  course  of  leading  a 
proof  or  ordering  papers.  The  reclaiming 
petition  recites  verbatim  the  interlocutor  re- 
claimed against,  and,  after  ,a  written  argu- 
ment, cpncludes  with  a  prayer  for  the  recall 
or  alteration  of  the  interlocutor  in  whole  or 
in  part.  In  ordinary  actions,  these  petitions 
must  be  presented  within  fourteen  days  (ex- 
clusive of  the  day  on  which  the  interlo«ntor 
is  dated)  after  the  date  of  the  interlocutor ; 
and  in  actions  of  removing  and  aliment,  and 
where  against  interlocutory  orders,  and  in 
all  summary  cases,  the  reclaiming  petition 
must  be  lodged  within  six  free  days.  These 
reclaiming  days  cannot  be  prorogated  of  con- 
sent of  parties.  When  answers  are  ordered, 
they  are  usually  ordered  to  be  lodged  within 
a  corresponding  period ;  and  the  interlocutor 
pronounced  on  considering  the  reclaiming 
petition,  with  or  without  answers,  is  not  sub- 
ject to  farther  review  in  the  inferior  court, 
except  that  where  such  interlocutor  has  been 
pronounced  by  the  sheriff-substitute,  an  ap- 
peal to  the  sheriff  may  be  made  within  six 
days.  See  AppeaL  No  reclaiming  petition 
is  competent  against  the  judgment  of  the 
sheriff  pronounced  on  appeal,  whether  he 
affirms  or  alters  that  of  his  substitute ;  A.  S. 
J2thIfov.  1825;  Dick,  14th  Dec  1836,  16 
S.  <t  D.  256.  Petitions  against  decrees  in 
pbsence  may  be  received  at  any  time  before 


extract,  but  only  on  consignation  of  the  pre- 
vious expenses,  and  on  being  accompanied 
with  defences.  No  new  production  can  be 
received  with  a  reclaiming  petition,  except  in 
the  case  of  res  noviter  veniens  ad  notitiam. 
Similar  regulations  are  in  force  in  other  in- 
ferior courts.  See  A.  S.  12th  Nov.  1825,  as 
to  inferior  courts.  See  also  Madaurin's  Form 
of  Process,  p.  229,  and  Barclay^  s  Notes  onA.S. 
p.  48,  et  seq. 

Reoognition;  according  to  Skene,  derives 
its  name  from  the  superior,  who  is  presumed 
formerly  to  have  been  proprietor  of  the  lands, 
recognising  them  once  more  as  his  property, 
when  they  fall  to  him  by  the  fault  of  the  vassal. 
In  this  sense,  recognition  may  be  taken  gene- 
rally for  any  return  of  the  feu,  from  what- 
ever ground  of  eviction  that  has  happened. 
But  the  term  was  formerly  applied  specially 
to  a  casualty  abolished  along  with  wardhold- 
ing,  by  which.'^when  any  vassal  or  free  tenant, 
holding  his  lauds  by  the  tenure  of  ward,  sold 
and  "  annallied  all  and  haill  his  landes,  with 
their  pertinents,  or  the  maist  part  thereof, 
without  license,  consent,  or  confirmation  of  his 
overlord,"  the  lands,  both  those  which  had 
been  alienated  and  those  which  the  vassal  had 
retained,  fell  to  the  superior  as  a  satisfaction 
for  the  contempt  shown  him,  and  to  prevent 
vassals  from  impoverishing  themselves,  and  so 
rendering  themselves  unfit  to  perform  their 
feudal  services.  Skene,  h.  t.;  Stair,  B.  ii.  tit. 
11,  §  10;  B.  iv.  tit.  14;  Ersk.  B.  ii.  tit.  5, 
§§  10-17 ;  Bank,  ii.  148 ;  BelPs  Prine.  §  730 ; 
Karnes'  Stat.  Law  Abridg.  h.  t. ;  Brovm's  Synop. 
360,  2074 ;  Ross's  Lect.  ii.  256,  et  seq.  See 
Wardkciding, 

Reoognisanoe;  is  an  English  law  term 
signifying  a  judicial  bond,  whereby  one  or 
more  persons  become  bound  to  forfeit  a  certain 
sum,  on  failure  to  perform  a  specified  act  or 
deed.  See  Tomlins'  Diet.  h.  t.;  Blair's  Justice, 
h.  U;  Taifs  Justice,  h.  t.  For  the  form  of  a 
recognisance,  see  Appendix  to  Blaii's  Justice. 
See  also  Bail. 

Reoonunendation,  letters  of;  letters  re- 
commending a  third  party  to  the  favour  or 
notice  of  the  party  addressed.  Amongst  mer- 
chants such  letters  may  be  attended  with 
serious  consequences  to  the  writer.  Thus,  if 
a  man  spontaneously  give  letters  of  recom- 
mendation to  another,  and  if  in  them  he  con- 
vey any  assurance  of  pecuniary  safety  to  his 
correspondent  in  his  mercantile  dealings  with 
the  party  recommended,  he  thereby  incurs  an 
obligation  of  the  nature  of  guarantee.  But 
if  one's  opinion  of  another  be  asked,  and  if  in 
reply  a  mere  bona  fids  recommendation  for 
general  respectability  and  good  conduct  be 
given,  this  is  no  letter  of  credit,  and  infers  no 
responsibility  aa;ainst  the  writer.  BeWs  Com. 
i.  871,  ei  seq.;  Ersk.  B.  iii.  tit.  3,  §  61,  Ivory's 

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Note;  Brodie't  Sup.  to  Stair,  924 ;  B^t  Prme. 
§  ^0.    See  Qvarmtee. 

AMompenM ;  eqairalent  remoneration. 
This  is  dne  by  one  who  has  been  made  richer 
by  another,  without  the  purpose  of  donation. 
Thus,  where  one  builds  upon  another's  ground 
in  the  belief  that  it  is  his  own,  the  property 
of  the  builder  goes  to  the  proprietor  of  the 
ground ;  but  he  is  liable  in  recompense  so  far 
as  litcraiiu.  One  possessing  a  subject  tem- 
porarily is  presumed  to  improve  it  for  his  own 
convenience,  and  is  not  entitled  to  recompense. 
Stair,  B.  i.  tit.  8 ;  Mor^$  Note*,  p.  lir. ;  Ertk. 
B.  iii.  tit.  4,  §  19 ;  Ami.  h  226,  et  teq.;  BetCt 
Pritu.  §  5S8,  «<  uq.;  lUuiU.  ib. ;  Karnes'  Equitg 
(1825),  11&-4-7.  See  Ntgvtiorwn  Gettor. 
Contr^ution.    Adjunction.    CvmnMctum. 

Eacompematum.  Where  one  pursues  for 
a  debt  and  the  defender  pleads  compensation, 
to  which  the  pursuer  replies  by  pleading  com- 
pensation also,  this  is  termed  recompensation. 
The  different  conditions  under  which  recom- 
pensation may  occur  have  been  stated  and 
resolved  by  Stair.  He  says,— 1.  Where  A. 
contracts  a  debt  to  B.,  and  subsequently  at 
different  times  B.  contracts  two  debts  to  A. : 
If  B.  pursue  for  the  second  of  these  two,  and 
is  answered  by  the  plea  of  compensation  with 
the  debt  which  he  owes,  he  is  entitled  to  plead 
recompensation  with  the  first  debt  dne  to  him- 
self. But,  on  the  other  hand,  if  he  pursue 
for  the  first  debt,  he  is  not  entitled  to  answer 
the  plea  of  compensation  by  pleading  recom- 
pensation with  the  second.  A  case  occurred 
in  which  the  first  debt  due  to  A.  was  secured 
on  the  debtor's  liferent  escheat;  he  subse- 
quently purchased  other  debts  due  by  B.,  for 
which  he  had  no  other  security  than  B.'8  «^er 
creditorsbad.  Theothercreditors.todiminish 
A.'s  credit  upon  the  escheat,  pleaded  compen- 
sation on  a  debt  dne  by  A.  to  B.,  anterior  to 
both  of  B.'s  debts  to  A. ;  A.  pleaded  recom- 
pensation on  the  last  of  B.'s  debts  to  him,  and 
the  Court  found  generally  that  he  might  re- 
compense on  any  other  debts  in  his  person 
prior  to  the  proponing  of  the  compensation ; 
Maxwdl,  Jan.  2, 1739,  Ekhies,  voce  Compmia- 
tion,  No.  6,  M.  2550.  This  doctrine  is  con- 
trary to  that  laid  down  by  Stair.  2.  If  the 
debt  due  by  A.  be  posterior  to  both  the  debts 
dne  by  B.,  the  concourse  takes  place  between 
the  second  debt  due  by  B.  and  the  debt  due 
by  A. ;  but  on  the  ground  that  compensation, 
as  pleaded  by  B.  in  such  a  case,  would  be  a 
kind  of  indefinite  payment  which  he  might 
ascribe  to  either  of  the  debts  he  chose.  A., 
whether  he  insist  on  his  first  or  second  debt, 
cannot  recompense  with  the  other.  3.  If  the 
debt  dne  by  A.  be  in  the  middle  between  the 
two  debts  due  by  B.,  A.,  insisting  on  the  last 
debt,  may  plead  recompensation  on  the  first ; 
but  if  he  insist  for  the  first,  he  cannot  plead 


recompensation  on  the  last.  These  two  last 
rules  are  laid  down  by  Stair ;  but  there  teens 
to  have  been  no  decision  where  the  debts  were 
in  such  relative  positionsas  to  time.  It  would 
appear,  however,  that  the  doctrine  laid  down 
in  the  case  of  MaxuM,  ntpra  ett.,  is  not  limited 
in  its  application,  but  would  embrace  these 
cases  likewise.  If  such  be  the  case,  the  opera- 
tion of  the  compensation  does  not  depend  npoo 
the  situation  of  the  debts  when  eontraetod; 
but  a  creditor  porsuing  for  a  debt  may  so- 
Bwer  the  plea  of  compensation  by  pleading 
reoompenaation  "on  any  other  debts  in  his 
penon  prior  to  the  proponing  the  eompeiHa- 
tion."  Indeed,  the  whole  conm  of  decision 
runs  counter  to  the  notion  that  compensatioB 
operates  iptojure,  on  which  Stair's  mkeare 
founded.  It  has  been  found  a  good  answer 
to  the  plea  of  compenaation  on  a  ram  die  bj 
bill,  that  the  debtor  in  that  sum  was  oantioner 
for  the  creditor,  and  might  therefore  retain 
the  sum  in  relief  altfaon^  not  yet  distressed; 
and  thus  the  debt  dne  to  the  cautimier  wis 
left  anoompenaated;  /rviM,  10th  July  1711, 
if.  2686.  Compensation  being  pleaded  agaimt 
an  assignee,  he  may  reoompenae  by  debts  dn« 
to  his  cedent,  though  not  assigned  to  hin; 
Kinttme's  Creditors,  7th  Dec.  1742;  Eldia, 
voce  (7»mpensa<wn,  No.  8,  if.  2563.  See^terr, 
B.  ii.  tit.  3,  §  20 ;  Ertk.  B.  liL  tit.  4,  { 19; 
Bant.  voL  i.  p.  494.  See  Gov^e»tatio»,  imi 
mithoritiet  there  cited.  Seeal8othecageof7i«»> 
son  V.  St^i^enson,  Mar.  10, 1855, 17  Z7.739. 

B«eonTeiitioii.  Where  an  action  is  brought 
in  Scotland  by  a  foreigner,  over  whom  the 
courts  o(  this  country  have  otherwise  no  joris- 
diction,  his  adversary  in  the  suit  is  eatitled 
by  reconvention  to  sue  the  foreigner  on  a 
counter  claim,  in  compensation  or  extinction 
of  tbe  demand.  The  principle  of  this  is,  that 
a  party  is  not  entitled  to  avail  himself  of  &t 
jurisdiction  of  the  Scotch  courts,  without  sub- 
jecting himself  in  these  courts  to  all  incidntal 
claims.  In  such  cases  the  foreigner  hinueUI 
and  not  his  mandatary  merely,  must  be  cited, 
and  the  actions  must  be  between  the  sane 
parties,  or  connected  with  each  other ;  for  the 
raising  of  the  action  by  the  foreigner  does  not 
subject  him  generally  to  the  jarisdietioo  of 
our  courts.  BelTs  Prine.  p.  624;  Skautt 
Prac.  i.  103,  amd  cases  there  cited. 

Beeord.  Prior  to  the  Judicature  Act,182d, 
great  inconvenience  was  experienced  in  the 
progress  of  a  cause,  from  the  introdaction  of 
new  -averments  at  all  stages  of  the  process, 
and  sometimes  even  at  the  close  of  a  pro- 
tracted litigation.  To  remedy  this  evil,  cer- 
tain statutory  regulations  were  made  for  the 
purpose  of  compelling  the  parties  to  exhaust 
their  averments  and  pleas,  before  any  judg- 
ment on  the  merits  of  the  cause  was  pro- 
nounced.   The  pleadings  are  called  the  nmd. 


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and  form  the  basis  of  the  future  argament, 
and  of  the  decision  of  the  cause.  la  ordinary 
actions,  the  record  may  be  closed  on  the  sum- 
mons and  defences,  where  the  parties  con- 
sent.  But  that  rarely  happens,  and  a  revision 
of  the  condescendence  and  defences  is  gene- 
rally ordered.  Judicial  procedure  in  the 
Court  of  Session  is  now  regulated  by  the  act 
13andl4Vicfcc.36, 1850. 

In  suspensions,  the  record  is  usually  closed 
on  revised  reasons  of  suspension  and  answers. 
In  advocations  of  final  judgments,  where  the 
inferior  court  record  is  not  objected  to,  the 
record  in  the  inferior  court,  with  the  addi- 
tional pleas  in  law  lodged  in  the  Court  of 
Session  (where  any  such  pleas  have  been 
lodged),  is  held  as  the  record  in  the  Court  of 
Session  ;  while  in  advocations  of  interlocutory 
judgments,  or  in  cases  where  the  inferior 
court  record  is  objected  to  as  improperly  made 
up,  or  where  no  record  has  been  made  up  in 
the  inferior  court,  the  record  in  the  Court  of 
Session  will  be  closed  on  revised  reasons  of  ad- 
vocation and  answers ;  and  in  multiplepoind- 
ings,  so  far  as  re^urds  the  competition,  the  re- 
cord is  closed  on  the  revised  condescendences 
and  claims.  Where  a  party  in  the  Court  of 
Session  vezatiously  or  unreasonably  refuses 
to  close  the  record,  the  Lord  Ordinary  may 
pronounce  such  judgment  against  him  as  the 
other  party  may  crave,  and  as  the  shape  and 
nature  of  the  action  will  admit ;  against  which 
he  can  be  reponed  only  on  a  reclaiming  note 
to  the  Inner-House,  presented  within  the  re- 
claiming days,  and  upon  payment  of  such 
expenses  as  shall  be  thought  reasonable,  and 
on  consenting  to  close  the  record  immedi- 
ately; A.  S.  ll<ft  My  1828,  §  60.  In  the 
inferior  courts,  again,  if  the  parties  do  not, 
within  the  time  specified  by  the  judge,  state 
whether  they  are  willing  to  close  the  record, 
the  inferior  judge  is  entitled  to  close  the 
record,  in  the  same  manner,  and  to  the  same 
effect,  as  if  the  parties  had  agreed ;  A.  S.  12tA 
Nov.  1825.  So  also,  in  an  inferior  court, 
afler  a  condescendence  and  answers  have  been 
lodged,  and  where  no  revisal  is  asked,  the 
judge  may  close  the  record  without  again 
asking  the  parties  to  state  whether  or  not 
they  are  wilting  to  close.  In  all  ordinary 
cases,  whether  in  the  supreme  or  inferior 
courte,  where  the  defender  makes  appearance, 
and  neither  party  abandons  the  cause,  no 
judgment  can  be  pronounced  on  the  merits 
until  the  record  is  closed ;  and  as  this  is  a 
statutory  requisite  (§  4  of  stat.),  any  such 
judgment,  pronounced  before  closing  the 
record,  is  null  and  void.  But,  on  the  other 
hand,  all  dilatory  defences  and  pleas  ought 
to  be  decided  before  closing  the  record  ;  «.g., 
objections  to  the  form  of  the  summons,  to  the 
title  of  the  party,  and,  in  general,  all  pleas 


which  go  to  exclude  the  particular  tnstonce, 
without  affecting  the  cause  of  action,  or  the 
right  of  the  party  to  raise  a  new  action.  All 
these  dilatory  or  preliminary  pleas,  except 
such  as  require  probation,  must  be  either 
decided  or  reserved  beforeclosing  the  record — 
6  Geo.  IV.  c.  120,  §  5 ;  and  it  is  the  interest 
of  the  parties,  and  particularly  of  the  pursuer, 
that  they  should  be  so  decided,  since  other- 
wise they  may  have  the  effect  of  excluding 
the  action  after  the  expense  of  preparing  a 
useless  record  on  the  merits  has  been  in- 
curred. So  also  a  decree  transferring  in 
statu  quo,  or  a  decree  of  constitution,  reserving 
objections  contra  exeaitumtm,  may  be  pro- 
nounced without  closing  the  record.  After  a 
record  has  been  closed,  it  may,  in  certain  cir- 
cumstances, be  opened  up  and  amended  by 
authority  of  the  judge,  and  on  payment  of 
costs,  at  his  discretion.  This  may  be  done  in 
the  case  of  res  noviter  veniens  ad  notitiam,  or 
where  some  irregularity  has  been  committed 
in  closing  the  record,  and  in  certain  other 
special  cases ;  although,  generally  speaking, 
the  inclination  of  the  Court  is  not  to  permit 
this,  except  upon  payment  of  the  whole  pre- 
vious expenses,  and  sometimes  not  even  on 
that  condition.  Prior  to  closing  the  record, 
the  parties  respectively  must  have  lodged  in 
process  all  the  writings  within  their  power, 
on  which  they  mean  to  found ;  although  it  is 
competent,  after  the  record  is  closed,  "  to 
apply  for  a  diligence  for  the  recovery  of 
writings  tn  modum  probaiionis,  or  to  produce 
such  writings  previously  in  their  power,  as 
may  be  rendered  necessary  by  the  production 
of  papers  made  by  the  other  party  after  the 
record  is  closed ; "  A.  S.  lltt  July  1828,  §  55. 
The  record  thus  made  up  and  closed  is  usually 
disposed  of  in  the  Court  of  Session,  in  the 
first  place,  by  an  order  for  debate  before  the 
Lord  Ordinary;  although  it  is  competent, 
where  both  parties  are  anxious  for  a  decision, 
and  think  it  unnecessary  to  debate  the  case, 
for  the  Lord  Ordinary  to  make  avizandum 
with  the  record,  and  to  decide  the  cause 
without  a  previous  debate.  The  ordinary 
course,  however,  is  to  appoint  the  cause  to  be 
debated ;  and  with  that  view,  a  copy  of  the 
closed  record  is  delivered  to  the  Lord  Ordi- 
nary by  the  party  making  the  enrolment  for 
debate ;  A.  S.  I  m  July  1828,  §  21.  Parties 
are  then  heard  by  their  counsel ;  and  after 
that  debate,  the  Lord  Ordinary  either  decides 
the  cause,  or  makes  an  order  for  eases,  or 
remits  it  to  the  jury-roll,  or  takes  such  other 
step  towards  a  decision  as  to  him  may  seem 
proper — his  interlocutor  being  subject  to  re- 
view, in  the  manner  elsewhere  explained. 
See  Reclaiming  Note.  See,  on  the  subject  of 
this  article,  6  Geo.  IV.  c.  120  ;  land  2  Viet. 
c.  86;  13  and  14  Vict.  c.  36, 1860;  Shand's 


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Prae. ;  Moffarlane^s  Jury  Prat.  31,  «<  ttq.  See 
also  Ca$e$.    Hearing.    Re*  Noviter. 

Seoord.  In  England,  courts  of  record  are 
tiie  ijovereign's  conrts,  in  right  of  the  crown 
and  royal  dignity.  A  court  not  of  record  is 
the  court  of  a  private  person.  None  but 
courts  of  record  have  authority  to  fine  or 
imprison.     TomliM'  Diet.  h.  t. 

xteoordfir.  In  English  cities  or  towns 
corporate,  the  recorder  is  a  person  whom  the 
mayor  and  other  magistrates,  having  juris- 
diction, associate  with  them  for  their  direction 
in  matters  of  law  and  justice.  The  recorder 
of  London  is  one  of  the  justices  of  Oyer  and 
Terminer,  and  a  justice  of  peace  of  the  quorum 
for  putting  the  laws  in  execution  for  pre- 
servation of  the  peace  and  government  of 
the  city.  Being  the  mouth  of  the  city,  he 
delivers  the  sentences  and  judgments  of  the 
courts  in  it,  and  certifies  and  records  the 
city-customs,  iic.  He  is  chosen  by  the  Lord 
Mayor  and  Aldermen.  Tomlin^  Diet.  k.  t. 
This  office  seems  to  be  somewhat  analogous 
to  that  of  assessors  in  Scotland.  See  AsMeuors. 

Beoorder  of  fhe  Ghreat  Boll.  See  Clark  of 
th»  Pipe. 

Booord* ;  the  contents  of  any  register.  In 
Scotch  law  language  the  term  is  usually  ap- 
plied to  the  public  register  for  deeds,  instru- 
ments, and  probative  writings  of  every  kind. 
The  Scottish  system  of  public  records  and 
registration  merits  particular  attention,  as 
affording  the  means  whereby  publicity  is 
given  to  the  state  of  the  titles  to  heritable 
property^  and  as  being  productive  of  other 
important  practical  benefits.  The  subject 
may  be  digested  as  follows : — 

1.  0/ Royal  OratU*. — All  royal  grants  derive 
their  effect  from  the  appending  of  the  seal, 
set  apart  for  the  different  species  of  deeds  (see 
Seals) ;  and  at  the  office  where  each  of  the 
seals  is  appended,  the  precepts  or  warrants  of 
the  grant  are  left  to  be  preserved.  In  some 
of  these  grants  of  greater  importance,  as  the 
crown  charter,  there  are  several  records. 
Thus,  the  first  warrant  is  a  signature  autho- 
rised in  the  Exchequer,  which  becomes  a  war- 
rant for  a  precept  under  the  signet,  directed 
to  the  keeper  of  the  privy  seal,  who  again 
issues  a  precept  for  a  charter  to  the  keeper  of 
the  great  seal ;  and  at  the  office  where  each 
of  those  seals  is  attached,  the  wan-ant  is  left ; 
and  the  charter  being  completed,  and  the  seal 
appended,  the  privy  seal  warrant  remains  as 
the  authority  on  which  the  charter  is  given 
out.  In  this  manner  there  are  passed,  and 
preserved  at  the  different  offices,  the  warrants 
of  all  grants  from  the  Crown.    See  Charter. 

2.  Decrees  of  Court. — The  proceedings  in 
the  different  courts  are  preserved  by  the 
clerks  of  court,  and  become  the  warrants  of 
tlie  decrees  which  are  issued,  and  which  con- 


tain a  warrant  for  the  diligence  or  execution 
of  the  law  to  enforce  the  decree  of  the  judge. 
See  Evidenee.    Decree.    DUigenee. 

S.  Cf  Deeds. — AU  deeds  may  be  recorded 
in  virtue  of  the  clause  of  registration,  where- 
by the  granter  consents  to  the  deed  being 
registered,  and  to  judicial  authority  being 
interponed,  as  if  a  decree  in  terms  of  the  deed 
had  actually  been  pronounced;  for  which 
purpose  he  also  grants  a  mandate  to  persons 
whose  names  are  left  blank,  to  act  as  hit 
procurators  in  this  matter.  See  D«cree  ef 
Registration.  Even  where  a  deed  does  not 
contain  a  clause  of  registration,  as  it  is  called, 
it  may  be  recorded  as  a  probative  writ,  nnder 
authority  of  the  act  1698,  c.  4.  See  Evideuee. 
Where  there  is  a  clause  of  registration,  the 
principal  deed  is  retained  in  the  record,  and 
an  attested  copy  or  extract,  as  it  is  called, 
authenticated  by  the  clerk,  and  antborising 
diligence  (when  the  clause  of  registration 
authorises  diligence),  is  given  out.  There  is 
besides  a  copy  of  the  deed  entered  in  a  book, 
to  which  there  is  an  index.  Where  the  deed 
has  no  clause  of  registration,  it  is  recorded  as 
a  probative  writ  merely,  and  the  principal 
deed  marked  by  the  clerk,  and  returned  with 
a  certified  copy,  as  well  as  a  copy  kept  in  the 
record.    See  Extract.    Evidence.   Regisiratum. 

4.  Of  Diligence. — The  diligence  of  the  law 
may  be  directed  against  the  heritage  or  the 
person  of  the  debtor.  In  the  former  ease  it 
is  necessary  to  show  the  burdens  affecting 
land ;  and  accordingly  the  diligences  af- 
fecting that  niecies  of  property  are  carefully 
recorded,  and  the  validity  of  the  diligence 
made  to  depend  on  the  regularity  of  the 
registration.  The  adjudication  is  recorded 
in  what  is  termed  the  Register  of  Abbreviates. 
See  Abbreviate.  The  inhibition  has  a  register 
peculiar  to  itself.  Personal  diligence  is  abo 
recorded,  because  formerly  the  escheat  fell 
on  denunciation ;  and  the  form  is  still  con- 
tinued, although  the  principal  rea8<Hi  no 
longer  exists.  See  Diligence.  Adjudieatim. 
InhMtion,    Homing.    Denunciation. 

5.  Cf  Heritable  Rights.— Tho  registration  of 
heritable  rights  was,  ailer  several  unsuccess- 
ful attempts,  at  last  established  by  the  act 
1617,  c  16,  which  provides  for  the  registra- 
tion of  "  reversions,  sasines,  and  other  writs." 
By  this  statute  a  public  register  for  those 
deeds  is  established ;  and  it  is  thereby  ex- 
pressly enacted,  that  all  instmments  of  sasine 
shall  be  registered  within  sixty  days  after 
their  date,  otherwise  they  are  to  make  no 
faith  in  judgment  against  third  parties ;  but 
without  prejudice  to  their  being  used  against 
the  sucken  and  his  heirs.  This  act  does  not 
extend  to  instmments  of  sasine,  Ac,  in 
burgage  property,  which  are  regulated  by 
the  statute  1661,  c.  11.  See  Burgage.  Doquei. 


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Instruments  of  resignation  ad  remanentiam 
uust  also  be  recorded  within  sixty  days  of 
tlieir  date ;  1669,  c  3.  As  to  the  use  of  the 
ininute-book  as  part  of  the  record  of  heritable 
rights,  see  MinuU-Booh.  The  instrument, 
.after  being  recorded,  is  returned  with  a  cer- 
tificate by  the  keeper  of  the  record,  speci- 
fying the  book  and  page  of  the  register  where 
it  is  to  be  found.  And  extracts  from  this 
record  make  faith  in  all  cases,  except  where 
the  writs  so  registered  are  offered  to  be  tfft- 
proven;  1617,  c.  16.  In  competitions,  the 
date  of  the  registration,  not  of  the  instru- 
ment, is  the  criterion  of  preference.  This 
record  shows  the  extent  of  the  burdens  or 
limitations  on  heritage ;  and  the  minute-book 
facilitates  a  search  lor  the  contents  of  the 
record.  In  this  way,  and  by  the  records  of 
real  diligence,  the  commerce  of  land  is  ren- 
dered secure.  Ertk.  B.  ii.  tit.  8,  §§  39,  40 ; 
Stair,  B.  iv.  tit.  33,  §  4;  Mortis  Notes, 
p.  IL ;  Bank,  ii.  496,  et  seq. ;  BdPs  Prine. 
^  67,  772,843,  879,  1741;  JUust.  §  1772; 
Kame^  StaL  Law:  Abrida.  voce  Begigtration ; 
Watson's  Stat.  Law,  voce  Registration  ;  Evnter's 
Landlord  and  Tenant;  Sand/ord  on  Entails; 
BeU  on  PwrdMset's  TiOe,  70-1,  234,  et  seq.; 
Hutch.  Justice  of  Peace,  i.  73 ;  Tait  on  Evi- 
dence, 160-1, 173, 184,  192,  a  seq. ;  Brown's 
Synop.vwx  Registration,  and  pp.  1173, 1717, 
2338,  2742 ;  BeU  on  Leases,  i.  267-9;  ii.  20 ; 
Shaw's  Digest,  pp.  487, 560 ;  Ross's  Lect.  i.  92, 
et  seq.  See  Sasine,  Minute-Book,  and  autho- 
rities there  cited.  Search  of  Inrocumbrances. 
Erasures.    Doquet. 

6.  Of  Entails. — Deeds  of  entail  are,  by  the 
act  1685,  c.  22,  ordered  to  be  recorded  in  a 
special  register,  at  the  sight  of  the  Court  of 
Session,  who  are  to  interpose  their  authority ; 
and  this  recording  is  necessary  in  order  that 
the  deed  may  have  the  benefit  of  the  statute. 
A  new  register  was  accordingly  established, 
in  which  the  whole  deed  of  entail,  with  all  its 
conditions  and  restrictions,  is  ordered  to  be 
engrossed.  There  is  no  time  prescribed 
within  which  this  registration  must  be  made ; 
but  without  such  registration,  the  deed  has 
not  the  privilege  of  an  entail ;  and  the  most 
remote  heir  in  the  substitution  is  allowed  to 
insist  for  having  the  deed  recorded.  See 
Taazie. 

Reoordum;  recordatio;  according  to  Skene, 
a  report.  "Recorda  summonitionis  signifies  the 
rehearse,  report,  or  testification  of  the  execu- 
tion of  the  summons,  brieve,  or  other  precept, 
which  execution  is  now  called  indorsation. 
Recordum  eurice  signifies  the  report,  rehearsal, 
or  minute  of  that  which  is  done  in  court,  or 
the  interlocutor  of  the  court."     Skene,  h.  t. 

Reeonrse;  is  the  right  competent  to  an 
assignee  or  disponee,  under  the  warrandice  of 
the  transaction,  to  recur  on  the  vendor  or 


cedent  for  relief,  in  case  of  eviction  or  of  de- 
fects inferring  warrandice.  See  Warrandice. 
Actio  Redhibitoria.  Excanbion.  The  term  re- 
course is  also  applied  to  the  right  which  the 
holder  of  a  bill  of  exchange  has  to  recur  on 
the  drawer  and  indorsers,  should  the  drawee 
fail  to  make  payment.  Ersk.  B.  iii.  tit.  2, 
§  27;  Bank.  i.  366,  407,  678;  Bell's  Com. 
ii.  404,  424-7  ;  BeWs  Princ.  §  339 ;  Thomson 
onBiUs,  162,442,459.    &ee  Bill  of  Exchange. 

Reoovery.  In  the  English  law,  a  recovery 
is  the  effect  of  a  sentence  by  which,  in  a  suit 
instituted  for  the  recovery  of  an  estate  claimed 
by  the  party,  judgment  is  given  that  he  shall 
recover  it  tuxsording  to  his  claim.  This  was 
an  expedient  formerly  resorted  to  in  England, 
in  order  to  get  rid  of  the  fetters  of  an  entail. 
A  fictitious  process  was  instituted  against  a 
tenant  in  tail,  in  which  the  demandant  or  re- 
coverer  obtained  judgment  for  the  lands,  upon 
a  secret  confidence  that,  on  the  recovery  being 
completed,  he  would  reconvey  them  to  the 
party  in  fee-simple.  By  a  recent  statute, 
fines  and  feigned  recoveries  are  abolished,  and 
tenants  in  tail  are  enabled  to  make  an  effec- 
tual alienation  by  any  deed  to  be  enrolled  in 
Chancery,  by  which  a  tenant  in  fee  can  con- 
vey ;  3  and  4  WiU.  IV.  c.  74.  See  also  Tom- 
lin^  Diet.  h.  t. ;  Sand/ord  on  Entails,  28.  See 
Fine. 

Recrimination.  Bankton,  B.  i.  tit.  6,  §  128, 
and  Balfour  in  his  PractUks,  hold  the  plea  of 
recrimination — viz.,  that  the  pursuer  also  has 
been  guilty  of  adultery — to  be  a  good  defence 
against  an  action  of  divorce  for  adultery ;  but 
the  contrary  doctrine  is  now  established  in 
the  law  of  Scotland.  Recrimination,  however, 
may  be  made  the  ground  of  a  counter  action, 
in  which  case  it  only  affects  patrimonial  inte- 
rests. The  Court,  before  pronouncing  judg- 
ment, generally  allows  the  defender  a  reason- 
able time  for  insisting  in  a  counter  action, 
when  an  act  of  adultery  is  alleged  to  have 
been  committed  by  the  pursuer.  When  both 
parties  are  found  guilty,  both  are  divorced ; 
but  there  is  no  snch  thing  as  allowing  the 
guilt  of  the  one  party  to  stand  as  a  compensa- 
tion for  that  of  the  other.  Ersk.  B.  i.  tit.  6, 
45,  NoU  by  Mr  Ivory ;  Bell's  Princ.  §  1635 ; 
lust.  §  1533;  Lothian's  Gonsislorial  Prac._l66. 
See  Divorce. 

Rector ;  in  the  Episcopal  Church,  one  who 
has  the  charge  and  cure  of  a  parish  church. 
Ersk.  B.  i.  tit.  6,  §  9 ;  TomUns^  Did.  k.  t.  See 
Vicar. 

Reddendo;  is  the  technical  name  of  a 
clause  indispensable  to  an  original  charter, 
and  usually  inserted  in  charters  by  progress. 
It  takes  its  name  from  the  first  word  of  the 
clause  in  the  Latin  charter.  Reddendo  inde  an- 
nuatim,  Ac. ;  and  it  specifies  the  feu-duty  or 
other  services  which  have  been  stipulated  to 

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be  paid  or  performed  by  the  rasaal  to  his  ta- 
perior.  Brsk.  B.  ii.  tit  3,  5  24 ;  Stair,  B.  ii. 
tit.3,§§15«td29;  tit  4,  S  7 ;  Bank.  i.  548 ; 
BdPt  Com.  ii.  272 ;  BeiPt  Frinc.  §  762 ;  BeU 
<m  Purduuer't  Title,  278 ;  Bell  on  Ltaut,  i.  9, 
22 ;  Rot^s  Led.  ii.  160,  290.    See  Oarter. 

BadeoitaUe  Xigbta;  are  thoee  eoovey- 
anees,  in  property  or  in  security,  which  con- 
tain  a  clause,  whereby  the  graater,  or  any 
other  person  therein  named,  may,  on  payment 
of  a  certain  sum,  redeem  the  lands  or  subjects 
conveyed.  It  is  in  this  form  that  wcorities 
for  debt  are  usually  given. 

1.  RedetmabU  Rig^— Trior  to  the  Refor- 
mation, at  which  time  the  taking  of  interest 
was  nnlawfhl,  all  loans  of  money,  and  the  like 
transactions,  were  conceived  in  the  form  of 
temporary  sales  of  land,  or  purchases  of  rent ; 
the  former  were  termed  loadtett,  the  latter 
atutuaimU  righU.  The  wadset  was  a  fair  ex- 
change of  the  estate  for  the  use  of  the  money; 
and  where  the  estate  and  tiie  money  advane&d 
were  commensurate  in  value,  and  the  creditor 
took  the  lands  in  return  for  the  advance,  it 
was  termed  a  proper  wadset.  Where,  again, 
the  creditor  was  secured  in  the  full  amount  of 
his  debt,  whatever  the  retnrn  of  the  estate 
might  be,  it  was  termed  an  improper  wadset 
The  proprietor,  during  the  possession  of  the 
wadsetter,  was  feudally  divested ;  and  his  only 
way  of  returning  to  his  possession  was  by  re- 
deeming the  wadset,  in  terms  of  the  clause  of 
redemption  which  the  deed  contained.  This 
form  of  security  is  now  hardly  known  in  prac- 
tice. See  Wadut.  The  annualrent  right  was 
a  sale  of  a  certain  annual  rent  out  of  the 
estate,  secured  by  sasine ;  in  which  last  re- 
spect chiefly  it  differed  from  the  English 
rent  charge.  It  was  redeemable  on  payment 
of  a  certain  sum.  Soe  Annualrmt  Right.  After 
the  Reformation,  when  the  taking  of  interest 
was  made  lawful,  a  personal  obligation  was 
inserted  in  the  annualrent  right,  and,  in  secu- 
rity of  the  debt,  the  creditor  was  infeft  in  an 
annualrent.  This  led  to  the  introduction  of 
the  modem  heritable  bond,  consisting  of  a 
personal  obligation  of  an  annualrent  right, 
and  of  an  infeftment  in  security  of  the  princi- 
pal sum,  interest  and  penalty.  The  superi- 
ority of  the  heritable  bond  to  the  annualrent 
right  is  obvious;  since,  under  the  annualrent 
right,  nothing  could  be  drawn  from  the  estate 
but  the  interest  of  the  debt,  while  the  herit- 
able bond  covers  not  only  the  interest,  but  all 
the  remainder  of  the  rents,  in  payment  of  the 
principal.  Hence,  the  annualrent  right  was 
superseded  in  practice  by  the  heritable  bond. 
The  most  remarkable  difference  between  Lhe 
wadset  and  the  modem  right  in  security  is, 
that  the  wadset  divests  the  proprietor,  whereas 
the  right  in  security  leaves  the  right  of  pro- 
perty in  the  debtor;  in  so  much,  that  an  herit-  I 


able  bond  may  be  granted  by  a  superior  over 
his  feu-duties  without  his  being  held  to  have 
thereby  interposed  a  superior  between  himself 
and  his  vassaL  Hence,  the  discharge  of  the 
debt>  thus  heritably  secured  by  the  modem 
tight  in  security,  puts  an  end  to  the  security, 
and  disencumbers  the  lands  of  the  dehtw. 
See  Burdms. 

2.  Rigkii  ofRmenion. — These  rights  must 
be  exercised  withhi  forty  years  from  the  term 
at  which  the  proprietor  is  allowed  to  redeem ; 
unless  the  right  of  reversion  enters  the  sasine 
as  a  qualification  of  the  right  of  property. 
This  power  has  been  used  to  complete  the  right 
of  an  heir.  When,  for  exunple,  one  member  of 
a  series  of  heirs  has  disappeared,  and  it  is  un- 
certain whether  he  be  still  in  life,  in  place  of 
inserting  his  name  in  the  destination,  a  power 
of  redeeming  may  be  given  to  him,  in  the  event 
of  the  succession  opening  to  the  heir  he  is 
meant  to  precede ;  and  by  this  means  the  eeo- 
fusion  and  uncertainty  which  woold  arise, 
were  he  called  in  as  an  heir,  is  avoided.  Sbtir, 
B.  ii.  tit  3,  §  22 ;  tit.  10,  §  16 ;  B.  iv.  tit  5; 
Monf$  Notet,  p.  eclxii. ;  Ertk.  B.  ii.  tit.  8 ; 
Bank.  ii.  122 ;  BeWt  Com.  i.  705;  BdPt  Frinc. 
S§  900-5, 1131, 1774;  Kameg"  Frinc.  o/Bquify 
(1825),  243-8 ;  Earned  StaL  Law  Abridg.  voce 
Redemptim;  Brown  on  Salt,  429;  Bell  on  Fur- 
chaier't  7^,159;  Broum't Synop.voee Redemp- 
tion ;  Rou's  Led.  ii.  359,  et  teq. ;  Jurid.  Sfylet, 
4thed.i.590;Z>KtMi(M,Junell,1836,14&<tZ>. 
951.     See  Adjudication.  Poinding  Ike  Groiuid. 

Sademption.  The  order  of  redempti<m  is 
prescribed  by  the  clause  of  redemption  in  the 
redeemable  ri^ht     See  Fremimition. 

Redhibitona  Actio.  S»f>  Actio  Redlubitoria. 

Rednotion,  and  RadnotionJmprobatioo. 
The  action  of  simple  redaction  and  the  aetioo 
of  reduotion-improbation  are  the  two  varie- 
ties of  the  rescissory  actions  of  the  law  of 
Scotland.  The  object  of  this  class  of  actions, 
which  are  peculiar  to  the  Court  of  Session, 
and  cannot  be  competently  sued  in  an  inferior 
court,  is  to  reduce  and  set  aside  deeds,  services, 
decrees,  and  rights,  whether  heritable  or  move- 
able, against  which  the  pursuer  of  the  action 
can  allege  and  instruct  sufficient  legal  grounds 
of  reduction.  In  the  simple  reduction  the 
summons,  like  all  rescissory  summonses,  com- 
mences with  the  Will,  whereby  the  messenger- 
at-arms  is  authorised  to  summon  the  defender 
to  appear  in  Court  at  the  instance  of  the  pur- 
suer, and  to  bring  with  him  the  deed,  writing, 
or  decree  sought  to  be  reduced,  in  order  to  its 
being  set  aside  by  a  decree  of  the  Court.  The 
summons  then  sets  forth,  articulately,  the  se- 
veral reasons  of  reduction  ;  and  as  the  docu- 
ment called  for  is  assumed  to  be  in  the  hands 
of  the  defender,  or  at  least  not  in  those  of  the 
pursuer,  who  cannot  therefore  be  supposed  to 
be  fully  aware  of  all  its  defects,  the  first  reason 


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of  redaction  sets  forth  that  the  document  is 
Titiated  and  erased  in  subttantialibw,  that  it 
is  not  duly  stamped  or  authenticated,  and  so 
forth,  and  that  it  is  othervrise  defectire  in  the 
legal  solemnities.  The  object  of  this  reason 
of  style  is  to  cover  any  defects  or  informalities 
which  may  be  fonnd  to  exist  when  the  docu- 
ment is  judicially  produced  by  the  defender. 
But  in  the  ordinary  case,  the  other  reasons 
of  redaction  are  those  on  which  the  judicial 
contest  is  to  turn ;  and  they  necessarily  depend 
on  the  special  circumstances  of  each  particu- 
lar case.  The  conclusions  of  the  summons 
are,  that  for  the  reasons  therein  stated,  and 
for  others  to  be  proponed  at  the  discussion, 
the  document  called  for  ought  to  be  reduced 
and  declared,  by  decree  of  the  Court,  to  have 
been  db  initio,  and  to  be  now,  and  in  all  time 
coming,  void  and  null,  and  that  the  pursuer 
afaeuld  be  restored  thereagainst  in  integrum. 
The  summons  in  the  ordinary  case  also  con- 
tains the  proper  petitory  conclusion  conse- 
quent on  success  in  the  reductive  conclusions — 
€^.,  repetition  of  sums  intromitted  with  in 
rirtne  of  the  reduced  deed ;  or  maills  and 
duties  of  lands  wrongfully  possessed;  or  count 
and  reckoning,  or  the  like.  And  the  certifi- 
cation is,  that  if  the  defender  fail  to  appear 
and  to  produce  the  document  called  for,  or  to 
assign  a  sufScient  reason  to  the  contrary,  the 
Court  will  reduce,  decern,  and  declare  in  con- 
formity with  the  conclusions  of  the  summons. 
The  summons  of  reduction-improbation,  in  its 
general  structure,  does  not  differ  essentially 
from  a  simple  reduction.  But  the  action  be- 
ing appropriated  to  cases  where  falsehood  and 
forgery  are  alleged  against  the  Seed  or  docu- 
ment called  for,  and  the  conclusion  in  point 
of  form  being  not  only  that  the  writ  should 
be  reduced  and  "  improven "  as  false  and 
forged,  but  that  the  forgers  uid  users  thereof 
should  be  punished,  the  action  must  be  raised 
with  the  Lord  Advocate's  concurrence ;  which 
is  obtained  as  a  matter  of  course.  See  Con- 
eowse.  Where  falsehood  and  forgery  are  al- 
leged, the  action  must  be  an  action  of  reduc- 
tion-improbation ;  but  in  other  cases  it  is  fre- 
quently optional  to  the  pursuer  to  proceed  by 
simple  reduction  or  by  reduction-improbation. 
One  advantage  of  the  reduction-improbation 
is,  that  if  the  defender  fail  to  appear,  and  de- 
cree of  certification  contra  nonproducta  be  pro- 
nounced, the  effect  of  that  decree  will  be  to 
hold  the  writ  as  forged  and  fabricated,  and 
this  decree  will  hardly  be  recalled,  even  al- 
though it  has  been  pronounced  in  absence ; 
whereas  in  the  simple  reduction,  the  certifica- 
tion is  merely  that  the  deed  called  for  will  be 
held  as  void,  until  produced ;  so  that  at  any 
time  before  extract,  this  last  decree  of  certifi- 
cation may  be  opened  up  by  the  defender  pre- 
senting a  reclaiming  note,  in  consequence  of 


which  he  will  be  reponed,  on  payment  of  the 
usual  trifling  sum  of  expenses.  On  .account 
of  this  difference  between  the  certification  in 
the  one  action  and  in  the  other,  decree  of  cer- 
tification ooKtra  non  prod*cta,  even  in  absence, 
is  not  pronounced  de  piano  in  a  reduction-im- 
probation. Where  the  defender  does  not  ap- 
pear, the  case  is  first  continued  for  a  week ; 
and  then,  when  decree  of  certification  is  at 
last  pronounced,  it  cannot  be  extracted  for 
four  weeks.  But  the  defender  may  reclaim 
to  the  Inner-House  within  twenty-one  days 
after  the  date  of  the  interlocutor  thus  pro* 
nouneed,  and  may  be  reponed  in  the  usual 
way,  if  he  accompany  his  reclaiming  note  with 
the  writs  called  for,  or  be  in  circumstances 
to  account  for  his  failure  to  appear  sooner  to 
plead  some  valid  ^fenoe.  See  Certifieatum. 
Reponing. 

There  is  nothing  peculiar  in  the  indueice  or 
execution  of  the  summons,  either  of  simple 
reduction  or  of  reduction-improbation.  These 
summonses  are  called  in  the  usual  manner 
(vide  Catling  of  a  Swrnmom) ;  but,  according  to 
the  former  practice,  actions  of  this  class  were 
what  were  called  Inner-House  processes ;  and 
hence,  as  soon  as  the  writ  or  document  called 
for  was  judicially  produced,  the  Lord  Ordinary 
made  great  avizandum  with  the  process  to  the 
Inner-House.  A  petition  was  then  presented 
to  the  Division  of  the  Court  to  which  the  cause 
belonged,  praying  for  a  remit  to  the  I^rd 
Ordinary  to  discuss  the  reasons  of  reduction. 
This  circuitous  process,  however,  was  put  an  . 
end  to  by  the  Judicature  Act,6Geo.IV.c.  120, 
§  27,  whereby  it  was  enacted,  that  all  rescis- 
sory actions,  except  reductions  of  decrees  of 
the  Court  of  Admiralty  (now  abolished),  in 
maritime  causes,  should,  from  and  after  11th 
November  1825,  be  enrolled  and  continue  be- 
fore the  Junior  Lord  Ordinary,  without  being 
taken  by  avizandum  to  the  Inner-House,  and 
thence  remitted  for  discussion ;  the  Lord  Or-  ' 
dinary  having  power,  however,  to  remit  such 
actions  ob  contingmtiam  to  another  process  de- 
pending before  the  Inner-House,  or  before 
any  other  of  the  Lords  Ordinary.  Where  the 
defender,  in  an  action  of  reduction,  takes  out 
the  summons  to  see,  he  is  entitled,  as  in  other 
cases,  to  retain  it  for  thirteen  days,  as  ez-' 
plained  (voce  Calling  of  a  Swnmont) ;  but  if  he 
mean  to  defend  the  action  on  its  merits,  it  is 
not  necessary  for  him  to  lodge  defences  at  this 
stage  of  the  cause.  On  the  contrary,  ho 
merely  returns  the  summons,  which  implies 
that  he  means  to  tatisfy  the  production,  as  it  is 
expressed;  t.«.,  to  produce  the  documentcalled 
for,  and  to  contest  the  raasons  of  reduction. 
In  that  case,  the  pursuer  enrols  the  action 
in  the  weekly  printed  roll ;  and,  on  its  being 
called,  the  defender,  in  the  ordinary  case, 
takes  a  day  to  satisfy  the  producUon,  usually 


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at  the  distance  of  ten  or  fourteen  dajs ;  and 
on  the  production  being  latiBfied,  the  case  is 
t^aiuenrolled,andaniuterlocutorpronounced, 
holding  the  production  as  satisfied,  and  ap- 
pointing the  defender,  at  the  distance  of  eight 
or  ten  days,  or  at  such  other  time  as  the  Lord 
Ordinary  may  appoint,  to  lodge  his  defences 
on  the  merits.  In  these  defences,  the  reasons 
of  reduction  will  be  met ;  and  thereafter  the 
record  is  made  up,  in  the  ordinary  case,  in 
the  usual  manner.  By  appearing  and  taking 
a  day  to  satisfy  the  production,  the  decree  of 
certification,  pronounced  on  his  failing  to  sa- 
tisfy the  production,  is  held  as  a  decree  mi 
fan,  against  which  the  defender  cannot  be 
reponed  except  by  a  reclaiming  note  within 
twenty-one  days,  as  in  other  cases  of  Outer- 
House  interlocutors  in  faro.  Where,  howerer, 
the  defender  satisfies  the  production  and  then 
withdraws  and  lo<^;e8  no  defences  on  the 
merits,  the  decree  of  reduction  a  held  as  a 
decree  in  absence.  See  the  case  of  Maedonald 
T.  Brown,  March  8, 1835, 13  S.  594. 

Where,  again,  the  defender  means  to  ob- 
ject to  the  pursuer's  title,  or  to  plead  an  ex- 
clnnre  title,  or  to  maintain  any  other  defence 
in  bar  of  satisfying  the  production,  he  must 
return  prelminari/  defeneei  confined  to  these 
points  alone ;  which  defences  will  be  disposed 
of  either  by  making  up  a  record  [Glt^ne,  20tb 
Not.  1835,  HS.d;D.  31).  or  by  reserving 
thegi  for  consideration  along  with  the  de- 
fences on  the  merits,  as  the  case  may  be. 
The  provision  in  the  Act  of  Sederunt  11th 
July  1828  is, "  that  if  the  defender  is  to  object 
to  the  title  of  the  pursuer,  or  to  plead  on  an 
exclusive  title,  or  to  state  any  other  objection 
against  satisfying  the  production,  he  shall 
return  defences  confined  to  these  points ;  but 
if  otherwise,  no  defences  shall  be  given  in  at 
this  stage  of  the  proceedings ;  declaring  al- 
ways that  it  shall  be  competent  to  the  Lord 
Ordinary,  on  cause  shown,  though  no  de- 
fences should  be  given  in  at  this  stage,  to  re- 
serve all  objections  to  the  title  till  the  cause 
shall  be  heard  on  the  merits,  and  the  Lord 
Ordinary  shall  dispose  of  such  objections  in 
terms  of  the  act"  6  Geo.  IV.  c.  120,  §  5  ; 
A.  S.  nth  July  1828,  §  36.  In  the  case 
where  no  preliminary  defences  have  been  re- 
turned, it  shall  then  "  be  held,  unless  in  the 
particular  cases  where  the  pursuer  himself 
must  produce  the  write  called  for,  that  the 
defender  is  to  satisfy  the  productionj  and  he 
shall  be  bound  to  take  a  day  to  satisfy  ac- 
cordingly, unless  he  shall  be  reponed  by  the 
Court  on  producing  his  (preliminary)  de- 
fences ;"  and  as  "  soon  as  the  production  is 
satisfied,  the  Lord  Ordinary  shall  prepare  the 
cause  for  disposing  of  the  reasons  of  reduc- 
tion, by  appointing  defences,  after  which  the 
record  shall  be  made  up  as  in  the  case  of  an  i 


ordinary  action ;"  A.  S.  lltk  Jufy  1828,§ 51. 
The  remaining  regulations  of  the  same  Act 
of  Sederunt  are,  that  a  printed  copy  of  the 
defences  on  the  merits  must  be  delivered  by 
the  defender's  agent  to  the  Lord  Ordinary's 
clerk  at  the  first  enrolment  of  the  cause  after 
the  lodgment  of  the  defences  (§  37),  and  that 
"  if  the  pursuer  finds  it  necessary  to  add  any 
further  reasons  of  reduction  to  those  contained 
in  the  libel,  it  shall  be  competent  for  hun, 
before  the  record  is  made  up,  to  state  the 
same  as  an  amendment  of  the  libel ;  bat  in 
that  case  he  shall  furnish  the  opposite  party 
with  a  copy  of  the  amendment  forty-eight 
hoars  before  giving  it  into  process,  and  psy 
such  expenses  as  the  Lord  Ordinary  shall 
think  reasonable,  and  the  defender  shall  ^n 
in  defences  applicable  to  the  swd  amend- 
ment;" A.S.^61.  Such  reseiaory  actioos 
as  mnat  be  sent  de  piano  to  the  Jury  Court 
are  enrolled  in  the  regulation-roll  only ;  and 
every  process  of  reduction  belongs  to  that 
Division  of  the  Court  to  which  tihe  elei^  it 
attached  in  whose  office  the  process  is  lodged ; 
A.  S.§S5.  As  to  the  regulations  in  those 
cases  where  artidea  improbatory  and  ^pro- 
batory were  required  by  the  former  praetiee, 
see  Artidei  ImprobaUny  and  Apprtbatoij. 
Abiding  by. 

The  provision  in  the  Court  of  Session  Act, 
13  and  14  YicL  o.  36,  1850,  is,  that  if  the 
defender  is  to  object  to  the  title  of  the  pnr- 
suer,  or  to  plead  an  exclusive  title,  or  to  state 
any  other  objection  against  satisfying  the  pro- 
duction, he  shall  in  the  first  instance  lodge 
defences  confined  to  those  points,  and  Vbe 
form  of  such  defence  in  the  procedure  thereon 
sliall  be  the  same  as  in  the  case  of  peremptoiy 
defences  in  an  ordinary  action ;  and  if  the 
defences  so  lodged  shall  be  repelled,  the  de- 
fender, after  the  production  has  been  latii- 
fied,  shall  give  in  defences  applicable  to  the 
grounds  of  reduction,  and  upon  the  merits  of 
the  reduction,  and  a  record  may  be  made  sp 
as  in  any  ordinary  action. 

Some  practical  points  connected  with  sc- 
tions  of  reduction  deserve  attention.  (1.)  As 
to  the  title  to  purtue,  it  seems  to  be  settled 
that  a  pursuer  cannot  call  for  production  and 
reduction  of  any  writings  except  those  flowing 
from  himself,  or  from  his  predecessors  or 
authors  with  whom  he  can  connect  a  title, 
although  it  is  not  invariably  necessary  that 
he  should  be  served  heir.  Apparency  is  s 
BufiBcient  title  to  pursue  an  action  of  redno- 
tion  on  the  head  of  deathbed,  whether  the 
pursuer  be  heir  of  line,  or  heir-male,  or  heir 
of  tailzie  or  provision  ;  and  apparency  is  also 
a  good  title,  where,  firom  the  nature  of  the 
subject,  there  can  bo  no  general  service.  The 
creditors  of  an  apparent  heir  may  also  pursue 
a  reduction  on  the  head  of  deathbed,  and  even, 


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as  it  would  seem,  without  previously  ftdjudg- 
ing  the  right  to  reduce.    The  Crown's  do- 
nator,  as  ultimus  hceret,  is  also  entitled  to 
pursue  such  a  reduction ;  but  it  has  been 
held  that  the  creditors  of  a  defunct  cannot 
pursue  a  reduction  of  a  discharge  granted  by 
the  deceased  debtor  on  the  ground  of  fraud 
and  circumvention,  without  having  first  vested 
themselves  with  the  jus  actionis  competent 
to  the  deceased;   Rodger,  2d  June  1831,  9 
S.  A  D.  671.    See  the  cases  on  this  subject 
digested  in  ShantPs  Prac.  ii.  619,  et  teq.    See 
alw)  Adjudication  on  Trust-Bond.    (2.)  It  is 
sometimes  difficult  to  determine  in  what  cases 
an  action  of  reduction  is  necessary,  as  to  which 
the  only  general  rule  seems  to  be,  that  where 
the  deedds  iptojwre  null,  that  nullity  may  be 
pleaded  by  way  of  exception,  as  in  the  ease  of 
a  deed  by  a  pupil,  or  by  a  minor  having  cu- 
rators without  their  consent,  or  where  the 
deed  of  the  minor  is  in  favour  of  his  curator, 
who  cannot  be  audor  in  ran  tuam.    On  the 
other  hand,  where  there  is  no  ipso  jure  nullity, 
but  where  the  deed  is  merely  voidable,  an  ac- 
tion of  reduction  is  necessary ;  as,  for  example, 
in  the  case  of  all  deeds  executed  by  a  minor, 
even  with  consent  of  his  curators,   which, 
within  the  juadriennium  utile,  are  reducible 
6n  the  bead  of  minority  and  lesion.    So  also 
the  deeds  of  an  interdicted  or  inhibited  party, 
or  deeds  flowing  a  non  hdbente  potestatem,  or 
executed  on  deathbed  to  the  prejudice  of  the 
heir,  or  deeds  voidable  as  frauds  against  cre- 
ditors under  the  bankrupt  statutes  or  at  com- 
mon law,  all  require  to  be  reduced.    And, 
generally  faking,  all  deeds,  writings,  in- 
struments, or  executions  ex  facie  formal  and 
regular,  must  be  set  aside  by  way  of  reduc- 
tion, however  pregnant  the  proof  of  error  may 
be.    In  the  case,  however,  of  informal  execu- 
tions and  the  like,  where  the  objection  is  ap- 
parent ex  facie  of  the  document,  it  is  plead- 
able by  way  of  exception.    See  on  this  sub- 
ject, SommervUle  and  Co.,  26th  Nov.  1829, 
8  S.  136  ;  RusgeU,  27th  Nov.  1827,  6S.d!D. 
133 ;  Gibl  md  Macdoncdd,  1st  June  1827, 5  S. 
739 ;  Eamsai/,  13th  Dec.  1828,  7  S.  193. 
(3.)  It  is  now  a  settled  rule,  that  the  pursuer 
of  an  action  of  reduction,  or  of  reduction- 
improbatioD,  is  entitled  to  sue  the  party  in 
possession  under,  or  availing  himself  of,  the 
deed  or  right  under  reduction,  without  call- 
ing his  author,  "  leaving  it  to  the  defenders 
to  cite  their  authors,  or  to  intimate  to  them 
their  distress,  as  they  think  fit ;"  A.  S.  15ih 
Feb.  1723,  made    perpetual  by  A.  S.  19th 
Feb.  1742.     See  also  EUiot  v.  WiUon,  9th 
Feb.  1826,  as  reported  in  Fat.  CoU.    (4.) 
Final  decrees  of  inferior  courts,  where  not 
protected  by  statute,  are  reducible  even  be- 
fore extract.    In  like  manner,  the  interlo- 
cutors of  an  inferior  judge  may  be  reduced, 


although  the  merits  of  the  case  have  not  been 
exhausted ;  Boyd,  19th  Jan.  1825,  3  iS.  444 ; 
CampbeU,  8d  Dec.  1825,  4  S.  d  D.  264.    So 
where  an  inferior  court  decree  can  be  put  in 
execution  without  being  extracted,  reduction 
has  been  held  a  competent  form  of  review, 
though  no  extract  be  taken  ;    Jack,  11th 
March  1837, 15  D.  883 ;  but  see  CoutU,  6th 
Dec.  1836,  14  S.  110 ;  Buchanan,  20th  May 
1837,  16  D.  B.  d!  M.  958,  and  Broton,  23d 
May  1837,  15  D.  977.    Where  a  defender 
has  been  assoilzied  in  an  inferior  court,  and 
the  decree  has  been  extracted,  the  pursuer 
has  no  means  of  redress  except  a  reduction. 
In  some  cases,  however,  the  pursuer  was  not 
allowed  to  reduce  such  a  decree,  except  upon 
payment  of  the  previous  expenses  ;    Smith, 
9th  March  1826,  4  ,S.  638 ;  although  this 
rule  is  not  invariable.    See  Kirk,  6th  July 
1827,  6  S.  906.    (6.)  Certain  actions  of  re- 
duction are  appropriated  for  trial  by  jury ; 
such  are,  reductions  on  the  head  of  furiosity 
and  idiotoy,  of  facility  and  lesion,  or  of  force 
and  fear— 6  Geo.  IV.   c.  120,  §  28 ;    and 
such  actions,  on  coming  into  Court,  are  en- 
rolled in  the  regulation-roll  only — A.  S.  llth 
July  1828,  §  36.    (6.)  As  to  satisfying  the 
production,  the  general  rule  is,  that  the  de- 
fender must  produce  the  writings  called  for ; 
but  to  this  rule  there  is  an  exception,  where 
the  defender  has  not  and  never  had  the  writ- 
ings, and  where  he  does  not  represent  one 
bound    to    have    produced    them.    Where, 
again,  the  writings  are  in  publica  eustodia^- 
e.  g.,  of  the  Court  itself— the  defender  is  re- 
quired to  do  no  more  than  lodge  a  note  of  the 
dates  of  the  decrees,  or  of  recording  the  writs. 
He  is  not  bound  to  procure  extracts  at  his 
own  expense ;  but  if  the  defender  be  in  pos- 
■ession  of  an  extract  of  the  deed  or  decree 
called  for,  the  production  of  such  extract  will 
satisfy  the  production,  even  in  a  reduction- 
improbation.     If,  however,  the  deed  has  not 
been  recorded  until  after  the  raising  of  the 
action,  an  extract,  although  sufScient  in  a 
simple  reduction,  will  not  suffice  in  a  reduc- 
tion-improbation ;  and  if  the  original  deeds 
be  required  from  the  record,  it  is  the  duty  of 
the  pursuer  to  make  the  requisite  application 
to  the  Court  to  have  them  transmitted,  al- 
though, in  a  simple  reduction,  such  an  appli- 
cation will  not  be  granted  in  initio  litis ;  Alt' 
son,  6th  March  1829,  7  S.  652.     Where  the 
deed  is  recorded  in  the  books  of  an  inferior 
court,  an  extract  does  not  satisfy  the  pro- 
duction.   Indeed,  it  is  only  where  the  deeds 
are  recorded  in  the  books  of  Council  and 
Session  that  an  extract  or  a  note  of  the 
dates  of  recording  will  satisfy  the  produc- 
tion.   The  register  of  the  great  seal,  or  of 
Chancery,  has  no  such  privilege  ;  and  if  the 
I  deed  be  recorded  in  the  register  of  probative 

Digitized  byLjOOQlC 


702 


RED 


KED 


«0n(f  merely,  the  original,  whieh  in  that  re- 
cord is  not  retained  by  the  keeper,  bat  re- 
tnrued  to  the  party,  mnst  be  prodnoed  to 
satisfy  the  prodaetion.  The  warrants  of  a 
decree  cannot  be  called  for  after  twenty  years ; 
bat  within  that  time  the  defender  must  pro- 
duce these  warrants,  eren  although  tn  jmbliea 
etutodia.  These  warrants  consist  of  the  va- 
riouB  steps  of  process  which  remain  in  the 
clerk's  hands,  and  letters  of  general  and  spe- 
cial charge,  where  soch  have  been  required. 
See  Oroui^i  and  Warruntt.  A  decree  of 
proving  the  tenor  obtained  inforo  will  satisfy 
the  prodnction ;  and  it  appears  formerly  to 
hare  been  the  practice  to  allow  actions  of 
proving  the  tenor  to  be  repeated  i»cid«nter,  in 
order  to  stop  decree  of  certification.  See 
Shtmd,  it.  632,  and  cases  there  died.  Where, 
from  tiie  nature  of  the  case,  there  is  actually  no 
prodnction  to  satisfy — «.  g.,  where  a  reduction 
is  brought  of  a  transaction  which  has  been  car- 
ried through  verbally — the  defender  satisfles 
the  production  by  lodging  an  inventory, 
giving  a  short  narrative  of  the  transaction 
sought  to  be  set  aside ;  Beveridge,  i.  S96.  And 
where  the  reduction  is  of  a  service,  in  which 
the  question  ia  whether  the  inquest  did  right 
in  serving  the  defender,  it  is  competent  to 
him  to  lead  evidence  in  addition  to  the  fix 
parte  evidence  originally  laid  before  the  in- 
quest; OoArane,  17th  Dec.  1824,  3  S.  tt  D. 
ill.  (7.)  The  rules  as  to  abiding  by  a  deed 
against  which  forgery  is  proponed  are  ex- 
plained nnder  the  articles  Abiding  by,  and 
Articles  Improbatory.  But  improbation  may 
also  be  proponed  in  certain  eases  by  way  of 
exception — «.  g.,  where  forgery  is  pleaded  in 
defence,  or  as  a  reason  of  suspension.  In  that 
case,  a  minute  signed  by  counsel,  alleging 
forgery,  and  proponing  improbation,  is  lodged 
in  process,  accompanied  by  an  offer  to  consign 
L.40  Scots,  to  be  forfeited  if  the  allegation 
prove  groundless.  The  pursner  or  charger 
is  then  ordained  to  appear  and  abide  by  the 
dwd,snbp«rieulo  falsi,  as  elsewhere  explained 
(voce  Abiding) ;  and  although  the  role  as  to 
consignation  is  not  observed  where  improba- 
tion is  proponed  in  a  reduction.  It  is  still  in 
observance  where  it  is  pleaded  by  way  <^  ex- 
ception. After  the  minute  is  lodged,  an  in- 
terlocutor will  be  pronounced,  ordering  con- 
signation of  the  Ij.40  Scots  in  the  clerk's 
hands,  and  granting  commission  to  take  the 
party's  abidance,  and  in  other  respects  the 
action  will  proceed  as  when  forgery  is  pleaded 
in  a  reduction.  And  here  the  maxim  txeep- 
tio  falsi  est  ommium  tUtima  applies;  the  im- 
port of  which  is,  that  if  falsehood  or  forgery 
be  once  proponed,  no  other  nullities — e.  g.,  ex- 
tortion, want  of  statutory  solemnities,  or  the 
like — are  pleadable.  This  rule  has  no  place, 
however,  where  improbation  has  been  unsuc- 


cessfully proponed  by  way  of  action ;  for  if  a 
party  be  afterwards  sued  on  the  document 
which  he  has  failed  in  "  improving"  he  may 
plead  other  defences  without  being  met  by 
the  plea  of  competent  and  omitted.     See  on 
this  subject  generally,   Shand,  ii.  651,   and 
eases  titers  cited.    See  also  Articles  Improb»' 
tory.    (8.)  Where  a  reducti<m  is  to  be  insisted 
in  by  one  of  the  parties  to  a  depending  liti- 
gation against  the  other,  in  aid  of  a  plea  in 
the  suit,  it  is  suflScient  to  repeat  a  reduetiMi 
incidenter  by  lodging  a  signeted  summons  of 
reduction  in  the  depending  process.    Bat  a 
summons  thus  repeated  ineidenter  can  go  no 
farther  than  to  affect  the  claim  of  the  party 
in  the  particular  action  in  reference  te  which 
it  has  been  repeated ;  Skand,  ii.  652.     See 
Repeating  a  Summons.    (9.)  The  effect  of  a 
decree  of  reduction  is,  thai  the  deed  thereby 
reduced  ceases  to  be  of  any  effect  against  the 
party  who   has  obtained  it.    But  no  party 
not  in  right  of  the  party  who  has  obtained 
the  decree  can  found  on  it.     Hence,  where, 
either  in  a  simple  reducUon  or  in  a  reduetion- 
improbation,  a  deed  has  been  found  null,  the 
Court  will  not  order  it  to  be  cancelled.  Where, 
however,  it  has  been  found  false  or  forged,  it 
is  cut  down  to  all  intents  and  purposes,  and 
will  be  ordained  to  be  destroyed,  as  soon  as  the 
forger  or  user  has  been  tried  and  convicted ; 
Shand,  ii.  654.      (10.)  Inferior  courts  can 
only  judge  incidentally,  in  the  improbation  of 
writs  or  executions,  in  processes  there  de- 
pending ;  and  that  only  where  the  objection 
is  pleaded  by  way  of  excepti(m  or  reply.  And 
even  to  this  extent,  it  is  only  where  the 
writings  are  challenged  by  direct  proc^  that 
inferior  courts  can  entertain  the  exception  of 
improbation.    Indirect  proof  is  the  proper 
subject  of  an  action  in  the  supreme  civil  or 
criminal  eourt ;  Shand,  ib.  655,  and  authori- 
ties there  cited.    See  on  the  sabjeet  of  tbik 
article  generally.  Stair,  B.  ir.  tit.  20 ;  App.  § 
8  ;  Move's  Notes,  p.  xlv.,  cccxiii.-xxiii.-lxxx. ; 
Ersk.  B.  iv.  tit.  1,  §  19 ;  Bank.,  ii.  637,  et  seq.  ; 
BsWs  Com.  i.  134  ;  ii.  206,  476,  252 ;  BtiPs 
Princ  §  2255 ;  KasMS*  Stat.  LamAhridg.  h.  L ; 
DarU»^sSessionPra(i.ii.21i,etseq.;  Matfar- 
lant's  Jury  Prae.  26,  72 ;  Brown's  Synop.  h.  t., 
and  pp.  360,  1547,  2551 ;  Tait  on  Evidaue, 
196,  201 ;    Jurid.  Styles,  iii.  11,  211,  244, 
252  ;  Thomson  on  BiUs,  199,  613.  683,  716; 
Ross's  Lect.  i.  488. 

Sedvetion  BedactiTe.  An  action  of  re- 
duction reductive,  is  an  action  in  which  a  de- 
cree of  reduction,  which  has  been  erroneously 
or  improperly  obtained,  is  sought  to  be  re- 
duced. In  such  actions,  the  decree  of  reduc- 
tion and  its  grounds  and  warrants  are  usually 
called  for,  in  order  that,  when  the  decree  <^ 
reduction  reductive  has  been  pronounced,  the 
parties  "may  join  issue  upon  the   original 

Digitized  byCjOOQlC 


RED 


RBF 


703 


proceedings,  just  as  if  the  decree  reduced  had 
never  been  pronounced  or  extracted."  The 
procedure  in  such  actions  is  in  all  respects 
similar  to  that  in  ordinary  actions  of  reduc- 
tion. Beveridgis  Form  of  Procets,  i.  393 ; 
Shand^*  Prae.  ii.        See  Redudum. 

iLe^fftfiaaf^,    See  Exchange. 
^JMRrenoe.     See  Arbitration. 

Beform  Act.  The  following  are  the  prin- 
cipal provisions  of  the  act  2  Qui.  IV.  c.  65, 
intituled,  "An  act  to  amend  the  represen- 
tation of  the  people  in  Scotland,"  and  of  4 
and  6  Will.  IV.  c.  88,  and  5  and  6  WiU.  IV. 
c.  78,  introducing  certain  amendments  npon 
the  Reform  Act.  That  there  shall  be  fifty- 
three  representatires  of  Scotland  in  the 
House  of  Commons,  instead  of  forty-five — 
thirty  for  counties,  several  or  conjoined,  and 
twenty-three  for  burghs  and  towns;  §  1. 
Directions  for  the  combination  of  certain 
burghs  and  towns,  and  of  certain  counties 
with  each  other,  or  parts  of  each  other,  and 
a  description  of  the  boundaries  of  the  several 
towns,  are  contained  in  the  following  sections 
and  schedules  therein  referred  to ;  §§2, 3,  4, 
5.  No  one  can  acquire  the  right  to  vote  in 
the  election  of  members  of  Parliament  who 
does  not  possess  the  qualifications  required 
in  the  act,  except  those  who,  on  17th  July 
1832,  were  entitled  to  be  put  upon,  or  were 
already  lawfully  upon,  the  roll  of  freeholders 
of  any  shire  in  Scotland,  or  who,  before 
March  1831,  had  become  owners  or  superiors 
of  lands  affording  the  qualification  to  vote  ; 
in  which  case  there  is  an  alternative  vote  to 
a  liferenter  and  flar  so  qualified ;  §  6.  The 
act  5  and  6  Will.  4,  c.  78,  §  10,  provides,  that 
the  vote  of  any  fiar  of  a  freehold  qualification 
whose  rights  are  here  preserved  to  him,  shall 
be  taken  by  the  sheriff  on  a  paper  apart ;  and 
shall  not  be  reckoned  in  casting  up  the  votes 
where  the  liferenter  has  voted.  The  follow- 
ing classes  of  persons  are  under  legal  incapa- 
city to  vote,  a  personal  disqualification  which 
extends  both  to  connty  and  burgh  claimants : 
Scotch  peers,  minors,  lunatics,  idiots,  women, 
aliens.  Sic;  but  the  eldest  sons  of  Scotch 
peers,  who  were  formerly  under  disability, 
may  now  both  Tote  and  be  elected,  if  other- 
wise qualified.  Sheriff^,  sheriff-substitutes, 
sheriff-clerks,  depute  sheriff-clerks,  town- 
clerks,  and  depnte-town-clerks,  can  neither 
vote  nor  be  elected,  nor  act  as  agents  for  the 
candidates  in  their  respective  counties  and 
burghs ;  §§  36,  37. 

(^wtti/  Qualijications. — The  act  declares  the 
following  persons  qualified  to  be  registeredand 
to  vote  in  the  election  of  members  for  conn- 
ties  :  Every  t>ne  not  under  legal  incapacity, 
who  has  been,  for  at  least  six  calendar  months 
previous  to  the  last  day  of  July  in  the  year 
in  which  his  claim  of  registration  is  to  be 


determined,  the  owner  (though  not  infeft)  of 
any  lands,  houses,  feu-duties,  or  other  herit- 
able subjects  (except  heritable  securities) 
within  the  shire,  yielding  or  capable  of  yield- 
ing to  the  claimant,  after  deducting  feu-duty, 
ground-annual,  or  other  consideration  bur- 
thening  his  right,  the  yearly  value  of  L.IO, 
provided  he  is  in  actual  possession  of  the  sub- 
ject, or  in  receipt  of  the  profits  and  issues 
thereof  to  the  said  extent,  although  p^able 
at  longer  intervals  than  once  a  year.  Every 
one  acquiring  within  the  said  six  months,  by 
inheritance,  marriage,  marriage-settlement, 
or  mortis  causa  disposition,  or  by  appointment 
to  any  place  or  office,  property  which  wonld 
qualify  as  above,  is  entitled  to  be  registered 
on  the  first  occasion  after  his  acquisition ;  §  7. 
This  clause  as  to  property  acquired  "  by  ap- 
pointment to  any  place  or  office"  has  given 
rise  to  considerable  doubt.  See  Minister't 
Right  toVote.  Schoolmastet's  Right  to  Vote.  Fiars 
are  not  entitled  to  vote,  bnt  liferenters  and 
every  joint  proprietor,  whose  interest  is  worth 
L.IO  a  year,  are  qualified ;  §  8.  A  tenant  in 
lands,  houses,  or  other  heritable  subjects,  may 
be  registered,  who  has  held  during  the  said 
twelve  months  previous  to  the  last  day  of 
July,  whether  in  his  personal  possession  or 
not,  on  a  lease,  missive,  or  other  written  title, 
for  not  less  than  fifty-seven  years,  exclusive 
of  breaks  at  the  option  of  the  landlords,  or  for 
the  lifetime  of  the  said  tenant,  subjects  of 
L.IO  clear  yearly  value  after  payment  of 
rent ;  or  on  a  lease  of  not  less  than  nineteen 
years,  subjects  of  value  to  the  tenant,  after 
payment  of  rent  of  L.50  a  year ;  or  where 
the  rent  is  L.50,  and  the  tenant  in  the  per- 
sonal occupancy }  or  where  the  tenant  has 
paid  a  grassnm  of  not  less  than  L.300 ;  the 
value  of  grain  rents  to  be  estimated  by  the 
average  fiar  prices  of  the  connty  for  the  three 
preceding  years,  or  the  average  market  prices 
for  three  years  where  payable  in  other  pro- 
duce. Tenants  succeeding  to  any  such  lease 
within  the  said  twelve  months  are  entitled  to 
registration  on  the  first  occasion  after  their 
succession.  Bnt  no  sub-tenant  or  assignee  to 
any  fifty-seven  or  nineteen  years'  lease  is  en- 
titled to  be  registered,  unless  in  actual  occu- 
pation of  the  premises  ;  $  9. 

Burgh  Qualifiealion, — The  right  of  election 
of  the  members  for  burghs  is  taken  from  the 
town-councils,  in  whom  it  was  formerly  vested, 
and  conferred  on  individuals,  qualified  ac- 
cording to  the  following  provisions:  Every 
person  not  subject  to  any-legal  incapacity  is 
entitled  to  be  registered,  who  shall  have  been 
for  not  less  than  twelve  months  previous  to 
the  last  day  of  July  in  the  occupancy  as  pro- 
prietor, tenant,  or  liferenter  of  any  house, 
warehouse,  counting-house,  shop,  or  other 
building  within  the  limits  of  the  burgh  or 

Digitized  byLjOOQlC 


704 


REP 


REP 


town,  (eparatelj  or  jointlj  with  any  other 
house,  shop,  or  other  building  of  the  yearly 
value  of  L.10 ;  or  shall,  though  not  the  oc- 
cupant, have  been  the  true  owner,  or  husband 
of  the  owner,  of  such  premises.  Provided,  1. 
That  he  shall,  on  or  before  the  20th  of  July, 
have  paid  all  assessed  taxes  payable  in  re- 
spect of  such  premises,  previous  to  6th  April 
then  preceding.  2.  That  he  shall  have  re- 
sided for  six  calendar  months  previous  to  the 
last  day  of  July  within  the  burgh,  or  seven 
miles  of  it.  3.  That  he  shall  not  have  re- 
ceived parochial  relief  for  twelve  calendar 
months  previous  to  the  said  term ;  §  11. 
The  voter's  having  been,  during  the  requisite 
twelve  months,  in  possession  of  different  pre- 
mises in  succession,  is  a  sufficient  title  of  oc- 
cupancy, provided  he  has  paid  the  assessed 
taxes  for  them  alL  Every  joint-occupant, 
whose  share  is  of  the  yearly  value  of  L.IO,  is 
entitled  to  vote ;  §§  10, 12. 

Regittration. — No  one  can  vote  without  re- 
gistration, which  takes  place,  in  the  case  of 
those  on  the  old  roll  of  freeholders,  by  the 
sheriff-clerk  transferring  their  names  to  his 
register  of  voters  on  the  new  constituency, 
without  requiring  any  claim  to  be  made ;  §  20. 
In  the  county  registration,  any  other  besides 
old  fireeholders  must,  on  or  before  20th  July, 
give  in  a  claim,  subscribed  by  himself  or  his 
agent,  to  the  schoolmaster  of  that  parish  of 
the  eonnty  in  which  the  property,  or  the 
greater  part  of  the  property  on  which  he 
elaims,  is  situated,  according  to  a  form  con- 
tained in  schedule  (F),  to  be  furnished  for 
sixpence  each  by  the  schoolmaster.  The  time 
of  lodging  the  claim  to  be  filled  up  by  the 
sehoolmaster  on  his  receiving  it.  Each  school- 
master makes  up,  immediately  after  20th  July, 
an  alphabetical  list  of  names,  designations, 
and  places  of  abode  of  claimants ;  and  before 
24th  July  he  is  to  affix  a  copy  of  it  to  the 
ohnrch-door  of  the  Jiarish  (with  certain  ex- 
ceptions), with  a  notice  annexed  of  the  time 
at  which  the  sheriff  is  to  commence  the  exa- 
mination of  claims,  and  a  requisition  on  those 
intending  to  object  to  lodge  a  note  of  objec- 
tions on  or  before  5th  August  Any  one  re- 
gistered, or  claiming  to  be  registered,  is  en- 
titled to  object;  and  all  persons,  whether 
registered  or  claimants,  may  be  objected  to. 
The  objections  to  be  in  a  certain  form,  pre- 
scribed in  schedule  (H) ;  and  the  objector  is 
bound  to  give  notice  to  the  person  to  whom 
he  objects  by  a  copy  of  the  objection.  On  or 
before  8th  August,  the  schoolmaster  trans- 
mits to  the  sheriff-clerk  the  whole  claims  and 
objections,  with  a  duplicate  of  the  list  of 
claimants  affixed  to  the  church-door.  And 
any  claimant  who  thinks  that  his  right  to  be 
registered  is  established  by  a  written  title, 
may,  at  any  time  after  giving  in  his  claim. 


and  previous  to  the  10th  day  of  August, 
transmit  said  title,  or  an  extract  thereof,  to 
the  sheriff-clerk.  On  or  before  12th  August, 
these  are  all  laid  before  the  sheriff ;  and  he 
appoints  open  courts  to  be  held,  between  12th 
August  and  15th  September,  for  deciding  on 
claims ;  §§  13  and  22.  Section  13  contains 
the  annexation  of  certain  parishes  to  other 
counties  than  their  own.  The  sheriff  dis- 
poses first  of  the  claims  to  which  no  objec- 
tions have  been  lodged,  and  which  have  been 
supported  by  production  of  a  written  title. 
When  satisfied,  on  prima  facte  evidence,  of  the 
validity  of  the  claim,  he  marks  npon  it 
"  Admit,"  with  his  initials,  and  delivers  it  to 
be  entered  in  the  register.  When  not  so  sa- 
tisfied, he  marks  upon  it  "Reject,"  and  de- 
livers it  to  be  kept  till  applied  for.  He  next 
considers  the  claims  which  are  objected  to ; 
and  on  hearing  parties,  or  their  agents,  ad- 
mits or  rejects  in  like  manner.  No  written 
pleadings  are  allowed  upon  claims. 

By  the  act  19  and  20  Vict.  c.  68,  1856, 
amending  the  law  for  the  registration  of  par- 
liamentary voters  in  burghs,  the  aaseosora  of 
every  burgh  are  directM  to  make  oat  and 
publish  a  list  of  all  persons  entitled  to  vote 
in  the  election  of  a  member  for  the  bnrgh. 
The  list  contains  the  Christian  name  and 
surname  of  any  snch  person  written  at  full 
length,  together  with  his  occupation,  the 
place  of  his  abode,  the  nature  of  his  qoalifl- 
cation,  and  the  name  of  the  street  and  num- 
ber of  the  house  (if  any),  or  other  description 
of  the  fltuce  where  the  property  in  right  of 
which  he  is  entitled  to  vote  is  situated.  Per- 
sona omitted  from  the  list,  or  who  are  de- 
sirous of  being  registered  for  a  different  qnali- 
fioation  than  that  for  which  his  name  ap- 
pears in  the  list,  may  lodge  a  claim  with  the 
assessor,  who  makes  up  a  list  of  such  claim- 
ants. Objections  to  persons  included  in  the 
list  may  be  lodged  by  any  one  on  the  list  <^ 
voters,  and  the  assessor  must  make  up  and 
publish  a  list  of  the  persons  objected  to.  The 
sheriff  holds  courts  for  correcting  and  revising 
the  lists  before  the  Ist  of  September  and  the 
Ist  of  October,  which  courts  may  be  ad- 
journed from  time  to  time,  but  no  a4Joumed 
court  can  be  held  after  the  30th  of  Septem- 
ber in  any  year.  The  valuation-roll,  made 
up  by  the  assessor  under  the  act  17  and  18 
Vict.  e.  91,  is  prima  facie  proof  that  the  gross 
yearly  rent  or  value  of  any  subjects  specified 
in  the  valuation-roll  is,  and  has  .been  for  the 
year  from  the  15th  of  May  in  such  year,  of 
the  amount  set  forth  for  the  term  in  such 
valuation-roll,  and  also  as  prima  fade  proof 
that  the  persons  therein  set  forth  as  pro- 
prietors, tenants,  and  occupuits  respectively, 
have,  for  the  period  to  which  the  valuation 
applies,  been  such  proprietors,  tenants,  and 

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occopants  respectively,  as  therein  stated.  It 
is  competent,  however,  to  prove  to  the  satis- 
faction of  the  sheriff  or  court  of  appeal,  that 
the  subjects  are  of  a  greater  or  of  a  less  an- 
nual value  than  that  stated  in  the  valuation- 
roll.  At  every  future  election,  the  register  of 
voters  is  conclusive  evidence  that  the  persons 
therein  named  continue  to  have  the  qualifi- 
cations which  are  annexed  to  their  names  in 
the  register  in  force  at  the  election,  and  the 
oath  ofpossession  cannot  be  put  to  such  per- 
sons. The  expenses  of  the  registration  are 
defrayed  by  a  rate  levied  along  with  the  as- 
sessment for  the  relief  of  the  poor. 

Appeaii. — The  sheriff's  judgment  is  subject 
to  appeal,  notice  being  lodged  in  writing  with 
the  sheriff-clerk  to  a  court  of  the  sheriffs 
liable  to  attend  at  the  circuit  of  the  district, 
or  three  ef  them — the  court  of  appeal  to  be 
held  between  15th  and  25th  September,  and 
the  appeals  to  be  determined  before  20th 
October.  The  Reform  Act  directs  that  the 
sherifis  shall  remain  at,  or  return  to,  the  cir- 
cuit-town of  the  district  after  the  autumnal 
circuit  in  each  year,  and  there  hold  the  appeal 
court.  But  as  there  was  a  danger  that  the 
right  of  appeal  might  be  defeated  in  conse- 
quence of  the  circuit-courts  not  being  ter- 
minated in  time  to  enable  the  sherifls  to  hold 
the  court,  it  is  enacted,  by  4  and  5  Will.  IV. 
c.  88,  that  the  sheriffs  shall  hold  their  courts 
without  relation  to  the  holding  or  duration 
of  the  Court  of  Justiciary.  It  is  further 
enacted,  by  6  and  6  Will.  IV.  c.  78,  §  12, 
that  the  sherifis  composing  the  court  of  ap- 
peal may  assemble  at  the  different  circuit- 
towns  on  such  day  as  they  shall  fix  between 
September  15th  and  25th,whether  the  circuit- 
courts  have  been  held  prior  to  these  dates  or 
not.  Where  the  court  consists  of  four  sheriffs, 
the  sheriff  against  whose  judgment  an  appeal 
is  brought  has  no  voice  iu  its  determination. 
In  the  event  of  the  incapacity  or  absence  of 
any  of  the  sheriffs,  any  judge  or  jndges  ap- 
pointed to  the  autumnid  circuits  in  the  dis- 
trict in  which  the  vacancy  occirs  may,  and 
are  required,  on  the  motion  of  any  appellant 
or  respondent  in  an  appeal  in  the  district,  to 
nominate  some  other  sheriff,  or  advocate  of 
three  years'  standing,  to  attend  and  officiate 
in  room  of  the  sheriff  incapacitated  or  absent ; 
4  and  6  WiU.  IV.  c.  88,  §  1.  Where  a  she- 
riff is  necessarily  absent  horn  any  place  where 
any  duty  other  than  that  of  acting  as  a  judge 
of  appeal  is  required  of  him,  he  may  appoint 
a  special  substitute  to  act  for  him  at  such 
place  ;  failing  which  appointment,  his  ordi- 
nary substitute  at  the  place  is  entitled  and 
required  to  act  in  his  room.  And  if  the  office 
of  sheriff  at  any  time  be  vacant  by  death  or 
resignation,  when  any  of  the  duties  in  con- 
nection with  elections  (other  than  those  im- 
2t 


posed  upon  him  ad  a  judge  of  appeal)  are  re- 
quired to  be  performed,  the  ordinary  substi- 
tute at  the  head  burgh  of  the  shire  appointed 
by  the  former  sheriff  is  entitled  and  required 
to  act  until  a  successor  be  appointed  and  be 
in  a  capacity  to  act ;  5  and  6  WiU.  IV.  e.  78, 
§  11.  The  judgment  of  this  court  of  appeal 
IS  final,  but  has  no  effect  on  any  election  that 
may  have  taken  place  before  it  has  been  pro- 
nounced, unless  in  so  far  as  a  committoe  of 
the  House  of  Commons  shall  give  effect  to  it ; 
R^orm  Act,  §§  23,  25.  The  list,  as  settJed 
by  these  judgments,  composes  the  register ; 
and  only  those  who  are  upon  the  register  ean 
vote  at  an  election.  No  oath  or  affirmation 
is  necessary,  except  that  the  sheriff  will,  if 
required  on  behalf  of  a  candidate,  put  the 
oath  against  bribery  to  any  voter.  See  Bri. 
bay  Oath.  Any  one  whose  claim  has  been 
rejected  may  tender  his  vote,  which  shall  be 
entered,  being  distinguished  IVom  the  regis- 
tered votes,  so  that  an  election  committee  may 
give  effect  to  it  in  a  disputed  election ;  but 
no  scrutiny  is  allowed  respecting  votes  before 
the  returning  officer ;  §  26. 

Polling, — Sheriffs  and  town-clerks  are  di* 
rected  to  appoint  pdlling-places,  such  that  not 
more  than  600  may  poll  at  each.  Voters 
must  poll  in  the  district  where  the  t^'operty- 
which  gives  the  qualification  lies.  The  act 
5  and  6  Will.  IV.  c  78,  §  9,  provides,  that 
any  freeholder  whose  rights  are  preserved  by 
section  6  of  the  Reform  Act  shall  be  entitled 
to  make  application  to  the  sheriff  of  the 
county,  and,  upon  one  month's  notice  thereof 
being  published  on  the  doors  of  the  sheriff- 
court,  to  poll  at  all  times  thereafter  at  the 
polling-place  for  the  district  within  which  the 
county-town  is  situate.  The  sheriff  then  de- 
letes his  name  from  the  district  list,  and  in- 
serts it  in  that  for  the  district  in  which  the 
county«town  is  situate.  Where  a  fiar  and 
liferenter  are  registered  in-respect  of  the  same 
freehold  qualification,  they  must  both  concur 
in  the  application.  Atler  such  application  be- 
ing made,  and  notice  published,  a  freeholder 
cannot  poll  in  any  other  than  the  county- 
town  district.  At  any  contested  election,  the 
sheriff  must,  if  requirwi  by  any  of  the  candi- 
dates, direct  two  or  more  booths,  Ik.  for 
polling,  to  be  provided  at  each  polling-place. 
All  polls  must  be  taken,  both  at  burgh  and 
county  elections,  under  the  superintendence 
of  the  sheriff,  or  of  a  substitute  or  substitutes 
named  by  him;  whom  the  sheriff  is  em- 
powered to  name  at  his  own  discretion,  with- 
out obserring  the  forms  necessary  in  the 
appointment  of  ordinary  substitutes  receiving 
salaries.  Each  superintending  substitute  has 
the  assistance  of  a  clerk  or  clerks,  appointed 
by  the  sheriff,  with  the  concurrence  of  the 
candidates,  if  they  can  agree,  and  by  the 

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sheriff-clerk  of  the  connty  in  case  of  th«tr  not 
agreeing.  Each  poll-clerk  must  have  with 
him  at  the  polling-place  an  aathenticated  copy 
of  the  register  for  that  district  of  the  shire, 
or  of  the  hurgh  or  burghs  attached  to  each 
snch  polling-place,  entitled  to  share  in  the 
election,  alphabetically  arranged;  and  accord- 
ing to  this  copy  the  vetes  must  be  taken ;  § 
27  of  R(f«rm  Act.  By  5  and  6  WilL  IV. 
e.  78,  the  sheriff  may,  if  required  by  or  on  be- 
btdf  of  any  candidate,  or  if  it  appear  ex- 
pedient, increase  or  alter  the  number,  situa- 
tion, or  arrangement  of  the  existing  polling- 
places  and  districts,  so  that  not  more  than 
800  electors  shall  be  allotted  to  poll  in  each 
booth  or  compartment,  for  any  of  the  cities, 
burghs,  or  towns  within  his  shire.  And  in 
case  of  snch  alterations,  the  town-clerk  mnst 
forthwith  make  np  a  list  of  the  poUing^places, 
and  canse  copies  to  be  affixed  to  the  doors  of 
all  the  parish  or  town  churches  within  the 
town ;  §  3.  On  the  requisition  of  any  can- 
didate, or  of  any  elector  the  proposer  or 
■eoonder  of  a  candidate,  the  booths  or  eom- 
partments  at  each  polling-place  must  be  di- 
vided and  arranged  by  the  sheriff  or  his  sub- 
stitute, duly  authorised  by  him,  so  that  not 
more  than  100  electors  shidl  poll  in  •aeh  booth 
or  compartment.  The  person  making  the  re- 
quisition must  pay  all  expenses  iacident  to 
such  division  or  arrangement.  Writs  are  di- 
rected to  the  sheriff,  who  nnat,  within  three 
days,  fix  a  day  for  the  election,  which  mnst, 
in  county  elections,  be  not  less  than  ten  nor 
more  than  sixteen  days  after  the  writ  has  been 
received.  The  sheriff  must  give  due  intima- 
tion of  the  day  for  the  election,  by  notices 
i^xed  OB  the  doors  of  all  the  parish  diurches 
in  the  county,  or  burgh  or  burghs,  aocordmg 
as  the  election  is  for  one  or  other,  and  also, 
where  he  thinks  it  expedient,  by  advertise- 
ment in  the  newspaper  or  newqtapers  of 
greatest  circulation  in  the  county  or  district ; 
2  and  3  WilL  IV.  c.  65,  §  28.  On  the  day 
named,  the  writ  is,  in  county  elections,  pro- 
claimed at  the  nuu-ket-crom  of  the  county- 
town  ;  and  if  there  be  only  one  candidatis, 
the  sheriff,  on  a  show  of  hands,  proclaims  the 
candidate  duly  elected.  If  there  be  more 
tlisn  one,  and  a  poll  H  demanded,  the  sheriff 
orders  it  to  proceed  within  two  days,  exclu- 
sive of  Sundays  and  Saturdays ;  §  29.  The 
proceedings  are  nearly  the  same  in  the 
burgh  elections  under  the  principal  Reform 
Act ;  but  the  act  5  and  6  Will.  IV.  c.  78, 
introduces  the  following  modifications  in  the 
case  of  burghs: — Every  sheriff  to  whom  a 
writ  for  a  burgh  election  is  directed  most 
indorse  on  the  back  of  the  writ  the  di^r 
on  which  he  received  it,  and  (except  in  the 
cases  undermentioned)  within  two  dajm  mnst 
announce  a  day  for  the  election,  whMi  must 


be  not  less  than  four,  nor  more  than  ten 
days  after  the  writ  was  received.  Bat  in 
the  districts  comprehending  Kirkwall,  Wiek, 
Dornoch,  Dingwall,  Tain,  Cromarty,  Ayr, 
Irvine,  Campbelton,  Inverary,  and  Ol«n,  the 
provisions  of  2  and  3  Will.  IV.  still  apply, 
in  so  far  as  they  relate  to  the  annoaDcement 
of  the  day  of  election,  uid  the  interval  to 
elapse  between  the  receipt  of  the  writ  and  its 
proclamation ;  that  is  to  say,  in  these  dis- 
tricts of  burghs  the  rules  are  the  same  as  those 
mentioned  above  as  applying  to  eoantics. 
The  time  between  the  proclamation  and  poll- 
ing in  Orkney  is  extended  to  from  ten  to 
fourteen  days,  on  account  of  the  diffieolty  of 
eommnnicatioB ;  2  amd  3  WM.  IV.  e.  55, 
S  31.  The  sUtate  6  and  6  Will.  IV.  e.  78, 
§  5,  enacts,  that  no  poll  at  any  burgh  election 
shail  be  kept  open  for  more  than  om  iojr,  be- 
tween eight  in  the  morning  and  four  in  the 
afternoon.  Formerly,  in  the  case  of  eoonties 
the  polling  continued  for  two  days ;  but  by  tbe 
act  16  Vict,  c  28, 1853,  it  was  limited  u  io 
the  case  of  barahs  to  one  day,  from  eigkt  in 
the  morning  iofow  in  the  afternoon,  except 
in  the  case  of  Orkney  and  Shetland.  It  it 
enacted  by  the  Reform  Act,  that  each  sheriff 
in  each  poUing-plaoe  take  care  that  Uw 
attending  clerk  hare  a  certified  c<^y  of  the 
alphabetical  register,  and  receive  and  record, 
and  progressively  number,  the  rotes  for  each 
candidate,  in  a  poll-book.  The  sheriff  sad 
clerk  most  subscribe  their  names  to  each  page, 
before  an  entry  is  made  in  the  sneoeediDg 
one.  The  poll-book  or  books  must  be  pablielj 
sealed  np  by  the  sheriff  and  clerk,  and  tiken 
charge  of  by  the  sheriff;  and  (in  the  csae  of 
a  county  election)  on  the  eommeneement  of 
the  poll  of  the  second  day,  he  must  pobliely 
break  the  seals,  and  prooeed  as  formerly. 
Immediately  on  the  final  close  of  the  poll,  the 
officiating  sheriff  must  seal  up  and  tnuunit 
the  poll-books  to  the  returning  sheriff;  §  32. 
The  returning  sheriff  must,  on  the  day  next 
but  one  after  the  doee  of  the  poll  (luileai 
sueb  day  shall  be  Sunday,  and  then  on  the 
Monday  following),  openly  break  the  seals,  sod 
cast  np  the  votes,  and  openly  declare  the 
state  and  result  of  the  poll ;  and  make  pro- 
clamation of  the  member  or  members  chosen 
not  later  than  two  o'dock  r  jc  He  mnst  forth- 
with make  a  return,  in  terms  of  the  writ,niider 
his  hand  and  seal,  to  the  clerk  of  the  Crown 
in  England ;  and  if  the  rotes  be  eqnal,  be 
mnst  make  a  double  retnm;  §33.  Where 
the  election  is  for  one  burgh  sending  a  nesi- 
her  or  members  by  itself^  or  for  a  district  of 
towns  lying  wholly  within  one  shire,  thepoU- 
books  are  tnuumitted  toi,  and  the  retnm  made 
by,  the  sheriff  of  the  shire  within  which  the 
town  or  district  is  situated.  Where  the  elec- 
tion is  for  a  district  or  set  of  towns  lying  ia 


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different  shires,  the  poU-books  are  transmit- 
ted in  the  first  instanee  to  the  sheriffs  of  the 
sereral  shires,  and  afterwards  to  the  return- 
ing sheriff  for  the  district.  The  latter  part  of 
the  6th  section  of  5  and  6  Will.  IV.  o.  78, 
leaves  it  doubtful  whether  it  applies  exelu- 
sirely  to  burghs,  or  to  counties  likewise ;  but 
although  that  the  section  conunenoes  with  a 
provision  exclusively  applicable  to  burghs,  the 
general  terms  of  the  remainder,  and  the  fact 
that  it  is  little  more  than  a  re-enactment  of  the 
32d  section  of  the  Reform  Act,  seem  to  lead 
to  the  conclusion  that  its  provisions  apply  to 
counties  as  well  as  to  burghs — viz.,  that  at  any 
time  after  a  poll  has  been  demanded,  the  poll 
at  any  one  place  may  be  closed  if  all  the  can- 
didates or  their  agents,  and  the  sheriff  or  his 
substitutes,  so  agree ;  and  after  the  poll  has 
been  closed  at  all  the  polling-places,  the  she- 
riff or  his  substitute  may  forthwith,  upon  re- 
ceipt of  the  whole  poll-books,  and  after  hav- 
ing summed  them  up,  make  proclamation  of 
the  member  chosen,  at  any  hour  not  later 
than  two  o'clock  f.h.,  without  waiting  for  the 
day  iqtpointed  for  the  declaration.  Where 
the  proceedings  at  any  election  are  inter- 
rupted or  obstructed  by  riot  or  open  violence, 
the  sheriff  or  his  substitute,  where  it  occurs, 
may  adjourn  the  nomination,  or  the  taking 
the  poll,  at  the  particular  place  or  places, 
from  time  to  time,  until  the  obstruction  cease, 
always  giving  notice  of  such  adjournment  to 
the  dieriff  or  his  substitnte  who  is  to  make 
the  return.  The  state  of  the  poll  cannot  be 
finally  declared,  nor  the  result  of  the  election 
proclaimed,  until  the  poll  so  interrupted  be 
closed,  and  the  books  transmitted  to  the  re- 
turning sheriff  or  substitute.  Where  a  poll 
takes  place  for  a  district  of  burghs  situated 
in  different  counties,  the  poll-books,  at  the 
final  close  of  the  poll,  must  be  foi-thwith 
sealed  up  and  delivered,  or  transmitted  by  the 
sheriffs  in  charge  of  the  polls  to  the  returning 
sheriff.  In  ease  any  of  the  poll-books  of  any 
county  or  burgh  be  not  received  by  the  re- 
turning sheriff  in  time  to  cast  up  the  Vbtes, 
and  declare  the  election  within  the  period 
prescribed  by  this  act  (5  and  6  Will.  lY.), 
the  declaration  of  the  election  must  be  post- 
poned till  they  be  received.  On  the  day  after 
the  receipt  of  the  poll-books  (but  on  Monday, 
if  they  be  received  <m  Saturday),  and  before 
four  o'clock  P.M.,  the  sheriff  must  declare  the 
result  of  the  election,  and  make  proclamation 
accordingly. 

No  one  not  on  the  roll  of  freeholders  when 
the  Reform  ^et  passed  can  vote  for  the 
county  in  respect  of  a  subject  within  burgh, 
nor  fbr  a  lmr|h  in  lospeet  of  a  subject  beyond 
its  bounds;  Beform  Irf,  §  S6.  Provision  is 
made  for  th«  penalties  on  ofiBcers  acting  in 
the  execution  of  the  statute,  for  breach  of 


duty,  for  the  registration  fee,  for  the  ex- 
penses of  clerks,  booths,  &c.,  the  remunera- 
tion of  sherifis  for  registration,  &c, ;  §§  38  to 
44.  The  functions  of  meetings  of  freeholders 
are  transferred  to  the  commissioners  of  supply; 
§  45.  See  on  this  subject,  a  useful  "  Aniuyiis 
of  the  Reform  Act,"  with  the  decisions  of  the 
Courts  of  Appeal,  by  Mr  Cay,  sheriff  of  Lin- 
lithgow ;  also  Swinton's  Digest  of  Registration 
Appeal  Cases  at  (ilasgow.  The  election  of  peers, 
and  also  the  old  law  of  election  of  members  of 
the  House  of  Commons,  are  treated  of  in  the 
article  EUction  Law. 

Reformation.  The  change  in  the  re- 
ligious establishment  of  the  couoti^  from 
Popery  to  the  Protestant  Church  took  place 
in  Scotland  in  1560 ;  and,  by  the  act  1567, 
c.  2,  the  papal  jurisdiction  was  abolished, 
and  the  Reformed  Church  legally  established. 
Ilrsk.  B.  i.  tit.  5,  §  5. 

Begftlia;  are  the  rights  enjoyed  by  the 
Sovereign.  They  are  divided  into  majora  and 
minora.  Under  the  former  are  included  the 
several  branches  of  the  royal  prerogative 
which  are  absolutely  incommunicable  to  a 
subject ;  the  latter  are  those  which  the  Queen 
may  convey  to  any  person  at  pleasure,  as 
rights  arising  from  forfeitures,  bastardy,  or 
feudal  casualties.  There  are  also  certain 
regalia  connected  with  the  right  of  land,  as 
forests,  salmon-fishings,  gold  and  silver  mines, 
navigable  rivers,  &c.  Ersh.  B.  ii.  tit.  6,  §  13, 
and  tit.  1,  §  6 ;  Stair,  B.  ii.  tit.  1,  §  5  ;  tit.  3. 
§  60 ;  More's  Notes,  p.  cci ;  Bank.  i.  646, 
566,  et  seq.;  BelPt  Prine.  §  748;  Proton's 
Synop,  h.  t,  and  p.  1624 ;  S.  d  D.  xv.  490. 
See  Dereiicfion.    King.    Grown  Lands. 

B«galia.  The  crown,  sceptre  with  the  cross, 
sceptre  with  the  dove,  St  Edward's  staff,  four 
several  swords,  the  globe,  the  orb  with  the 
cross,  and  other  articles  used  at  the  corona- 
tion of  the  kings  of  Great  Britain,  are  called 
the  regalia  ;  Tmliiu^  Diet  h.  L  The  regalia  of 
Scotland,  consisting  of  the  crown  used  by  the 
Soettish  kings,  the  sceptre,  the  sword  of  state, 
and  a  mace,  supposed  to  have  been  the  trea- 
surer's mace,  are  deposited  within  the  Crown 
Room  in  the  Castie  of  Edinburgh,  where  they 
have  remained  ever  since  the  union  of  the 
kiagdoms  of  England  and  Scotland,  Tjiey 
are  under  the  charge  of  certain  of  the  Officers 
of  State  ^pointed  by  the  Sovereign  as  com- 
missioners for  keeping  the  Regalia.  Kamea' 
Siat  Law,  h.  t. 

Regality ;  was  originally  a  territorial  juris- 
diction conferred  by  the  King.  The  lands 
were  said  to  be  given  tn  Uberam  regalitatem ; 
and  the  persons  receiving  the  right  were 
termed  Lords  of  Regaiity.  The  civil  juris- 
dicti(m  of  a  lord  of  regality  was  equal  to  that 
of  the  sheriff ;  but  his  criminal  jurisdiction 
was  much  more  extensive,  as  he  was  compe- 

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tent  to  judge  in  the  fonr  pleas  of  the  Crown, 
and  possessed  the  same  criminal  jurisdiction 
with  the  Justiciary,  excepting  in  the  case  of 
treason.  An  offender  amenable  to  a  court  of 
regalitj  might  have  been  repledged  from  the 
sheriff,  or  even  from  the  Gonrt  of  Justiciary. 
Their  jurisdictions  vere  abolished  by  the 
20  Geo.  II.  c.  60.  Ersk.  B,  i.  tit.  4,  §  7  ; 
Bank.  i.  669 ;  BdPi  Prine.  §  749,  2191 ; 
Kama'  Stat  Law,  h.  t. ;  Browii's  Synop.  1144. 

Segiam  X^ettatem ;  the  title  giren  to  a 
collection  of  ancient  laws,  bearine  to  have 
been  compiled  by  the  order  of  Dand  I.  King 
of  Scotland.  There  has  been  a  controTersy 
about  the  authenticity  of  this  work.  By 
some  it  is  held  to  be  a  mere  compilation  from 
the  Regiam  Potettatem,  or  a  collection  of  the 
old  laws  of  England,  by  Glanrille — Craig 
and  Stair  denying  that  it  is  of  Scottish  origin, 
while  Erskine  differs  from  them;  and  Ross, 
again,  maintains  its  authenticity.  Sir  Walter 
^tt  characterises  it  as  a  treatise  "  compiled 
with  the  artfhl  design  of  palming  upon  the 
Scotch  Parliament,  under  the  pretence  of 
reviTing  their  ancient  jurisprudence,  a  system 
as  nearly  as  possible  resembling  that  of  Eng^ 
land."  And  the  prerailing  opinion  among 
legal  antiquaries  seems  now  to  be,  that  as  a 
Scottish  compilation  it  is  spurious ;  and  that 
the  artifice  was  devised  by  Edward  I.  in 
furtherance  of  his  design  to  assimilate  the 
laws  of  the  two  countries,  and  so  to  facilitate 
his  conquest  of  Scotland.  See,  in  connection 
with  this  subject,  Brsh.  B.  i.  tit.  1,  §  S2; 
Stair,  B.  i.  tit.  1,  §  16,  and  B.  iii.  tit.  4,  §  27 ; 
Craig,  1.  i.  dieg.  8,  §  11 ;  HaiUs'  Annait,  iii. 
276  ;  Rost't  Lxt.  ii.  60,  et  seq.;  Scotfs  Border 
Antiquities,  Prose  Works,  vii.  30 ;  Mr  Tkom- 
Mon't  Reports  on  the  Records,  de. 

B^fistration.  This  applies  properly  to 
the  registration  of  deeds,  which  may  be  either 
in  virtue  of  a  clause  of  registration,  or  under 
the  act  1698,  c.  4,  as  a  probative  writ.  The 
clause  of  registration  owes  its  origin  to  the 
churchmen,  who,  in  order  to  bring  causes 
arising  from  contract  under  the  cognisance 
of  the  church  courts,  inserted  a  clause  by 
which  the  party  was  made  to  consent  that  his 
whole  effects  should  be  placed  nnder  the  juris- 
diction of  the  church  courts,  to  the  effect  of 
forcing  implement  of  the  obligations  under- 
taken in  the  deed.  Those  clauses  were  so  con- 
ceived, that  the  effects  of  the  grantor  were 
declared  to  belong  to  the  creditor,  the  terms 
of  payment  of  the  obligation  being  first  ar- 
rived ;  and  as  those  deeds  were  executed 
before  a  judge,  they  contained  from  the  first 
a  decree  which  authorised  diligence  de  anno 
in  annum  on  the  very  term-day,  should  the 
debtor  fail  to  implement  his  obligation.  It 
is  this  form  on  which  the  clause  of  registra- 
tion is  modelled ;  it  appeints  a  procurator, 


whose  name  is  left  blank,  to  appear  in  pre- 
sence of  the  judge,  and  consent  to  decree  pro- 
ceeding in  terms  of  the  obligation.  Formerly, 
on  the  death  of  the  creditor  an  action  of 
registration,  as  it  was  called,  was  carried  on 
at  the  instance  of  the  heir ;  but  by  the  act 
1693,  c  15,  and  1696,  c.  39,  summary  regis- 
tration was  allowed  on  the  death  either  of 
the  granter  or  receiver  of  the  deed  ;  Ersk. 
B.  iv.  tit.  1,  §  63.  See  Records.  Decree. 
Diligmee.    Homing.    Decree  cf  Registration. 

Siegifltiy  Aoto ;  that  body  of  enactments 
dictated  by  the  naval  policy  of  Great  Britain, 
as  to  the  enregistering  of  all  ships  which  are 
to  have  the  privileges  of  British  vessels.  See 
Shif.  The  requisites  of  a  legal  register  are 
various,  consisting,  generally  speaking,  of 
proofs  of  the  build  and  ownership  of  the  ves- 
sel;  of  a  survey  of  the  ship  by  the  oflBoers  of 
the  customs ;  of  the  registry,  certificate,  and 
bond  for  the  faithful  keeping  thereof. 

The  ownership,  measurement,  and  registry 
of  ships  is  now  regulated  by  the  Merchant 
Shipping  Act  1864, 17  and  18  Vict.  e.  104; 
and  the  numerous  acts  on  the  subject  are  re- 
pealed by  the  Merchant  Shipping  Repeal  Ai^ 
1854,  17  and  18  Yict  c.  120.  See  BeWs 
Com.  i.  152,  et  seq. ;  BeWs  Prine.  §§  1.S25-8  ; 
Brovn  on  Sale,  62 ;  Thomson  on  Bills,  127 ; 
Tail  on  Evidence,  220-8 ;  Jvrid.  SMes,  2d  edit, 
ii.  606-10;  Brodu^s  Sup.  to  Stair,  948; 
Inglis,  Nov.  19, 1833, 12  S.  67 ;  LesUe,  June 
23, 1836, 14  S.  994;  Abbotts  Law  of  Skipping. 
See  Ship,  Vendition.  DtUwry.  Namgation 
Acts.    Mortgage. 

Sagiu  nofBMonhip ;  in  a  university,  is 
a  professorship  founded  by  the  Crown. 

Aflgrateris ;  one  who  buys  any  merchan- 
dise or  other  thing,  and  takes  "  unlesumlie" 
greater  price  for  the  same  afterwards. 
Skene,  h.  t. 

Bagrating.     See  Forestalling.    Engrosser. 

B^rett;  re-entry.  Letters  of  regres 
were  granted  by  the  superior  of  a  wadset  to 
the  wadsetter.  By  the  wadset,  the  wadsetter 
wa^  completely  divested,  and,  when  he  re- 
deemed the  subject,  he  claimed  an  entry  from 
the  superior  as  a  stranger — the  superior  being 
no  more  bound  to  receive  the  wadsetter  than 
he  could  have  been  to  receive  any  third 
party.  To  remedy  this,  letters  of  regress  were 
granted  by  the  superior,  under  which  he  be- 
came bound  to  re-admit  the  wadsetter  at  any 
time  when  he  should  demand  an  entry.  Ersk. 
B.  ii.  tit.  8,  §  18  ;  Stair,  B.  ii.  tit  10,  §  12 ; 
Bank.\\.  134,ef  ««j.;5e//'«Prmc.§904;  Jurid. 
Styles,  iii.  123  ;  Brown's  Synop.  \5SJ  ;  Ross's 
I'eet.ii.334.    Sw  Wadset. 

Behabilitatioii ;  reeapadtaiion ;  the  resto- 
ration of  a  power  or  capacity  to  a  person  who 
had  been  previously  denuded.  Thus,  infamia 
juris  formerly  disqualified  a  person  for  being 


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ftdmitted  as  a  witneas;  bnt  a  pardon  from 
the  King  rehabilitated  him  in  so  far  as  con- 
cerned his  admissibility.  See  Infamy,  So 
also  one  who  has  been  outlawed  has  no  per- 
»ona  standi  in  judicio ;  but  the  reponing  of 
him  against  the  sentence  of  outlawry  rehabili- 
tates him  in  all  the  rights  and  privileges  of 
a  free  subject,  including  the  right  to  have  a 
fair  trial.  Hume,  ii.  264,  344;  Batik,  ii. 
275.    See  Fugitalum.    Evidence. 

Bfl-Iniuranoe.  An  insurer  or  underwriter 
is  entitled  to  protect  himself  against  the 
dangers  of  his  own  engagement  by  what  is 
termed  a  re-assurance,  in  which  he  insures 
himself  against  the  risk  he  runs  by  his  own 
original  insurance.  In  this  transaction,  in 
the  event  of  the  original  insurer's  insolvency, 
the  person  originally  insured  has  no  interest, 
and  he  cannot  recover  from  the  last  insurer 
in  any  other  way  than  in  common  with  the 
other  creditors  of  the  first  insurer.  A  doable 
insurance  differs  from  re-insurance  in  this, 
that  it  is  made  not  by  the  insurer  but  by  the 
insured.  Its  effect  is  not  to  give  a  double 
indemnification  to  the  insured,  who  can  claim 
his  actual  loss  only,  but  to  give  him  a  claim 
for  this  loss  against  all  the  underwriters  on 
both  policies,  to  the  extent  of  the  sums  for 
which  each  is  boand.  The  underwriters,  on 
the  other  hand,  are  entitled  to  a  recourse 
against  each  other,  whereby  the  loss  is  allo- 
cated proportionally  on  the  whole  under- 
writers in  both  policies.  A  party  may  re- 
assure his  policy  by  expressing  it  to  be  a  re- 
assurance, provided  the  former  insurers  are 
insolvent  or  dead,  but  otherwise  such  re- 
assurance is  prohibited  by  statute ;  19  Geo. 
II.  c.  37  ;  Bdl's  lUust.  §  503,  Nos.  8  and  9. 

Bei  Interrentiu ;  is  the  occurrence  of 
some  circumstance  on  the  faith  of  a  bargain, 
such  as  the  performance  of  an  act  in  imple- 
ment of  the  bargain,  or  the  non-petformance 
of  an  act  which,  but  for  the  bargain,  one  or 
other  of  the  parties  would  have  performed, 
whereby  matters  do  not  remain  entire — i.e.,  as 
they  were  before  the  bargain  was  made — in 
consequence  of  which  the  law  holds  that 
neither  party  is  entitled  to  resile.  To  give 
ret  intenmius  these  effects,  it  must  be  known 
to  the  party  against  whom  it  is  pleaded,  and 
must  have  been  permitted  by  him  as  fiowing 
from  the  contract.  Ret  interveuiut  may  exist 
ahhongh  restitutio  in  integrum  be  practicable. 
Ersk.  B.  ii.  tit.  6,  §  21 ;  B.  iii.  tit.  ii.  §  3, 
and  Notes  by  Mr  Ivory ;  BeWs  Com.  i.  328-9 ; 
BMs  Prine.  §  26  ;  Must.  ib. ;  Bell  on  Leases, 
i.  285 ;  Hunter's  Landlord  and  Tenant,  283-4, 
337-10-41 ;  Tait  on  Evidence.  See  Homoto- 
gation.    Lease. 

Beif ;  or  robbery,  is  one  of  the  four  pleas 
of  the  Crown.  Robbery,  according  to  Skene, 
is  when  a  man  lies  by  the  King's  highway, 


passing  to  market  towns,  in  woods,  ditcheB,Sor 
any  other  secret  place  where  people  pass,  and 
robs  and  spnilzies  them  ;  and  "  albeit  he  take 
away  but  the  valour  of  a  penny  or  less,  it  is 
felonie ;  for  the  malapertness  of  the  deed, 
breaking  of  the  King's  peace,  and  the  danger 
in  the  quhilk  a  man  is  of  his  life,  causes  the 
offence  to  be  greater  than  gif  the  geeir  so 
robbed  or  spuilzied  had  been  thieftuously 
stolen."    Skene,  h.  t.     See  Robbery. 

Aejeotion  in  Tranaita.  A  buyer  of  goods 
who  finds  himself  unable  to  pay  the  price, 
but  is  not  yet  a  bankrupt,  has  the  power, 
and  ought  to  reject,  goods  offered  to  him  by 
a  carrier  or  other  person  to  whom  they  have 
been  delivered  for  transmission ;  and  such 
rejection  will  have  the  effect  of  restoring  the 
goods  to  the  seller,  provided  he  agree  to  re- 
scind the  contract.  The  buyer,  in  contem- 
plation of  bankruptcy,  cannot  reject  the  goods 
after  they  have  ceased  to  be  tn  transitu,  and 
are  identified  with  his  stock.  Re-delivery, 
in  such  circumstances,  would  be  a  fraudulent 
preference  of  the  seller  over  the  purchaser's 
other  creditors.  What  shall  amount  to  de- 
livery, to  the  effect  of  completing  the  transit, 
depends  a  good  deal  upon  circumstances.  It 
is  not  delivery  if  the  goods  are  still  on  the 
carts  at  the  buyer's  cellar-door.  It  has  even 
been  decided  that  the  buyer  may  take  the 
goods  into  his  warehouse  eustodia  causa,  and 
yet  validly  reject  them,  by  writing  to  the 
seller  that  they  have  been  ttfken  in  for  his 
behoof.  If  the  goods  be  taken  only  by  a 
clerk,  without  special  authority,  they  may 
still  be  rejected  by  his  principal.  It  has  been 
decided  in  England  that  an  actual  bankrupt 
has  no  power  of  rejecting  goods  even  t»  tron- 
stttt ;  but  in  Scotland  it  has  been  repeatedly 
said  from  the  bench,  that  a  bankrupt  may 
reject  goods  tn  tronsttu,  and  that  it  would  be 
fraud  in  the  bankrupt  and  his  creditors  to 
take  delivery  of  such  goods.  Ersk.  B.  iii. 
tit.  3,  j  8,  Ivory's  Note ;  Bell's  Com.  i.  232 ; 
BelPs  Prine.  §  1310 ;  lUust.  ib.  See  Stoppage 
in  Transitu.    Ddivery. 

Bqoinder;  in  English  law,  the  defendant's 
answer  to  the  pluntiffs  replication.  Tomlinil 
Diet.  h.  t. 

Selationihip.  See  ContanguinUy.  Cog- 
nate.   Agnate. 

Relaxation ;  were  letters  passing  the  Sig- 
net, whereby  a  debtor  was  relaxed  from  the 
horn,  that  is,  firom  personal  diligence.  They 
proceeded  either  upon  errors  in  the  diligence 
or  on  the  consent  of  the  debtor.  Bnt  the  ne- 
cessity of  letters  of  relaxation  is  superseded, 
as  to  civil  debts,  by  the  act  20  Geo.  II.  c.  50. 
In  criminal  prosecutions,  one  (who  has  been 
outlawed  may  apply  to  the  Conrt  of  Justi- 
ciary for  letters  of  relaxation,  reponing  h  im 
against  the  sentence.  Ersk.  B.  ii.  tit.  5,  §  65  ; 

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SwM,  ii.  264 ;  Stair,  B.  Ui.  tit.  2,  §  14 ;  B. 
iv.  tit.  47.  §  10,  et  seq. ;  tit  S2,  §  22  ;  Bank. 
i.  633 ;  ii.  259  ;  iii.  3 ;  Bdft  Prine.  §  736  ; 
Broum'$  5yii«p.  p.  586 ;  Ross'm  Lett.  i.  346. 
See  DtnuMicUum,    Escheat.    Outlaw. 

Beleaae ;  the  gift  or  discharge  of  a  right 
or  action  which  aaj  one  has,  or  claims,  against 
another  or  his  land.^  See  Ttmlin^  Did.  h.  U 
The  term  is  also  applied  to  liberation  from 
prison.     See  Liberation.    Bail. 

Keleraiioy;  fitness  and  pertineney.  The 
relevancy  of  Uie  libel  is  the  justice  and  soffi- 
eiency  of  the  matters  therein  stated  to  war- 
rant a  decree  in  the  terms  asked.  The  rele- 
vancy of  the  defence  is  the  jostiee  of  the  alle- 
gation therein  made  to  elide  the  conclusion 
of  the  libel,  and  to  warrant  a  decree  of  ab- 
solvitor. In  criminal  trials,  an  interlocator 
finding  the  libel  against  the  aeensed  to  be 
relevant  b  invariably  pronounced  before  the 
facts  charged  are  admitted  to  proof  befbre  the 
jury.  In  civil  cases  the  rule  is  different,  it 
being  frequently  necessary  in  such  cases  to 
have  the  facts  in  question  ascertained  before 
atuwer,  as  it  is  technically  expressed — that  is, 
before  determining  as  to  the  relevancy  of  the 
respective  averments  of  the  parties.  Stair, 
B.  iv.  tit.  39,  §  4  ;  Bank.  B.  iv.  tit.  25,  §  4 ; 
Ertk.  B.  iv.  tit.  4,  §  91.  As  to  the  disposal 
of  questions  of  la w  and  relevancy  in  jury  kials, 
see  Maefariane's  Ptac.  47.  See  Criminal  Pro- 
ieeution,    Jvry  Cmrt.    Defences.    Record. 

Rderina;  according  to  Skene,  is  a  French 
word  from  the  Latin  relevare,  to  relieve  or 
take  up  that  which  is  fallen.  For  it  is  given 
by  the  tenant  or  vassal,  being  of  perfect  age, 
after  the  expiring  of  his  ward,  to  his  overlord, 
of  whom  he  holds  his  lands  by  knight  service — 
that  is,  by  ward  and  relief;  and  by  payment 
thereof  he  relieves,  and  as  it  were  raises  up 
i^in,  his  lands  after  they  were  fallen  down 
in  his  superior's  hands  by  reason  of  ward. 
Skene,  h.  i.    See  Rdief. 

Seiiot ;  a  widow.  A  widow  has  a  claim 
against  the  representatives  of  her  husband  for 
aliment  corresponding  to  her  husband's  rank 
and  fortune  from  the  first  day  of  her  viduity 
to  the  first  term  at  which  her  legal  or  con- 
ventional provisions  are  payable.  She  may 
also  claim  {W>m  her  husband's  representatives 
the  expense  of  suitable  mournings,  and  the 
expense  attending  the  birth  and  baptism  of  a 
posthumous  ohil£  But  these  claims  for  ali- 
ment, mournings,  &c.,  are  postponed  to  the 
claims  of  the  husband's  creditors.  Ertk.  B.  i. 
tit.  6,  §  41,  and  B.  ii.  tit.  9,  §  45 ;  iStotV, 
B.  iii.  tit  11,  §  24 ;  tit  8,  §§  43  and  47 ; 
More't  Notes,  cxv.,  oxiv. ;  Bank.  ii.  379;  BeWs 
Com.  i.  632.  See  Marriage.  Jus  Retictce. 
Teres.   Contract  of  Marriage.    Tailzie.  Divorce. 

BeUitf ;  has  in  the  law  of  Scotland  various 
acceptations ;  as,  1.  The  Casvalty  of  Relief;  2. 


JWiy  of  CautioMTs ;  and,  3.  Relief  belwem 
Heir  am  Executor. 

1.  The  casualUf  tf  relief  ht  sum  exigible 
from  an  heir  on  his  entry  with  the  superior. 
It  has  been  doubted  whether  this  casualty  be 
exigible  from  an  heir  in  a  feu-holding.  But 
Ermine  shows  it  to  be  a  casualty  common  to 
every  feudal  tenure.  The  term  "  relief"  is 
applied  to  this  exaction,  because  the  fen  is 
thereby  relieved  or  recovered  from  the  su- 
perior by  the  entry  of  the  heir.  And  it  is 
the  established  practice  to  hold  the  heir,  both 
in  feu  and  blench  hoklings,  liable  in  relief- 
duty  equal  to  one  year's  feu  or  blench  duty 
over  and  above  the  ordinary  annual  duty. 
Ersk.  B.  ii.  tit  5,  §  47,  et  seq. ;  Stair,  B.  ii. 
tit  4,  §  26,  et  seq.;  Mor^s  Notes,  p.  ccriii. ; 
B<mk.  i.  628,  et  seq. ;  BeU's  Prine.  §§  715-16. 
See  Relevifun.    GomposiHon, 

Where  an  entail  has  been  recognised  by  a 
superior,  and  a  composition  paid  by  the  vassal, 
each  substitute  is  liable  iu  relief  only,  and 
not  in  composition,  on  his  succeeding  to  the 
estate.  See  the  ease  of  SHtiing  v.  Ewart, 
Feb.  18,  1842,  4  D.  684 ;  House  of  Lords, 
4th  Sept.  1844,  4  BeU,  128  ;  2  Ros^s  L.  C. 
340.  See  also  the  case  of  Achocate-OenertU  r. 
Swinton,  in  Exchequer,  Jan.  30, 1854. 17  i>. 
21.  When  the  party  requiring  a  recognition 
of  the  entail  is  the  heir  alwqui  sueeessorum 
nnder  the  existing  investiture,  he  is  liable 
only  in  relief;  but  the  superior  is  entitled  to 
insert  in  the  charter  granted  by  him  a  re- 
servation of  his  right  to  exact  composition  on 
a  substitute  requiring  an  entry  under  the 
entail  who  is  not  the  heir  alioqui  successomm 
under  the  former  investiture.  See  the  rase 
of  Madcensie  v.  Madiauie,  4th  July  1777, 
Jfor.  15503 ;  also  App.  voce  Superior  and 
Vassal,  No.  2;  also,  2  HaUes,  760,  and  %  Boss's 
L.  G.  398.  See  also  the  recent  case  of  the 
Marquess  of  Hastings  v.  Oswald,  27th  May  1859, 
21  D.  871. 

2.  Rdi^  of  Cautioners  and  of  (Miganis  gt:ne- 
ralbf. — The  cases  in  which  a  cautioner  is  en- 
titled po  sue  his  principal  for  relief  are  stated 
in  the  article  Cautionary,  p.  143.  The  cau- 
tioner may  be  infeft  in  relief  of  his  obliga- 
tion, but  he  is  not  entitled  to  enter  into 
possession  till  he  either  pay  the  debt  or  be 
distressed  for  payment.  An  infeftment  in 
relief,  or  any  other  security,  granted  to  the 
cautioner,  accrescee  to  the  creditor,  so  that 
he  may  demand  the  benefit  of  it  for  the 
payment  of  his  debt  A  cautioner's  claim  of 
relief  has  been  held  a  good  warrant  for  ar- 
restment It  may  be  stated  as  a  general  rule, 
that  any  one  who  warrantably  takes  upon 
himself  the  fulfilment  of  another's  obligation 
is  entitled  to  relief  from  the  party  for  whom 
he  interposes.  Thus,ifoneoftwoeo-obligants, 
bound  only  pro  rata,  pay  the  whole  debt,  be  is 

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entitled  to  be  relieved  to  the  extent  of  the 
other's  share.  And  where  both  are  bound  t» 
aolidwR  as  regards  the  creditor,  they  are  en- 
titled to  proportional  relief  inter  m.  The 
obligation  to  relieve  holds  in  those  cases  like- 
wise where  a  party  is  rendered  liable  to  pay 
expenses  or  damages  through  the  negligence, 
fault,  or  delict  of  a  third  party.  For  it  fre- 
quently happens  that,  although  the  injured 
party  may  be  entitled  to  come  against  the 
principal  in  the  first  instance,  yet  the  princi- 
pal is  not  bound  to  suffer  for  anothei''s  fault. 
Stair,  B.  i.  tit.  &,§  9;  tit.  15,  §  8;  tit.  17, 
§  13 ;  Mor^$  Notes,  p.  cxiii. ;  Mr  Brodie's 
Supp.  944;  ErA.  B.  iii.  tit.  3,  §  65,  et  teq.; 
Bank.  i.  463-4;  BeWa  dm.  i.  847,  et  tea.; 
BeWt  Prine.  §§  62, 265, 267,  272 ;  lOutt.  ib. ; 
Earned  Princ.  of  Equity  (1825),  75 ;  Rot^t 
Leet.  i.  77,  161,  171 ;  St  Ann's  DutiUery 
Company,  Feb.  7, 1834, 12  S.  407 ;  Gomttry, 
July  8,  1834,  12  S.  895.  See  Cavtumary. 
Benefieivm  Dmsitmig.  Beneficium  Ordinit. 
Ditausion.  Bond  of  Reli^.  In/eftment  of 
Relief. 

3.  ReUef  between  Heir  and  ExeetUor. — This 
claim  of  relief  arises  where  either  the  heir 
pays  a  debt  legally  payable  by  the  executor, 
or  where  the  executor  pays  a  debt  in  which 
the  heir  is  the  proper  debtor.  Thus,  if  the 
heir  pay  a  personal  debt,  he  has  relief  against 
the  executor ;  and  sfaonld  the  executor  have 
paid  an  heritable  debt,  he  has  relief  against 
the  heir.  This  reciprocal  relief  is  not  af- 
fected although  the  last  will  or  other  settle- 
ment of  the  deceased  should  contain  a  clause 
burdening  the  heir  or  executor  with  certain 
debts;  unless  such  appear  clearly  to  have 
been  the  intention  of  the  testator,  and  that  he 
has  taken  the  legal  means  of  expressing  his 
intention.  Otherwise,  such  a  clause  is  un- 
derstood to  have  been  introduced  merely 
in  favour  of  the  creditor,  but  as  in  no 
shape  intended  to  affect  the  mutaal  rights  of 
heir  and  executor.  Erik.  B.  iii.  tit.  11, 
§  48 ;  Stair,  B.  iii.  tit.  5.  §  13  ;  tit.  8,  §  65 ; 
B.  iv.  tit.  23,  §  22 ;  Mor^s  Notes,  ccclix. ; 
Bank.  ii.  293 ;  Bell's  Prine.  §  1936 ;  lUust.  § 
715 ;  Jiirid.  Styles,  2d  edit.  iii.  67-8.  See 
Discussion. 

Religion.  Courts  of  justice  cannot  take 
notice  of  religious  opinions,  in  order  to  decide 
whether  they  are  right  or  wrong ;  but  they 
may  take  cognizance  of  them  as  fkcts,  with  a 
view  to  determine  the  ownership  of  property ; 
GraiffdaUie,  Dec.  21, 1812,  and  Feb.  5, 1813, 
1  Dow,  1.  All  persons  are  now  admissible  as 
witnesses,  whatever  their  religious  principles 
may  be,  provided  they  believe  in  a  God  and 
a  future  state  of  retribution.  Ersk.  B.  iv. 
tit.  2,  §  23.  See  Blasphemy.  Violating 
Sepulchres. 

Reloeation,  Taeit;  is  the  tacit  or  implied 


renewal  of  a  lease,  inferred  where  the  land- 
lord, instead  of  warning  the  tenant  to  re- 
move at  the  stipulated  expiration  of  the 
lease,  has  allowed  him  to  continue  without 
making  any  new  agreement.  This  is  termed 
tacit  rdocation.  This  renewal  is  held  to  be 
for  one  year ;  and  either  party  may  put  an 
end  to  the  tacit  relocation  by  taking  the 
requisite  steps  forty  days  before  Whitsunday 
of  any  year  in  which  the  parties,  or  either  of 
them,  desire  to  bring  the  contract  to  a  termi- 
nation. Ersk.  B.  ii.  tit.  6,  §  35 ;  Bell  on 
Leases,  ii.  132,  et  seq.;  Bank.  ii.  103,  112; 
Bell's  Princ.  S§  173,  1265 ;  Illust.  §  1265 ; 
Hunter's  Landlord  and  Tenant;  Hutch,  Justice 
of  Peace,  ii.  440;  Tail's  do.,  vocibus  Tack, 
Servants ;  Ross's  Lect.  ii.  641.    See  Lease. 

Remainder^  In  English  law,  an  estate  in 
remainder  is  an  estate  limited  to  take  effect 
and  be  ei^oyed  after  another  estate  is  de- 
termined. TbuSy  if  lands  be  granted  to  A. 
for  twenty  years>  and  after  that  term  to  B. 
and  his  heirs  for  ever,  A.  is  tenant  for  years, 
remainder  to  B.  in  fee;  TomUwf  Diet.  h.  t. 
The  distinction  is  somewhat  analogous  to  that 
which  exists  between  fee  and  liferent  in  the 
law  of  Scotland.     See  Fee  and  Liferent. 

Remembrano«n ;  officers  of  the  Ex- 
chequer, whose  duty  it  is  to  remind  the  Lord 
Treasurer  and  Court  of  Exchequer  of  such 
things  as  are  to  be  called  on,  and  dealt  in, 
for  the  Queen's  benefit  Tomlin^  Diet.  h.  t.  , 
Remiflue  IigiixisB.  In  an  action  of  di- 
vorce for  adultery,  the  plea  of  remissio  injuria 
— t.  «.,  that  the  pursuer  has  already  forgiven 
the  injury — affords,  when  established,  a  good 
defence.  Forgiveness  may  be  declared  ex- 
pressly, or  by  fact  and  deed — e.  g.,  by  the 
injured  party  cohabiting  with  the  defender 
after  his  or  her  guilt  was  known.  In  order 
to  support  this  defence,  it  is  necessary  to  aver 
and  to  instruct  that  the  specific  guilt  libelled 
was  known  to  the  pursuer,  and  that  it  was 
pardoned.  Mere  suspicion  will  not  be  suffi- 
cient; there  must  be  a  complete  and  perfect 
belief  derived  from  what  is  considered  satis- 
factory evidence  of  the  guilt.  If  the  remissio 
occurred  during  the  course  of  the  process,  the 
oath  de  caiwnnia  is  complete  evidence  of  the 
belief  of  the  guilt  libelled,  whether  it  actually 
existed  or  not.  The  raising  of  the  process, 
or  the  giving  of  instructions  to  counsel  to 
prepare  the  summons,  is  also  complete  evi- 
dence. Personal  detection  or  confession,  or 
the  conducting  of  a  precognition,  in  conse- 
quence of  which  the  spouses  separate,  affords 
direct  evidence  of  the  belief.  Facts  inferen- 
tial of  belief  may  be  established  prout  dejure. 
A  written  pardon  by  either  husband  or  wife 
is  sufficient.  The  requisite  circumstances 
implying  pardon  must  be  stronger  on  the 
part  of  the  woman  than  of  the  man.    Being 


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toku  eum  tola,  or  open  cohabitation  as  man 
or  wife,  after  belief  in  the  guilt,  infers  for- 
girenes8,  unlen  the  punuer  can  show  that 
the  belief  was  destroyed  by  false  or  fraadu> 
lent  representations  on  the  part  of  the  de- 
fender. The  plea  of  remitsio  is  not  incom- 
patible with  that  of  innocence.  It  is  also 
competent  to  creditors  to  urge  this  plea. 
Brtk.  B.  i.  tit.  6,  §  44 ;  BtfJTs  Prine.  §  1633 ; 
lOutt.  §  1531 ;  Lothian's  GoMUtorial  Prae.  157 ; 
Shand"!  Prae.    See  Diwree.     Condonation. 

BsnuMion.  A  crime  may  be  extinguished 
by  a  pardon  or  remission  from  the  Sovereign, 
or  it  may  be  extinguished  by  an  act  of  in- 
demnity given  by  Parliament.  These  re- 
missions Aa  not  prevent  a  private  party  from 
ursuing  for  damages.  3rtk.  B.  iv.  tit.  4, 
105 ;  SktiT.  B.  i.  tit.  9,  §  7  ;  Bank,  i.  247 ; 
i.  275.    Karnes' Stat  LaiB,h.t.    See  Portion. 

Sadt.  In  judicial  procedure,  the  term 
remit  is  applied  to  an  interlocutor  or  judg- 
ment transferring  a  cause,  either  totally  or 
psjiially,  or  for  some  speci&o  purpose,  from 
one  tribunal  or  judge  to  another,  or  to  a 
judicial  nominee,  to  execute  the  purpoaes  of 
the  remit.  Snch  remits  are  made  under 
rarions  circumstances :  «.  g.,  on  the  ground  of 
contingency,  a  cause  may  be  remitted  by  one 
Division  of  the  Court  of  Session  to  the  other, 
or  by  one  Lord  Ordinary  to  another,  before 
whom  the  contingent  process  is  in  dependence. 
See  Coniinyeney.  So  certain  proceedings 
which  originate  in  the  Inner-House,  such  as 
petitions  and  complaints,  petitions  for  exonera- 
tion, and  the  like,  are  remitted  for  prepara- 
tion, or  in  order  to  ascertain  the  facts,  gene- 
rally speaking,  to  the  Junior  Lord  Ordinary 
in  the  Outer- House.  In  the  Bill-Chamber, 
where  a  note  of  advocation  or  of  suspension, 
complaining  of  a  judgment  of  an  inferior  court, 
whether  interlocutory  or  on  the  merits,  has 
been  competently  presented,  the  Lord  Ordi- 
nary, on  hearing  parties,  or  on  considering 
an  answer  to  the  bill,  may  remit,  with  in- 
structions to  the  inferior  judge.  See  1  and  2 
Ow.  IV.  c  88,  1821.  See  also  Btveridge  on 
Bui-Chamber,  p.  70,  <(  seq. ;  and  the  ai-ticles 
Advocation,    Suspension. 

In  addition  to  these  remits,  there  are,  in 
practice,  various  incidental  remits  made  in 
the  course  of  a  process ;  such  are  remits  to 
seconntants  to  prepare  states  of  accounts,  in 
actions  of  count  and  reckoning,  and  other 
processes  involving  accountings  between  the 
parties ;  remits  to  persons  of  science,  or  of 
skill,  to  report  on  disputed  matters  of  science, 
or  as  to  the  usage  in  particular  trades  and 
professions,  the  execution  of  work,  and  so 
forth  ;  remits  in  rankings  and  sales,  in  multi- 
plepoindings,  in  teind  processes,  and  the  like, 
to  the  common  agent,  or  to  the  clerk  of  Court, 
and  in  some  cases  to  accountants,  to  prepare 


states  of  ranking  and  schemes  of  division,  or 
of  locality  ;  remits  to  the  auditor  of  Court  to 
tax  accounts  of  expenses ;  remits  to  a  commis- 
sioner to  take  a  proof,  or  to  examine  havers ; 
and,  finally,  remits  to  a  judicial  referee, 
mutually  chosen  by  the  parties,  to  determine 
the  whole  matters  in  dispute,  and  to  report 
his  opinion  to  the  Court,  in  order  that  decree 
may  be  pronounced  in  terms  of  his  award. 
In  the  inferior  courts,  as  well  as  in  the  Court 
of  Session,  remits,  particularly  to  accountants, 
and  to  persons  of  science  or  skill,  are  fre- 
quent ;  and  with  respect  to  all  such  remits, 
whether  in  the  supreme  or  in  inferior  courts, 
it  seems  desirable  that  the  record  should  be 
closed  before  the  remit  is  made.  At  the  same 
time,  this  role  is  not  inflexible,  nor  in  all 
eases  expedient ;  and  hence,  partienlarly  in 
accountings,  and  similar  complicated  investi- 
gations, it  is  often  of  mutual  advantage  to 
the  parties  that  the  remit  should  be  BMde 
before  the  record  is  closed.  Where  that 
course  is  followed,  the  remit  is  made  "  b^ore 
answer"  as  it  is  exprened — that  is,  before 
pronouncing  any  judgment  on  the  legal  qnea- 
tions  at  issue ;  seeing  that,  before  the  record 
is  closed,  it  is  not  competent  to  pronounce  any 
judgment  on  the  merits.  Remits  to  scientific 
or  skilled  persons  are  frequently  made  on  the 
joint  nomination  or  suggestion  of  the  parties ; 
and  in  such  cases,  or  where  the  parties  make 
no  objection  to  the  judge's  nominee,  or  where 
such  objections  are  overruled,  the  report  ob- 
tained on  the  disputed  point  will  be  htid 
almost  tantamount  to  the  award  of  a  judicial 
referee,  and  will  not  be  opened  up  nnleas  the 
objector  can  instruct  specific  errora  or  ir- 
reguUrities.  Finl^,  3d  Dec.  1828, 7  S.dD. 
130 ;  Rowat,  17th  Nov.  1826,  5S.<tD.l9', 
Dixon,  16th  Nov.  1821,  1  S.  d  D.  145, 
affirmed  29th  June  1825,  1  W.  <t  S.  636; 
Meason,  22d  Dec  1827,  6  S.  *  D.  326; 
Halkett,  9th  Feb.  1831,  9S.d:D.  412 ;  M*ir, 
26th  Nov.  1833, 12  8.  <«  Z>.  129  ;  Madcintosk, 
1st  March  1834.  12  S.  d  D.  518 ;  Grant, 
11th  June  1834, 12  S.  A  D.  717.  See  Shmts 
Prae.;  Ma(^arlane's  Jury  Prae.  39,  et  seq.; 
Madaurin's  Sheriff-Court  Prae.  224,  et  seq. 
See  Auditor.  Contingency.  Commission.  Ju- 
dicial Reference.  Judicial  Factor.  Ranking 
and  Sale.    Locality.    Report. 

Bemoving  of  Tenaata.  After  the  ex- 
piration of  the  stipulated  endurance  of  a 
lease,  the  tenant  is  notwithstanding  entitled 
to  continue  his  possession  on  tacit  relocation 
from  year  to  year,  until  legally  removed  by 
the  landlord.  In  order  to  authorise  judiciid 
removing,  the  tenant,  where  the  lease  does 
not  provide  otherwise,  must  be  warned  by  the 
landlord  to  remove.  The  warning  or  notice 
to  quit  must  be  given  forty  days  before  the 
term  of  Whitsunday  at  which  the  removal  is 


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to  take  place ;  or,  if  the  term  of  removal  be 
any  other  than  Whitsunday,  then  forty  days 
preceding  the  term  of  Whitsunday  of  that 
year  in  which  the  term  of  removal  occurs. 
The  form  of  the  warning,  and  the  manner  of 
ejecting  the  tenant,  are  regulated  by  the 
statute  1555,  c.  39,  and  by  the  Act  of  Sede- 
runt 14th  December  1756.  Warning  and 
removal  under  the  statute  is  effected  by  a 
succession  of  cumbersome  forms,  commencing 
with  a  precept  of  warning,  executed  forty 
days  before  Whitsunday,  against  the  tenant 
^rsonally,  or  at  his  dwelling-place,  and  on 
the  grounds  of  the  land,  and  published  at  the 
parish  church ;  which  is  followed  by  an  action 
and  decree  of  removing.  But  this  form  of 
removal  is  in  practice  almost  entirely  super- 
seded by  the  forms  prescribed  by  the  Act  of 
Sederunt  14th  December  1756,  which,  where 
the  lease  contains  no  obligation  on  the  tenant 
to  remove,  authorises  citation  to  be  given  in 
an  action  of  removing,  raised  before  the  judge- 
ordinary  ;  which  is  a  sufBcient  warning  for  a 
decree  of  removing  and  ejection,  provided 
such  action  be  called  in  the  inferior  court 
forty  days  preceding  the  term  of  Whitsunday 
of  the  year  in  which  the  removal  is  to  take 
place.  Where,  on  the  otiier  hand,  the  lease' 
contains  an  obligation  on  the  tenant  to  re- 
move, the  Act  of  Sederunt  holds  a  charge  on 
letters  of  homing  on  the  registered  lease, 
given  in  like  manner  forty  days  preceding 
Whitsunday,  to  be  sufficient  to  authorise 
ejection  within  six  days  after  the  term  of 
removal  in  the  tack.  These  forms  of  remov- 
ing are  proper,  according  to  the  statute, 
against  tenants  of  "  lands,  mills,  fishings,  and 
possessions  whatsomever."  But,  under  these 
expressions,  urban  tenements,  houses  in  the 
country  to  which  no  land  is  attached,  coal- 
works,  mines,  &c.,  and  grass  parks  let  from 
year  to  year,  are  not  included — as  to  all  of 
.which  the  agreement  of  parties,  or  common 
law,  qualified  to  a  certain  extent  by  consue- 
tude, as  to  reasonable  notice,  affords  the  rule. 
£nk.  B.  ii.  tit.  6,  §  45,  et  seq.;  Bdl  on  Leases, 
ii.  51  and  118,  in  notes.  See,  generally,  on 
Removing,  Ersk.  B.  ii.  tit.  6,  §  45  ;  Stair,  B. 
ii.  tit.  9,  §  38  ;  B.  iv.  tit  26 ;  Mor^s  Notes, 
p.  cclvi. ;  Bank.  ii.  Ill,  et  seq. ;  BelVs  Princ. 
|§  1267, 1278  ;  lUutt.  ib. ;  Karnes'  Stat.  Law 
Abridg.  h,  t.;  Hunter's  Landlord  and  Tenant; 
Dariing's  Prac.  331-5, 682 ;  Maekmrin's  Sheriff 
Process,  13,  78;  Jurid.  Styles,  2d  edit.  i. 
675-80 ;  iii.  14,  117-9 ;  BeU  on  Leases,  i. 
259-65;  ii.  51  to  128,  333-52;  Ros^s 
Leet.  ii.  509,  et  seq.  See  Ejection.  Lease. 
Door,  Chalking  of. 

By  the  act  16  and  17  Vict.  c.  80,  1853, 
it  is  competent  to  raise  a  summons  of  remov- 
ing at  any  time,  provided  there  be  an  inter- 
val of fortt/  days  between  the  date  of  the  exe- 


cution of  the  summons  and  the  term  of  re- 
moval. Other  alterations  of  this  law  of 
removing  are  also  regulated  by  this  statute. 
See  Lease. 

Bemimeration.    See  Recompense. 

Benoonnter ;  Senoontre ;  a  meeting.  The 
term  is  applied,  however,  chiefly  to  a  hostile 
meeting  between  two  individuals.  Erskine 
distinguishes  a  rencounter  from  a  duel ;  hold- 
ing  the  former  to  be  a  meeting  without  a 
previous  challenge,  which  is  not  accounted  a 
capital  offence  unless  death  ensues ;  whereas, 
prior  to  the  statute  59  Geo.  III.  c.  70,  the 
offence  of  fighting  a  duel  on  a  previous  chal- 
lenge, although  death  did  not  follow,  was 
accounted  a  capital  crime.  Ersk.  B.  iv.  tit.  4, 
§  49.    See  Duelling.     GhdUeinge. 

£ent ;  the  consideration  given  to  the  land- 
lord by  a  tenant  for  the  use  of  the  lands  or 
subjects  which  he  possesses  under  lease.  See 
Hypothec.  Lease.  Where  rents  are  assigned, 
if  by  a  simple  assignation,  due  intimation,  or 
a  decree  of  maills  and  duties  following  there- 
on, renders  the  right  effectual  against  singu- 
lar successors ;  and  if  by  disposition  or  herit- 
able bond,  the  sasine  completes  the  creditor's 
right  to  the  rents  as  an  accessory  to  the  real 
right  to  the  lands.  A  decree  of  adjudication, 
even  without  a  sasine  on  a  charter  of  adjudi- 
cation, as  being  a  judicial  disposition,  carries 
right  to  the  rents  falling  due  after  its  date ; 
and,  like  a  judicial  conveyance,  it  requires  no 
intimation.  But  no  right  to  rents  alone, 
however  complete,  can  compete  with  the  right' 
to  the  rents  as  an  accessory  to  a  real  right  in 
the  lands.  BeU's  Com.  i.  71 ;  ii.  8,  et  seq. ; 
Xore's  Notes  to  Stair,  pp.  cxxxix.,  coxlvi., 
colxxiv. ;  ErsL  B.  ii.  tit.  6,  |§  40-1-3 ;  tit.  9, 
§  64,  et  seq. ;  B.  iii.  tit.  2,  §  23  ;  tit.  5,  §  5 ; 
tit.  6,  §  9  ;  tit.  7,  §§  12  and  20 ;  Bank.  i.  386 ; 
ii.  101, 198,  324;  BeU's  Princ.  §§  634,  1047, 
1197  e<  »«g.,1228  e< ««}.,  1479-84-99  etseq.; 
lUust.  §§  1197,  1499;  BeU  on  Leases,!.  20, 
35, 87, 125,  219,  232,  253, 263,  403 ;  ii.  45, 
51,  276;  Hunter's  Landlord  and  Tenant;  Bell 
on  Purchaser's  TiOe,  64,  70;  Jurid.  Styles, 
2d  edit.  ii.  44,  325 ;  Ross's  Leet.  i.  454 ;  ii. 
235,  381, 437,  453, 494.  See  Lease.  Term, 
Legal  and  Conventional. 

BentaljBolli;  were  a  stated  quantity  of 
corn  paid  yearly  by  the  heritors  to  the  titular 
of  tithes,  who  accepted  of  them  in  place  of 
drawing  the  teinds.  The  quantity  was  regu- 
lated either  by  a  written  rent-roll,  or  by  mere 
use  of  payment.  W  hen  this  mode  of  payment 
was  once  established,  it  could  be  interrupted 
on  the  part  of  the  titular  only  by  inhibition 
of  tithes,  and  on  the  part  of  the  heritor  only 
on  his  offering  the  tithes  in  kind.  Ersk.  B. 
ii.  tit.  10,  §  25 ;  Bank.  ii.  57  ;  BeWs  Pnnc. 
§1157.  See  Teinds.  Inhibition.. 
Bental  Sight.     See  Kindly  Tenant. 

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REN 


RUP 


Beannoiation.  See  DUcharge.  Implied 
DUdMrge. 

Benimoiatioiii ;  the  act  of  renonncing  m 
right.  It  may  be  considered  nnderthe  follow- 
ing heads : — 1.  RtuMwiation  iy  a*  Heir.  2. 
Renunciatkmof  Reitemablt  Rightt.  S.  Rmun- 
eiation  of  a  Leau. 

1.  iZmuncto^it  iy  cm,  Heir. — Where  an  heir 
is  charged  to  enter,  he  must  either  renonnce, 
or  he  will  be  rendered  perBonally  liable  for 
the  debt.  If  it  be  a  debt  of  the  ancestor,  de* 
oree  a)gniti<mis  eatuo,  as  it  is  termed,  is  pro- 
noanced,  fur  the  purpose  of  enabling  the  cre- 
ditor to  attach  the  estate.  Where  the  debt 
is  due  by  the  heir  himself,  the  estate  to  which 
he  has  succeeded  may  be  attached  by  the 
heir's  creditors,  whether  the  heir  renounce  his 
ancestor's  suocessioa  or  not.  ErA.  B.  ii.  tit. 
12,  §§  13, 14 ;  Stair.  B.  iii.  tit  2,  §  45 ;  tit. 
5,  §  24;  B.  iv.  tit  51,  §  10 ;  BuiJi  ii.  232, 
357 ;  5«W»  Cb«.  i.  710-13.  Seetfar.  Ap- 
parmtt  Heir.  Adjudieation  contra  kaareditatem 
jaemtem. 

2.  Renunciation  of  RedtemabU  Rigkt$. — ^Re 
deemsble  rights  may  confer  either  a  right  of 
property  or  a  right  in  security.  Where  the 
deed  conveys  a  right  of  property,  as  in  wad- 
seta,  a  renunciation  of  the  right  is  not  suffi- 
cient unless  the  right  has  remained  personal, 
on  which  no  sarine  has  followed ;  for  in  that 
case  a  renunciation  will  sufficiently  extingwdi 
the  right.  Where,  again,  the  deed  conveys  a 
right  in  security  only,  as  in  the  case  of  an 
heritable  bond,  a  simple  discharge  and  re- 
nunciation is  sufficient  to  extinguish  the  cre- 
ditor's sasine.  Ersk.  B.  ii.  tit.  8,  §§  17, 18, 
and  34,  et  uq. ;  Stair,  B.  ii.  tit  10,  §  13 ; 
Bank.  ii.  132 ;  Jurid.  Stylet,  i.  595-8, 601-6 ; 
Ro$^s  LeeL  ii.  259,  378,  389. 

3.  Renunciation  of  a  Lease. — This  renuncia- 
tion mnj  either  be  verbal  or  by  a  written 
deed.  In  the  former  case  it  may  be  resiled 
from ;  in  the  latter  it  cannot.  But  it  requires 
acceptance  by  the  landlord  to  give  it  effect ; 
and  therefore  it  is  usual  to  take  a  notarial 
instrument  on  the  acceptance  in  evidence  of 
the  fact.  It  would  seem  that  the  voluntary 
renunciation  of  a  current  written  lease  must 
be  in  writing ;  and  hence,  that  a  mere  verbal 
renunciation  of  such  a  lease  may  be  resiled 
from.  But,  on  the  other  hand,  there  are  se- 
veral decisions  which  go  to  support  the  doc- 
trine that  a  verbal  renunciation  is  binding, 
and  may  be  proved  by  oath  of  party.  Yet 
it  would  rather  appear  that  these  decisions 
were  pronounced  in  cases  where  the  stipulated 
term  of  removal  had  expired,  and  the  tenant 
was  in'possession  on  tacit  relocation.  See  this 
subject  considered  in  Bell  on  Leases,  i.  524,  et 
seq.;  and  consult  the  following  authorities, 
.Stair,  B.  ii.  tit.  9,  §  35  ;  Bank.  B.  ii.  tit  9,  § 
37 ;  Ersk.  B.  ii.  tit.  6,  §  44 ;  Bdnunston,  28th 


July  1744,  Mor.  12,415 ;  Oordon,  19th  Dee. 
1776,  Mor.  App.  voce  Tack,  No.  2  ;  Tait  on 
Evidence,  p.  325,  8d  edit ;  Balf out's  Praeiidcs, 
voce  Probation  by  Writ;  BelPs  Prine.  §  1271 ; 
Bell  on  Leasts,  i.  172,  272,  524;  Shat^t 
Digest,  289 ;  Ros^t  Ltet.  ii.  506,  523  ;  ifua- 
ter's  Landlord  and  Tenant;  Jurid.  Stylet,  i. 
542. 

Sepain  of  a  Ship ;  hypo&eefor.  See  Hy- 
pothec 

Bepain  by  a  Taumt.  The  general  doc- 
trine of  the  liability  for  meliorations  and  re- 
pairs is  stated  in  the  article  Xeliorations.  In- 
dependently of  stipulation,  the  landlord  is 
bound  to  make  all  necessary  repairs ;  and  in 
default  of  his  doing  so,  the  tenant  may  make 
them  himself,  and  deduct  the  amount  from  his 
rent.  In  tenements  within  a  royal  burgh, 
where  a  considerable  sum  is  required  for  the 
necessary  repairs,  which  the  landlord  is  un- 
willing to  grant  it  is  customary  for  the  tenant 
to  apply  to  the  Dean  of  Guild,  whose  warrant 
proceeding  on  the  estimate  of  tradesmen,  is 
evidence  both  of  the  necessity  and  amount  of 
the  expense  of  repairing.  The  tenant  most  re- 
pair ii^uries  occasioned  by  his  own  fault  or 
negligence ;  the  landlord  must  repair  injuries 
occasioned  by  any  extraordinary  canse,  even 
where,  by  the  lease,  the  tenant  is  allowed  a 
sum  for  preservation.  Erdc  B.  ii.  tit  6, 
§43;  Bank,  i.^0',  Bell  on  Leases,!.  7  4;  Hun- 
ter's  Landlord  and  Tenant.    See  Dean  of  Otuld. 

Sepazation;  indemnification.  The  obliga- 
tion to  repair  a  damage  is  a  necessary  conse- 
quence of  the  rule  UUerwn  non  Icedere ;  and 
damage  may  arise  from  positive  acts  of  tres- 
pass, or  from  blameable  omission  or  neglect  of 
duty.  Ersk.  B.  iii.  tit  1,  §  12.  See  Damapet. 
Ddiet.    Relief. 

Bepeating  a  Snmmnu.  This  expression 
is  applied  to  the  case  where  it  is  necessary  to 
support  a  defence  by  a  counter  action,  at  the 
instance  of  the  defender  against  the  pursuer. 
In  such  cases,  instead  of  raising  and  execut- 
ing a  summons,  and  sisting  the  other  action 
until  the  counter  action  comes  into  court  and 
then  having  it  remitted  ob  coniingentiam,  and 
conjoined  with  the  former  process,  the  signeted 
counter  summons  is  produced,  and  an  inter- 
locutor pronounced,  holding  it  as  repeated. 
This  is  called  repeating  a  summons  tnai{«ii(0r. 
But  it  is  not  competent  to  a  third  party 
to  appear  in  a  depending  action  u  a  pur- 
suer, and  to  get  a  separate  action  at  his  in- 
stance repeated.  Some  formalists  also  hold 
that  a  summons  cannot  in  any  case  be  re- 
peated, except  of  consent  of  the  opposite  party, 
although  this  seems  to  be  doubtful;  but  it 
is  settled  that  a  summons  so  repeated  operates 
merely  as  a  defence  against  the  original  ac- 
tion, and  that  if  it  is  intended  to  have  any 
farther  effect,  the  regular  forms  must  be  gone 


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through.    ShantPt  Prae.  i.  503,  and  autkm- 
iiet  there  dUd. 

Sepetitioii ;  repayment  of  money  errone- 
ously paid.  Thomsm  on  BilU,  402,  529; 
Jwid.  StylM,  iii.  72 ;  iSiA<ne'«  Dipett,  h.  t.  See 
ConditMo  Indebiti, 

Sepetandamm  Crimen ;  the  crime  of  re- 
ceiring  a  bribe  to  pervert  judgment.  Brtk. 
B.  ir.  tit.  4,  §  30.    See  Baratry. 

Beplegiare;  in  old  law  language,  to  re- 
pledge  ;  that  18,  "  when  any  man,  by  virtue 
of  his  own  jurisdiction,  brings  back  again,  or 
rednoes  to  his  own  court,  his  own  man,  from 
any  other  man's  court,  and  leaves  a  pledge  or 
cautioner  behind  him  for  administration  of 
justice."    Skene,  h.  i. 

Bepledging ;  a  power  formerly  competent 
to  certain  private  jurisdictions  to  demand 
jodicitdly  the  person  of  an  offender  accused 
before  another  tribunal,  on  the  ground  that 
the  alleged  offence  had  been  committed  within 
the  repledger's  jurisdiction.  Erik.  B.  i.  tit.  4, 
§  8 ;  StaW,  B.  iv.  tit.  37,  §  4 ;  Bank.  i.  570. 
Bepl0?in ;  in  Bnglish  law,  a  re-delivery  to 
its  owner  of  a  thing  distrained,  on  his  finding 
security  that  he  will  abide  the  trial.  Tam- 
Unt'  Diet.  k.  t. 

Beplioatian ;  in  English  law,  an  exception 
or  answer  made  by  a  plaintiff  to  a  defendant's 
plea.     Tomlins'  Diet.  k.  t. 

ScpIiM.  In  inferior  eourt  processes,  the 
defences  or  answers  to  the  summons  or  ori- 
ginal petition  were  formerly  followed  by  re- 
plies, in  which  paper  the  pursuer  met  each 
averment  in  the  defences  by  an  explicit  ad- 
mission or  denial,  in  so  far  as  not  already 
admitted  or  negatived  in  the  summons.  Un- 
der the  Sheriff  Court  Act,  16  and  17  Vict, 
c.  80,  1853,  the  record  is  made  up  on  revised 
condescendences  and  defences.  M'Glashan's 
Sheriff  Court  Prae.  §  251 ;  Maekmrin'g  Form 
of  Proeeti,  119,  «t  teq. 

Saponing.  Under  the  form  of  process  in 
the  Court  of  Session  prior  to  the  passing  of 
the  Judicature  Act,  1825,  if  the  reclaiming 
or  representing  days,  against  an  interlocutor 
of  a  Lord  Ordinary,  had,  from  mistake  or  in- 
advertence, expired  without  a  petition  or  re- 
presentation, it  was  competent,  with  the  leave 
of  the  Lord  Ordinary,  to  submit  the  interlo- 
cutor to  review  of  the  Court  by  petition,  on 
condition  of  the  petitioner  paying  to  the  other 
party  the  whole  expenses  previously  incurred 
by  him  in  the  process — 48  Oeo.  III.  c.  151, 
§  16 ;  and  this  enactment  seems  to  be  still 
in  force.  According  to  the  existing  form, 
a  party  may  be  reponed  against  a  decree  in 
absence,  or  by  default  in  lodging  papers, 
obtempering  orders  of  Court,  or  the  Uke,  by 
presenting  a  reclaiming  note  to  the  Court, 
before  extract,  accompanied  by  defences,  or 
with  the  other  paper,  whatever  it  may  he ; 


when  the  Court  will  remit  to  the  Lord  Ordi- 
nary to  repone  him,  on  payment  of  such  ex- 
penses as  to  his  Lordship  may  seem  reason- 
able, the  usual  sum  being  L.2, 2s.    But  where 
the  Lord  Ordinary  has  pronounced  an  inter- 
locutor on  the  merits  of  the  case,  which,  whe- 
ther through  inadvertency  or  otherwise,  has 
not  been  submitted  to  review  within  the  re- 
claiming days,  he  cannot  be  so  reponed — 6 
Oeo.  IV.  c.  120,  §§  18,  29;  A.  S.  Uth  July 
1828,  ^  45,  46, 72,  73  ;  although  it  is  un- 
derstood that  he  may  be  reponed  under  the 
above-cited  statute,  48  Geo.  IIL   c.  151. 
Similar  regulations  are  in  force  in  inferior 
courts ;  except  that,  where  there  is  no  statu- 
tory finality,  the  interlocutor  of  the  inferior 
court,  which  has  become  final,  may  be  sub- 
mitted to  the  review  of  the  Court  of  Session  in 
one  or  other  of  the  ordinary  methods ;  A.  S. 
12th  Nov.  1825.  See  Reclaming.  Advocation. 
Stttpention.    Reduction. 
Beponiag  in  Aiwignation.  SeeAssiffnaHon. 
Beport;  in  judicial  procedure  is  usually 
applied  to  the  report  or  return  made  by  a 
judge  or  a  judicial  nominee,  to  whom  a  remit 
has  been  made.    In  the  Court  of  Session, 
where  a  proof  has  been  allowed  on  commis- 
sion, or  a  diligence  granted  for  examining 
havers,  the  interlocutor  fixes  a  day  for  report- 
ing the  proof  to  the  Lord  Ordinary  or  to  the 
Court,  as  the  case  may  be,  the  day  so  fixed 
being  a  sederunt-day ;  and  where  a  proroga- 
tion of  the  time  for  reporting  the  proof,  or  a 
renewal  of  the  diligence  is  required,  it  must 
be  applied  for  or  arranged  in  the  manner 
explained  voce  Prorogation.    If  the  proof  has 
been  ordered  to  be  reported  to  the  Court,  the 
application  for  prorogation  or  renewal  must 
be  made  to  the  Divigion  of  the  Court  to  which 
the  report  was  directed  to  be  made.    Analo- 
gous rules  are  in  observance  in  the  inferior 
courts;  A.  S.  Uth  July  1828,  §  108;  Dar- 
ling's Prae.  i.  223  ;  Maclaurin's  Sheriff-Court 
Prac.  164,  et  teq.    See  Evidence.     Commission. 
In  cases  of  importance  or  difficulty  in  the 
Court  of  Session,  the  Lord  Ordinary,  instead 
of  deciding  the  cause  himself,  may  report  the 
case,  as  it  is  expressed,  to  the  Inner-House ;. 
§  64.     See  Cases.    So  also,  where  an  inci- 
dental point  of  difficulty  arises  before  a  Lord 
Ordinary,  he  may  report  it  verbally  to  tho 
Court,  on  intimating  his  intention  to  the 
parties  by  interlocutor,  pointing  out  the  inci- 
dental matter ;  and  if  judgment  shall  be  pro- 
nounced by  the  Court,  or  an  order  made  i» 
respect  of  the  matter  so  reported,  that  judg- 
ment or  order  shall  be  final ;  6  Oeo.  IV.  c. 
120,  §  19 ;  A  S.  Uth  July  1828,  §  66.    la 
practice,  however,  and  independently  of  the 
above  regulations,  a  Lord  Ordinary  occa- 
sionally reports  a  point  incidentally  to  the 
Inner-House  for  advice,  on  the  emergence  of 

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the  difficulty ;  and  then,  after  advising  with 
the  Court,  pronoances  an  ioterloentor,  which 
however  is  accounted  the  interlocutor  of  the 
Lord  Ordinary  merely.  But  in  Bill-Chamber 
caaes,  where  the  Lord  Ordinary  on  the  Bills 
takes  a  case  to  report  to  the  Inner-House,  the 
interlocutor  then  pronounced  is  considered  as 
a  judgment  of  the  Inner- House,  and  signed 
by  the  Lord  President  of  the  Division  accord- 
ingly; A.  S.  nth  July  1828,  §  76.  Other 
incidental  reports  are  made  by  Lords  Ordi- 
nary to  the  Inner-House,  as  in  various  steps 
of  the  procedure  in  rankings  and  sales,  and 
other  Inner- House  processes — aee  Ranking  and 
Sale;  in  applications  by  judicial  factors  and 
other  officers  of  Court  for  exoneration  and 
discharge ;  in  various  statutory  proceedings, 
and  so  forth ;  as  to  all  which  the  usual  form 
is  for  the  Lord  Ordinary  to  come  to  the  foot 
of  the  clerk's  table  in  the  Inner-House  and 
make  a  verbal  report,  which  is  the  warrant 
for  a  corresponding  judgment  or  interlocutor 
by  the  Inner-House.  With  regard  to  other 
reports  made  on  judicial  remits,  the  most  im- 
portant are  the  reports  of  accountants,  as  to 
which  the  regulation  of  the  Act  of  Sederunt 
is,  that  "  when,  in  any  cause,  a  report  has 
been  obtained  from  an  accountant  or  other 
professional  person,  and  the  parties,  or  either 
of  them,  shall  be  dissatisfied  with  the  report, 
the  same  shall  be  enrolled  before  the  Lord 
Ordinary  for  debate  on  the  report,  and  a  note 
of  the  objeetions  shall  be  furnished  to  the  op- 
posite party  forty-eight  hours  before  the  en- 
rolment, and  at  the  time  of  enrolling  the 
cause  a  copy  of  the  note  of  objections  shall 
be  furnished  to  the  Lord  Ordinary's  clerk  for 
his  Lordship's  use,  and  upon  hearing  parties 
the  Lord  Ordinary  may  order  cases,  or  other- 
wise dispose  of  the  note  of  objections  as  he 
sees  cause  -."A.S.nth  My  1828. §  67.  The 
weight  attached  to  the  report  of  persons  of 
skill  is  very  great.  See  the  cases  on  this 
point  cited,  voce  Remit.  And  with  respect  to 
the  fees  due  to  accountants  and  other  re- 
porters, the  rule  formerly  was,  not  only  that 
the  parties,  but  also  their  agents,  were  con- 
junctly and  severally  liable  personally  for  the 
whole  fees ;  Milne,  31st  May  1825,  i  S.  *  D. 
45.  But  this  rule,  so  far  as  regards  the 
agents,  has  been  altered,  and  now  "  the  agent 
is  not,  without  special  agreement,  to  be  held 
personally  responsible  to  an  accountant,  en- 
gineer, or  other  reporter  to  whom  a  remit  may 
hereaiier  be  made  by  the  Court,  on  matters 
of  fact  in  a  depending  process,  where  the 
agent  has  authority  to  bind  the  party ; "  A.  S. 
19th  Dee.  1835.  The  parties  to  the  suit, 
however,  are  conjunctiy  and  severally  liable 
to  the  accountant  or  other  reporter  for  his 
whole  fees ;  and  he  is  not  bound  to  wait  the 
issne  of  the  cause,  but  as  soon  as  his  report  is 


lodged,  he  may  enrol  the  ease,  and  ask  decree 
for  his  fees  against  either,  or  both  parties, 
leaving  the  question  of  relief  to  be  afterwards 
adjusted  between  them,  and  without  prejudice, 
of  course,  to  the  right  of  the  Court  or  of  the 
Lord  Ordinary  to  lay  the  expense  of  the  re- 
port, along  with  the  other  expenses  of  the 
process,  on  either  of  the  parties,  as  they  may 
think  just;  with  which,  however,  the  reporter 
has  no  concern.  It  has  been  further  held  that 
an  accountant  is  entitled  to  retain  the  docu- 
ments which  have  been  put  into  his  hands 
under  the  remit,  until  the  fees  of  his  report 
are  paid ;  Stewart,  23d  Feb.  1828,  6S.<tD. 
591.  Injury  trials,  reports  are  not  held  as 
evidence  of  the  fisets  therein  set  forth,  although 
admissible  to  prove  that,  de  facto,  such  reports 
were  made.  See  on  the  subject  of  this  article, 
Shand's  Prac;  Maefarlaw^t  Jury  Prac.  182, 
et  seq. 

XeproMiitatiai.  Whatever  infers  the 
substitution  of  one  person  in  the  room  and 
place  of  another,  so  as  to  identify  the  rights 
and  obligations  of  the  person  substituted  with 
those  of  the  principal,  falls  under  the  general 
denomination  of  representation;  bnt  the  term 
in  the  law  of  Scotland  is  usually  applied  to 
the  obligation  incurred  by  an  heir  to  pay  the 
debts  and  perform  the  obligations  incumbent 
upon  his  predecessor.  See  Patrive  Titles.  In 
the  law  of  heritable  succession,  the  term  re- 
presentation is  applied  not  only  to  the  above 
identification  of  the  heir-at-law  with  his  pre- 
decessor, bnt  in  a  peculiar  manner  to  the  jnt 
reprcuentationis,  whereby  a  grandson  by  an 
elder  son  deceased,  as  representative  of  his 
father,  succeeds  as  heir-at-law  to  his  grand- 
father in  preference  to  all  the  grandfather's 
immediate  descendants.  Stair,  B.  iii.  tit.  4, 
$  4,  «(  seq.;  tit.  8,  §  32 ;  Ersk.  B.  iii.  tit  8, 
$50,  et  seq.,  and  §  12;  Bank.  ii.  294;  BeWs 
Princ.  §  1660 ;  Karnes'  Prine.  of  Equity  (IS^), 
505 ;  Sandfor^s  SeriL  Sueees.  i.  2.  See  Jm 
Reprasentationis. 

jSepreMntatiim  m  insurance.  See  Insur- 
ance.    Warranty. 

BApriere.    See  Remistion.    Pardon. 

S«prinlf ;  letters  of  marque  granted  by 
princes  or  states  to  seize  upon  the  goods  of  all 
persons  under  the  dominion  of  any  foreign 
state  which  refuses  satisfaction  for  injuries 
done  by  its  subjects  to  the  subjects  of  the 
state  issuing  the  reprisals.  See  Tomlins'  Diet. 
h.  t.  See  Letters  of  Marque.  Capture.  Prize- 
Late.    Privateer. 

Beprobator.  When  a  witness  was  offered, 
to  whose  admissibility  there  were  objections 
which  could  not  be  immediately  verified,  it 
was  formerly  the  practice  for  the  party  mak- 
ing the  objection  to  protest  far  reprobator 
before  the  examination  of  the  witness  w»s 
proceeded  with — i.e.,  to  ptotest  that  it  should 

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be  afterwards  competent  for  him,  in  an  action 
of  reprobator,  to  prove  that  the  witness  was 
liable  to  the  objections  of  agency,  enmity, 
partial  counsel,  or  the  like.  This  action, 
latterly,  was  not  admitted  where  reprobator 
had  not  been  previously  protested  for;  but 
when  such  a  protest  had  been  made,  the  Action 
was  competent  even  after  decree  in  the  prin- 
cipal cause,  although  the  decision  in  the 
principal  cause  was  usually  superseded  uutil 
the  action  of  reprobator  should  be  disposed 
of.  The  concourse  of  the  Lord  Advocate  was 
required  in  this  action,  because  the  libel  con- 
cluded that  the  witness  was  guilty  of  perjury; 
hence  it  was  necessary  that  the  alleged  in- 
habile  witness  should  be  made  a  party  to  the 
suit.  The  ground  of  reprobator  might  have 
been  proved  by  the  oath  of  the  party  who 
had  adduced  the  witness  objected  to,  and  by 
the  testimony  of  other  witnesses  omni  excqh 
tione  majora.  There  is  no  recent  example  of 
an  action  of  reprobator.  The  objections  which 
were  formerly  the  subject  of  this  action  were 
afterwards  allowed  to  be  proved  by  the  testi- 
mony of  witnesses  adduced  when  the  objec- 
tionable witness  was  tendered.  Ertk.  B.  iv. 
tit.  2,  §  29 ;  Bank.  B.  iv.  tit.  31 ;  Hutch.  Just, 
of  Peace,  i.  158;  Maclaurin's  Sheriff  Process, 
167.    See  Evidence. 

■  By  the  present  law,  however,  interest, 
agency,  and  partial  counsel,  are  no  longer 
o^eotions  to  a  witness. 

BfOpatatum,  injuries  to.     See  Defamation. 
Libel. 

Bepnte.  See  Habit  and  Repute. 
Bepated  Ownenhip.  The  false  credit 
raised  by  a  person  exercising  all  the  rights 
of  ownerehip  over  a  subject  not  his  own  has 
led  to  the  adoption  of  the  rule,  that  the  cre- 
ditors of  the  apparent  or  reputed  owner  may 
take  the  subject  as  if  it  were  his  own.  In 
England  this  rule  is  enacted  by  statute ;  21 
James  I.  c.l9  ;  6  Geo.  IV.  c.  16,  §  72.  In 
Scotland  it  has  been  supposed  to  exist  at  com- 
mon law.  It  is  necessary  to  the  creditors 
having  this  right,  that  the  reputed  owner 
should  appear  to  be  uncontrolled  in  the  dis- 
posal of  the  subject  Reputed  ownership  from 
possession  properly  applies  only  to  moveables, 
and  not  to  heritable  estates.  The  presump- 
.tion  of  collusion  is  much  stronger  when  the 
reputed  owner  has  been  left  in  possession  of 
the  subject  than  when  he  has  acquired  it  on 
what  is  asserted  to  be  another  title  than  that 
of  ownership.  Indeed,  by  the  law  of  Scotland, 
where  there  has  be^n  no  delivery,  it  would  be 
unnecessary  to  allege  collusion,  since  the 
buyer  would  be  merely  a  creditor  for  the  de- 
livery. '  It  is  only  where  possession  is  re- 
tained after  the  ownership  is  said  to  be  passed 
by  constructive  delivery  or  otherwise,  that 
recourse  must  be  had  to  the  dootriues  of  re- 


puted ownership.  In  a  case  where  goods  were 
conveyed  merely  in  security,  but  the  posses- 
sion of  them  was  retained  by  the  debtor,  an- 
other creditor  doing  diligence  against  them 
was  preferred  to  him  to  whom  they  were  con- 
veyed ;  Boys,  27th  July  1708.  In  like  man- 
ner, an  assignation  to  a  trustee  for  behoof  of 
creditors,  retenta  possestione,  is  no  bar  to  the 
diligence  of  creditors ;  Borthtoiek,  Feb.  17, 
1829,  7  S.  420  ;  Eraser,  June  26, 1830,  8  S. 
982.  An  assignation  in  security  of  a  lease 
intimated  to  the  landlord,  and  followed  by  a 
sublease  by  the  assignee  to  the  cedent,  was 
found  ineffectnal  against  creditors;  Brock, 
March  5,  1838,  8  S.  dc  D.  647  ;  affirmed, 
Sept.  23, 1831,  5W.  d  S.  See  Assignation. 
A  conveyance  in  relief  of  a  cautionary  obli- 
gation is  ineffectual  if  possession  be  retained. 
In  cases  of  temporary  possession,  if  the  thing 
be  of  a  kind  usually  let  out  and  held  sepa- 
rately from  the  ownership,  such  usage  may 
be  admitted  to  counteract  the  reputed  owner- 
ship. But  the  presumption  is  very  strong  for 
ownership  in  the  ease  of  furniture  or  imple- 
ments of  trade.  There  are  certain  contracts 
possession  in  virtue  of  which  is  held  to  raise 
no  credit — snch  as  commodate,  location,  de- 
posit, pledge,  factory  where  the  principal's 
and  factor  B  goods  are  distinguishable,  sale 
and  return,  consignation  for  advances  and 
sale.  Th«  liferenter  of  furniture  does  not,  by 
possession  of  it  in  virtue  of  his  liferent,  sub- 
ject it  to  the  diligence  of  his  creditors  on  the 
ground  of  reputed  ownership ;  Scott  v.  Price, 
May  13, 1837, 16  D.  916.  See  BdPs  Com.  i. 
248  ;  More's  Notes  on  Stair,  xlviii. ;  Brodie's 
Sup.  850, 896 ;  Brovm  on  Sak,  19  et  seq.,  637  ; 
Bdi's  Princ.  §131 5 ;  lUust,  ib.  See  Possession. 
Delivery.    Sale. 

By  the  Mercantile  Law  Amendment  Act, 
19  and  20  Vict.  c.  60,  §  1, 1856,  it  is  declared, 
that  goods  sold,  but  not  delivered,  shall  not  be 
attachable  by  the  creditors  of  the  seller,  to 
the  effect  of  preventingthe  purchaser,or others 
in  his  right,  from  enforcing  delivery  of  the 
same ;  and  the  right  of  the  purchaser  to  de- 
mand delivery  of  such  goods,  from  and  after 
the  date  of  the  sale,  is  discovered  to  be  at- 
tachable by  a  transference  to  the  creditors  of 
the  purchaser. 

Beqnisition ;  a  demand  made  by  a  creditor 
that  a  debt  be  paid  or  an  obligation  fulfilled. 
In  certain  cases,  requisition  is  necessary  to 
put  the  debtor  in  mora,  and  then  the  proper 
way  of  proving  requisition  is  by  a  notarial 
instrument.  It  is  competent,  however,  to 
prove  requisition  by  writ  or  oath  of  party, 
but  not  by  witnesses.  In  the  case  of  a  wad- 
set, if  the  reverser,  after  requisition,  fail  to 
pay  the  wadset  sum,  the  wadsetter  may  pro- 
ceed to  adjudge  the  right  of  reversion.  Forms 
of  the  procuratory  of  requisition  and  attend- 

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ano«,  of  the  instrnment  of  requisition  and  of 
the  instrament  of  attendance,  are  given  in 
Jurid.  Styles,  L  750.  And  an  analogoiu  pro- 
ceeding takes  place  where  the  creditor  in  an 
heritable  bond  or  disposition  in  security  de- 
mands payment,  usually  in  contemplation  of 
exercising  a  power  of  sale.  Sw  Pover  &f  Sale. 
See,  on  the  subject  of  this  article  generally. 
Stair,  B.  ii.  tit.  i.  §  4 ;  tit  10,  §  22;  Ertk. 
B.  ii.  tit.  2,  §  16  ;  Bank.  i.  515 ;  ii.  218, 380 ; 
Tait  on  Evidence,  314 ;  Rote's  Lee*,  ii.  348, 
358.    See  Wadiet. 

Ses  Aliens.  By  the  Roman  law  there 
might  be  a  valid  sale  by  one  person  to  an- 
other of  what  belonged  to  a  third,  and  the 
seller  was  bound  to  procure  and  deliver  the 
subject  or  pay  damages.  Brown  en  Sale,  111. 
As  to  legatum  alieni,  see  Legacy. 

Bm  ComamnM  ;  are  things  which  are  in 
their  nature  incapable  of  appropriation,  as 
the  light,  the  air,  running  water.  ErA.  B. 
ii.  tit.  i.  §§  5,  6. 

Bas  TwtiTM ;  things  stolen,  and  thereby 
tainted  with  a  vittttm  reale,  which  attaches  to 
them  in  all  their  transmissions  until  they  are 
restored  to  their  rightful  owner,  who  is  en- 
titled to  reclaim  them  at  any  time  within  the 
period  of  the  long  prescription,  even  from  a 
iona  fide  possessor  who  may  have  paid  a  full 
price  for  them.  Ertk.  B.  iii.  tit.  7,  JS  14 ; 
BrowCt  Synop.  292.    See  Lott.  Labet  Realit. 

Bm  Fatorn.  There  may  be  a  sale  of  a 
thing  which  may  exist  at  a  future  time ;  and 
if  the  thing  does  not  come  into  existence,  the 
contract  falls.  Brown  on  Sale,  111.  But  see 
Spei  Emptio.     Sale. 

Bas  inter  alios  acta,  aliis  necpie  aooet, 
aaqne  prodest ;  a  maxim  of  very  general 
application  in  the  law  of  Scotland.  In  con- 
formity with  this  maxim,  acts  and  decrees  of 
Court  cannot  be  adduced  against  persons  who 
were  not  parties  to  the  suit.  Interruptions 
of  prescription  by  protestation,  or  even  via 
jurii,  by  process  not  followed  forth  to  a  sen- 
tence, are  of  no  avail  to  any  other  person 
than  him  who  uses  them.  The  writ  or  oath 
of  one  obligant  in  a  bill  will  not  infer  the 
liability  of  another  for  the  debt,  although  the 
latter  do  not  allege  payment ;  Hamnay's  Tntt- 
tees  (M'Neill),  31st  Jan.  1823,  2  S.  174.  See 
Stair,  B.  iv.  tit.  42,  J  13 ;  Ertk.  B.  iii.  tit.  3, 
§69 ;  tit.  7,  §  42 ;  Bank.  vol.  ii.  p.  626.  See 
Ret  Jvdicata. 

Bes  Jadioats ;  are  those  judgments  of  the 
Supreme  Courts  which  have  biscome  final, 
and  which  are  held  conclusively  to  settle  the 
question  discussed,  so  as  to  prevent  the  parties 
or  their  representatives  from  afterwards  rais- 
ing an  action  founded  on  the  same  medium 
concludendi  or  cause  of  action.  The  judgment 
of  an  inferior  court  does  not  fall  under  the 
description  of  ret  judicata;  for,  in  inferior 


courts,  a  «opta  peritorwm  is  not  presumed,  and 
parties  ought  not  to  suffer  from  employing 
ignorant  procurators  when  perhaps  no  better 
are  to  be  had.  In  like  manner,  a  party  who 
brings  a  case  under  review  of  the  Supreme 
Court  will  not  be  barred  from  pleading  a  de- 
fence, or  from  urging  any  other  plea,  although 
it  may  have  been  omitted  in  the  inferior  court. 
When  decree  is  pronounced  in  terms  of  the 
libel,  the  whole  conclusions  of  the  libel  are 
held  to  be  fM  judicata,  even  although  some 
of  them  have  never  been  adverted  to  or  dis- 
cussed ;  CHendinniny,  27th  Dee.  1699,  FounL 
ii.  76.  Ertk.  B.  iv.  tit.  3,  §§  1  and  7  ;  Stair, 
B.  iv.  tit.  40,  §  16  ;  App.  §  8  ;  Mor^s 
Notet,  p.  cecxciv. ;  Bank.  ii.  625  ;  BdCt  Priae. 
§  2346 ;  IU»a.  §  1536 ;  Kamet'  Stat.  Law 
Abrida.  k.  t. ;  Skan^t  Prae. ;  Henderson,  May 
18, 1814,  2  Dow,  285;  Qraham,  May  20. 1814, 
2  Dow,  314 ;  Grakam,  1820,  2  Bligk,  126. 
See  Competent  and  Omitted.  Ret  Noviter  Ve- 
nient.  Decree  m  Absence.  Compearamu.  De- 
cree.   Exceptio  Ret  JnHeedce. 

Bes  Horiter  Venieas  ad  HotitiBOL  la 
judicial  procedure,  this  phrase  is  applied  to 
matters  of  fact  pertinent  to  the  cause  of  which 
the  party  acquires  the  knowledge  pending  ^e 
process,  which  he  was  unavoidably  ignorant 
of  before,  and  which,  by  due  previous  inrea- 
tigation  or  inquiry,  could  not  have  come  to 
his  knowledge.  The  rule  of  the  Judicature 
Act  is,  that  it  shall  be  competent  to  either 
party,  in  the  course  of  a  cause,  to  state  mat- 
ter of  fact  noviter  venien*  ad  notitiam,  or 
emerging  since  the  commencement  of  the  ac- 
tion, if,  on  cause  shown,  leave  shall  be  ob- 
tained from  the  Jjord  Ordinary  or  tiie  Court — 
the  party  always  paying  such  expenses  as  the 
Lord  Ordinary  or  the  Court  may  deem  rea- 
sonable. If  leave  be  granted,  the  new  matter 
must  be  stated  in  a  condeecendenee,  accompa- 
nied by  a  correqionding  plea  in  law,  to  be 
answered  by  the  other  party,  and  made  part 
of  the  record ;  6  Geo.  IV.  c.  120,  §  10.  And 
the  relative  Act  of  Sederunt  enjoins,  that, 
after  closing  the  record,  where  a  party  wishes 
to  state  on  the  record  matter  of  fact  noviter 
veniens  ad  notitiam,  or  emerging  since  the 
commencement  of  the  action,  he  shall  enrol 
the  case,  and  furnish  the  opposite  party,  at 
least  forty-eight  hours  before  the  eorolnMut, 
with  a  condescendence  of  Uie  new  matter. 
And  a  new  plea  in  law  must  be  notified  in 
the  same  manner;  A.  S.  11<&  July  1828, 
§  59.  Papers  noviter  venientet,  dtc,  or  noviter 
repertce,  may  also  be  profluced  after  the  re- 
cord is  closed;  A.  S.  §  55.  Regulations  si- 
milar in  principle  are  in  force  in  inferior 
courts ;  the  rule  there  being,  that,  at  any 
time  before  final  judgment,  either  party  may 
give  in  a  short  note,  stating,  without  argu- 
ment, any  matter  of  foet  meviter  veniens  ad 


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notitiam,  op  emerging  since  tbe  commence- 
ment of  the  action ;  and  in  other  respects, 
tbe  regulation  is  verhatim  the  same  with  that 
in  the  Supreme  Court ;  A.  S.  I2th  Nov.  1825. 
In  jury  causes,  res  wviter  vement  ad  notitiam 
is  a  relative  ground  for  an  application  for  a 
new  trial;  but  the  new  trial  will  not  be 
granted  if  it  appear  that,  by  due  preparation 
and  proper  inquiries,  the  new  matter  could 
hare  been  made  available  at  the  trial.  An 
application  for  a  new  trial  on  this  ground 
must  be  supported  by  afBdavit.  See  Skandfi 
Prac.  i.  486;  Macfarlan^s  Jury  Prae.  267; 
Madamin't  Form  of  Proem,  272 ;  BeU'*  Com. 
iL  279,  288. 

Bet  VvUilu ;  things  in  which  no  one  can 
have  any  property,  as  sacred  things  dedicated 
to  the  service  of  God.    See  Res  Saeroe. 

Km  Perit  mo  Somiiio ;  a  mu^im  import- 
ing that  the  owner  of  a  subject  must  bear  the 
loss,  if  it  perish,  unless  its  destruction  can  be 
ascribed  to  another's  fault.  In  the  House  of 
Lords  this  maxim  was  explained  to  mean, 
that  the  interest  which  each  has  in  a  subject 
perishes  to  the  dominus  of  that  interest,  as  well 
as  the  corporeal  thing  to  its  dominus ;  Bayne  v. 
WaOtar,  22d  March,  12th  May,  and  3d  July 
1816,  3  Dow,  233.  See  Ersk.  B.  iii.  tit.  1,  § 
19;  5«M  on  Leases,  i.  240,  nofe;  Hmtet's 
Landlord  and  Tenant.    See  Perieuhm. 

Am  PnbliOffi ;  are  things  exempted  from 
commerce,  and  which  belong  to  the  public, 
or  to  the  Sovereign  as  trustee  for  the  commu- 
nity, as  navigable  rivers,  highways,  harbours, 
bridges.  Ersk.  B.  ii.  tit.  1,  §§  6,  6 ;  BeWs 
Print.  §  638 ;  Brovm  on  Sale,  115.  See  Re- 
galia. 

Bas  SaoTO ;  by  the  Roman  law,  were  the  pro- 
perty of  none.  By  the  law  of  Scotland,  things 
appropriated  to  the  service  of  God,  as  churches, 
church-bells,  communion-cups,  &c.,  may  be 
disposed  of  or  sold  on  proper  occasions,  and 
others  substituted  in  their  room,  Ersk.  B.  ii. 
tit.  1,  §  8  ;  Bank.  vol.  i.  p.  84 ;  Brown  on  Sale, 
113.  See  Church.  Church-yard.  Burying- 
plaee.    Oravestone. 

Bes  raa  Hemini  Servit ;  a  maxim  import- 
ing that  no  one  can  have  a  servitude  over  his 
own  property,  since  every  use  to  which  he 
applies  the  subject  may  be  ascribed  to  his 
paramount  right  of  property.  Accordingly, 
when  the  proprietor  of  the  dominant  becomes 
proprietor  also  of  the  servient  tenement,  the 
servitude  is  said  to  be  extinguished  confu- 
sione.  Professor  Bell  objects  to  this  doctrine 
being  adopted  without  limit,  and  says,  "  If,  in 
tbe  exercise  of  the  right  or  otherwise,  the 
owner  has  indicated  no  intention  of  extin- 
guishing the  servitude,  it  would,  on  separa- 
tion of  the  tenements,  revive ;"  BdPs  Prine. 
1 997.  See  also  Ersk.  B.  ii.  tit.  9,  §  36 ;  Stair, 
B.  iv.  tit  16,  §  3 ;  Bank.  vol.  L  p.  684 ; 


StetMrfs  Answers  to  Dirleton,  voce  Servitude, 
p.  383. 

£es  ITniversitatiB ;  are  things  belonging 
to  a  corporate  body.  Ersk.  B.  ii.  tit.  1,  §  7. 
See  Community. 

B«iei8MTy  Action.  Rescissory  actions  are 
those  actions  whereby  deeds,  &e.,  are  declared 
void.  Under  this  class  are  included  actions 
of  improbation,  actions  of  reduction,  and  ac- 
tions of  reduction-improbation  ;  all  of  which 
are  competent  onlvbefore  the  Court  of  Session. 
Ersk.  B.  i.  tit.  3,  *§  19.    See  Reduction. 

Seune.  The  rescuer  or  recapturer  of 
vessels  or  goods  is  entitled  to  salvage.  See 
Sakage. 

BMOae.  According  to  Bankton,  any  one 
accessory  to  the  escape  of  a  prisoner  from  the 
messenger  will  be  liable  for  the  debt ;  Bank. 
iii.  5.  In  England,  rescuing  a  person  in  cus- 
tody of  a  sheriff's  officer  on  his  way  to  jail  is 
punishable  as  a  misdemeanour;  so  likewise  is 
the  rescue  of  a  felon  from  a  constable.  Tom- 
lins'  Diet,  h.  t.    See  Deforcement, 

BeieautiBa ;  sickness  or  infirmity.  Skene, 
h.t 

Beserred  Power.  Reserved  powers  are 
of  different  sorts ;  as  a  reserved  power  of  bur- 
dening a  property,  or  a  reserved  power  to  re- 
voke or  recall  a  settlement  or  other  deed. 
See  Burdens.  Delivery.  Deathbed.  Faculty. 
BM0t  of  Theft ;  is  the  offence  of  receiving 
and  keeping  goods,  knowing  tiiem  to  be  stolen, 
and  with  an  intention  to  conceal  and  withhold 
them  from  the  owner. .  It  is  immaterial  how 
short  the  offender's  possession  may  have  been ; 
or  whether  it  was  only  for  thesake  of  temporary 
concealment.  Harbouring  a  thief  with  stolen 
goods  in  his  custody  does  not  constitute  reset, 
unless  the  goods  are  in  some  way  committed 
to  the  entertainer's  care.  It  is  of  no  conse- 
quence on  what  footing  the  goods  are  received, 
and  whether  immediately  from  the  thief,  or 
from  one  who  received  them  from  the  thief. 
But  it  is  believed  that  the  receiving  of  goods 
sold  by  way  of  decoy  by  the  thief,  at  the  in- 
stigation of  the  officersof  lawwho  apprehended 
him,  will  not  constitute  reset.  The  punish- 
ment of  reset  varies  from  a  few  months'  im- 
prisonment to  transportation  for  life.  The 
tlwef  may  be  adduced  as  a  witness,  but  his 
evidence  is  received  with  caution.  Hume,  i. 
110 ;  Alison's  Prine.  328;  Steele,  137  ;  Ersk. 
B.  iv.  tit.  4,  §  83 ;  Taifs  Justice,  voce  Theft ; 
Blair's  Justice,  voce  Theft;  Shavfs  Digest, 
154. 

Besidoary  Legatee  ;  is  he  to  whom  a  tes- 
tator bequeaths  the  residue  of  his  moveable 
estate,  after  the  legal  claims  thereon  and 
other  legacies  have  been  paid.  Where  the 
univertitas  of  the  moveable  estate  is  conveyed 
to  one  by  a  settlement  or  general  disposition, 
the  diqranee  is  usually  called  universal  kgatee 


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or  Ugalary,  or  general  dlsponee ;  and  where 
his  universal  right  is  burdened  with  the  pay* 
ment  of  debts  and  legacies  to  others,  he  is  in 
effect  a  residuary  legatee,  since  he  is  entitled 
to  the  whole  estate  after  pajdng  the  testator's 
debts  and  legacies.  Ertk.  B.  iii.  tit.  9,  §  6 ; 
Jwrid.  Stylet,  ii.  472-81.  See  Legacy.  Di$- 
potiHon,  General. 

Beddne  DatiM.    See  Legacy  and  Retidue 
Duties. 

Beiigiiation ;  is  the  form  by  which  a  vas- 
sal returns  the  fee  into  the  hands  of  a  snpe- 
rior.  It  is  of  two  kinds — resignation  ad  re- 
manentiam,  and  resignation  infavorem.  Re- 
signation ad  remanenttam  is  made  where  it  is 
intended  to  return  the  property  permanently 
to  the  superior ;  it  is  then  resigned  into  his 
hands  ad  perpetuam  remanentiam,  and  for  the 
purpose  of  consolidating  the  property  and 
superiority.  Resignation  <n  favorem,  igtin, 
is  the  form  where  the  object  is  to  transfer  the 
property  to  a  third  party ;  in  which  case  the 
resignation  is  made  m  favour  and  for  new  in- 
feflment  to  be  given  to  the  new  dlsponee. 
Resignation  is  made  in  virtue  of  t^proatra- 
tory  of  retignation ;  under  which  warrant  a 
procurator  for  the  resigner,  with  a  notary- 
public  and  two  witnesses,  appears  in  presence 
of  the  superior  or  of  his  commissioners,  and, 
in  virtue  of  the  procnratory,  makes  the  re- 
signation. Where  it  is  a  resignation  infa- 
vorem, the  procurator  also  acts  for  the  'dls- 
ponee, and  receives  the  symbols  by  which  he 
is  invested;  and  on  this  procedure  instru- 
ments are  taken  in  the  hands  of  the  notary- 
public  Where  the  resignation  is  ad  rema- 
nentiam,  a  notarial  instrumeut  is  drawn  up 
and  attested  by  the  notary  and  witnesses; 
and  that  being  a  transmission  of  property  to 
the  superior,  it  requires  to  be  recorded  in  the 
Register  of  Sasines  within  sixty  days ;  1669, 
c.  3.  Where  it  is  a  resignation  infavorem,  the 
act  of  resignation  is  recited  in  the  charter  of 
resignation,  which  must  be  granted  by  the 
superior  to  the  new  vassal,  in  virtue  of  the 
resignation  m  favorem,  on  which  charter  in- 
feftment  follows,  and  completes  the  right  of 
the  disponee.  And  as  the  instrument  of  sa- 
sine  following  on  the  charter  of  resignation  is 
of  course  recorded  in  the  Register  of  SasinM 
within  sixty  Ahji  after  the  date  of  the  infeft- 
ment,  the  requisite  publicity  is  given  to  the 
transfer,  and  the  requisite  evidence  of  it  pro- 
served,  without  the  necessity  of  an  instrument 
of  resignation,  which  in  practice  is  not  used  in 
the  case  of  resignations  infavorem.  Ertk.  B.  ii. 
tit  7,  §  17,  et  seq.;  Stair,  B.  ii.  tit.  3,  5  21 ; 
tit.  11,  §§  1-7 ;  B.  iii.  tit.  2,  §  8 ;  Mor^s  Notes, 
pp.  cxcvi.,  cclxiii.,  ccxciv. ;  Bank.  ii.  143-4 ; 
BeWs  Com.  i.  683,  674 ;  B^t  Prine.  §  786 ; 
el  teq. ;  lUust.  ib. ;  Kame^  Prine.  of  Equity 
(1825),  452 ;  BeU  on  Pnrekasef's  Title,  255,  et 


teq.;  Rou't  Led.  ii.  79,  215,  el  seq.  See 
Charter.  Procuratory  of  Resignation.  CogtuiioH 
and  Sasine.    Disposition. 

By  the  Titles  to  Land  Act  1858,  an  entry 
by  resignation  may  be  completed  by  recording 
in  the  Register  of  Sasines  a  writ  of  resigna- 
tion, written  on  the  deed  containing  the  war- 
rant of  resignation  along  with  such  deed 
itself.    See  Titles  to  Land. 

BewlQtiT9  CUtnse.  See  Clamses  Irritmt 
and  Resolutive.    Irritant  Clause.    Tailtie. 

BasdutiTe  Condition ;  a  condition  in  a 
sale,  which  does  not  suspend  the  completion  of 
the  contract,  but  which  resolves  the  tale,  if 
the  condition  be  purified  at  the  time  specified. 
Ertk.  B.  iii.  tit.  3,  §  11 :  Beies  Com.  i.  239. 
See  Pactum  Legis  Commissorice.  SuspenttM 
Condition. 

Respite  of  Sentraee;  is  the  delay  of  a  capi- 
tal punishment ;  as  in  the  case  of  a  pregnant 
woman  who  has  been  condemned,  and  pleads 
her  pregnancy,  the  Court,  for  the  sake  of  the 
child,  are  in  use  to  respite  the  sentence.    See 

BecpcmdeBook,  InEzeheqner;  isabook 
kept  by  the  Directors  of  Chancery,  in  which 
are  entered  all  non-entry  and  relief  duties 
payable  by  hein  who  take  precepts  from 
Chancery.  Those  duties  are  payable  by  the 
heir,  although  he  may  not  have  used  the 
precept ;  and  the  Crown  may  compel  him,  by 
an  action,  to  pay,  as  the  sheriff,  if  he  has  paid 
the  duties,  has  his  action  of  relief  against  the 
heir.  Ertk.  B.  ii.  tit  5.  §  50 ;  Stair,  B.  ii. 
tit  4, §28;  Bank. ii, 497;  Karnes' Stat. Lew, 
h.t.;  Sktme,K.t. 

Respondentia ;  a  loan  upon  the  caigo  of  a 
ship,  made  in  contemplation  of  a  partienlar 
voyage,  on  the  condition  that,  if  the  snbject 
on  which  the  money  is  advanced  be  lost  bj 
sea-risk,  or  superior  force  of  the  enemy,  the 
lender  shall  lose  his  money ;  and  that  if  the 
voyage  be  successful,  the  sum  advanced  shall 
be  repaid  with  a  greater  than  ordinary  rate 
of  interest,  called  marine  interest,  which  may 
be  lawfully  taken  in  consideration  of  the  riik 
incurred  by  the  lender  who  ventures  on  the 
voyage.  If  the  ship  be  lost  under  any  of  Ae 
ridu  which  would  render  an  insurer  liable, 
the  claim  of  the  lender  is  extinguished.  In 
foreign  countries,  the  contract  of  respondtih 
tia  creates  a  real  security  over  the  cargo ;  but 
in  this  country  it  for  the  most  part  aflfbrds 
personal  security  only  to  the  lender.  BdPt 
Com.  i.  530,  et  seq. ;  BeWt  Prine.  §  453 ;  lUmi- 
ib. ;  Jurid.  Stylet,  xL  533.  See  Bond  of  Re- 
spondentia, 

Restitation ;  is  an  obligation  incnmbent  on 
the  person  in  possession  of  a  moveable,  where 
that  moveable  is  truly  the  property  of  an- 
other, even  although  the  possenor  should  have 
obtained  it  by  purchase  ;  nor  will  the  owner, 


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}B  tbat  case,  be  bound  to  pay  tbe  price  which 
the  holder  may  have  given.  Where  a  per- 
son has  had  an  article  of  this  kind  in  hia  pos- 
session,  but  has  sold  it  before  any  demand  has 
been  made  by  the  true  owner,  he  is  liable  no 
farther  than  as  he  has  received  more  than  he 
paid  for  it;  for  this  surplus  is  clearly  the 
property  of  the  owner,  to  whom  it  is  justly 
due ;  Ertk.  B.  iii.  tit.  1,  §  10.  An  action  lies 
for  restitution  of  money  paid  through  mistake 
or  ignorance,  or  of  money  paid  in  contempla- 
tion of  an  event  which,  through  the  fault  of 
the  receiver,  ha^  not  happened.  Stair,  fi.  i. 
tit.  7  ;  More'g  Notes,  p.  xlviii. ;  Bank,  i,  208, 
et  seq. ;  BeWs  Com.  i.  132,  et  seq.;  BeU's  Prine. 
§  526  e<  teq.,  1320 ;  lUust.  ib.  See  Condictio 
Jndebiti.    Condictio  Causa  Data. 

BestitatioB  of  Minors.  See  Minor.  Quad- 
riennium  Utile,     Curaiory, 

Setenta  Fosaenione.  See  Pottetsion.  Re- 
puted Oumership. 

Retention.  The  distinction  supposed  to 
exist  between  the  lien  of  the  English  And  the 
retention  of  the  Scotch  law,  has  been  already 
noticed  in  the  article  Lien.  As  a  real  dis- 
tinction, however,  between  these  rights,  it 
deserves  attention,  that  the  right  of  retention 
may  be  exercised  over  a  subject  which  ii  the 
retainer's  own  property,  but  which,  were  it 
not  for  the  right  of  retention,  be  would  be 
bound  to  deliver  to  another,  as  in  the  case  of 
goods  sold,  but  not  delivered,  which  remain 
the  property  of  the  seller  ;  whereas  it  is  aH 
essential  characteristic  of  lien,  that  the  sub- 
ject over  which  it  extends  is  the  property 
of  another.  Retention  is  a  right  of  with- 
holding a  debt,  or  retaining  moveable  pro- 
perty, until  a  debt  due  to  the  person  claim- 
ing the  right  of  retention  shall  be  paid.  The 
right  of  retention  differs  from  hypothec  in 
this,  tbat  retention  depends  entirely  upon 
possession,  while  tbe  right  of  hypothec  may 
exist  over  a  subject  not  in  the  possession  of 
him  who  has  the  right.  Thus,  an  agent  has 
a  right  of  hypothec  over  the  expenses  in  which 
tbe  opposite  party  is  found  liable  ;  be  has  a 
right  to  retain  the  title-deeds,  &c.,  of  his  own 
client  in  security  of  his  account.  See  Hypo- 
thec It  would  appear,  as  stated  in  the  article 
Lien,  that  there  is  not  in  the  law  of  Scotland 
any  general  right  of  retaining,  in  all  circum- 
stances, whatever  belongs  to  a  debtor  in  secu- 
rity of  his  debt  In  the  ordinary  case,  there 
must  be  something  to  connect  the  thing  re- 
tained with  the  debt  in  security  of  which  it  is 
retained,  so  as  to  give  room  for  the  presump- 
tion of  an  express  or  implied  agreement  that 
the  creditor  should  have  such  security  for  his 
debt.  Thus,  a  ship  may  be  retained  in  secu- 
rity for  repairs,  whether  executed  at  home  or 
abroad.  There  is  also  a  right  of  retention 
over  goods  aboard  ship,  for  the  freight'  and 
2z 


passage-money ;  and  a  similar  lien  over  goods 
in  land  carriages,  and  over  the  goods,  horses, 
and  carriages  of  travellers,  for  their  enter- 
tainment in  inns.  Retention  is  also  compe- 
tent to  workmen  of  the  articles  put. into  their 
hands  to  make  or  to  repair,  for  the  price  of 
the  article  made,  or  the  expense  of  repairs. 
There  is  a  kind  of  retention,  which  has  been 
called  general  retention,  in  which  the  right 
extends  not  only  over  the  individual  article  on 
which  the  debt  has  been  contracted,  but  also 
over  other  articles  of  the  same  kind,  sent  in 
regularly  in  a  course  of  dealing.  There  are 
also  classes  of  individuals,  exercising  certain 
professions  or  trades,  who  have  a  right  to  re- 
tain, in  security  of  their  general  balance,  tbe 
goods  and  effects  of  their, debtor  which  have 
come  into  thfiir  bands  in  their  professional 
character.  The  law-agent's  right  of  reten- 
tion has  been  considered  under  the  article 
Hypothec.  The  factor's  lien  entitles  him  to 
retain,  in  security  of  his  advances,  the  pro« 
perty  of  the  principal  which  has  come  into 
his  hands  as  factor.  When  he  has  sold  the 
goods,  he  is  not  entitled  to  retain  them  against 
the  purchaser,  on  account  of  the  balance  due 
by  the  principal ;  but  his  lien  ib  such  a  case 
extends  over  the  price  of  the  goods  when  paid 
to  him.  Specific  appropriation  excludes  the 
factor's  lien.  A  banker  has  a  right  of  reten- 
tion, in  security  of  the  general  balance,  over 
unappropriated  paper  belonging  to  customers, 
but  not  orer  bills  discounted,  or  appropri- 
ated. A  policy-broker's  lien  entitles  him, 
on  his  principal's  bankruptcy,  to  retain  the 
policy  and  sums  paid  to  him  for  a  loss.  A 
trustee  has  a  right  of  retention  over  the  trust- 
property  in  security  of  his  advances,  and  in 
relief  of  his  responsibility — that  is,  he  may 
refuse  to  reconvey  until  such  claims  are  satis- 
fied. .But  if  the  subject  be  heritage,  no  one 
can  retain  it  against  the  owner  without  a 
written  title  of  possession.  Even  in  the  case 
where  a  party,  by  mistake,  had  built  on  the 
ground  of  another,  and  where  the  builder's 
claim  for  tbe  value  of  the  building,  in  so  far 
as  it  was  a  melioration,  was  not  disputed,  the 
Court  held  tbat  he  was  not  entitled  to  retaiii 
possession  until  repaid  the  expense  of  build- 
ing ;  but,  on  the  contrary,  they  decerned  him 
to  remove,  with  a  mere  reservation  of  hit 
claim  for  the  money  bona  Jide  expended  in 
erecting  tbe  house ;  Beattie,  27th  May  1831, 
9  S.ttD.  639.  It  would  appear  that  the 
cautioner's  right  of  retention  is  the  only  case 
in  which  a  proper  general  lien  exists.  A 
cautioner  may  retain,  in  order  to  secure  his 
relief,  the  goods  or  money  of  his  principal, 
whether  acquired  before  or  after  his  becoming 
bound.  Possession  is  necessary  to  every  right 
of  retention.  And  the  possession  must  be 
lawful  and  actual  possession,  not  civil,  nor 


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eonMaatial,  nor  for  a  specific  pnrpoie.  The 
right  ef  retention  etaaet  on  the  Ion  of  poa- 
seaBion  (onless  poaeenion  has  been  lost  by  mis- 
take), and  does  not  revive  on  recovery  of 
posaassion.  Acoording  to  Professor  Bell,  the 
factor's  lien  forma  an  exception  to  this  rule, 
and  "  the  regainingof  poaseaion  by  fair  means, 
in  the  course  of  the  factory,  will  restore  the 
lien ;"  B«U's  iVtne.  §  1449.  See  on  thia  sub- 
ject generally,  Stair,  B.  i.  tit  18,  §  7 ;  B.  ii.  tit. 

3,  §  27;  Mor<^s  Notu,  pp.  Izx.,  Ixxvii.,  cxzxi., 
ccxhi. ;  MrBrodiit  Sup.  913 ;  Ersk.  B.  iii.tit. 

4,  §  20 ;  BdPs  Com.  ii.  91 ;  BelPt  Prine.  § 
1411 ;  lUiut.  ib.,  where  aeveral  oasea are  cited; 
Bank,  i.  368  ;  BtU  on  Leatet,  i.  229,  370-8 ; 
ii.  25 ;  HmUer's  Landlord  and  Tenant;  Brovn 
on  Sale,  13,  210,  436,  452-60;  Thornton 
on  BiUt,  376,  584,  736,  763 ;  Bou'e  Leet.  ii. 
414 ;  Kamet^  Ejuitf,  344,  563.  See  Lien. 
Ewothee, 

By  the  law  of  Scotland,  formerly,  the  aeller 
of  goods  paid  for  but  not  delivered,  might,  on 
the  bankruptcy  of  the  purchaser,  in  rirtae  of 
his  nndivested  right  of  ownerahip,  retain  the 
goods  in  aatisfaction  of  a  previous  debt  due  to 
him  by  the  purchaser.  See  the  cases  Mein 
T.  B<ifle,  Jan.  17, 1626,  6  S.  360,  and  Mdrote 
V.  Haitie,  March  7, 1861, 13  D.  880.  By  the 
Mercantile  Law  Amendment  Act,  however,  a 
seller  is  not  entitled  to  a  right  of  retention 
generally  against  a  second  purchaser,  but  he 
may  arrest  or  poind  the  goods  at  any  time 
prior  to  the  sale  of  the  goods  to  a  second  par- 
chaser  being  intimated  to  him. 

In  the  case  of  Brown  t.  SommervGe,  Jan.  13, 
1844,  6  D.  1267,  it  was  found  that  a  printer 
had  no  right  of  retention  over  stereotype  plates 
put  into  his  hands  for  the  pnrpoae  of  his  print- 
ing from  them,  for  payment  of  his  account 
See  on  the  subject  of  retention,  Hamilton  v. 
Wetiem  Bank,  Dec.  13,  1856,  19  />.  152 ; 
Gardiner  v.  Milne  d;  Co.,  Feb.  13, 1858, 20  D. 
565 ;  and  NtOional  Bank  of  Scetiand  v.  Forbes, 
Dec.  3, 1858,  21  D.  79. 

Betentis;  proof  toUem.  See i^V2«ne(, pp. 
873-4. 

Betoor.  This  name  is  given  to  an  extract 
from  Chancery  of  the  service  of  an  heir  to  his 
ancestor.  The  brieve  of  inquest,  after  the 
jury  have  pronounced  their  verdict,  is  retour- 
able  to  Chancery,  whence  it  issued ;  and  it  is 
the  duty  of  the  judge  to  whom  it  is  directed 
to  return  it,  nor  is  the  service  complete  until 
this  be  done.  The  extract  or  copy  of  the  re- 
tour  to  Chancery  is,  in  practice,  termed  the 
retonr.  Enk.  B.  iii.  tit  8,  §  61 ;  Stair,  B. 
iii.  tit  5,  §  42;  B.  iv.  tit  3,  §  5;  Jf«r«'< 
NoU»,  p.  cclxxi. ;  Bank.  ii.  327  ;  BelCt  Prine. 
§§  1831-47^3,  2024;  Kame*'  Stat.  Law 
Ahridg.  h.  t. ;  Sandford's  Heritable  Succeseion, 
i.  314,  376 ;  ii.  37 ;  Sand/ord  on  Entailt,  282, 
319,  333 ;  Tail  on  Evidenee,  3d  edit  187, 194; 


Jurid.  Styles,  i.  347-54,  385.     See  Brieeei, 
Service.    Prescription,  Vicennial. 

By  the  act  10  and  11  Vict  o.  47,  1847, 
the  practice  of  issuing  brieves  from  Chancery 
for  the  service  of  heirs  is  abolished,  and  the 
procedure  is  now  by  way  of  petition  before 
the  sheriff  of  the  county  in  which  the  deeoMed 
was  domiciled,  or  before  the  sheriff  of  Chaa- 
eerj, 

S«tOilX«d  Duties.  The  reUmred  duk/  is  the 
n««o  extent  which  is  inserted  in  retours,  and  bj 
which  the  non-entry  duties  before  citation  are 
regulated.  Blanch-holdings,  suhetitnted  for 
ward-holdings  by  20  Oeo.  II.  c.  60,  are  liable 
in  a  retour  duty  of  one  per  cent,  of  the  valued 
rent  according  to  which  the  land-tax  ia  paid. 
Feu-holdings  are  retonred  to  the  fen-duties 
apecified  in  the  charter ;  and  thua,  in  a  feu- 
holding,  the  non-entry  dutiea  are  the  fen- 
dutiea,  ao  that  the  superior  claims  nothing  eo 
nomine  before  citation  which  he  would  not  be 
entitled  to  claim  under  the  reddendo  of  his 
charter.  Where  there  ia  no  retour  of  lands, 
and  no  means  of  proving  their  retonred  dntiea, 
the  auperior  is  entitled  to  the  valued  rent  be- 
fore citation.  In  tithea,  when  they  are  held 
blanch,  the  auperior  ia  entitled  to  the  fifth 
part  of  the  retonred  duty  of  the  lands;  bat 
where  they  are  held  in  fen,  the  superior  is 
entitled  to  the  feu-duty  payable  for  them  as 
their  non-entry  duties.  Infeftments  of  an- 
nualrent  rent  are  by  the  act  1692,  c.  42,  re- 
toured  to  the  blanch,  or  other  duty  contained 
in  the  infeftment  There  is,  besides,  a  elanM 
in  the  heritable  bond  obliging  the  debtor, 
when  the  right  is  held  of  him,  to  assign  all 
the  casualties,  and  to  give  an  entir  gratis. 
Ersk.  B.  ii.  tit  5,  §§  36-38 ;  Stair,  B.  ii.  tit 
4,  §21;  B.iv.tit8,  §3;B«Mfc.ii.332.  See 
Non-Entry. 

Bettaetu  Fondalii ;  is  the.  power  which 
a  superior  formerly  exercised  of  paying  off  a 
debt  due  to  an  adjudging  creditor,  and  taking 
a  conveyance  to  the  adjudication.  Where 
the  amount  of  the  di '  t  exceeded  the  value  of 
the  estate,  the  siiwrinr  was  bound  to  psy  onlj 
to  the  extent  v\  r.  c  val:ie.  No  such  power 
is  now  exercisc'i  bv  superiors.  Ersk.  B.  ii. 
tit.  12,  §  .'i?  ;  BanLn.  :;36  ;  Karnes'  Stat.  Laif, 
voce  Jvs  Reiraduk. 

Setrocession ;  a  temn  s;?nifVing  the  recon- 
veyance of  any  right  '  'lee  back  into 
the  person  of  the  ctii  us  recoTers 
his  forunr  right  by  bcc  'signee  of 
his  own  assignee.  Ersl;.  .  5,  §  1 ; 
Bonk.  ii.  192;  Hunter's  '  •/.'  TVn- 
ant;  Jurid.  Slyles,u.^5\..  '  .iDhiest, 
p.  43;  Thomson  on  Bills,  .'"  .Usima- 
tion. 

Return ;  the  certificate  of-  "  whom 

a  writ,  w.irrant,  or  precept  it  an   ..    ,  sotting 
fort  i  what  has  been  done  by  vii  fee  of  such 


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writ,  precept,  or  warrant;  Tomlins^  Diet, 
h,  t.  Aa  to  the  returns  to  writs  of  election, 
see  Reform  Act.     Cleric  of  Crown. 

Setnm,  Clame  of.    See  Clause  of  Return. 

Eetum  Fremimns.  In  insnranee,  return 
premiums  are  due  where  the  contract  is  voided ; 
as  where  the  risk  has  never  been  begun,  or 
Bometimes  in  consequence  of  express  stipula- 
tion—as in  the  event  of  a  ship's  sailing 
with  convoy,  of  her  arriving  safe,  or  the 
like.  BdPt  Com.  i.  599,  ii.  135.  See  In- 
tunmee. 

Bevener,  The  reverser  is  the  proprietor 
of  an  estate  who  has  granted  a  waoset  of  his 
lands,  and  who  has  a  right,  on  repayment  of 
the  money  advanced  to  him,  to  be  replaced 
in  his  right.     See  Wadset. 

SeTSrsion;  as  applied  to  heritage,  is  a 
right  of  redemption,  and  is  either  legal  or 
conventional.  The  legal  reversion  is  that 
which  is  provided  by  the  operation  of  the  law 
itself;  as  in  an  ai^udication,  where  the  law 
gives  a  power  to  the  debtor  to  redeem  within 
the  legal.  The  conventional  reversion  is  that 
of  a  wadset,  or  of  an  heritable  bond,  where 
the  reverser  or  the  debtor  in  the  heritable 
bond  is  entitled  to  disencumber  the  estate,  or 
to  redeem  it  under  the  clause  of  reversion  in 
the  deed.  Stair,  B.  i.  tit.  14,  §  3;  B.  ii.  tit. 
10,  §  3;  Ertk.  B.  ii.  tit.  8,  §  2,  «<  seq.;  BmA. 
i.  416,  ii.  128;  Beifs  Com.  i.  757;  BeWs 
Prine.  §  902 ;  Karnes'  Princ.  of  EquUy  (1825), 
281 ;  Bea  <m  Pwvhaser's  Tith,  158, 374 ;  Ros^s 
Leet.  ii.  331  et  seq.,  351.  See  Redeemable 
Rights.    Legal  A^udkation.    Wadset. 

Beviaw ;  revision.  In  the  phraseology  of 
the  law  of  Scotland,  this  term  is  chiefly  ap- 
plied to  the  reviewing  of  any  interlocutor,  or 
decree,  or  sentence  a^nst  which  a  party  has 
reclaimed  or  appealed.  No  judge  in  the- 
Court  of  Session  is  now  authorised  to  review 
his  own  decrees  or  interlocutors ;  6  Qee.  IV. 
c.  120 ;  Bank.  iL  516,  539, 627.  See  Appeal. 
Reclaiming  Note.    Advocation.     Suspension. 

Bevoeation;  is  a  deed  recalling  some 
former  deed ;  or  a  clause  of  revocation  may 
form  part  of  another  deed;  as  where  it  is 
introduced  into  a  settlement  for  the  purpose 
of  recalliDg  a  former  settlement.  Where  a 
donation  between  husband  and  wife,  or  a  deed 
executed  during  minority,  is  meant  to  be  re- 
called, it  is  usually  done  by  an  express  revoca- 
tion, although,  where  the  power  to  revoke  is 
indisputable,  revocation  may  also  be  inferred 
from  posterior  deeds  irreconcilable  with  the 
subsistence  of  the  former.  But  on  the  prin- 
ciple that  rights  are  dissolved  in  the  same 
manner  in  whMh  they  are  constituted,  where 
a  donation  between  husband  and  wife  has 
been  constituted  by  writing,  it  must  be  revoked 
either  expressly  or  by  implication,  by  a  writ- 
ten deed — «.^.,  a  posterior  deed  defeating  the 


effect  of  the  former  by  a  new  gift.  The  con- 
sent or  knowledge  of  the  other  spouse  is  not 
requisite ;  and  it  has  even  been  held  that  the 
posterior  contraction  of  debt  by  the  husband 
is  tantamount  to  a  revocation  of  a  previous 
donation  to  his  wife.  See  Donatio  inter  Virttm 
et  Uxorsm.  Where,  again,  a  minor  means  to 
recall  a  deed  executed  during  minority,  it  is 
by  an  action  in  a  court,  and  by  reducing  the 
objectionable  deed,  that  he  accomplishes  his 
object.  The  action  of  reduction  may  be  pre- 
ceded by  a  revocation ;  but  this  is  not  indis- 
pensable as  a  preliminary,  nor  will  a  revo- 
cation within  the  four  years  after  majority 
supply  the  want  of  an  action  within  that  time. 
Mor^s  Notes  on  Stair,  p.  cxci. ;  Er^.  B.  iii. 
tit.  3,  §  90,  et  seq.;  Bank.  L  180,  240,  468 ; 
Sandford  on  Entails;  BeWs  Prine.  §  1617; 
lUust.  ib.    See  Qvadriennium  Utile. 

Bhind  Mart;  a  word  which  sometimes 
occurs  in  the  redd«ulo  of  charters  in  the  north 
of  Scotland.  It  is  applied  to  any  species  of 
horned  cattle — e.g.,  oxen,  cows,  die.,  given  at 
Martinmas  as  a  reddendo. 

Shodia  Lex  de  Jactn.  See  Contribution. 
Jactus  Mwcium. 

Eider.    See  Traveller. 

Biding  Interests.  Where  any  of  the 
claimants  in  an  action  of  multiplepoinding,  or 
in  a  process  of  ranking  and  sale,  have  credi- 
tors, these  creditors  may  claim  to  be  ranked 
on  the  fund  set  aside  for  their  debtor ;  and 
such  claims  are  called  riding  interests.  If 
there  be  more  than  one  rider  claiming  upon 
the  share  of  a  single  claimant,  and  that  share 
is  insufficient  to  pay  them  all,  a  competition  • 
may  incidentally  ensue  among  these  riders 
without  any  separate  process  of  multiple- 
poinding in  the  name  of  the  claimant  whose 
share  is.  thus  in  m«(ft<>.  Skand's  Prac  602  And 
908;  Beveridge,  i.  384,  ii.  545;  Madaurin's 
Sheriff  Prac.  2^8.  See  Multiplepoinding.  Rank- 
ing  and  Sale. 

Bief ;  an  obsolete  term,  synonymous  with 
robbery ;  hence  Rievert  (1477,  c.  78).  Stouth- 
ritf  is  a  term  still  known  in  criminsJ  law,  and 
importing  masterful  theft  or  depredation ; 
£ttm«,i.l01.    See  Robbery.  Reif.    Stouthrief. 

Bigbts;  properly  speaking,  may  be  opposed 
to  things  or  subjects,  as  righto  of  property,  of 
possession,  of  servitude,  8k.  But  the  distinc- 
tion between  corporeal  and  incorporeal  things 
(to  the  latter  of  which  divisions  rights  more 
properly  belong)  have  been  absorbed  in  the 
division  into  heritable  and  moveable;  Ersk. 
B.  ii.  tit.  1.  See  Corporeal  and  Incorporeal. 
Eeritable  and  Moveable.  Jus  in  re  and  ad  rem. 
Obligation.    Jut  Grediti. 

Biot  Act.    See  Mobbing. 

Bivers.  Navigable  rivers  are  inter  regalia, 
and  are  held  by  the  Sovereign,  as  trustee  for 
the  eommaaity ;  but  the  river,  ineluding  the 


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tdveut  or  bed,  and  the  banks  (for  the  purpose 
of  tracking  or  of  navigation),  is  public  pro- 
perty ;  Ersk.  B.  ii.  tit.  6,  §  17.  Rivers  also 
may  be  private  property,  in  so  far  as  the  use 
of  the  water  belongs  to  thoee  through  whose 
property  the  stream  passes ;  but  idthongh  a 
proprietor  may  employ  the  water  while  it  is 
within  his  own  grounds,  he  must  allow  it  to 
pass  onwards  to  the  inferior  heritors,  in  its 
original  channel,  and  cannot  alter  its  level, 
either  where  it  enters  or  leaves  his  property. 
Where  a  river  divides  two  properties,  neither 
proprietor  can  carry  eff  any  part  of  the  stream 
from  the  bed  of  the  river  without  the  consent 
of  the  opposite  heritor ;  nor  can  he  obstruct 
or  dam  it  up  so  as  te  cause  the  water  to  re- 
gurgitate  on  the  lands  of  the  superior  or  upper 
heritor.  The  bed  of  the  river  belongs  to  the 
proprietor  through  whose  grounds  tiiB  river 
runs ;  and  where  it  divides  adjoining  proper- 
ties, one-half  of  it  belongs  to  each.  It  is  in 
the  power  of  a  proprietor,  either  in  a  public 
or  a  private  river,  to  protect  his  banks  by  bul- 
warks ;  but  he  can  construct  them  only  for 
defence,  and  not  in  such  a  manner  as  to  throw 
the  stream  on  the  opposite  banks.  Erdc.  B. 
ii.  tit.  1,  §  6  ;  Bank  i.  607 ;  BeWs  Princ.  § 
648^0,  971 :  llhut.  §  648 ;  Kemu^  Prine.  of 
Equibf  {1825),  33.  SwPrt^perfy.  Lock.  Sci- 
num-Fuhing.. 

BoaderWay;  aiatermtude.  The  rural 
servitude  %f  pottage  er  tMy,  is  (like  the  Roman 
law  servitudes,  iter  aetut  et  via)  of  three  ^»- 
grees—foot-read,horte-road,  and«ar<  oreorrM^e- 
road ;  and  to  these  may  be  added  the  serritude 
of  a  way  or  loaning,  or  drove-road  for  cattle. 
In  the  Roman  law,  the  servitude  iter,  gave 
right  to  a  herse  or  foot-passage ;  but  in  Scot- 
land, a  servitude  of  a  foot-road  does  not  com- 
prehend a  horse-read.  This  class  of  servitudes 
imports  no  obligation  on  the  servient  pro- 
prietor io  maintain  the  road.  He  is  not  even 
prevented  from  changing  the  direction  of  the 
road,  prorided  the  new  ene  be  equally  con- 
venient for  the  dominant  proprietor ;  and,  on 
a  foot-road,  he  may  place  gates  <»r  styles  of 
easy  access,  and  on  a  cart-road,  swing-gates. 
One  important  distinction  between  servitude- 
roads  and  public-roads  is,  that  a  public-road 
may  be  used  by  all  the  Queen's  subjects,  where- 
as a  servitude-road  can  be  legally  used  only 
by  the  deminant  proprietor  and  his  family, 
and  the  tenants  in  the  dominant  lands.  The 
right  to  a  servitude-road,  eighteen  feet  wide, 
subject  to  be  used  for  carts  and  led  cattle, 
implies  a  right  of  driving  loose  cattle  along 
it ;  Swan,  Jan.  21, 1834, 12  S.  d  D.  316.  See 
also  Marthall,  July  21, 1834, 13  S.  701 ;  CruCc- 
■thanla,  July  17,  1835,  13  S.  1136;  Qibh, 
Dec.  1,  1837, 16  S.  169;  Marquis  o/Bread- 
albane  v.  M'Gregor,  July  14, 1848,  7  BeU 43 ; 
£rtk.  B.  ii.  tit.  9,  §  12;  Stat,  B.  ii.  tit.  17, 


§  10 ;  Belts  Princ.  274  and  268.  See  Higk- 
vays.  Drovo-Road.  Church-Road.  Iter.  Adnt. 
Via. 

Road,  Public.    See  Highways. 

Boad  Aots.    See  Higikwayt. 

Road  Tmit«et.    The  General  Turnpike 
Act,  1  and  2  Will.  lY.  c.43,  provides,  that  the 
qualification  of  a  road  trustee  shall  be  such 
as  is  required  by  the  local  act  for  the  county 
or  district.    No  one  can  act  as  trustee  before 
he  has  made  oath  or  aflSrmation  that  he  pos- 
sesses the  required  qualification.     No  person 
appointed  a  trustee  by  any  road  act,  is  cap- 
able of  acting  as  such,  while  he  holds  any  place 
of  profit  under  such  act,  or  under  the  general 
act,  or  is  a  tacksman  of  the  tolls  on  any 
turnpike-road.     Persons  acting  without  br- 
ing qualified  are  liable  to  a  penalty  of  L.20 
forieited  to  the  prosecutor,  and  recoverable  by 
summary  action  before  the  sheriff  of  the  shire, 
or  in  the  Court  of  Session.    Trustees  ap- 
pointed under  a  turnpike  act  are  not  disqna- 
iified  firom  acting  as  sheriffs  or  justices  in  the 
execution  of  sucn  act.    Lenders  of  money  on 
the  credit  of  tolls,  or  their  assignees,  are  not 
disqualified  from  acting  as  trustees,  sherifi 
or  justices.    Trustees  meeting  under  autho- 
rity of  any  local  act  may  from  time  to  time 
adjourn,  to  meet  at  such  place  and  time  ss 
they  shall  appoint.  .  At  »\\  their  meetings 
they  must  defray  their  own  expenses.    There 
must  be  present  at  each  meeting  the  qnomm 
appointed  by  the  local  act,  and  their  powers 
are  exercised  by  the  major  part  of  the  tnu- 
tees  present.  A  preses  must,  in  the  first  pisee, 
be  appointed  at  every  meeting,  who,  in  case 
of  an  equal  number  of  votes  (including  the  vote 
of  the  preses),  has  a  casting  or  double  vote. 
No  order  or  determination  made  «r  .agreed 
upon  at  a  meeting  can  be  revoked  or  altered 
at  any  subsequent  meeting,  unless  notice  of 
the  intention  to  propose  such  revocation  or 
alteration  shall  have  been  given  at  a  previous 
meeting  holden  for  the  same  road,  and  en- 
tered in  the  book  of  proceedings  of  such  meet- 
ing, and  have  been  transmitted  by  post  to 
every  trustee  not  present  at  suck  previous 
meeting,  who  was  present  at  the  meeting 
where  the  order  or  determination  was  made. 
Notice  must  also  be  published  by  two  several 
advertisements  in  some  paper  usually  circu- 
lated in  the  shire  in  which  the  road,ortiie  prin- 
cipal part  of  it,  is  situated,  at  least  ten  days 
previous  to  the  subsequent  meeting,  or  by 
afixing  it  for  two  consecutive  Sundays  on  the 
church-doors  of  the  parish  or  parishes  within 
which  the  road  is  situated.    Any  two  trastees 
of  a  tumpike-road  may  at  any  time  call,  or 
require  their  clerk  to  call,  a  meeting  of  tlie 
trustees  of  the  road,  provided  notice  ef  the 
meeting,  and  of  the  purpose  of  it,  be  published 
by  two  advertisements,  or  be  affixed  as  afore- 


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said.  The  trustees  may,  at  any  general  meet- 
ing, divide  tlie  roads  into  districts,  and  name 
committees  for  their  management,  of  which 
three  are  a  quorum.  They  may  appoint 
elerks,  collectors,  treasarers,  superintendents, 
surreyore  and  other  officers,  with  reasonable 
salaries  or  allowances  for  trouble  ;  and  pro- 
vision is  made  to  prevent  these  officers  from 
miscunducting  themselves.  None  of  them  can, 
in  any  way,  be  concerned  in  any  contract  en- 
tered into  by  the  trustees. 

The  trustees  of  every  turnpike-road  may 
sue  and  be  sued,  in  all  actions  or  processes,  in 
the  name  of  their  clerk  or  treasurer  for  the 
time  being ;  but  it  has  been  found  that  this 
provision  is  not  applicable  to  district  clerks, 
hut  only  to  the  clerk  under  the  general  trust; 
WilliAmon,  March  2, 1832,  10  S.  A  D.  413. 
In  a  subsequent  case,  however,  the  clerk  of  a 
oommittee  of  district  road  trustees  was  held 
entitled  to  pursue  a  cautioner  for  the  balance 
due  by  the  treasurer,  having  received  special 
authority  for  that  purpose  by  a  minute  of  the 
trustees ;  but  it  was  questioned  whether, 
without  such  authority,  he  would  have  been 
entitled  to  pnnue ;  Greiyhton,  Feb.  6, 1838, 
16  S.  A  D.  447.  No  action  or  process  brought 
or  commenced  by  or  against  any  trustees  of 
any  tnmpike-road,  in  the  name  of  their  clerk 
or  treasurer,  ceases  by  the  death  or  removal 
of  such  clerk  or  treasurer,  or  by  the  act  of 
such  clerk  or  treasurer  without  the  consent  of 
the  trastees,  but  the  clerk  or  treasurer  for  the 
time  to  the  trustees  is  always  deemed  the  pur- 
suer or  defender.  All  expenses  of  process  or 
proceedings  incurred  by  the  clerk  or  treasurer, 
are  reimbursed  and  paid  out  of  the  trust-funds 
of  the  road.  The  trustees  may  accept  sub- 
scriptions for  any  sum  of  money  requisite  for 
making  or  maintaining  any  part  of  the  road, 
and  may,  in  security  of  repayment,  assign  the 
tolls  leviable  on  the  road.  Payment  of  sub- 
Bcriptious  may  be  enforced  after  forty  days' 
notice  to  the  subaeribers,  in  any  court  compe- 
tent in  Scotland.  The  trustees  may  borrow 
money  and  assign  the  tolls  in  security.  The 
form  of  the  asignation  is  given  in  the  act. 
The  trustees  may  borrow  money  on  annuity, 
but  they  must  not  give  more  than  10  per  cent 
on  any  sum  of  money  so  borrowed,  or  grant  an 
annuity  on  any  life  under  fifty  years  of  age.  A 
party  who  lends  money  to  road  trustees,  is  en- 
titled to  rely  on  the  terms  of  the  bond  grtmted 
to  him,  and  of  the  statute  under  which  they 
act ;  and  if  by  these  he  be  entitled  to  look  to^ 
the  tolls  of  a  whole  district  for  his  security, 
he  will  not  be  affected  by  previous  resolutions 
of  the  trustees  not  communicated  to  him,  sub- 
dividing the  district ;  Threthie,  Nov.  21, 1833, 
12  &  A  D.  105.  The  trustees  will  not  incur  a 
personal  liability  for  the  repayment  of  any 
money  borrowed,  or  interest,  by  having  signed 


any  securities  in  pursuance  of  any  turnpike 
ac^  the  tolls  being  held  the  only  security. 
Nor  is  any  trustee  or  subscriber  personally 
liable,  upon  any  pretext,  for  payment  of  any 
sum,  or  peiformance  of  any  obligation  to 
which  he  has  not  bound  himself  personally  as 
an  individual,  independent  of  his  office  as  a 
trustee  under  any  turnpike  act ;  §  24.  Lands, 
buildings,  or  other  heritable  subjects  required 
for  turnpike-road  purposes,  become  the  pro- 
perty of  the  trustees  by  simple  discharge,  or 
consignation  of  the  price  in  certain  specified 
banks,  as  completely  as  if  the  respective  pro- 
prietors had  executed  in  favour  of  the  trustees 
regular  dispositions  of  the  same,  and  infefl- 
ments  had  followed  thereon ;  §  67.  The  pro- 
curator-fiscal and  trustees  of  any  turnpike- 
road,  or  any  person  authorised  by  them,  or  any 
one  of  their  number,  may  prosecute  for  any 
expenses,  toll-duty,  penalty,  &c.,  and  the  trus- 
tees may  allow  the  expenses  of  such  prosecu- 
tions to  be  defrayed  out  of  the  funds  of  the 
trust;  §  109. 

In  one  case,  road  trustees  were  found  liahlo 
for  loss  of  life  and  injury  from  a  gig  being 
overturned  by  stones  left  on  the  road  in  the 
course  of  an  operation,  although  they  alleged 
that  they*  had  no  knowledge  of  the  obstruc- 
tion, and  had  employed  a  contractor,  habit 
and  repute  competent  for  the  operation,  and 
who  had  been  specially  charged  to  be  care- 
ful; FmtUater,  July  18, 1837, 15  S.  A  D.1304. 
The  judgment  however  was  reversed  in  the 
House  of  Lords,  August  23,  1839 ;  M.  A  R., 
911.  The  local  turnpike  acts  are  adapted  to 
the  special  circumstances  of  the  particular 
district  or  county.  See  also  the  general  Sta- 
tute Service  Act,  8  and  9  Viet.  c.  81, 1845.  See 
Highumt. 

Bobbery.  The  crime  of  depriving  a  per- 
son of  his  property  by  violnace  offered  to  his 
person.  By  this  violence  is  meant  any  orer- 
masterful  constraining  of  the  person's  will  to 
whom  it  is  offered ;  and  wherever  this  sort  of 
intimidation  is  resorted  to,  whether  by  the 
mere  show  of  weapons,  or  by  the  actual  em- 
ployment of  them,  or  by  blows  or  threats, 
followed  by  the  taking  of  the  property,  the 
crime  is  completed.  It  is  not  necessary  that 
the  property  taken  be  taken  from  the  person 
of  the  man  invaded.  If  it  be  taken  from 
under  bis  immediate  charge  or  custody — e.  g^ 
a  horse  which  he  leads,  or  a  packet  from  bis 
cart — ^it  constitutes  robbery.  The  crime  is 
perfected  by  the  carrying  away  of  the  thing 
taken,  however  trifling  its  value  may  be ;  and 
provided  it  has  been  thus  taken,  and  in  the 
robber's  complete  and  exclusive  possession  for 
however  short  a  period,  the  robl>ery  is  held 
to  be  fully  perpetrated.  This  crime  is  one 
of  the  four  pleas  of  the  Crown,  and  it  is 
punishable  capitally.    Hume,  i.  101,  c<  $cq. ; 


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Erik.  B.  IT.  tit.  4,  §  64 ;  Alison't  Princ.  227 ; 
Bank.  i.  274;  BeWs  Com.  i.  469;  Svoint. 
Abridg.  h.  t. ;  Tmfs  Juttiee,  voce  Th^.  See 
Reif.    SUmlkri^. 

Sobei.  The  cottame  vorn  by  certain  per- 
loiu  in  respect  of  the  dignities  or  offices  held 
by  them,  or  of  the  profeasion  to  which  they 
belong.  So  early  as  1465  (long  before  the 
institution  of  the  Court  of  Session),  the  Scot- 
tish Parliament  enacted,  "  That  all  men  of 
law  that  are  forespeakers  for  the  cost  [hired 
advocates]  have  habits  of  gr«en  of  the  fashion 
of  a  tunykill,  and  the  sleeves  to  be  open  as  a 
tabart."— (1^S>  c.  12;  2  ThcvuoH't  AcU,  p. 
43).  The  matter  remained  without  any  far- 
ther regulation  for  nearly  200  years.  In 
1609,  it  appears  that  Judges  even  wore  no 
professional  costume,  and  the  same  may  be 
inferred  as  to  advocates.  By  the  act  1609, 
0.  8,  the  whole  matter  was  referred  to  King 
James  YI.  by  the  Scottish  Parliament ;  thus 
— "  And  because  a  conelie,  decent,  and  or- 
derlie  habite  and  apparrell  in  the  Judges  of 
the  land  is  not  onely  ane  ornament  to  tnem- 
selves  (being  a  badge  and  marke  for  distin- 
guishing them  from  the  vulgar  sort),  but  the 
same  also  breeds  in  common  people  that  re- 
verence and  regard  that  is  due  aad  proper 
for  men  in  these  places.  And  this  being  a 
custome  universallie  observed  almaist  through 
all  Europe,  the  want  whereof  is  greatlie  cen- 
sored by  strangers  resorting  in  these  parts. 
The  saides  Estaitee,  therefore,  upon  infinite 
proves  they  have  of  his  M^jestie's  maist  sin- 
gulars wiadome  in  all  hii  directions,  and  of 
his  gratious  love  and  affection  to  this  his  na- 
tive kingdom,  have,  in  all  humilitie,  referred 
to  his  Highness'  awne  appoyntment  the  as- 
signing of  any  sik  severall  sort  of  habite  and 
veetement  as  shall  be  in  his  Miyestie's  judg- 
ment maist  meet  and  proper,  as  well  for  Lords 
of  Session,  being  the  supreme  judges  in  civill 
actions,  as  for  all  other  inferior  judges  of  the 
lyke  causes.  As  also  for  the  criminall  and 
ecclesiasticall  judges,  and  for  advocaU,  lawyers, 
<Md  aU  others  living  bji  lav  and  practice  (kere^, 
that  sa  every  ane  of  these  people  may  be 
knawn  and  dignosced  in  their  place,  calling, 
and  function,  and  may  be  accordinglie  re- 
garded and  respected.  Attour,  his  Majestic 
and  Estaites  foresaids,  considering  what  slan- 
der and  contempt  hes  arisen  to  the  ecclesi- 
asticall estate  of  this  kingdome  by  the  occa- 
sion of  the  light  and  nndecent  apparell  used 
by  some  of  that  profession,  and  cheeflie  those 
having  vote  in  Parliament:  It  is  therefore 
statute  that  everie  preacher  of  God's  word 
shall  hereafter  wear  black,  grave,  and  comelie 
apparell  beseeming  men  of  their  estate  and 
profession ;  as  lykewyse  that  all  pryors,  ab- 
bots, and  prelate,  having  vot  in  Parliament, 
and  especiallie  bishops,  shall  weare  grave  and 


decent  apparrell  agreeable  to  their  fimctioD, 
and  as  appertaines  to  men  of  their  rank, 
dignitie,  and  place.  And  because  the  haill 
Estaites  humblie  and  thankfiillie  acknow- 
ledges that  God  of  his  great  mercy  has  nude 
the  people  and  subjects  of  this  countrie  sa 
lu^pie  as  to  have  a  King  raigne  over  us  wha 
is  maist  godlie,  wyse,  and  religious,  hating 
all  erronions  and  vaine  superstition,  jnrt  in 
government,  and  of  lang  experience  therein, 
knawing  better  than  any  king  living  what 
i^perteins  and  is  convenient  for  every  estate 
in  their  behaviour  and  duetie :  Therefore  it 
is  agreed  and  consented  to  by  the  said  Es- 
taites, that  what  order  soever  his  Mqestie  in 
his  great  wisdome  shall  think  meet  to  pre- 
scrive  for  the  apparrell  of  kirk-men,  agreeable 
to  Uieir  estate  and  moyen,  the  same  being 
sent  in  writ  by  his  Mi^estie  to  his  Clerk  of 
Register,  shall  be  a  sufficient  warrant  to  hiai 
for  inserting  thereof  in  the  buikes  of  Psrlia- 
ment,  to  have  the  strength  and  effect  of  ane 
act  thereof." 

Following  up  this  statute,  the  King  sent 
a  letter  to  the  Privy  Council,  dated  16th 
Januanr  1610,  which  will  be  found  printed 
in  the  first  volume  of  the  "  Miscellany  of  the 
Maitland  Club,"  p.  149.  A  proclam^oa. 
was  thereafter  issued,  dated  30th  January 
1610,  which  acknowledges  the  King's  "  sin- 
gular wisdome  in  all  his  princelie  directionis, 
and  his  gratious  love  to  this  his  antient  and 
native  kingdome,"  in  reference  to  the  aj^aiel, 
"  alswele  for  the  Lordis  of  Sessioun,  being 
the  supreme  judgis  in  civile  aetionis,  as  for 
all  utheris  inferiour  judgeis  in  the  lyke 
causes,  as  also  for  the  criminal  ecclesiastical 
judgeis,  and  for  advocats,  lawyris,  and  sll 
utheris  leving  by  law  and  practize  tiiairof, 
as  also  for  churohe  men."  His  Majesty,  it 
was  stated,  had  sent  certain  directions,  bnt 
reserved  to  himself  to  add  thereto  on  more 
due  consideration,  and  when  he  had  more  lei- 
sure. The  directions  as  to  the  lawyers  were — 

"  That  the  President  and  remanent  ordi- 
narie  Lordis  of  Sessioun  sail  weare  a  pDipoor 
(purple)  doath  gowne,  faced  all  about  with 
red  crimson  satyne,  with  a  hood  of  purple 
lyned  with  crimson  satyne  also,  according  the 
model  and  forme  of  a  gowne  send  downe  be 
his  M^estie  to  be  a  pattern  for  all  gowoet  of 
ordinarie  sessionaris,  onlie  the  Presidentis 
gowne  sail  be  faced  with  red  crimson  velvet, 
and  the  hood  lynit  witii  red  crimson  velvet." 
^his  seems  to  be  the  gown  at  present  worn 
oy  the  Judges. 

With  regard  to  the  bar,  clerks  of  Seasioo 
and  writers  to  the  Signet,  the  regulation 
was,  "  that  the  advocatis,  clerkis  of  the  Ses- 
sioun and  Signet,  sail  haif  their  gownis  of 
black  lyned  with  some  grave  kind  of  lynin^ 
or  furring." 


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Regnlations  are  also  made  at  to  the  gownB 
of  the  Justiciary  Judges ;  but  these  were  ulti- 
mately settled  by  the  subsequent  act  1672, 
c.  16,  which  enacts,  "  That  for  the  splendour 
of  that  Court,  all  the  Judges  sit  in  red  robes 
faced  with  white — that  of  the  Justice-Ge- 
neral's being  lined  with  ermine  for  distinc- 
tion from  the  red." 

No  notice  is  taken  of  procurators  before 
inferior  courts. 

The  gown  of  the  advocate  was  to  be  lined. 
An  idea  of  what  it  was  may  be  obtained  from 
drawings  in  the  Lyon  Office,  representing  the 
order  of  the  funeral  of  the  Chancellor  Rothes 
in  1681.  Representations  are  given  in  the 
drawings  of  all  who  attended  in  their  robes. 
The  gowns  of  the  Judges  appear  to  have  been 
the  same  then  as  now.  The  Lord  Advocate 
also  appears  in  the  same  full  dress  gown  as 
worn  by  him,  on  important  occasions,  at  pre- 
sent. The  Dean  of  Faculty  and  Solicitor- 
General  are  not  distinguished  as  wearing  any 
different  gowns  from  the  ordinary  bar ;  and 
at  what  time  this  latter  officer  assumed  a  silk 
gown  cannot  be  ascertained.  The  gowns  of 
the  outer  bar  are  represented  in  the  drawings 
as  having  ornaments  down  the  front,  very 
much  like  the  braiding  on  the  gown  of  the 
Lord  Advocate.  The  whole  bar  wore  bands 
and  fM-ioltomed  tuigs.  The  bands  went  out 
of  general  use  in  the  course  of  the  succeeding 
half-century ;  and  in  the  Faculty  minutes  on 
19th  Jane  1766,  there  appears  a  notice  of 
motion  to  this  effect, "  That  for  the  more  de- 
cent habite  and  apparel  of  the  advocates,  and 
to  distinguish  them  from  others  who  wear 
either  the  same  apparel  or  very  little  dif- 
ferent from  it,  that  it  should  be  resolved  that 
the  advocates  shall  wear  bands  as  a  part  of 
their  formalities;  that  the  Dean  and  his 
eouncil  shall  wait  on  the  Lord  President  and 
lay  before  his  Lordship  this  motion,  and  pray 
his  Lordship's  and  the  Court's  approbation. 
The  Faculty  delayed  the  consideration  of 
this  affair  till  some  after  meeting."  Nothing 
farther  was  done  in  the  matter  by  the  Fa- 
culty, and  the  delayed  motion  has  yet  to  be 
taken  up.  At  what  time  bands  were  entirely 
given  up  cannot  be  traced.  In  Crosbie's 
picture,  which  hangs  in  the  library  entrance, 
he  is  represented  as  wearing  bands.  And  at 
present,  when  a  member  of  the  Outer  Bar 
pleads  before  the  House  of  Lords,  the  bands 
are  resumed. 

The  only  body  that  seem  to  have  worn,  at 
the  funeral  of  the  Chancellor,  the  plain  stuff 
gown  now  worn  by  advocates,  were  the  Pro- 
fessors in  the  University ;  and  it'is  probable 
that  convenience  and  considerations  of  eco- 
nomy may  have  recommended  it  to  the  bar 
in  later  times.  See  Report  of  FaeulUf  of  Ad- 
vocates, 1859.    See  also  Solkitor-General. 


Bogrne-Voney.  The  freeholders  of  every 
county  in  Scotland  are  directed  annually  to 
assess  the  county  or  stewartry  at  any  of  the 
head  courts,  in  such  sums  as  they  judge  ne- 
cessary, for  defraying  the  expense  of  appre- 
hending offenders,  subsisting  them  in  jail,  and 
prosecuting  them.  This  assessment  is  called 
rogue-money;  it  is  exclusively  appropriated 
to  the  above  purpose,  and  collected  and  ac- 
counted for  by  a  person  appointed  by  the 
freeholders.  See  stat.  11  Geo.  I.  c.  26, 1 12 ; 
Earned  Stat.  Lata,  voce  DeUnquetuy;  Mutch. 
Justice,  ii.  257  ;  Taifs  Justice,  A.  U;  Blair's 
Justice,  h.  t.    See  Justice  of  Peace. 

Bolls,  Master  o£  The  Master  of  the  Rolls 
is  a  patent  officer  for  life,  who  has  the  custody 
of  the  rolls  and  patents  which  pass  the  great 
seal,  uid  of  the  records  of  the  Chancery.  In 
the  absence  of  the  Lord  Chancellor  or  Lord 
Keeper,  he  also  sits  as  Jndge  in  the  Court  of 
Chancery,  and  is  by  Coke  called  his  "  assist- 
ant." At  other  times  he  hears  causes  in  the 
Rolls'  Chapel,  and  makes  orders  and  decrees. 
He  is  also  the  first  of  the  Masters  of  Chan- 
cery, and  has  their  assistance  at  the  rolls ; 
but  all  hearings  before  him  are  i^pealable  to 
the  Lord  Chancellor ;  TomUns'  Diet.  h.  t. 
The  Master  of  the  Rolls  has,  by  prescription, 
a  general  authority  to  keep  the  peace 
throughout  the  realm;  but  so  far  as  ho  is 
merely  an  English  officer,  he  has  no  such 
authority  in  Scotland ;  Hutch.  Justice,  i.  2. 

Bolli  of  Court  In  the  Court  of  Session, 
the  rolls  or  lists  of  depending  causes  are 
called  and  regulated  in  a  manner  which  re- 
quires a  short  explanation.  What  regards 
the  calling  lists  has  been  explained,  voce  Call- 
ing a  Summons.  But  after  a  cause  has  been 
called,  and  has  come  to  be  a  process,  it  is  set 
down  in  order  to  be  brought  under  judicial 
cognisance  in  one  or  other  of  certain  rolls  of 
Court.  These  rolls  we  divided  generally 
into  the  Inner  and  the  Outer  House  SoUs, 
The  latter  comprehend  what  are  called  the 
weekly  printed  rolls  of  the  Court,  which  ex- 
hibit all  the  new  causes  coming  weekly  into 
Court,  and  also  the  hand-rolls  of  each  Lord 
Ordinary.  After  a  cause  has  been  once  call- 
ed in  the  weekly  printed  roll  and  disposed  of, 
it  appears  no  more  in  that  roll ;  but  while  it 
remains  in  the  Outer-House  it  is  enrolled  in 
the  Hand-roU  of  the  particular  Lord  Ordi- 
nary before  whom  it  depends.  In  these  hand- 
rolls,  as  occasion  requires,  any  case  depending 
before  a  Lord  Ordinary  may  be  enrolled. 
The  handrrolls  are  divided  into  motion-rolls 
and  debate-rolls ;  and  both  the  weekly  roll 
of  new  causes  and  the  hand-rolls  are  made 
up  and  placarded  in  the  Outer-Houso  by  the 
clerks  of  the  Judges,  according  to  certain  re- 
gulations elsewhere  explained.  The  roll  it- 
self is  a  list  of  the  several  causes,  containing 

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th«  tarnames  of  the  parties  and  of  the  coun- 
sel, and  in  the  weekly  printed  rolls  the  name 
of  the  agent  also  is  given ;  and  in  all  the 
rolls  the  initial  letter  of  the  clerk  to  the  pro- 
cess is  prefixed  to  the  names  of  the  parties. 
The  ordinary  Inner-House  rolls  of  the  Court 
of  Session  are — Isi,  The  Single  Bill  Roll ; 
2d,  The  Snmmar  or  Summary  Roll ;  3d,  The 
Long  Roll ;  and,  4th,  The  Short  Roll.  In 
the  Single  Bill  Roll  are  inserted  all  petitions, 
reclaiming  notes,  and  other  notes  or  applica- 
tions to  either  Division  of  the  Court,  whether 
written  or  printed  ;  and  this  roll  is  daily  pat 
ont  and  called  during  the  sitting  of  the  Cfourt. 
It  is  kept  by  the  keeper  of  the  Inner-House 
Roll.  See  A.  S.  llth  March  1791.  By  the 
act  20  and  21  Vict.  c.  56, 1857,  all  snmmary 
petitions  and  applications  to  the  Gonrt  are 
now  brought  before  the  junior  Lord  Ordi- 
nary officiating  in  the  Outer-House.  The 
Summar  Roll  is  appropriated  to  such  causes 
as  require  despatch,  including  cases  where  the 
Court  act  ministerially,  or  decide  by  virtue 
of  special  statute,  or  exercise  their  nobiU 
officium,  as  in  the  appointment  of  judicial 
factors  and  the  like.  Applications  under  the 
Bankrupt  Statute,  petitions  and  complaints, 
and  so  forth,  after  having  first  appeared  in 
the  Single  Bill  Roll,  are,  where  no  ulterior 
steps  in  the  Inner-House  are  necessary,  en- 
rolled in  the  Snmmar  Roll.  So  also  reclaim- 
ing notes  against  Bill-Chamber  interlocutors, 
or  interlocutors  pronounced  in  the  prepara- 
tion of  a  canse,  are  put  out  to  be  advised  in 
the  Summar  Roll.  And  in  addition  to  these, 
any  case  which,  on  special  grounds,  can  be 
shown  to  the  Oonrt  to  require  despatch,  will 
be  enrolled  with  the  leave  of  the  Court  in 
this  roll.  In  disposing  of  the  business,  the 
Court  first  calls  the  Single  Bill  Roll  and  then 
the  Summar  Roll.  The  Long  Roll  is  the  roll 
for  all  Inner-House  causes,  which,  after  hav- 
ing come  into  the  Inner-House  rolls  through 
the  Single  Bill  Roll,  or  by  a  warrant  to  enrol 
granted  by  an  Outer-House  Judge,  are  not 
appropriated  to  the  Summar  Roll.  This  long 
roll  is  put  up  only  at  the  end  of  the  session, 
and  exhibits  the  entire  list  of  causes  depend- 
ing in  either  Division  of  the  Inner-House. 
The  Short  Roll,  again,  is  merely  a  section  of 
the  long  roll,  generally  consisting  of  two  or 
three  cases  taken  in  the  order  of  the  long 
roll  and  put  down  for  advising  daily  during 
the  session.  In  the  daily  order  of  business, 
this  roll  is  taken  last,  unless  when  special 
circumstances  render  a  deviation  necessary. 
The  only  other  rolls  which  it  is  necessary  to 
notice  are  the  Teind  Rolls,  as  to  which  the 
rule  is,  that  the  teind  ordinary  action  roll  of 
new  causes,  coming  before  the  Commission  of 
Teinds,  is  kept  by  the  Teind  Clerk,  and 
calle<l  once  a  fortnight  during  the  session — 


t.  e.,  on  the  Teind  Court  day,  being  Wednes- 
day of  every  alternate  week.  The  depending 
teind  causes  and  localities  are  enrolled  before 
the  Junior  Lord  Ordinary,  and  called  weekly 
on  Saturday  morning ;  Beveridge't  Form  of 
Proeett,  ii.  727.  See  Augmentation.  LoeaUfy. 
Teind  Court.  In  the  inferior  courts  there  are 
also  rolls  analogous  to  those  in  the  Court  of 
Session,  but  of  course  not  so  complicated  or 
various.  See,  on  the  snbject  of  this  article, 
Beveridge,  i.  292,  ii.  277 ;  Shand"*  Prae.  i. 
et  seq. ;  ii.  458,  et  seq. 

£oinaii  Catholics.    Very  severe  laws  were 
formerly  in  force  against  Roman  Catholics ; 
but  these  are  now  entirely  abolished.    See 
Papittt.    By  31  Qeo.  III.  e.  32,  all  the  severe 
restrictions  and  penalties  of  the  former  laws 
were  removed  from  those  Roman  Catholics, 
who  should  make  and  subscribe  a  declaration 
of  their  professing  the  Roman  Catholic  re- 
ligion, and  take  an  oath  of  allegiance  to  the 
Sovereign,  abjuration  of  the  Pretender,  re- 
nunciation of   the  Pope's  civil   power,  and 
abhorrence  of  the  doctrine  imputed  to  them, 
of  destroying  and  not  keeping  faith  with 
heretics,  and  deposing  or  mnrdering  princes 
excommanicat«d  by  the  See  of  Rome.  But  the 
roost  important  measure  of  relief  to  the  Ca- 
tholics was  the  statute  10  Oeo.  lY.  c  7,  com- 
monly called  the  Catholic  Emancipation  Act. 
On   the  preamble  that,  by  various  acts  of 
Parliament,  restraints  and  disabilities  are  im- 
posed on  Roman  Catholics  to  which  other 
subjects  of  the  realm  are  not  liable  ;  and  that 
it  is  expedient  to  discontinue  these ;  and  that 
certain    oaths    and  declarations,   commonly 
called  the  declaration  against  transnbstantia- 
tion,  and  the  invocation  of  saints,  and  the 
sacriioe  of  the  mass,  as  practised  in  the  Cbnrch 
of  Rome,  formerly  required  as  qualifications 
for  sitting  and  voting  in  Parliament,  and  for 
the  enjoyment  of  certain  offices,  franchises, 
and  civil  rights,  should  be  dispensed  with ;  it 
is  enacted,  that  the  provisions  of  the  acts  re- 
quiring these  declarations  shall  be  repealed, 
save  as  afterwards  excepted  in  the  act.    It  is 
then  provided,  that  Roman  Catholics  may  sit 
and  vote  in  either  House  of  Parliament  on 
taking  the  following  oath,  in  lien  of  the  oaths 
of  allegiance,  supremacy,  and  abjuration:— 
"  I,  A.  B.,  do  sincerely  promise  and  swear, 
that  I  will  be  faithful,  and  bear  true  allegi- 
ance to  her  Majesty,  Queen  Victoria,  and  mil 
defend  her  to  the  utmostof  my  power  against  all 
conspiracies  and  attempts  which  shall  be  made 
against  her  person,  crown,  or  dignity ;  and  I 
will  do  my  utmost  endeavour  to  discloee  and 
make  known  to  her  Majesty,  her  heirs  and 
successors,  all  treasons  and  traitorous  conqti- 
racies  which  may  be  formed  again.<tt  her  or 
them :  And  IdofaithfuUypromise  tomaintaiD, 
support,  and  defend,  to  the  utmost  of  my 


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power,  the  succenion  of  the  Grown,  which 
BucoessioD,  by  an  act  entituled  An  Act  for 
the  farther  limitation  of  the  Crown ;  and  bet- 
ter securing  the  rights  and  liberties  of  the 
subject,  is  and  stands  limited  to  the  Princess 
Sophia,  Electress  of  Hanover,  and  the  heirs  of 
faer  body,  being  Protestants ;  hereby  utterly 
renouncing  and  abjuring  any  obedience  or 
allegiance  unto  any  other  person  claiming  or 
pretending  a  right  to  the  Crown  of  this  realm: 
And  I  do  flirther  declare,  That  it  is  not  an  ar- 
ticle of  my  faith,  and  thatldo  renounce,  reject, 
and  abjure  the  opinion,  that  princes  excommu- 
nicated by  the  Pope,  or  any  other  authority  of 
the  See  of  Rome,  may  be  deposed  or  murdered 
by  their  subjects,  or  by  any  person  whatsoever; 
and  I  do  declare,  that  I  do  not  believe  that 
the  Pope  of  Rome,  or  any  other  foreign  prince, 
prelate,  person,  state,  or  potentate,  hath,  or 
ought  to  have,  any  tempom  or  civil  jurisdic- 
tion, power,  superiority,  or  pre-eminence, 
directly  or  indirectly,  within  this  realm.  I  do 
swear.  That  I  will  defend,  to  the  utmost  of 
my  power,  the  settlement  of  property  within 
this  realm,  as  established  by  the  laws :  And 
I  do  hereby  disclaim,  disavow,  and  solemnly 
abjure,  any  intention  to  subvert  the  present 
Church  Establishment,  as  settled  by  law 
within  this  realm  :  And  I  do  solemnly  swear, 
that  I  never  will  exercise  any  privilege  to 
which  I  am  or  may  become  entitled  to  dis- 
turb or  weaken  the  Protestant  religion  or 
Protestant  government  in  the  United  King- 
dom :  And  1  do  solemnly,  in  the  presence  of 
God,  profess,  testify,  and  declare,  that  I  do 
make  this  declaration,  and  every  part  thereof, 
in  the  plain  and  ordinary  sense  of  the  words 
of  this  oath,  without  any  evasion,  equivoca- 
tion, or  mental  reservation  whatsoever.  So 
help  me  God." 

Roman  Catholics  may  vote  at  elections,  and 
be  elected,  on  taking  and  subscribing  this 
oath,  and  the  other  oaths  lawfully  tendered 
to  electors ;  §  5.  No  Roman  Catholic  priest 
can  sit  in  the  House  of  Commons ;  §  9.  Ro- 
man Catholics  may  hold  and  enjoy  all  civil 
and  military  offices  and  places  of  trust  or  pro- 
fit under  her  Majesty,  and  exercise  any  other 
franchise  or  civil  right,  except  as  excepted  in 
the  act,  upon  taking  and  subscribing  the 
above  oath ;  §  10.  But  the  act  is  declared 
not  to  exempt  Roman  Catholics  from  taking 
the  oaths  required  from  other  persons  on 
their  admission  to  such  offices;  §  11.  A  Ro- 
man Catholic  cannot  be  a  guardian  and  justice 
of  the  United  Kingdom,  in  absence  of  the 
Sovereign,  or  Regent  of  the  United  Kingdom, 
or  Lord  High  Chancellor,  Lord  Keeper  or 
Lord  Commissioner  of  the  Great  Seal  of 
Great  Britain  or  Ireland ;  or  Lord-Lieuten- 
ant, or  Lord-Deputy,  or  other  chief  governor 
or  governors ;  or  High  Commissioner  to  the 


General  Assembly  of  the  Church  of  Scotland ; 
§  14.  Roman  Catholics  may  be  members  of 
any  lay  body  corporate,  and  hold  any  civil 
office  or  place  of  trust  or  profit  therein,  and 
do  any  corporate  act,  or  vote  in  any  corporate 
election,  or  other  proceeding,  upon  taking  and 
subscribing  the  above  oath  ;  and  other  oaths 
required  from  members;  §  14.  But  such 
members  cannot  vote  in  ecclesiastical  appoint- 
ments ;  §  15.  The  act  is  declared  not  to  ex- 
tend to  offices  in  the  Established  Church,  or 
ecclesiastical  courts,  universities,  colleges,  or 
schools :  And  it  is  likewise  provided,  That 
nothing  contained  in  the  act  shall  be  held  to 
enable  any  person,  otherwise  than  he  is 
now  by  law  enabled,  to  exercise  any  right 
of  presentation  to  any  ecclesiastical  bene- 
fice whatsoever ;  or  to  repeal,  vary,  or  alter 
in  any  manner,  the  laws  now  in  force  in  re- 
spect to  the  right  of  presentation  to  any 
ecclesiastical  benefice ;  §  16.  Where  any 
right  of  presentation  to  any  ecclesiastical 
benefice  belongs  to  any  office  in  the  gift  or 
appointment  of  the  Crown,  and  such  office  is 
held  by  a  Roman  Catholic,  the  right  of  pre- 
sentation devolves  upon  the  Archbishop  of 
Canterbury;  §  17.  No  Roman  Catholic, 
directly  or  indirectly,  can  advise  the  Sove- 
reign, or  guardian,  or  regent  of  the  kingdom, 
or  Lord-Lieutenant  of  Ireland,  &c.,  respecting 
appointments  in  the  Church  of  England  and 
Ireland,  or  of  Scotland,  under  pain  of  being 
deemed  g^iilty  of  a  high  misdemeanour,  and 
disabled  for  ever  from  holding  any  office,  civil  or 
military,  under  the  Crown  ;  §  18.  Provision 
is  made  for  the  time  within  which  the  above 
oath  must  be  taken  by  persons  appointed  to 
offices.  Persons  entering  on  any  office  without 
having  taken  the  oath  are  liable  to  forfeit 
L.200,  and  the  appointment  is  void;  §  21. 
Titles  to  sees,  &c.,  must  not  be  assumed  by 
Roman  Catholics;  §  24.  Judicial  or  other 
officers  must  not  attend  at  any  place  of  wor- 
ship  other  than  the  established  church,  under 
a  penalty  of  L.lOO ;  §  25.  Roman  Catholic 
ecclesiastics  officiating,  excepting  in  their 
usual  places  of  worship,  are  liable  to  a  penalty 
ofL.60;  §26. 

By  2  and  3  WiU.  IV.  c.  115,  passed  for  the 
purpose  of  securing  the  charitable  donations 
and  bequests  of  Roman  Catholics,  they  are 
declared  to  be  subject  to  the  same  law,  in  re- 
spect to  their  schools,  places  of  worship,  edu- 
cation, and  charitable  purposes,  in  Great  Bri- 
tain, and  the  property  held  therewith,  and 
the  persons  employed  in  or  about  the  same, 
as  the  Protestant  Dissenters  are  subject  to  in 
England.  Roman  Catholic  schoolmasters, 
when  required  to  take  an  oath  as  a  qualifica- 
tion, are  directed  to  take  the  above-cited  oath, 
prescribed  by  10  Geo.  IV.  c.  7.  With  re- 
gard to  the  laws  formerly  or  still  affecting 


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BoBian  Catholics,  the  following  anthoritiei 
may  b^  ooniultod :  Ertk.  B.  ii.  tit.  3,  §  16, »)» 
note:  More'*  Notei  to  Stair,  p.  xlir. ;  Bank. 
rol.  i.  p.  49 ;  Kamet'  Stat.  Law  Abridg.  k.  t. 

By  the  act  7  and  8  Vict,  c  102, 1844,  ra- 
rious  penal  enactmentg  anent  to  Roman  Ca- 
tholics are  repealed.  The  act  7  and  8  Vict,  c 
97,(1844),  regulates  the  application  of  charit- 
able donations  uid  bequests  in  Ireland ;  and 
the  act  14  and  15  Vict.  e.  60,  1861,  preyents 
the  assumption  of  ecclesiastical  titles  in  respect 
of  places  in  the  United  Kingdom. 

Bomaa  Law.  The  Roman  law,  the  prin- 
ciples of  which  are  so  remarkably  incorporated 
with  those  of  the  law  of  Scotland,  was  founded 
originally  upon  the  constitutions  of  the  ancient 
kings  of  Rome ;  next  upon  the  twelre  tables  of 
the  decemviri ;  then  upon  the  laws  or  statutes 
enacted  by  the  senate  or  by  the  people ;  the 
edicts  of  the  pretor  and  the  Responaa  Pruden- 
tan,  or  the  opinions  of  learned  lawyers ;  and, 
lastly,  upon  the  imperial  decrees  or  constitu- 
tions of  the  emperors.  Authority  was  also  given 
in  the  Roman,  as  in  most  other  systems,  to  what 
is  called  customary  or  unwritten  law.  Those 
materials  were  first  reduced  into  a  Code  by 
the  order  of  the  Emperor  Theodosins,  a.d. 
438,  which,  under  the  name  of  the  Thttfiotiait 
Code,  continued  for  several  centuries  to  be  the 
only  authoritative  compilation  recognised  in 
the  western  part  of  the  empire.  Justinian's 
body  of  the  Roman  law,  the  authority  of 
which  was  confined  to  the  eastern  division  of 
the  empire,  was  compiled  and  finished  by 
Tribonian  about  the  year  633.  It  consists, 
1.  Of  the  ItutitHtes,  containing  the  elements 
or  first  principles  of  the  Roman  law,  in  four 
books.  2.  Of  the  Digest  or  Pandects,  in  fifty 
books,  containing  the  opinions  and  writings 
of  eminent  lawyers.  3.  Of  a  new  Code,  or 
collection  of  imperial  constitutions,  in  twelve 
books — the  Theodosian  Code  having  been,  by 
the  lapse  of  a  century,  rendered  imperfect. 
4.  Of  the  Novels,  or  new  constitutions  pos- 
terior in  time  to  the  other  books,  being  a 
supplement  to  the  Code  containing  the  new 
decrees  of  saocessive  emperors.  These  form 
the  Corpus  Juris  Civilit,  as  publbhed  about 
the  time  of  Justinian,  and  which  soon  after- 
wards fell  into  oblivion,  until  about  the  year 
1130,  when  a  copy  of  the  Pandects  is  said  to 
have  been  found  at  Amalfi,  in  Italy ;  after 
which  the  study  and  authority  of  the  Ro- 
man law  was  revived  and  adopted  as  the  foun- 
dation of  most  of  the  European  codes.  The 
story  of  the  finding  of  the  Pandects  at  Amalfi, 
however,  is  considered  a  mere  romance,  or,  at 
all  events,  quite  inadequate  to  account  for  the 
revival  of  the  civil  law  after  it  had  been  al- 
together extinguished.  The  opinion  now  ge- 
nerally adopted  is,  that  the  Roman  law  was 
never  altogether  extinguished,  and  that  the 


extraordinary  influence  which  it  has  exerted 
over  every  system  of  jurisprndeaee  in  Europe 
is  to  be  accounted  for  not  only  by  its  wisdini 
and  gener^  agreement  with  the  law  of  na- 
ture, but  also  by  the  systematic  manner  in 
which  the  Romans  completed  their  conquests, 
and  communicated  their  arts,  language,  and 
manners  to  their  new  suhjects.     The  Digest 
or  Pandects  is  divided  into  seven  parts :  the 
first  containing  the  elements  of  law,  as  what 
is  justice,  right,  &c ;  the  second  part  treats 
of  judges  and  judgments;  the  third  of  per- 
sonal actions,  «e. ;  the  fourth,  of  oontracts, 
pledges,  Ac. ;  the  fifth,  of  wills  and  testa- 
ments, &c. ;  the  sixth,  of  the  possession  of 
goods ;  and  the  seventh,  of  obligations,  crimes, 
punishments,  &o.     The  Irutitutes  are  an  epi- 
tome of  the  Digest,  divided  into  fonr  books, 
correcting  the  Digest  in  some  respects,  and 
arranged  more  systematically.     The  Ifavds 
were  published  at  several  times,  without  any 
method.     They  are  also  termed  Autkentia,  ss 
having  been  authentically  translated  from 
Greek  into  Latin ;   and  they  are  divided 
into   nine  collations,  constitutions,  or  sec- 
tions ;  and  these  again  into  168  Noveb,  which 
are  distributed  into  certain  chiq>ters.    The 
first   collation    relates   to  heirs,   execston, 
in. ;  the  second  to  the  state  of  the  Church ; 
the  third  is  against  bawds ;  the  fourth  ood- 
cems  marriages,  && ;   the  fifth  forbids  the 
alienation  of  the  ponessions  of  the  Church ; 
the  sixth  treats  of  the  legitimacy  of  children, 
die ;  the  seventh  of  witnesses ;  the  eighth 
ordains  wills  to  be  good,  although  imperfect; 
and  the  ninth  relates  to  sucoeasion  in  goods, 
&o.    To  this  body  of  the  civil  or  Roman  Ur 
is  added  the  Book  of  the  Feus,  explanatory  of 
the  customs  and  services  due  by  snbjecto  or 
vassals  to  princes  or  superiors,  for  feus  held 
of  them.    The  Constitutions  of  the  emperors 
were  promulgated  either  by  rescript,  which 
was  the  letter  of  the  Emperor  in  answer  to 
those  who  inquired  the  law  of  him ;  or  by 
edict,  which  the  Emperor  issued  of  his  own 
accord ;  or  by  decree,  which  was  pronoonced 
judicially  in  a  particular  cause.    The  Bin- 
peror  possessed  the  power  of  issuing  rescripts, 
edicts,  and  decrees,  under  the  le*  rtgia,  which 
not  only  empowered  him  to  make  laws,  but 
exempted  him  individually  from  their  coei^ 
cive  power.    See  on  the  subject  of  this  article, 
BlacksL  vol  L  p.  80,  a  seq.;  Ersk.  B.  i.  tit.  1, 
§  27,  «<  set. :  Stair,  B.  i.  tit  1,  §  12 ;  Ttn/ltt't 
Introduction  to  tke  Study  of  Civil  Law;  Gib- 
bon's Decline  and  Pall  ^  ike  Roman  Smfin, 
voL  vii.  c.  44 ;  Tayhr's  ElesMnts  of  Civil  Lew. 
See  also  Law. 

Bood.    See  Particata. 

Bool  In  Edinburgh  and  other  towns  in 
Scotland,  where  there  are  numerous  teoemeDts 
or  lands  (as  they  are  called),  consisting  of 


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several  storeys  or  floors,  belonging  to  different 
proprietors,  questions  sometimeB  arise  as  to 
the  burden  of  supporting  the  roof,  which  in 
one  sense  may  be  said  to  be  common  to  the 
whole  tenement.  This  burden  is  usually  re- 
gulated by  an  express  clause  in  the  title-deeds 
of  the  sererai  parties  interested;  bat  in  ab- 
sence of  such  special  covenant,  the  burden  of 
supporting  and  upholding  the  roof  lies  de 
jwre  on  the  proprietor  of  the  garret  or  upper 
floor.  Erik.  B.  ii.  tit.  9,  §  11 ;  Nicholson, 
19th  Feb.  1708,  M.  14516;  Luke,  Ist  Feb. 
1690 ;  Brown's  Sitpp.  iv.  258.  See  Gommon 
Interest 

Botation  of  Crops.    See  Cropping. 

Bonp.    See  Articles  of  Roup,    Auction. 

Soyal  BuTgha.  A  royal  bni^h  is  an 
incorporation  created  by  a  royal  charter, 
giving  jurisdiction  to  the  magistrates  within 
certain  bounds,  and  vesting  certain  privileges 
in  the  inhabitants  and  burgesses.  Sob  Burgh- 
Roml.    Burgage- Holding. 

Bnbrio  m  a  Statute.  The  rubric  of  a 
statute  is  its  title,  which  is  so  termed  because 
anciently  it  was  written  in  red  letters.  The 
rubric  may  be  accounted  part  of  the  statute, 
and  in  dubto  an  argument  may  be  legitimately 
deduced  a  rubra  ad  nt^rum — i.  «.,  from  the 
rubric  to  the  body  of  the  statute.  Ihrsk.  B. 
i.titl,§49. 

Bnniung  Says ;  a  term  in  the  contract  of 
charter-party  used  in  contradistinction  to 
Working  Days,  and  referring  to  the  ship's  lay- 


days, or  days  of  demurrage.  In  computing 
by  running  days,  they  are  reckoned  as  days 
in  a  bill  of  exchange ;  while  in  computing  by 
working  days,  all  Sundays  and  Custom-house 
holidays  are  excluded.  Bell's  Com.  u  577. 
See  Charter-Party.    Demurrage. 

Buming  Letten.    See  Liberation. 

Bunning  Ship ;  a  vessel  which  in  time  of 
war  does  not  sail  with  convoy,  is  technically 
said  to  run  the  voyage.  In  an  insurance  on 
a  running  ship,  if  the  underwriters  are.  given 
to  understand  that  there  is  even  a  chance  of 
convoy,  while  the  owners  have  already  re- 
solved to  run,  the  contract  is  void.  BeWs 
Com.  i.  620.    See  Convoy.    Insurance. 

Bnnrig-Lands ;  are  lands  where  the  alter- 
nate ridges  of  a  field  belong  to  different  pro- 
prietors. By  the  act  1695,  c.  23,  a  division 
of  such  lands  was  authorised  to  be  made 
between  the  different  proprietors  according 
to  their  respective  interests,  with  the  excep- 
tion of  lands  belonging  to  burghs  or  incor- 
porations. This  division  may  be  insisted  in 
before  the  judge-ordinary  or  justices  of  the 
peace.  Under  the  description  of  runrig-lands 
are  comprehended  lands  where  the  portions 
consist  not  of  ridges  only,  but  of  alternate 
portions  of  several  acres  each.  Ersk.  B.  iii. 
tit.  3,  §  59;  Bank.  i.  220;  BeWs  Priue.  §  1098; 
lUust.  ib.;  Kames'  Stat.  Law  Abridg.  h.  L; 
Taifs  Justice  of  Peace,  and  Blair's  do.,  voce 
Planting;  Shand's  Prae.;  Jurid.  Styles,  2d  edit, 
iii.  151.    See  Burgh  Acre. 


s 


Sabbath.    See  Sunday. 

Sacraments.  The  act  1617,  c.  6,  lays  the 
burden  of  providing  necessaries  for  the  ad- 
ministration of  the  sacraments  upon  the 
parishioners.  But  this  has  been  interpreted 
to  mean  the  heritors.  In  practice  the  ex- 
pense of  providing  communion  elements  falls 
on  the  teinds,  and  the  Court  of  Session  have 
always  been  in  use,  in  augmentations, to  decern 
for  a  special  sum  for  this  purpose.  When 
this  burden  is  laid  on  the  titular,  he  is  en- 
titled to  have  the  amount  allocated  on  the 
proprietors  of  the  several  lands  over  which 
his  titnlarity  extends.  L.8, 6s.  8d.  is  usually 
awarded,  bat  in  populous  parishes  L.IO  is 
sometimes  given.  Ersk.  B.  ii.  tit.  10,  §  50; 
Bank.  ii.  69;  Dunlop's  Paroehiai  Law,  289; 
Churdi  Law  Styles,  313. 

Saereborgh;  or  sickerborgh,  a  "sicker, 
sure,  sufficient  cautioner,  a  kind  of  caution 
found  more  especially  in  actions  or  pleyes." 
Skene,  h.  t. 

Sacrilege ;  is  any  violation  of  things  dedi- 
cated to  the  offices  of  religion.    Theft  be- 


comes more  heinous  when  sacred  things  are 
its  subjects ;  but  in  Scotland  there  is  no  express 
enactment  which  declares  the  punishmeot 
more  severe.  There  are  instances,  however, 
of  capital  punishment  having  been  formerly 
inflicted  on  persons  convicted  of  stealing 
chalices,  priests'  omamentsj  and  the  like; 
Hume,  i.  108.  See  Violating  SepuMtres. 
Capital  punishment  for  sacrilege  in  England 
was  abolished  by  5  and  6  Will.  IV.  c.  81 ; 
explained  by  6  and  7  Will.  IV.  c.  4. 

Sak;  in  old  law  language,  the  unlaw  or 
amerciament  paid  by  him  "  who  denies  that 
thing  which  is  proven  against  him  to  be  true, 
or  affirms  that  thing  whereof  the  contrary  is 
of  verity."    Skene,  h.  t. 

Salaries.  The  salaries  of  the  Judges  of 
the  Court  of  Session  have  been  found  not  t» 
be  arrestable ;  and  according  to  Erskine  pen- 
sions from  the  Crown  are  not  arrestable  be- 
cause  they  are  alimentary,  and  indeed  all 
salaries  annexed  "  to  offices,  in  so  far  as  they 
amount  to  no  more  than  a  reasonable  allow- 
ance for  the  decent  support  of  those  who  are 

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named  to  them,  thongh  they  be  granted  not 
by  the  King  but  by  sabjecto,  whether  com- 
munitieB  or  private  donors,  oaght  on  the  same 
ground  to  be  accounted  alimentary ; "  Ersk. 
B.  iii.  tit.  6,  §  7.  It  has  been  found  that 
arrears  due  to  ofiBcers  in  the  army  (l)ut  not 
on  half-pay),  ministers'  stipends,  macers'  fees 
and  dues  payable  to  the  principal  keepers  of 
the  Parliament-House,  are  arrestable  quoad 
txeessHm.  BelCt  Com.  i.  126-31 ;  Ersk.  B. 
iii.  tit.  6,  §§  7,  8 ;  Stair,  B.  iiL  tit  1,  §  37 ; 
BavJt.  i.  159;  Sicint.  Abridg.  vocibus  Gowi$ — 
King;  Brown  on  SaU,  129;  Darling's  Ssssion 
Prae.  41, 64;  Macfarlane's  Jury  Prac  6,  7,  8; 
Brown's  Synop.  p.  101.     See  Ofieet. 

Bait.  In  the  law  of  Scotland,  sale  is  a  con- 
sensual contract,  by  which  one  party,  called 
the  seller  or  vendor,  agrees  to  transfer  the 
property  of  a  subject,  in  consideration  of  a 
price  to  be  paid  by  the  other  party,  called  the 
purchaser  or  vendee.  In  the  law  of  England 
sale  is  defined  to  be  a  contract,  by  which  the 
seller  at  once  transfers  the  property  of  a 
subject,  in  consideration  of  a  price  paid  or  to 
be  paid.  There  is  this  difference,  therefore, 
between  the  laws  of  the  two  countries,  that, 
according  to  the  English  law,  a  thing,  when 
sold,  immediately  becomes  the  property  of 
the  purchaser ;  whereas,  by  the  law  of  Scot- 
land, the  seller  does  not,  by  the  completion  of 
the  contract,  alienate  the  subject — he  only 
becomes  bound  to  alienate  it — the  alienation 
being  completed  by  delivery.  This  distinction 
in  principle  between  the  laws  of  two  coun- 
tries is  important ;  although  certain  peculiar 
provisions  of  the  law  of  England  render  the 
practical  differences  between  the  two  systems 
less  prominent  than  might  have  been  antici- 
pated. Among  what  may  be  called  the 
equalising  peculiarities  of  the  English  law 
may  be  mentioned : — 1.  The  qualified  nature 
of  the  right  of  property  in  certain  cases — 
while.  In  Scotland,  property  never  signifies 
anything  but  the  jus  in  re.  2.  The  English 
law  doctrine,  that  the  contract  is  not  com- 
pleted without  payment  of  the  price,  unless 
credit  has  been  expressly  given,  or  nnless  the 
subject  has  been  delivered  unconditionally,  or 
nnless  earnest  has  been  paid — although  pay- 
ment of  earnest  does  not  entitle  the  buyer  to 
take  away  the  goods  without  paying  the  price. 
3.  The  doctrine  that  a  sale  of  goods  in  market 
overt  is  good,  though  the  goods  should  tnm  out 
not  to  have  been  the  property  of  the  seller ; 
see  Market  Overt.  And,  4.  The  doctrine  of  re- 
puted ownership,  which  secures  the  creditors 
of  those  who  retain  the  possession  of  goods 
which  they  have  sold.    See  Reputed  Ownership. 

In  the  law  of  Scotland  the  contract  of  sale 
is  completed  by  simple  consent.  But  in  Eng- 
land, by  the  statute  of  frauds,  no  contract  for 
the  sale  of  goods,  fur  the  price  of  L.IO  or 


upwards,  is  good,  unless  the  buyer  accept  and 
actually  receive  part  of  the  goods ;  or  give 
something  as  earnest ;  or  nnless  some  note  or 
memorandum  in  writing  be  made,  and  signed 
by  the  parties  to  be  charg^  by  such  eon- 
tract,  or  their  agents  thereunto  authorised ; 
29  Car.  II.  c.  3,  §  17.    The  doctrine,  that 
consent  alone  is  sufficient  to  complete  the  con- 
tract of  sale  in  the  law  of  Scotland,  issobject, 
however,  to  certain  exceptions.     Thus,  writ- 
ing is  necessary  to  prove  the  consent,  wherever 
the  parties  stipulate  that  writing  shall  inter- 
vene ;  and  in  the  sale  of  heritable  property 
and  of  ships,  writing  is  legally  indispensable. 
See  Sale  of  Land.     Ship.     Vendition  of  Siup. 
Evidence.  The  parties  may  make  the  purifica- 
tion of  a  condition  essential  to  the  completion 
of  the  contract,  and  such  a  condition  is  called 
a  suspensive  condition^  or  a  condition  prece- 
dent— until  the  fulfilment  of  which  there  is 
no  proper  sale.    It  has  been  found  in  Eng- 
land, that  a  condition  adjected  to  a  sale  of 
goods,  that  they  shall  be  approved  of  by  the 
buyer,  within  a  certain  time,  is  intended  for 
the  benefit  of  the  buyer  only,  and  that  the 
sale  becomes  absolute  on  the  lapse  of  the 
specified    time,   without  intimation  of  the 
buyer's  approbation.  Humphries,  16  East  45, 
eitid  in  Brown  on  Sale,  36.    It  is  sometimes 
agreed  by  a  retailer,  that  if  he  do  not  sell 
goods  within  a  certain  time,  he  shall  be  en- 
titled to  return  them  to  the  wholesale  dealer 
from  whom  he  had  them.      See   Sale  and 
Return^    A  sale  on  arrival  is  a  sale  of  goods 
coming  from  abroad :  if  the  goods  do  not  come, 
there  is  no  sale.     In  conditional  sales,  while 
the  condition  is  pendent,  neither  party  is  at 
liberty  to  resile ;  and  the  accomplishment  of 
the  condition  has  a  retrospective  effect  to  the 
date  of  the  contract,  so  that  if  either  should 
die  in  the  interim,  his  rights  under  the  con- 
tract wonld  pass  to  his  heir.     If  the  seller, 
pendente  eonditione,  sell  the  goods  to  a  third 
party,  the  buyer  will  be  entitled  to  damages. 
See  Conditional  Obligation.    Suspensive  Condi- 
tion.   By  the  Roman  law,  and  also  by  the  law 
of  England,  where  any  operation  of  weighing, 
measuring,  or  the  like,  remains  to  be  per- 
formed, vxe  contract  of  sale  is  incomplete. 
There  do  not  appear  to  be  any  adjudged  cases 
establishing  this  rule  in  the  law  of  Scotland  ; 
nor,  according  to  the  principle  of  the  Scotch 
law,  is  such  a  rule  necessary,  because,  while, 
by  the  law  of  England,  the  completion  of  the 
contract  transfers  the  property  (which  is  irre- 
concileable  with  the  notion  that  the  subject  is 
not  yet  known  or  defined),  in  the  law  of  Scot- 
land the  contract  may  be  completed  without 
transferring  the  property.  Insuch  cases,  by  the 
law  of  Scotland,  the  seller,  and  not  the  buyer, 
has  the  risk  of  the  subject  not  yetseparated 
from  the  mass.    See  Periculnm  and  infra. 


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If  it  be  found  that  the  subject  of  the  sale 
has  previously  perished,  there  is  no  sale. 
There  may,  however,  be  the  sale  of  something 
which  has  not  yet  come  into  existence.  See 
Ret  Futwrx,  Spei  Emptio.  And  there  may 
be  a  sale  of  what  belongs  to  another.  See 
Res  Alienee.  As  a  general  rule,  everything 
adapted  to  the  purposes  of  commerce  may  be 
sold,  except  where  the  sale  is  prohibited  by 
law..  Put,  there  are  certain  things  which, 
from  their  nature,  are  held  to  be  placed  extra 
eommercium.  See  Res  Publicw.  Res  Sacra. 
The  contracts  which  are  prohibited  on  account 
of  their  opposition  to  law  or  public  morals 
are  considered  in  the  articles  Pactum  IlUdtum. 
Smuggling.  Offices,  &c.  As  to  the  requisite 
qualities  of  the  price,  which  is  another  es- 
sential of  the  contract  of  sale,  see  the  article 
Price.  The  consent  of  the  parties,  which  is 
the  third  essential  of  the  contract,  means  the 
co-existence  of  a  mutually  expressed  purpose 
to  buy  and  to  sell.  If,  therefore,  a  merchant 
makes  an  offer  by  letter  to  buy  goods,  and, 
before  the  letter  reaches  its  destination,  sends 
another  letter  recalling  his  offer,  there  is  no 
wle,  even  althongh  the  party  to  whom  the 
offer  is  made,  before  receiving  the  second 
letter,  should  hav«  sent  off  an  acceptance ; 
for  in  such  a  case  there  is  no  co- existence  of 
a  reciprocal  wish  to  buy  and  to  selL  Of 
course,  if  the  party  to  whom  the  o£Per  is  made 
suffers  any  loss  in  consequence  of  the  offer, 
the  other  party  will  be  bound  to  make  repara- 
tion. The  parties  must  also  be  agreed  as  to 
the  subject  of  the  sale.  If  they  differ  in 
torpore — i.  e.,  if  the  seller  agrees  to  sell  one 
thing,  and  the  buyer  to  buy  another — there 
is  no  sale.  By  the  Roman  law,  if  they  agreed 
tn  corpore,  but  differed  as  to  something  acces- 
sory to  it,  the  sale  was  valid.  If  there  be  no 
error  tn  corpore,  but  if  there  be  error  as  to 
the  substance  of  the  thing,  or  any  of  its  es- 
sential qualities,  without  which  it  would  not 
be  entitled  to  the  name  under  which  it  is 
sold,  there  is  no  sale.  See  Error  in  Essen- 
tialibus.  If  there  be  error  only  as  to  some 
accidental  quality,  the  sale  is  good.  The 
parties  must  be  agreed  as  to  the  price  ;  but  if 
the  buyer's  price  be  larger  than  the  seller's 
price,  the  siUe  is  good  at  the  seller's  price, 
since  both  hare  consented  to  that  prica  The 
parties  must  agree  that  the  contract  shall  be 
sale,  and  no  other  contract. 

No  one  can  be  a  party  to  the  contract  of 
sale  who  is  not  capable  of  consent.  See  Idiot. 
Pupil.  Minor..  Marriage.  Alien.  A  wife 
may  sell  any  subject  belonging  to  herself, 
provided  her  husband,  as  her  legal  curator, 
give  his  consent.  Debts  due  by  a  constituent, 
purchased  by  his  factor  or  agent,  are  held  as 
purchased  for  behoof  of  the  constituent,  and 
no  claim  can  be  sustained  but  for  the  trans- 


acted sum.  If,  therefore,  factors,  agents, 
trustees,  and  others  in  similar  circumstances, 
purchase  debts  due  by  their  constituents  for 
a  sum  less  than  they  will  bring,  they  can  only 
claim  the  sum  which  they  have  actually  paid, 
and  not  the  full  amount  of  the  debt,  or  the 
dividend  which  may  be  paid  upon  it ;  and 
this,  even  although  the  factory  should  con- 
tain a  clause  expressly  authorising  the  factor 
to  make  such  acquisitions  for  his  own  behoof. 
A  common  agent  in  a  process  of  ranking  and 
sale  was  found  disqualified  from  purchasing 
the  estate  exposed  under  his  direction  ;  FiorX 
Buildings  Co.,  8th  March  1793,  Mor.  13,367, 
and  4  Dow,  379.  See  Ranking  and  Sale. 
Factors  appointed  by  the  Court  in  a  sequestra- 
tion of  a  land  estate  are  prohibited  by  Act 
of  Sederunt  from  buying  in  and  compound- 
ing the  debts  affecting  it;  A,  S.  25th  Dec. 
1708. 

The  obligations  which  the  seller  incurs  by 
the  completion  of  the  contract  are,  1.  The 
delivery  of  the  thing  sold,  where  it  is  not 
already  in  the  possession  of  the  buyer.  The 
seller  must,  at  bis  own  expense,  take  the 
steps  necessary  for  implementing  this  obliga- 
tion, and  freeing  the  subject,  if  it  be  in  the 
possession  of  a  third  party.  He  is  likewise 
bound  to  free  the  subject  from  all  burdens  or 
incumbrances.  In  the  sale  of  heritage,  this 
is  a  doctrine  of  great  importance ;  and  the 
records  furnish  the  means  of  discovering  the 
incumbrances  which  exist.  See  Incumbrances. 
Search  of  Incumbrances.  In  absence  of  express 
stipulation,  the  seller  is  bound  to  deliver  the 
subject  as  soon  as  the  buyer  demands  it ;  pro- 
vided tie  latter  has  paid,  or  offers  to  pay,  the 
price.  Where  nothing  has  been  stipulated 
as  to  the  place  of  delivery,  the  seller  is  bound 
to  deliver  the  subject  only  in  the  place  where 
it  was  at  the  time  of  the  sale.  If  the  sale  has 
not  been  upon  credit,  the  buyer  cannot  de- 
mand delivery  of  any  part  of  the  subject, 
without  payment  of  the  whole  price.  And 
even  when  the  sale  is  upon  credit,  the  seller 
is  not  bound  to  deliver,  if,  after  the  contract, 
the  seller  has  become  insolvent,  and  unable 
to  pay  the  price.  But  even  in  this  case,  if 
"the  buyer  or  his  creditors  be  willing  to  pay 
the  price  where  the  sale  has  been  for  ready 
meney,  or  to  give  security  where  it  has  been 
upon  credit,  the  seller  is  bound  to  deliver  in 
like  manner  as  if  the  buyer  were  solvent.  It 
has  been  questioned,  whether  the  seller  may 
be  compelled  to  make  delivery,  or  whether  he 
is  entitled  to  be  relieved  of  his  obligation  on 
paying  the  damnum  et  interesse.  See  this 
question  discussed  in  the  article  Factum  Prais- 
tandum.  If  the  seller  unduly  delays,  or  al- 
together fails,  to  make  delivery,  he  must 
make  up  the  loss  thereby  occasioned  to  the 
buyer.    See  Mora.    Damages.    It  has  been 


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questioned,  whether  the  seller's  obli^tion  is 
fulfilled  by  bis  merely  making  delirery,  or 
whether  he  is  alto  bound  to  make  the  buyer 
proprietor  of  the  thing  sold.  By  the  Roman 
law,  if  the  seller  sold  the  subject  beliering  it 
to  be  his  own,  the  buyer  could  not  reject  it 
on  the  ground  of  defect  in  the  title,  or  make 
any  claim  for  indemnification,  before  he  was 
actually  disturbed  in  the  poBsession.  fiut  if 
the  seller  knew  it  not  to  be  his  own,  he  might 
be  sued  even  before  eriotion.  Stair  adopts 
this  rule  in  its  full  extent ;  B.  i.  tit.  14,  $  1. 
The  question,  however,  does  not  seem  ever  to 
have  been  tried  in  the  Scotch  courts  in  the 
ease  of  a  sale  of  moveables ;  and,  perhaps, 
were  such  a  question  to  occur,  the  rule  of  the 
Roman  law  might  be  followed.  But  it  is  cer- 
tain that,  by  the  law  of  Scotland,  the  buyer, 
when  there  is  no  stipulation  to  the  contrary, 
is  entitled  to  reject  any  title  to  heritage 
which  is  not  sufficient  securely  to  convey  the 
property.  See  Sale  of  Land.  Progress  of 
TMt$.  The  seller  is  not  only  bound  to  deliver 
the  subject,  but  is  also  bound  to  warrant  the 
buyer  against  eviction.    See  Wammdiet. 

By  the  Roman  law,  if  the  buyer  found  that 
the  subject  was  so  deficient  in  either  quan- 
tity or  quality  as  that,  had  he  known  the  de- 
ficiency, he  would  not  have  entered  into  the 
contf^t,  he  was  entitled  to  sue  for  repetition 
«f  a  part  of  the  price  corresponding  to  the 
4eftciency ;  but  this  rule  does  not  appear  to 
have  been  adopted  in  the  law  of  Scotland. 
See  Quanti  Mintri*  Actio, 

The  obligations  of  the  buyer  are — to  pay 
the  price,  and  te  take  possession  of  the  thing 
Mid.  Where  no  term  is  agreed  upon,  the 
wUer  may  demand  payment  of  the  prise  im- 
mediately upon  effering  sale  of  the  thing 
flold.  I^  after  the  sale,  the  seller,  with- 
out any  fault  of  his  own,  has  become  unable 
to  make  delivery,  the  price  is,  notwithstand- 
ing, due  by  the  buyer.  See  Perictihm.  Bat 
the  buyer  cannet  demand  payment  of  the 
price  while  he  is  himself  tn  mora  in  deliver- 
ing the  subject.  With  regard  to  the  cases  in 
which  interest  is  due  on  account  of  tnora  in 
saying  the  price,  see  the  article  Interest. 
When  DO  special  agreement  has  been  made 
«8  to  assuming  possession  or  carrying  away 
the  subject,  or  when  a  certain  time  is  not 
allowed  by  the  custom  of  the  country,  or  of  a 
particular  trade,  the  buyer  may  be  called 
upon  to  do  so  immediately.  If  be  unduly  de- 
lay, he  will  be  liable,  in  the  case  of  moveables, 
for  warehouse  rent  or  other  expenses  in  keep- 
ing the  subject.  But  it  has  been  decided  in 
the  English  courts,  that  the  neglect  of  the 
buyer  to  carry  away  the  subject  does  not 
entitle  the  seller,  of  his  own  authority,  to 
annnl  the  contract,  and  resell  the  goods.  With 
regard  to  the  risk  of  a  subject  sold,  but^l 


undelivered,  see  the  article  P«rienlu».  As 
soon  as  the  subject  is  delivered,  it  becomes  the 
property  of  the  buyer,  provided  it  belonged 
to  the  seller  at  the  time  of  the  sale.  The 
right  of  property  is  not,  as  it  was  in  the 
Roman  law,  in  dependence  until  the  pay- 
ment or  securing  of  the  price ;  the  buyer 
being  uneontrolleid  in  the  use  of  the  subject 
as  soon  as  it  is  delivered  to  him,  whether  the 
price  has  been  paid  or  not ;  Stair,  B.  L  tit. 
14.  5  2. 

The  contract  of  sale  may  be  brought  to  an 
end  without  being  implemented ;  and  its  dis- 
solution is  distingnished  from  its  original 
nullity.  Diswintion  may  take  place  either 
by  consent,  or  in  consequence  of  certain  eir> 
eumstanoea  attending  the  formation  of  the 
contract,  which  may  entitle  one  of  the  par- 
ties to  resile.  Constraint,  or  fraud  inducing 
the  contract,  are  grounds  of  dissolution.  One 
great  distinction  between  a  contract  void  oi 
tnt^M  and  one  only  voidable  is,  that,  in  the 
former,  everything  following  upon  the  taa^ 
tract  partakes  of  its  nullity,  and  the  buyer 
acquires  no  property  in  the  thing  sold ;  in  the 
latter,  the  contract  is  good  until  challenged. 
The  buyer,  therefore,  in  such  a  case  acquires 
a  property  in  the  thing  sold,  which  he  may 
transfer  to  a  third  party,  whoee  title,  if  he  be 
in  bona  fide,  will  not  be  affected  by  the  vices 
of  the  former  contract.  See  Force  and  Fear. 
Fraud.  Error  in  EueiUial3>iu.  When  the 
contract  is  dissolved  by  mutual  consent,  things 
are  restored  to  the  situation  in  which  they 
were  previous  to  the  sale.  JUp  equivalent  to 
a  consensual  dissolution;  iftne  parties  enter 
into  a  second  contract  concern  mg  the  same 
thing ;  a^for  example,  when  it  is  resold  for 
a  greatet'oLsmaller  price.  In  Scotland  there 
can  be  nfr||p  by  one  who  has  no  property  in 
the  thing  sold.  See  Labet  ReaUs.  Mariel 
(hert.  The  contract  may  be  dissolved  in  con- 
sequence of  the  purification  of  a  reeolutive 
condition — t. «.,  on  the  arrival  of  an  ermt  at 
which  it  was  previously  agreed  that  the  con- 
tract should  determine.  See  Reuittlive  Cm- 
diticm.  Padtm  de  Retnmmdendo.  PactKm 
Legit  CommisMrim.  A  tale  on  trial  is  an  ex- 
ample of  such  a  condition.  By  such  a  con- 
tract the  property  and  the  risk  are  transferred, 
but  under  the  condition  that,  if  the  subject 
does  not  please,  the  buyer  may  return  it. 

The  supervening  insolvency  of  either  par^ 
has  very  important  effects  on  the  contract  of 
sale.  And  the  law  provides  various  remedies  to 
prevent  Ion  to  either  party.  See  Lien — Stop- 
page in  Tramiiu — Rdention — for  the  seller's 
remedies.  Shoald  the  seller  become  iMuikmpt 
after  the  completion  of  the  contract,  the  buyer 
is  merely  a  personal  creditor  for  the  delivery 
of  the  thing  sold  ;  nor  is  this  rule  in  any  liay 
affected  by  the  circumstance  of  his  havinsj  or 


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not  having  paid  the  price.  In  either  case,  he 
is  in  uo  better  situation  than  the  seller's  other 
creditors.  Where,  again,  the  subject  has  been 
delivered  before  the  seller's  failure,  it  is 
placed  entirely  beyond  the  diligence  of  his 
creditors.  In  certain  circumstances  the  buyer, 
when  aware  that  he  will  not  be  able  to  pay 
the  price,  is  entitled  and  bound,  with  the 
seller's  consent,  to  rescind  the  contract  and 
refuse  to  take  delivery  of  the  goods.  See 
Rejection  tn  TraMttu.  Where,  however,  the 
seller  refuses  his  assent,  or  where  there  are 
circumstances  inferring  that  he  has  made  his 
election  not  to  rescind  the  contract,  he  will 
not  he  entitled,  on  the  buyer's  bankruptcy, 
to  demand  the  goods. 

Peculiar  rules  are  sometimes  hrou^t  into 
operation  in  consequence  of  sale  being  com- 
bined with  other  contracts ;  as  where  the 
thing  sold  is  something  which  the  seller,  in 
the  exercise  of  his  art,  agrees  to  manufacture 
for  the  buyer — e.  g.,  where  one  buys  a  car- 
riage, or  a  ship,  to  be  built  by  the  seller.  In 
England,  such  contracts  are  not  within  the 
statute  of  frauds,  and  the  property  does  not 
pass  until  the  thing  is  finished,  although  the 
price  may  have  been  paid.  In  a  Scotch  case, 
however,  where  the  price  of  a  ship  was  to  be 
paid  by  instalments,  at  laying  the  keel,  at 
planking  to  the  top  of  the  gunwale,  and  at 
launching,  there  was  held  to  be  an  appropria- 
tion to  the  buyer  from  the  time  of  laying  the 
keel;  Stmton,  2d  August  1786,  Mor.  14,204. 
And  the  doctrine  of  this  case  was  afterwards 
adopted  in  the  English  courts;  Woods  v.  Rus- 
td,  1822,  5  Bam.  and  AM.  942.  See  Bdl't 
Illust.  i.  384.  See  the  subject  of  Sale  very 
ably  treated  in  the  late  Mr  Mnngo  Brown's 
"Treatise  on  Sale."  See  also  Stair,  £,  i. 
tit.  14  ;  Mor^s  Hotes,  p.  Ixxxv. ;  Mr  Brodie's 
Supp.  849;  Enk.  B.  Hi.  tit.  3,  §3  ;  BeU'g 
Com.  i.  434;  Bank.  i.  407,  et  seq,;  BelFs 
Prine,  §  85,  «« teq.  889 ;  Illust.  ib. ;  Hunter's 
Landlord  and  Tenant,-  Beli  on  Pwduuei's  Title, 
ii.  142  ;  Ross's  Led.  ii.  65. 

In  the  case  of  Hansen  v.  Craig,  Feb.  4, 1869, 
21  D.  432,  a  cargo  of  oil  prepared  for  'Me, 
weighed  and  lying  ready  for  delivery,  was 
sold.  In  the  notes  of  sale  whi>i.-  were  ex- 
changed the  number  of  tons  was  stated,  and 
a  slump  price  per  ton  for  the  whole  cargo. 
By  the  usage  of  the  trade,  the  purchaser  had 
right,  either  before  or  after  delivery,  to  check 
the  quantity  and  quality  of  fme  oil,  and  was 
entitled  to  a  deduction  for  kny  sediments  or 
"foots"  that  might  be  found  in  the  casks. 
Before  the  delivery  the  greater  part  of  the 
oil  was  burned.  The  Court  held  that  the 
bought  and  sold  notes  afforded  the  means  of 
ascertaining  the  price,  and  that  the  right  to 
check  the  quantity  and  quality  not  being  a 
suspensive  condition,  the  contract  of  sale  was 


complete,  and  the  risk  transferred  to  the 
purchaser.  Lord  Justice-Clerk  Iholis  ob- 
served— "  I  hold  that  the  sale  of  a  mi^  of 
fungibles,  certain  and  known  by  general 
description,  but  of  unascertained  extent,  at  a 
rat»  of  price  according  to  measure,  weight, 
or  number,  is  not  a  complete  personal  con- 
tract of  sale,  such  as  will  operate  a  transfer 
of  the  risk  to  the  buyer,  until  the  mass 
shall  have  been  measured,  .weighed,  or 
counted,  and  so  the  price  ascertained.  It 
is  the  nou-ascertainment  of  the  price  by  the 
contract  that  makes  the  contract  incom- 
plete. How  far,  then,  is  this  principle 
applicable  to  the  ease  in  hand?  Does  the 
statement  of  the  quantity  in  the'  contract 
remove  that  uncertainty  of  the  price  which 
alone,  in  the  case  supposed,  derogated  from 
the  completeness  of  the  contract?  I  am  of 
opinion  that  it  does,  and  that  the  price  in 
the  case  before  us  is  not  uncertain,  because 
there  is  wi^in  the  contract  itself  not  a 
statement  of  the  ctimuio  price  certainly,  but 
a  statement  of  particulars  which,  enables 
any  man,  without  going  beyond  the  contract, 
by  simple  arithmetical  process,  to  ascertain 
the  cunMlo.friee  for  himself." 

By  ^ejtaercantile  Law  Amendment  Act, 
19  and  20n/^ict.  c.  60, 1856,  it  is  declared  that 
goods  a^d,  but  not  delivered,  sliall  not  be 
attac]m)ne  by  the  creditors  of  the  seller. 
When,  also,  the  first  purchaser,  before  de- 
livery, sells  to  another,  the  original  teller 
is  not  entitled  to  retain  the  subject  in  a 
question  with  the  second  purchaser,  or  other 
in  his  right,  for  any  debt  or  obligation  due  by 
the  original  purchaser,  but  only  for  the  price 
of  the  subject,  or  for  performance  of  the  obli- 
gations or  conditions  of  the  contract  of  sale, 
it  is  further  declared,  however,  that  any 
seller  of  goods  may  arrest  or  poind  the  goods 
sold  while  in  his  possession  at  any  time  prior 
to  the  date  of  the  sale  to  a  second  purchaser 
being  intimated  to  the  original  seller;  and  such 
arrestment  or  poinding  has  the  same  opera- 
tion and  effect  in  a  competition  as  an  arrest- 
ment or  poinding  by  a  third  party.  By 
the  same  Act,  a  seller  is  not  now  held  to 
warrant  goods  unless  he  shall  have  given  an 
express  warranty  of  the  quality  or  sufficiency 
of  the  goods,  or  unless  the  goods  have  been 
expressly  sold  for  a  specified  and  particular 
purpose. 

rale  of  Land.  In  Scotland,  every  pro- 
prietor of  heritage  must  have  a  written  title ; 
and  that  legal  rule,  combined  with  the  pe- 
culiarities connected  with  the  Scotch  system 
of  records,  renders  the  doctrine  as  to  the  sale 
of  land,  in  some  particulars,  different  from 
that  as  to  the  sale  of  moveables.  In  so  far 
as  this  subject  is  connected  with  feudal  con- 
veyancing,   see    Disposition.      Conjirmaiion. 


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Resignation.  Satine,  Precept  of  Sasine.  Instru- 
tamt  of  Sasine.  Apparent  Heir.  Bounding 
Charter.  Burgage.  Charier.  Charge.  Cog- 
nition and  Sasine.  Consolidation,  Convey- 
ancing. Heir.  Liferent.  Missives.  Pre- 
scription. Progress  of  Titles.  Qucejuidem. 
Redeemable  Rights.  Search  of  Incumbrance*. 
Testing  Clause.  Titles  to  Land.  Warrandice. 
And,  in  addition,  the  following  rules  as  to 
the  contract  itself  are  important: — In  the 
sale  of  heritable  property  writing  ig  absolutely 
required,  not  only  as  a  means  of  proof,  but 
also  as  a  solemnity  without  which  the  con- 
tract is  not  binding,  although  its  existence 
be  admitted,  or  offered  to  b^  proved  aliunde, 
or  even  by  oath  of  party.  Even  where  the 
contract  has  been  reduced  into  writing,  it  is 
not  binding,  reku  integris,  if  the  writing  be 
defective  in  the  solemnities  required  by  law, 
although  the  subscription  should  be  acknow- 
ledged. Where  the  contract  is  in  the  form 
of  an  oSer  and  acceptance,  or  of  mutual  mis- 
sives, both  writings  must  be  probative.  See 
Missives.  There  may,  however,  be  an  ef- 
fectual bargain  for  the  sale  of  heritage  in  the 
form  of  a  unilateral  obligation — e.  g.,  of 
a  promise  or  obligation  to  sell.  In  such 
cases,  it  is  enough  that  the  promise  be  con- 
tained in  a  pr«4>ative  writing  binding  the 
seller.  Rei  interventtu  may  also  bar  the 
right  of  resiling  from  an  informal  written 
contract.  See  Rei  Interventus.  The  comple- 
tion of  the  contract  raises  an  obligation  on 
the  seller's  part  to  transfer  the  property  of 
the  subject  to  the  purchaser,  and  to  establish 
it  in  his  person  by  a  valid  title.  Until, 
therefore,  such  a  title  is  offered  to  the  pur- 
chaser, he  is  not  obliged  to  pay  the  price. 
This  right  of  the  purchaser  to  object  to  a 
defective  title  may  be  renounced ;  and  it  is 
frequently  agreed  between  the  parties  that 
the  purchaser  shall  be  satisfied  with  the  title 
as  it  stands.  The  effect  of  such  an  agreement 
is  to  bar  the  purchaser  from  objecting  to  the 
title,  or  refusing  to  pay  the  price,  on  the 


he  may  follow  the  river  in  its  new  course,  Md 
ground  of  its  being  defective.  See  Progress  of  Jt|s  exclusive  right  of  fishing  will  remaia  m 
~  '        -      -    -  discharge  the  seller's   lonj  as  the  water  of  the  riv 


Titles.  But  it  does  sot 
obligation  under  the  warrandice  in  case  of 
eviction.  In  absence  of  such  an  agreement, 
where  the  seller's  title  is  defective,  the  buyer 
is  not  entitled  both  to  retain  the  price  and 
the  subject  until  a  good  title  is  offered.  He 
must  make  his  election  either  to  pay  the 
price  or  to  renounce  the  bargain  altogether. 
See,  as  to  the  sale  of  land,  and  the  completion 
of  titles,  Bell  on  Purchaser's  Title;  Stair,  B.  i. 
tit.  10,  §  9 ;  Ersk.  B.  iii.  tit.  2,  §  2 ;  Brown 
on  Sale,  54,  232 ;  BelPs  Princ.  §  889  ;  Bell  on 
Deeds,  i.  144. 

Sale  and  Ketnm ;  is  a  contract  by  which 
goods  are  delivered  by  a  wholesale  dealer  to 
a  retailer,  to  be  paid  for  at  a  certain  rate,  if 


sold  again  by  the  retailer ;  and  if  not  sold,  (a 
be  returned  to  the  vendor.  When  no  iim'ts 
specified  for  the  return,  if  the  goods  are  not 
returned  within  a  reasonable  time,  the  eon- 
tract  becomes  absolute,  and  the  price  may  be 
recovered  from  the  retailer  as  from  a  buyer. 
In  a  case  of  this  kind  in  England,  where  the 
goods  had  not  been  returned  within  six 
months,  the  judge  expressed  his  opinion  that 
the  sale  had  become  absolute.  Baily,  Ptatt, 
N.  P.  C.  56  ;  Brown  on  Sale,  37  ;  BeW*  Cm. 
i.  269  ;  Bell's  /Vine.  §  109;  Mor^s  Notes  on 
Stair,  Ixxxviii. 

Sale,  Power  of.    See  Power  of  Sak. 

Salmon-Fisluiig.    The  right  to  fish  for 
salmon  in  rivers  and  estuaries,  within  sea- 
mark, or  where  the  sea  ebbs  and  flows,  other- 
wise than  with  the  rod,  is  inter  regdia,  and 
cannot  be  exercised  by  a  subject  without  a 
grant  from  the  Crown.     A  grant  is  made 
either  by  an  express  conveyance  of  a  sahnoo- 
fishing,  cum  piscatione  samonum,  or  by  the 
conveyance  of  lands  cum  piseationSms,  or  am 
piscariis,  followed  by  forty  years'  possession  of 
salmon-fishing ;  or  by  the  erection  of  lands 
into  a  barony.    It  has  even  been  found  that 
possession  on  a  grant  cum  piteationilna  by  a 
subject-superior,  himself  entitled  to  salmos- 
fishing,  followed  by  possession,  is  sufficient  to 
establish  the  right.      It  has  been  repeatedly 
decided  that  following  up  a  conveyance  e» 
piscalionibus,  by  fishing  salmon  with  the  rod 
or  spear,  is  not  sufficient  to  establish  a  title 
to  salmon-fishing.     A  right  of  salmoD-fishin; 
may  be  given  to  one  who  has  no  right  to  the 
lands  on  either  side  of  the  river ;  and  the 
right  to  the  fishing  necessarily    implies  x 
power  of  dragging  the  fishing-nets  to  the 
adjacent  banks;  but  it  will  not  confer  the 
right  of  constructing  towing-paths  on  the 
banks  of  the  river,  or  of  making  any  erections 
tn  alveo  Jluminis.     If  a  river  should  change  its 
course,  the  right  of  fishing  b  this  river  «iU 
not  be  lost  to  the  heritor  entitled  to  it ;  but 


river  can  be  di<- 
tinguioh^d  from  the  water  of  the  sea.  Cer- 
tain mectiftuical  contrivances  for  taking 
salmon  are  prohibited  by  law,  in  riven  where 
the  sea  ebbs  aud  flows,  and  in  estuaries;  and 
no  practice,  however  long  continaed,  will 
justify  any  illegal  mode  of  fishing.  See  Stakt- 
nets.  The  right  of  cruive-fishing  may  be 
granted  by  the  Crown,  even  though  previous 
rights  of  fishing  have  been  granted  to  other 
heritors,  provided  the  cruive-fishing  *'""** 
materially  interfere  witb  those  rights.  The 
form  of  the  cruives  and  crui  s'e-dikes,  and  vari- 
ous regulations  as  to  this  modiV  of  fishing,  are 
settled  by  statutes  and  decisiona  The  act  9 
Geo.  IV.c.39,directs  that  SaturdiV'ssIop,  and 


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tbe  width  of  the  becks  or  bars,  as  regulated 
by  1477,  e.  73,  shall  be  obserred,  under  a 
penalty  of  from  L.5  to  L.20  for  each  ofence. 
The  old  appointment  for  Saturday's  slop  is, 
that  in  all  cruives  the  hecks  be  raised  to 
tbe  breadth  of  a  Scotch  ell  (three  feet  one 
inch),  from  six  o'clbck  on  Saturday  evening 
till  sunrise  on  Monday ;  and  tbe  old  breadth 
of  the  space  between  the  bars  or  hecks  is  three 
inches.  No  contrirance,  by  covering  the 
becks  with  sheets  or  otherwise,  whereby  the 
passage  offish  between  them  would  be  stopped, 
is  lawful. 

During  a  certain  period  of  the  year,  called 
dose-time,  salmon-fishing  is  altogether  pro- 
hibited. By  the  act  9  Qeo.  IV.  c.  39,  tbe 
dose-time  is,  between  tbe  15th  October  and 
15th  February  succeeding  for  all  but  rod- 
fishing,  and  between  1st  November  and  15th 
February  for  rod-fishing ;  but  the  fishings 
in  the  Tweed  and  the  Sol  way  Firth  are  ex- 
cepted from  the  operation  of  the  act.  The 
Tweed  Fisheries  Act,  1857,  20  and  21  Vict. 
c.  148,  was  amended  by  22  and  23  Vict.  c. 
70,  1859 ;  and  by  it  the  annual  close-times 
are  declared  to  extend  from  the  14th  of 
September  to  the  15th  of  February  for  net- 
fishiog,  and  from  the  20th  of  November  to 
the  Ist  of  February  for  rod-fishing.  The 
Tay  Fisheries  Act  is  21  and  22  Vict.  c.  26, 
1858,  and  by  it  tbe  annual  close-time  for 
net-fishing  is  declared  to  be  from  the  26th 
of  August  to  tbe  1st  of  February;  and  for 
rod-fishing,  from  the  20th  of  September  to 
the  1st  of  February.  It  is  understood,  how- 
ever, that  alterations  of  these  acts  are  in  con- 
templation. 

In  the  case  of  Gammdl  r.  the  Gommiitimers 
of  Woods  and  Forests,  March  6,  1851, 13  D. 
854,  it  was  held  that  tbe  salmon-fishings 
around  the  sea-coast  of  Scotland  belong  ex- 
clusively to  and  form  part  of  the  hereditary 
revenues  of  the  Crown  of  Scotland,  in  so  far 
as  they  may  not  have  been  specially  the 
subjects  of  grants  by  charter  or  otherwise. 
This  judgment  was  affirmed  in  the  House  of 
Lords,  March  28, 1859.  Lord  Cbanwpkth 
had  great  difficulty  in  concurring  f:um  tbe 
impossibility  of  defining  the  extent  to  which 
the  claim  could  go  in  regard  to  the  sea. 
Lord  Wensleydaie  though^  that  it  would 
be  hardly  possible  to  exteudthe  subject  sea- 
wards beyond  the  distance  of  tliree  miles  from 
the  coast,  which,  by  the  law  of  nations,  be- 
longed to  the  country.  ) 
*  Salters.  See  Colliers  i»'l  Salters. 
••  Salvage ;  is  a  rew»  -Tiompense  giv«« 

■  fb  those  by  whose  l*  ^-'tance  a  s- 

fer  goods,  or 
from  ship 


]nc'.. 


'<l^^t|* 


property  saved  or  recovered ;  and  founds  an 
action  in  the  Court  of  Admiralty  in  rem,  and 
at  common  law  by  lien;  or  a  pei-sonal  action 
or  claim  against  tbe  owner  to  whom  the  pro- 
perty is  restored.  The  claim  for  salvage  is 
not  competent  to  the  master  or  crew,  however 
extraordinary  their  exertions  may  have  been. 
But  when  their  duty  as  seamen  is  over  (as  by 
capture),  any  successful  effort  thereafter  made 
by  them  to  recover,  recapture,  or  rescue  the 
ship,  entitles  them  to  salvage.  The  amount 
of  salvage  is  fixed  in  some  cases  by  statute,  in 
others  it  is  left  to  the  discretion  of  the  judge ; 
and  it  is  due  by  those  who  receive  benefit  by 
the  exertions  of  the  salvors.  See  BM's  Com, 
i.  592,  aseq.;  Bank,  i.  209,  211, 235;  BdJ^s 
Print.  §S  443-6,  1427;  lUust.  ib.;  Kames" 
Frinc.  of  Equity  (1825),  4,  112,  418  ;  Shaw's 
Digest,  p.  576  ;  Brodie's  Supp.  to  Stair,  1009. 
See  also  Contribution. 

Sample,  sale  by.  When  goods  are  sold  by 
sample,  there  is  an  implied  warrandice  that 
the  bulk  is  of  equal  quality  with  the  sample, 
otherwise  the  buyer  is  not  bound  to  take  it! 
The  mere  circumstance  of  a  sample  having 
been  exhibited  at  the  time  of  the  sale,  will  not 
make  it  a  sale  by  sample ;  because  a  sample 
may  be  produced,  not  as  a  warranty  that  the 
bulk  corresponds  to  it,  but  to  enable  the  pur- 
chaser to  form  a  reasonable  judgment  of  the 
commodity.  The  contract,  therefore,  must 
expressly  refer  to  the  sample,  in  order  to  raise 
the  warranty  that  the  bulk  is  equal  to  it. 
Sale  by  sample  is  not  good  against  the  land- 
lord's hypothec.  Brown  on  Sale,  337 ;  More's 
Notes  on  Stair,  Ixxxii.,  cccvi, ;  Brodie's  Supp 
912;  Sell's  Princ.  §  93;  Bell  on  Leases,! 
375 ;  Hunter's  Landlord  and  Tenant ;  Brown's 
Synop.  2184.    See  MarhO,  Overt. 

Sanctoary.     The   Abbey   of    Holyrood 
House,  as  having  been  a  royal  residence,  has 
the  privilege  of  giving  sanctuary  to  debtors 
in  civil  debts.     To  retire  to  the  Abbey  is,  by 
the  act  1696,  c.  5,  made  one  of  the  circum- 
stances which,  combined  with  insolvency,  con- 
stitutes legal  bankruptcy.    The  precincts  of 
the  palace,  to  which  the  privilege  belongs, 
are  extensive ;  and  the  whole  are  placed  under 
th*  direction  of  a  bailie,  appointed  by  tho 
Duke  of  Hamilton,  as  heritable  keeper  of 
Holyrood  House.     When  a  person  retires  to 
the  sanctuary,  he  is  protected  against  per- 
sonal diligence  from  the  instant  he  passes  the 
confines,   and  this  protection  continues  for 
twenty-four  hours ;  but,  in  order  to  enjoy  it 
longer,  he  must  enter  his  name  in  the  books 
-<  i>t  by  the  bailie  of  the  Abbey.    This  sanc- 
«.  7  affords  no  protection  to  a  criminal ; 
-^  »er  does  it  protect  a  Crown  debtor,  nor  a 
■■|(lent  bankrupt,  nor  a  person  under  an 
1  4ion  to  perform  an  act  within  his  on  a 
-»  ;  nor  does  it  protect  the  debtor  against 

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diligence  for  such  debta  as  he  may  have  con- 
tracted during  his  residence  within  the  sanc- 
tuary. For  personal  execution  on  debts  con- 
tracted within  the  sanctuary,  there  is  a  prison 
within  the  precincts.  Where  a  person  claims 
the  benefit  of  the  sanctuary  who  has  no  title 
to  it,  he  may  be  taken  into  custody  by  an 
officer  of  the  law,  to  which  act  the  bailie 
of  the  Abbey  gives  his  concurrence.  The 
privilege  of  giving  sanctuary  was  anciently 
enjoyed  by  many  other  places,  as  the  Mint  or 
"  cunzie-house."  The  Castle  of  Edinburgh 
seems  also  to  have  been  at  one  time  considered 
as  a  sanctuary.  The  Palace  of  Holyrood 
House,  however,  and  its  precincts,  are  now 
the  only  sanctuary  which  the  law  of  Scot- 
land recognises.  BeWt  Com.  ii.  570,  et  $eq.; 
BelTt  Prme,  p.  682,  and  authorities  there  cited; 
Erik.  B.  iv.  tit.  3,  §  26,  and  note  by  Ivory ; 
Bank.  iii.  14,  et  »eq. ;  Eost'*  Led.  L  331.  See 
Bankrupt 

Saiiiie.  This  term  may  signify  either  the 
act  of  giving  legal  possession  of  feudal  pro- 
perty, or,  colloquially,  the  ineirument  by  which 
that  fact  is  proved.  The  act  of  giving  infeft- 
ment  eonsisted  in  the  grantor  and  receiver  of 
the  right,  or  rather,  as  generally  happened, 
the  bailie  of  the  superior,  and  the  attorney 
of  the  vassal,  appearing  on  the  ground  of  the 
lands  or  other  subject  in  which  the  infeftment 
is  to  be  given,  in  presence  of  a  notary-publie 
and  two  witnesses.  The  attorney  took  with 
him  the  charter  or  other  warrant  containing 
the  precept  of  sasine,  which  he  presented  to 
the  person  who  was  to  act  as  bailie,  and  re- 
quired him  to  exercise  the  powers  thereby 
committed  to  him :  the  bailie  received  the 
deed,  and  delivered  it  to  the  notary-public  to 
be  published  to  the  witnesses  present,  which 
he  did  by  giving  a  short  explanation  of  the 
nature  of  the  deed,  and,  strictly  speaking,  it 
was  his  duty  to  read  the  precept  of  sasine. 
The  bailie  then  proceeded  to  the  execution 
of  his  office,  by  delivering  earth  and  stone  of 
the  ground  to  the  attorney  in  name  of  his 
constituent,  on  which  the  attorney  took  instru- 
ments in  the  hands  of  the  notary-public. 
This  ceremony  proceeded  in  presence  of  at 
least  two  male  witnesses,  and  the  whole  Ms 
reduced  into  the  form  of  a  notarial  instru- 
ment, describing  the  subject  of  the  infeftment, 
and  detailing  the  ceremony,  and  thus  defining 
not  only  the  nature  and  extent  of  the  estate, 
but  affording  evidence  of  all  the  requisite 
forms  having  been  complied  with.  This  instm- 
ment  was  signed  by  the  notary  and  by  the 
two  witnesses,  and  was  the  only  evidence 
which  the  law  recognised  to  prove  that  legal 
possession  of  feudal  property  had  been  taken. 
The  instrument  required  to  be  recorded  within 
-sixty  days  after  its  date,  either  in  the  G-eneral 
Register  of  Sasines  at  Edinburgh,  or  in  the 


Particnlar  Register  of  that  district  witbin 
which  the  lands  are  situated;  and  in  compe- 
titions, it  is  by  the  date  of  the  registrstioo 
that  its  preference  is  regulated.    ^  Rtgi*- 
tration.      Ditpctition.     IntUnment.     Notary. 
Evidence,  Where  lands  were  discontiguous,  or, 
though  contiguous,  had  descended  from  dif- 
ferent authors,  or  from  the  same  author  by 
differenttitles,orwereheldbydifferenttennre8, 
or  passed  by  different  symbols,  different  sets  of 
infeftment,  or  of  delivery  of  sasine,  were  re- 
quired to  take  place  on  each  separate  or  discon- 
tiguous parcel.  In  property  held  burgage,  tbe 
magistrates  received  resignation  and  gsre 
sasine  by  one  act,  and  one  instrument  wss 
evidence  of  both,  the  town-clerk  being  notarr. 
The  sasine  was  then  recorded  in  the  books  of 
the  burgh  within  sixty  days ;   1681,  c.  11. 
The  provisions  of  10  Cleo.  iV.  c.  19,  requiring 
that  the  notary's  doquet  should  be  recorded, 
are  stated  in  the  article  Doqwi.    See  ^- 
gage.    Cognition  and  Sasine.     See  generally, 
on  the  subj^t  of  Sasine,  Stair,  B.  ii.  tit  3, 
§16;   Ersk.  R  ii.  tit.  3,  §§  17,  34,  «<«?.; 
BanL  B.  ii.  tit.  3,  §  39,  et  seq. ;  BeWs  Com. 
i.  21,  211,  670,  et  seq. ;  BeWs  Prine.  §§807, 
et  seq.,  842,  870 ;  lUust.  §§  768,  872 ;  Kamef 
Stat.  Law  Ahridg.  K  t.;  BeU  on  Lea$es,i.2S; 
ii.  59,  85 ;  Sandford  on  Entails ;  BeU  on  Pw- 
(Aaser's  Title,  3,  186,  217,  227,  244 ;  Bou's 
Led.  ii.  130, 178,  d  seq.,  272,  352. 

By  the  act  8  and  9  Tict.  c  35, 1845,  a 
valid  infeftment  may  be   obtained  without 
proceeding  to  the  lands,  or  performing  any 
act  of  infeftment  thereon.    All  that  is  neces- 
sary is  to  produce  to  a  n<rtary-pnblic  tbe 
warrants  of  sasine  and  relative  warrants,  sad 
to  expede  and  record,  in  the  General  or  Par- 
ticular Register  of  Sasines,  an  instrument  of 
sasine,  setting  forth  that  sasine  had  bees 
given  in  the  lands  contained  in  the  warrant 
of  infeftment,  and  subscribed  by  the  notary 
and  witnesses  in  the  form  annexed  to  the  act. 
Such  form  of  infeftment  is  effoctual,  whether 
the  lands  lie  contiguous  or  discontiguous,  or 
are  held  by  the  same  or  different  titles,  or  of 
one  or  more  superiors,  and  may  be  recorded 
at  any  time  during  the  life  of  the  party  in 
whose  favoor  the  instnuneot  has  been  expede  ,- 
but  the  date  of  the  presentment  and  entry 
set  forth  in  the  instrument  by  the  Keeper  of 
the  Record,  is  the  date  of  the  instrument. 
Where  there  is  any  error  or  defect  in  tbe 
instrument,  a  new  instrument  may  he  made 
and  recorded;  or  where  there  is  any  defect  in 
the  recording  of  the  instrument,  it  may  he 
recorded  ancjw;  and  in  either  case  the  instru- 
ment has  effect  from  the  date  of  the  recor^ng, 
as  if  no  previous  instrnment  had  been  made 
or  recorded.    Forms  of  thg^preoept  and  tbe 
instrnment  of  sasine  are  givenx  in  the  sdiedil* 
annexed  to  the  act.    No  cluu>ge  was  i»*^ 

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oh  the  form  of  burgage  sasinos,  exeepting 
only  that  they  were  made  valid  and  effectuid 
if  attested  by  the  town-clerk  as  a  notary, 
witbont  the  addition  of  his  doquet,  and  by 
the  witnesses,  and  that  the  delivery  of  sym- 
bols might  be  given  either  on  the  ground 
of  the  subjecte,  as  formerly,  or  within  the 
cooncil-chamber  of  the  burgh,  by  delivery  of 
a  pen.  By  the  act  10  and  11  Vict.  c.  49, 
1849,  however,  the  ceremony  of  the  giving  of 
pens  was  dispensed  with. 

By  the  Titles  to  Land  Act,  21  and  22 
Vict.  c.  76,  1858,  it  is  no  longer  necessary 
to  expede  any  instrument  of  sasine,  but  the 
conveyance  may  be  recorded  instead  in  the 
Register  of  Sasines.    See  TiUet  to  Land. 

Sadiie  Ox;  was  a  perquisite  due  to  the 
sheriff  when  he  gave  infeftment  to  an  heir 
holding  Crown  lands.  It  was  afterwards 
converted  into  a  payment  in  money,  pro- 
portioned  to  the  value  of  the  estate,  and 
IB  now  done  away  with.  Ertk.  B.  iti.  tit.  8, 
§79. 

Saaine,  Precept  of.    See  Precept  a^  Sonne. 

Saturday's  Slop.  See  Gruive.  Setterdtu/it 
SUm. 

Savings  Banlu.  Previous  to  the  year 
1828,  various  statutes  had  been  passed  re- 
lative to  savings  banks  in  England,  which 
were  in  that  year  consolidated  and  amended 
by  9  Geo.  IV.  c.  28.  This  was  followed  by 
S  Will.  IV.  c.  14,  respecting  savings  banks' 
annuities,  and  both  of  those  acts  were  ex- 
tended to  Scotland  by  5  and  6  Will.  lY.  c. 
57.  There  was  formerly  a  statute  as  to  such 
banks  peculiar  to  Scotland ;  59  Geo.  III.  c. 
62.  But  that  act  is  repealed  in  so  far  as 
relates  to  any  savings  banks  to  be  established 
in  future,  and  only  remains  in  force  as  to  all 
savings  banks  established  under  it,  until  they 
conform  to  the  provisions  of  the  English 
statutes.  Such  banks  already  existing  are 
authorised  to  conform  to  the  English  acts  in 
preparing  and  depositing  their  rules.  The 
principal  provisions  of  9  Geo.  IV.  c.  28,  are 
the  following : — The  institutions  entitled  to 
the  benefits  and  privileges  of  the  act  are, 
any  in  the  nature  of  a  bank  established  by 
any  number  of  persons  in  the  kingdonLierm- 
ing  themselves  into  a  society  to  .receive  de- 
posits of  money  for  the  benefit^  the  deposi- 
tors, to  accumulate  the  produce  of  so  much 
as  is  not  required  by  the.-'depositors,  their 
executors  or  administrators,  at  compound 
interest,  and  to  return  t/e  whole  or  any  part 
of  the  deposit  and  produce  to  the  depositors, 
their  executors  or  administrators  (deducting 
the  expenses  of  management),  but  without 
deriving  any  benefit  from  the  deposit  or  its 
produce.  No  sitvings  bank  is  entitled  to  the 
benefits  of  tho  act  unless  sanctioned  by  the 
justices  of  pea^e  at  the  General  Quarter  Ses- 


sions, and  by  the  Commissionei'S  for  the 
Reduction  of  the  National  Debt,  or  by  their 
comptroller-general  or  assistant-comptroller 
on  their  behalf;  §  2.  The  rules  and  regula- 
tions must  be  entered  in  a  book  or  books  to 
be  kept  by  an  officer  appointed  for  the  pur- 
pose, and  open  at  all  seasonable  times  for  the 
inspection  of  depositors.  They  must  like- 
wise be  fairly  transcribed  on  parchment,  and 
the  transcript  deposited  with  the  clerk  of  the 
peace  for  the  county,  who  is  directed  to  file 
it  with  the  rolls  of  the  sessions,  and  sign  a 
certificate  of  its  enrolment  on  a  duplicate 
copy,  to  be  provided  by  and  returned  to  the 
savings  bank  on  payment  of  a  fee.  of  ten  shil- 
lings, provided  it  be  returned  within  ten  days. 
Alterations  on  the  rules  are  not  prohibited, 
but  such  alterations  are  not  of  force  until 
entered  in  the  aforesaid  book  or  books,  and 
enrolled  and  certified  as  above,  on  payment  of 
a  fee  of  five  shillings ;  §  3.  The  rules,  before 
being  deposited  with  the  clerk  of  the  peace, 
must  be  submitted  to  a  barrister  appointed 
by  the  Commissioners  for  the  Reduction  of  the 
National  Bebt,  who  certifies  in  how  far  they 
are  consonant,  and  in  how  far  repugnant  to 
law.  The  barrister's  fee  must  not  exceed 
L.l,  Is.  The  justices  may  reject  any  of  the 
regulations,  notice  of  which  must  be  sent  by 
the  clerk  of  peace  to  two  of  the  trustees ;  § 
4.  The  rules,  when  entered  and  deposited, 
are  binding  on  members  and  depositors,  and 
a  copy  of  the  transcript  may  be  received  as 
evidence ;  §  5.  The  treasurer,  trustee,  or 
manager,  or  person  having  any  control  in  the 
management  of  the  bank,  must  derive  no 
benefit  from  any  deposit  except  the  salaries 
and  allowances  provided  by  the  regulations 
for  the  charges  of  management,  and  for  re- 
muneration to  the  officers,  exclusive  of  the 
treasurer,  trustees,  managers,  or  other  per- 
sons having  direction  in  the  management, 
who  must  not,  directly  or  indirectly,  have 
any  allowance  beyond  their  actual  expenses  ; 
§  6.  The  treasurer  and  other  officers  in  the 
receipt  or  custody  of  money  must  give  se- 
curity ;  §  7.  The  effects  of  the  institution 
are  vested  in  the  trustees  for  the  time  being; 
§  8.  No  trustee  or  manager  is  personally 
liable  except  for  his  own  acts,  nor  for  any- 
thing done  by  him  in  virtue  of  his  office 
in  the  execution  of  the  act,  except  where 
guilty  of  wilful  neglect  or  default ;  ^  9.  All 
persons  who  have  received  money  or  effects 
must,  on  demand  made,  in  pursuance  of  an 
order  of  at  least  two  trustees  and  three 
managers,  or  at  any  general  meeting  of  trus- 
tees or  managers,  account  for,  and  deliver  up, 
the  money  and  effects ;  §  10.  Money,  when 
invested  by  the  trustees,  must  be  invested  in 
the  Bank  of  England  or  Ireland.  Provision 
is  made  for  investing  money  to  the  account 

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of  the  Commtasionen  for  the  Redaction  of  the 
National  Debt,  &e. ;  §§  11  to  16.  The  manv 
gera  and  trustees  of  any  savings  bank  may,  if 
they  think  fit,  direct  all  interest  due  and 
payable  to  depositors  to  be  calculated  yearly, 
or  twice  a-year,  and  carried  to  the  credit  of 
the  depositors,  after  which  it  becomes  princi- 
pal, and  carries  interest;  §  17.  Various 
provisions  are  made  for  the  trustees  of  sav- 
ings banks  drawing  money  placed  to  their 
account  in  the  National  Debt  Commissioners' 
books,  for  the  appropriation  of  surplus  funds, 
&c ;  §§  18  to  23.  The  interest  payable  to 
depositors  must  not  exceed  2}d.  per  emt.  per 
diem  ;  §  24.  Minors  may  deposit,  and  their 
receipt  is  declared  to  be  a  sufficient  discharge  ; 
$  25.  Where  deposits  are  made  by  married 
women  who  have  given  no  notice  of  their 
being  such,  or  by  women  who  have  afterwards 
married,  money  may  be  paid  to  them  in  re- 
spect of  such  deposit,  unless  the  husband  or 
his  representatives  give  notice  of  the  marriage 
to  the  trustees,  and  require  payment  to  be 
made  to  him  or  them ;  §  26.  Charitable 
societies  may  invest  their  funds  in  a  savings 
bank  to  the  amount  of  L.lOO  in  any  one 
year,  provided  the  whole  amount  invested 
never  exceed  L.SOO,  exclusive  of  interest ;  § 
27.  Fi^endly  societies  may  subscribe  any 
portion  of  their  fbnds  into  savings  banks, 
except  that  no  more  than  L.SOO,  principal 
and  interest,  can  be  received,  nor  any  interest 
paid ;  nor  can  interest  be  paid  when  the  sum 
amounts  to  or  exceeds  L.SOO ;  §  28.  The 
receipt  of  the  treasurer,  trustee,  or  other 
officer  of  a  friendly  or  charitable  society,  is 
held  a  sufficient  discharge ;  §  28.  Members 
of  friendly  or  charitable  societies  are  not 
liable  to  penalty  or  disability  in  those  so- 
cieties by  subscribing  to  any  savings  bank, 
even  thongh  the  rules  of  such  societies  declare 
them  to  be  so.  Nor  is  any  depositor  subject 
to  any  penalty  by  reason  of  belonging  to,  or 
being  interested  in,  the  funds  of  any  friendly 
or  charitable  society  deposited  in  any  other 
savings  bank ;  §§  30  and  31.  No  sum  can 
be  received  without  the  name,  employment, 
and  residence  of  the  depositor,  which  are 
entered  in  the  books  of  the  institution  ;  §  32. 
Persons  are  empowered  to  subscribe  as  trus- 
tees on  behalf  of  others ;  §  33.  Subscribers 
to  one  savings  bank  cannot  subscribe  to  any 
other,  and  a  declaration  to  this  effect  must  be 
made  at  the  time  of  the  deposit.  The  penalty 
of  contravening  this  provision,  or  making  a 
false  declaration,  is  forfeiture  of  all  the  de- 
posits to  the  sinking-fund.  A  printed  notice 
of  this  regulation  and  prohibition  must  be 
affixed  in  the  office  for  receiving  deposits ;  6 
34.  More  than  L.80,  exclusive  of  compound 
interest,  cannot  be  received  from  depositors 
in  one  year,  nor  any  sum  or  sums  whatever 


making  tiie  sum  to  whieh  the  depositor  is 
entitled  exceed  L.150  in  the  whole.  In  snch 
questions  the  year  is  reckoned  forwards  from 
the  20th  of  November ;  and  whenever  the 
sums  standing  in  the  name  of  the  depositor 
amount  in  the  whole  to  L.200,  principal  and 
interest  included,  no  interest  is  payable  on 
such  sum  so  long  as  it  continues  to  amount  to 
L.200  ;  §  35.  No  fresh  deposit  can  be  re- 
ceived so  long  as  the  sums  to  which  the  de- 
positor is  entitled  amount  to  or  exceed  L.150 ; 
§  37.  The  provisions  of  §  38,  relative  to  re- 
deposits,  are  repealed  by  3  Will.  IV.  c.  14, 
§  29.  Provision  is  made  for  the  granting  of 
certificates,  in  case  of  deposits  being  with- 
drawn from  one  savings  bank  and  placed  in 
another ;  §  39.  If  a  depositor  die,  leaving 
any  sum  in  a  savings  bank  exceeding  L.50, 
it  cannot  be  paid  but  upon  the  probate  of  the 
will  or  letters  of  administration.  No  duty 
is  paid  on  the  probate,  or  legacy,  or  residue 
of  a  deceased  depositor,  where  his  whole 
estate  did  not  amount  to  L.50  ;  and  a  certifi- 
cate of  his  interest  in  the  savings  bank  is 
taken  as  evidence  thereof;  §  40.  Admin- 
istration bonds,  &c.,  for  effects  under  L.50, 
are  exempted  fi-om  stamp-duty.  Where  the 
effects  of  persons  dying  intestate  do  not  ex- 
ceed L.50,  they  may  be  divided  according  to 
the  rules  of  the  savings  bank  ;  and  if  there 
are  no  rules  made  in  that  behalf,  the  trustees 
or  managers  may  divide  them  according  to 
the  statute  of  distributions ;  §  41.  It  is  en- 
acted by  5  and  6  Will.  IV.  c.  57,  §  4,  that 
where  the  English  acts  provide  for  payment 
made  to  any  of  the  relations  of  any  deceased 
intestate  depoeitor,  such  provisions  shall  be 
held  to  apply  to  the  next  of  kin  according  to 
the  law  of  Scotland ;  and  where  they  refer  to 
probate  of  the  will  of  the  deceased,  or  letters 
of  administration  of  his  or  her  effects,  and 
provide  that  they  shall  or  shall  not  be  received 
in  the  cases  therein  provided,  the  provisions 
shall  be  held  to  apply  to  confirmation  by  the 
law  of  Scotland,  which  shall  be  required  or 
dispensed  with  as  therein  provided.  Payment 
to  persons  appearing  to  be  entitled  to  receive 
it  as  representatives,  or  under  a  probate,  are 
declared  to  be  valid  as  regards  the  liability 
of  the  savings  bank ;  bnt  the  persons  reaUy 
entitled  to  payment  have  their  recourse 
against  the  persons  who  have  received  the 
money ;  §§  42  and  43.  Powers  of  attorney, 
&C.,  given  by  trustees  or  depositors,  are  not 
liable  to  stamp-duty^  §  44.  Where  disputes 
arise,  they  are  directed  to  be  referred  to 
arbitrators,  and  in  case  of  their  not  agreeing, 
to  be  settled  by  a  barrister,  whose  fee  must 
not  exceed  L.l,  Is. ;  §  AS.  Various  pro- 
visions are  made  with  respect- to  the  making 
op  accounts  of  progress,  the  cbmputation  of 
interest,  the  purchue  of  Exchequer  bills,  sod. 

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<>ther  matten  calculated  to  carry  the  purposes 
of  the  act  into  execution ;  §§  46  to  62. 

The  act  3  Will.  IV.  c.  1 4,  was  passed  with 
the  Tiev  of  enabling  depositors  in  savings 
banks,  and  others,  to  purchase  .  Government 
annuities  throngh  the  medium  of  savings 
banks ;  and  it  also  makes  some  amendments 
on  the  above  act,  9  Geo.  IV.  c.  92. 

The  act  16  and  17  Vict.  c.  45, 1853,  enti- 
tled, "  An  Act  to  consolidate  and  amend  the 
laws,  and  to  grant  additional  facilities  in  re- 
lation  to  the  purpose  of  Government  Annuities 
through  the  medium  of  Savings  Banks,  and  to 
make  other  provisions  in  respect  thereof," 
repeals  so  much  of  3  and  4,  c.  14,  and  7  and 
8  Vict.  c.  83,  as  relates  to  the  purchase  of  Go- 
vernment annuities  through  the  medium  of 
savings  banks.  This  act,  among  various  other 
provisions,  empowers  the  Commissioners  for 
the  Reduction  of  the  National  Debt  to  grant 
to  or  for  the  benefit  of  any  depositor  in  a 
savings  bank,  or  other  person  whom  the  Com- 
missioners may  think  entitled  to  be  or  to  be- 
«ome  a  depositor  in  a  savings  bank,  an  imme- 
diate or  deferred  life  annuity,  depending  on 
single  lives,  or  immediate  annuities,  depend- 
ing on  joint  lives,  with  benefit  of  survivor- 
ship, or  on  the  joint  continuance  of  two  lives, 
to  any  amount  not  less  than  £i,  nor  more 
than  j£30  in  the  whole,  to  or  for  the  benefit 
of  any  one  person,  and  to  receive  payment 
for  such  immediate  life  annuities  in  one  sum, 
and  for  such  deferred  life  annuities,  either 
in  one  sum,  or  in  annual  sums,  payable  for 
fixed  periods ;  but  no  such  annuities  can  be 
granted  to  or -for  the  benefit  of  any  person 
under  the  age  of  ten  years.  Life  annuities 
purchased  under  this  act  are  free  from  all 
taxes,  charges,  or  impositions  whatever,  and 
are  deemed  personal  estate.  See  also  the  acts 
19  and  20  Vict  c.  41,  1856,  and  22  and  23 
Vict.  c.  63, 1859. 

Savings  banks  for  seamen  are  regulated  by 
the  Merchant  Shipping  Act,  1854,  and  by  19 
and  20  Vict.  c.  41, 1856,  and  military  savings 
banks  by  the  act  22  and  23  Vict.  c.  20, 1859. 
By  the  act  22  and  23  Vict.  c.  53,  1859,  the 
trustees  or  treasurers  of  any  penny  savinge 
bank,  charitable  or  provident  institution  or 
society,  or  charitable  donation  or  bequest  for 
the  maintenance,  education,  or  benefit  of  the 
poor,  are  empowered  to  invest,  with  the  ap- 
proval of  the  Commissioners  for  the  Beduc- 
tion  of  the  National  Debt,  the  funds  of  such 
bank,  institution,  or  society,  or  the  funds  of 
any  savings  banli,  without  restriction  as  to 
Amount. 

Scaccarimu;  accordingto  Skene,the  checker, 
in  French,  "Echiquier,"  the  place  where 
the  King's  rent  and  patrimony,  as  well  rents 
as  casualties,  and  the  profits  of  all  lands  fallen 
into  the  King's  hands  by  reason  of  ward,  are 


"  inbrocht,  compted,  and  received.*^    Skene, 
h,  t.    See  Exchequer. 

Scandal;  an  injurious  report  circulated, 
or  printed  and  published,  which  may  be  the 
foundation  of  either  a  criminal  prosecution, 
or  of  a  civil  action  of  damages,  or  of  a  com- 
bination of  both.  All  actions  upon  scandal, 
or  verbal  injuries  for  damages,  although  com- 
petent in  inferior  courts,  may  also  be  brought 
before  the  Court  of  Session.  Erik.  B.  i.  tit.  3, 
§  21 ;  Bmk.  B.  iv.  tit.  13,  §  12 ;  Stair,  B.  i. 
tit.  9,  §  3.   See  Dtfamation.   Libel.   Injuries. 

Soandalum  Hagnatom ;  words  spoken  in 
derogation  of  a  peer,  a  judge,  or  other  great 
officer  of  the  realm.  These  words,  although 
they  would  not  be  actionable  in  the  case  of  a 
common  person,  yet  when  spoken  in  dispa- 
ragement of  persons  of  rank  and  station,  are 
accounted  criminal.  In  England,  scandal  of 
this  description  may  be  the  ground  of  an  ac- 
tion both  for  punishment  and  for  damages. 
In  Scotland,  this  offence  is  called  leasing- 
making,  the  punishment  of  which  has  been 
greatly  mitigated  by  the  two  recent  statutes, 
6  Geo.  IV.  c.  47,  and  7  Will.  IV.  c.  5.  Hume, 
i.  337,  et  seq. ;  Bank.  B.  i.  tit.  2,  §  33 ;  tit.  10, 
§  36  ;  and  Torrdins^  Diet.  h.  t.  See  Leasing- 
making. 

ScliafTa  Sagittamm ;  according  to  Skene, 
is  a  sheaf  of  arrows,  containing  twenty-four. 
(See  Qarba.)  A  sheaf  of  arrows  contains  six- 
teen "  gades ;"  a  sheaf  of  steel  contains  four- 
teen "  gades."    Skene,  h.  t. 

SohMole  of  Poinding.  When  a  poinding 
is  completed,  the  messenger  or  officer  who  ex- 
ecutes it  leaves  a  schedule  for  the  debtor  of 
the  particulars  of  the  effects  taken  in  virtue 
of  the  diligence,  together  with  a  copy  of  the 
letters  and  executions,  signed  by  himself  and 
the  witnesses ;  and  this  serves  for  a  discharge 
of  the  debt  to  the  value  of  the  poinded  ef- 
fects. BM's  Com.  ii.  61 ;  Ross's  Lect.  i.  437 ; 
BeU  on  Leases,  ii.  313 ;  Hunter's  Landlord  and 
Tenant. 

Scheme  of  Division ;  in  judicial  procedure, 
is  the  name  given  to  the  state  or  cast,  accord- 
ing to  which  it  is  proposed  to  divide  a  common 
fund  amongst  the  several  claimants  thereon, 
or  to  allocate  any  fund  or  burden  on  the  dif- 
ferent parties  liable.  Such  schemes  of  divi- 
sion are  required  in  processes  of  competition ; 
the  most  important  being  the  action  of  rank- 
ing and  sale.  See  Ranking  and  Sale.  Mul- 
tiplepoinding.    Sequestration. 

Scheme  of  Locality.    See  Locality. 

Schire£    See  Sheriff. 

Schools.  By  the  act  1696,  e.  26,  the  heri- 
tors of  parishes  where  no  parochial  school  has 
been  before  established,  are  ordered  to  provide 
a  schoolhouse,  and  to  modify  a  salary  to  the 
schoolmaster,  not  under  L.lOO,  and  not  above 
200  merks  Scots,  to  be  proportioned  accord- 
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ing  to  the  valued  rent  of  the  parish.  If  the 
heritors  should  neglect  this  duty,  the  presby- 
tery are  directed  to  apply  to  the  commission- 
ers of  supply  of  the  county,  vho,  or  any  five 
of  them,  have  power  to  establish  a  school, 
and  settle  a  salary,  in  terms  of  the  statute ; 
and  by  1693,  c.  22,  the  sufficiency  and  qua- 
lification of  the  parochial  schoolmasters,  as 
veil  as  their  conduct  after  their  admission, 
are  to  be  judged  of  by  the  presbytery.  The 
schoolmaster's  salary  and  the  poor's  rates  are 
divided  equally  betjireen  the  heritor  and  the 
tenant;  1696,  t.2t;  1663,  c.l6;  Earned 
Abrid^.,  voce  Vagrant;  Ersk.  B.  i.  tit.  6,  §24; 
B.  ii.  tit.  6,  §  42 ;  Bank.  B.  i.  tit.  6,  1 16. 
Parochial  schools,  so  far  as  regards  parishes 
not  entirely  comprehended  in  royal  burghs, 
are  now  regulated  by  the  statute  43  Geo.  III. 
e.  54,  whereby  it  was  enacted,  that,  within 
three  months  after  11th  June  1803,  the  sala- 
ries of  the  schoolmasters  lure  to  be  fixed  at 
from  300  to  400  merks  Sco%,  by  the  minister, 
and  by  the  heritors  of  lands  in  the  parish  of 
L.lOO  Scots  valued  rent  in  the  cess-books. 
In  twenty-five  years  after  that  date,  the  heri- 
tors and  minister  were  in  like  manner  to  mo- 
dify a  new  salary  according  to  the  average 
price  of  oatmeal,  to  be  ascertained  by  Exche- 
quer, of  the  value  of  from  one  and  a  half  to 
two  ehalders ;  and  so  on  periodically,  at  inter- 
vals of  twenty-five  years.  In  case  of  neglect 
or  wrong  by  the  heritors  and  minister,  appli- 
cation by  the  aggrieved  party  is  made  com- 
petent to  the  quarter  sessions,  within  three 
months  after  such  meeting  ought  to  have 
been  held,  or  such  determination  has  been 
made.  In  extensive  districts,  the  heritors  and 
minister  may  appoint  two  masters,  with  an 
increased  allowance,  subject  to  appeal  to  the 
quarter  sessions  as  to  the  division  of  the  al- 
lowance. And  where  there  is  not  a  proper 
schoolhouse,  a  house  for  the  schoolmaster, 
and  a  garden,  containing  at  least  one-fourth 
of  a  Scotch  acre,  the  heritors  of  the  parish 
must  provide  them;  or,  in  certain  eases,  an 
equivalent  for  the  garden,  by  authority  of 
the  quarter  sessions.  But  the  quarter  sessions 
cannot  legally  alter  the  situation  of  a  school- 
house  formerly  established;  Dawson,  18<& 
Feb.  1809,  Fac.  Cell.  The  choice  of  the 
schoolmaster  is  vested  in  the  minister  and 
heritors ;  the  person  elected  being  found  qua- 
lified by  the  presbytery  as  to  morals,  religion, 
and  literature,  and  signing  the  Confession  of 
Faith  and  Formula  of  the  Church  of  Scot- 
land. The  determination  of  the  presbytery 
as  to  the  qualifications  of  the  presentee 
(where  they  have  proceeded  in  terms  of  the 
statute)  is  not  subject  to  review  in  any  court, 
civil  or  ecclesiastical.  Their  determination 
in  cases  of  complaint  against  the  schoolmaster, 
even  if  it  should  end  in  his  dismissal,  is  also 


final,  and  not  subject  to  review  in  any  court ; 
and,  in  general,  the  presbytery  has  an  abso- 
lute control  over  the  schoolmaster,  with  re- 
spect to  the  hours  of  teaching,  the  length  of 
the  vacation,  and  the  like.  But  the  presby- 
tery has  no  superintendence  of  private  schools. 
By  19  Geo.  II.  c  39,  however,  no  person  can 
kee^  a  private  school  for  teaching  En^ish, 
Latin,  Greek,  or  any  part  of  literature,  until 
the  description  of  the  school  has  been  regis- 
tered, and  the  master  has  qualified  himself 
by  taking  the  oaths  to  Government,  under 
the  pain  of  transportation.  See  also  21  Geo. 
II.  c.  34,  §  12.  The  law  refracting  schools 
and  schoolmasters  has  been  digested  in 
Dunlop't  PariA  Law,  292,  321.  See  also 
Mon's  Note*  to  Stair,  p.  Ixv.;  BM't  Priue. 
f  41,  1133-6;  lUutt.  §  1113;  Omrd  Law 
StyltM,  67,  381,  370 ;  SwinL  Abridg.  k.  (.  ; 
Kame^  Stat.  Law  Abruiff.  k.  U;  WaUen't  Stat. 
Law,  h.  t.;  HiU's  ChurtA  Prae.  145 ;  BtU  on 
Leant,  i.  321 ;  Huntei't  Landlord  and  TenaiU; 
Hutek.  Jtutke,  ii.  286 ;  Taifs  Juttiee  ^  Ptaee. 
h.  t. ;  Butt's  do.  k.  t.;  Connell  on  Paritket, 
See  Pre$bytery. 

The  payments  of  the  aalariea  of  school- 
masters, from  Martinmas  1855  to  Martinmas 
1859,  bias  been  regulated  by  the  act  20  and 
21  Viet.  c.  69, 1867.  And  the  same  act  pro- 
vides that,  after  Martinmas  1869,  the  aaluries 
shall  be  fixed  according  to  the  average  ftan 
prices  of  a  chalder  of  oatmeal  in  each  county 
for  the  twenty-five  years  preceding  and  in- 
cluding the  year  and  crop  of  1858,  the  ave- 
rage being  determined  by  the  sheriff  on  or 
before  the  1st  of  July  1859.  See  also  17 
and  18  Vict.  c.  78, 1854. 

SchoolmaftWi  Bight  to  Vote.  The  Re- 
form Act,  2  and  3  Will.  IV.  c.  65,  §  7,  pro- 
vides, that  when  any  property  which  would 
entitle  the  owner  to  be  jegistered,  and  to 
vote,  shall  come  to  any  person  within  the 
said  period  of  six  months  before  the  making 
up  of  the  lists,  by  appointment  to  any  place 
or  office,  such  person  shall  be  entitled  to  be 
registered  on  the  first  occasion  of  making  up 
the  list  of  voters  next  following  such  acqui- 
sition. In  virtue  of  this  provision,  many 
claims  have  been  made  by  parochial  school- 
masters ;  to  whose  office  the  right  to  a  dwell- 
ing-house and  garden  is  by  law  attached ; 
and  where  the  induction  to  the  office  and 
value  of  the  property  have  been  established, 
such  claims  have  been  admitted.  If  any  per- 
son other  than  a  parochial  schoolmaster  ap- 
pointed in  virtue  of  the  acts  of  Parliament 
mentioned  in  last  article  claim  on  premises 
which  he  occupies  as  a  schoolmaster,  he  must 
show  a  right  for  life.  A  schoolmaster  ap- 
pointed by  a  society,  who  can  remove  him  at 
pleasure,  was  rejected.  It  has  even  been 
doubted  whether  any  other  than  a  parochial 


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Schoolmaster  can  Ira  said  to  be  a  person  hold- 
ing a  place  or  office,  in  the  sense  of  the  Re- 
form Act  Claims  hare  been  made  by  paro- 
chial schoolmasters  on  the  schoolhouse,  on  the 
play-ground,  on  the  salary,  and  on  the  allow- 
ance made  when  there  is  no  garden.  But 
the  minority  of  the  appeal  courts  have  found 
that  these  subjects  are  not  to  be  taken  into 
account,  and  that  the  only  subjects  on  which 
the  schoolmaster  can  claim,  as  attached  to  his 
office,  are  the  dwelling-house  and  garden. 
See  Ca^t  Reform  Act,  98.  See  also  Reform  Ad. 

Seire  FadM ;  in  English  law,  a  writ  to 
enforce  the  execution  of  judgments,  patents, 
or  matters  of  record,  or  to  vacate,  quash,  or 
aonal  them.    TonUiU  Diet.  K.  t. 

Scotia;  was,  aooording  to  Skene,  nsed 
sometimes  in  ancient  charters  and  acts  to 
signify  that  part  of  Scotland  which  is  on  the 
north  part  of  the  Water  of  Forth,  as  dis- 
tinguished from  the  part  on  the  south,  which 
was  called  Lodoneium  or  Lothian.  Skene,  h.  t. 

Seoti  Honfiy.  When  money  is  men- 
tioned in  the  acts  of  th^  Scots  Parliaments, 
or  inpublte  or  judicial  proceedings  prior  to 
the  1}iiioD,  and  eren  for  a  considerable  time 
thereafter,  Scots  money  is  meant,  unless  the 
contrary  be  expressed.  Sterling  money  is 
twelve  times  the  value  of  the  same  denomina- 
tion of  Scots  money.  The  following  table  of 
the  relative  values  of  Scots  and  sterling 
money  may  be  of  service : — 

Scot*.  «   Sterllnt^. 

A  4oyt  or  penny,  is    -    -     L.O    0    0^ 

A  bodle,  or  twopence,  -  -  0  0  0^ 
■    A  plack,  groat,  or  fourpence,    0    0    0^ 

A  shilling, 001 

A  merk,  or  ISs.  4d.  (two-thirds 
of  a  pound),     -    -    -    .     0    1    1^ 

A  pound,      ------018 

A  table  will  be  found  at  the  end  of  the  ar- 
ticle Mon^,  in  the  Ene.  Brit,  containing  the 
comparative  value  of  Scotch  coin,  at  various 
periods  in  our  early  history.  See  also  Tait'$ 
Jtutke,  h.  t. 

Somtiny.  No  scrutiny  is  allowed  by  or 
before  any  returning  officer  with  regard  to 
any  votes  given  or  tendered  at  any  election. 
But  persons  whose  claims  to  be  registered 
have  been  rejected  may  tender  their  votes, 
which  are  entered  by  the  sheriff,  being  distin- 
guished from  the  votes  of  registered  persons, 
so  that  an  election  committee  may  have  it  in 
iheir  power  to  give  effect  to  such  votes,  in 
deciding  upon  the  validity  of  a  disputed  elec- 
tion ;  2  and  3  WiU.  IV.  c.  65,  §  26.  See 
Reform  Act.  In  the  election  of  a  trustee  in 
a  sequestration,  the  judgment  of  the  sheriff  is 
final,  and  in  no  case  subject  to  review.  See 
the  act  19  and  20  Yict.  c.  79,  1856.  See 
Votet. 


Senlptnxe;  is  protected  by  the  copyright 

acts.    See  Literary  Properttf. 

Sea  and  Seashore.  It  is  a  question  which 
has  been  frequently  discussed,  whether  the 
sea  is  open  to  all,  or  whether  it  may  not  be 
appropriated  by  particular  nations.    In  this 
country,  while  it  has  been  admitted  that  the 
ocean  is  incapable  of  appropriation,  it  has,  on 
the  other  hand,  been  maintained  that  the 
seas  which  wash  the  coast  of  any  state  may 
be  appropriated.    The  seas  and  sea-shores  of 
Great  Britain  are  inter  regalia;  that  is,  they 
are  held  by  the  Crown  for  the  behoof  of  the 
public.    This  right  of  lordship  comprehends 
the  right  to  free  navigation,  to  fishing,  to  tak- 
ing wrecks,  to  forbid  passage  to  enemies,  the 
right  of  flag,  of  jurisdiction,  &c.     The  shore 
comprehends  all  between  high  and  low  water 
mark.    It  has  been  decided  in  England,  that 
land  gained  from  the  sea  by  sudden  recess 
goes  to  the  Crown  ;  but  that  what  is  gained 
by  imperceptible  'Edition  becomes  the  pro- 
perty of  the  neighbouring  proprietor.     In 
Scotland,  the  shore  is  presumed  to  1)e  part 
and  pertinent  of  the  adjacent  land,  under  the 
burden  of  the  right  of  the  Crown,  as  trustee  for 
the  public  uses.  Accordingly,  where  lands  are 
described  as  bounded  by  the  sea  or  sea-shore 
(between  which  there  is  no  substantial  dis- 
tinction), the  grantee  has  an  absolute  right 
of  property  down  to  the  shore  or  high-water 
mark,  and  the  above  modified  right  of  pro- 
perty in  the  shore,  or  down  to  the  low-water 
mark.    No  one  can,  on  any  pretence,  inter- 
pose between  such  a  grantee  and  the  shore. 
In  the  case  of  Macditter  v.  CampbeU,  Feb.  17, 
1837, 15  iSi.  490,  it  was  found  not  necessary 
to  the  possession  of  the  shore,  as  part  and  per- 
tinent, and  to  the  exclusive  use  of  the  wreck, 
shell-sand,  sea-ware,  &e.,  which  such  posses- 
sion confers,  that  the  titles  of  the  proprietor 
of  the  contiguous  lands  should  describe  them 
as  bounded  by  the  sea  or  sea-shore.    It  was 
held  sufficient  that,  de  facto,  the  lands  were 
notoriously  part  of  the  coast,  and  washed  by 
the  sea ;  Stair,  B.  ii.  tit.  1,  §  5 ;  Ersk.  B.  ii. 
tit.  2,  §  6 ;  tit.  6,  §  17 ;  Bank.  i.  p.  82 ; 
BeWa  Prine.  §  641 ;  IRust.  ib.  Evtch.  Just. 
ii.  377  ;  Brotm't  Synop.  1892.    See  Kdp. 

In  the  case  of  Paterson  v.  Marquis  of  Ailsa, 
March  11, 1846,  8  D.  762,  it  was  held  that 
a  proprietor  of  lands,  de  facto  bounded  by  the 
sea,  with  a  clause  of  parts  and  pertinents  in 
his  Crown  title,  although  there  was  not  a  sea 
boundary  expressed  in  it,  was  entitled  to 
resist  an  action  of  declarator  by  a  proprie- 
tor of  lands  lying  near  the  sea-shore,  of  his 
right  to  gather  sea  wreck  and  ware  on 
the  shore.  Lord  MoNCBEirr  observed,  "  I 
think  it  clear  that  the  defender  has  a  title 
abundantly  sufficient  to  enable  him  to  secure 
by  prescriptive  possession  an  exclusive  right 

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SEA 


SEA 


lo  gather  tlie  wreck  and  Ma-ware  on  tbe  sea- 
shore opposite  to  his  own  lands.  My  opinion 
on  the  case  goes  further  than  this,  for  I  think 
that  be  would  have  that  right  independent 
of  any  prescriptive  possession,  at  least  if  no 
adverse  possesion  could  be  proved."  In  the 
case  of  Q^ers  of  State  v.  Smith,  Marefa  11, 
1846,  8  J>.  711,  affirmed  July  13,  1849,  6 
Bell,  487,  it  was  held  that  the  Crown  had  a 
title  to  prevent  any  encroachment  by  the 
proprietors  of  gronnd  adjoining  the  sea-shore 
upon  the  enjoyment  of  the  shore  by  tbe  lieges 
for  the  purpose  of  passage  or  relaxation.  In 
tbe  case  of  Sir  John  Hall  v.  Willit,  Jan.  14, 
1852, 14  D.  324,  it  was  held  that  a  proprie- 
tor of  lands  adjoining  the  sea,  and  erected 
into  a  barony,  with  a  clause  of  parts  and  per- 
tinents, and  a  general  grant  of  fishing,  had 
not  a  sufficient  title  to  exclude  the  publie  from 
taking  limpets  and  other  sbell-flsh  adhering 
to  tbe  rocks  below  high-water  mark  or  tbe 
shore  of  his  lands,  provided  these  rocks  were 
accessible  without  trespass. 

Sea-Oreeni ;  are  those  grounds  which  are 
overflowed  in  spring-tides.  These,  on  the 
assumption  that  the  sea-shore  comprehends 
that  over  which  the  tide  flows,  have  been 
supposed  to  be  inter  regalia.  But,  by  the 
custom  of  Scotland,  the  shore  is  not  held  to 
extend  further  than  to  that  point  which  the 
sea  reaches  in  common  tides ;  and,  therefore, 
sea-greens  are  held  to  be  private  property. 
Ertik.  B.  ii.  tit.  6,  §  17  ;  .Bant.  B.  i.  tit.  3, 
§  4  ;  Befft  Prine.  §  644  ;  BeU  on  Leaeet,  i. 
357;  Hvtch.  Just.,  ii.  379,  460;  Brovm's 
Si/nop.  797,  2249.     See  Ware. 

Seal  of  Cause.  Most  royal  burghs,  and 
many  superiors  of  burghs  of  barony,  have 
conferred  upon  tbem  in  their  charters  the 
power  of  constituting  subordinate  corpora- 
tions or  crafts.  The  grant  or  charter  by 
which  such  a  constitution  is  given,  and  which 
defines  the  privileges  and  powers  to  be  pos- 
sessed by  the  subordinate  corporation,  is  called 
the  seal  of  cause.  A  seal  of  cause  cannot  be 
rescinded  or  infringed  by  the  corporation  in 
whose  favour  it  was  granted,  without  consent 
of  the  magistrates  and  council  who  granted  it; 
Crooks,  Dec.  4, 1776,  M.  2007.  If  a  seal  of 
cause  granted  to  the  corporation  B.  refer  to 
and  bestow  the  exclusive  privileges  contained 
in  the  seal  of  cause  granted  to  the  corporation 
A.,  it  has  been  decided,  where  one  of  the 
seals  of  cause  had  been  lost,  that  the  seal  of 
cause  of  A.  forms  a  good  title  for  B.  enjoy- 
ing these  privileges;  Mowtl,  June  1,  1825, 
4S.  tt  D.  52.  In  the  report  of  this  case,  a 
verbatim  copy  of  the  seal  of  cause  is  given. 
See  Ersk.  B.  i.  tit.  7,  §  64,  note  by  Ivory  ; 
BtWs  Prine.  §  2185 ;  Brovm's  Synop.  316, 
404.    See  Community.    Burgh  Royal. 

Seals.    Anciently,  when  writing  was  not  a 


common  accomplishment,  deeds  were  executed 
by  sealing ;  which,  however,  came  to  be  soper^ 
seded  by  subscriptions.  See  Deed.  Tetttng 
Clause.  Subscription.  And  now,  royal  grsots 
are  the  only  deeds  which,  in  Scotland,  are 
authenticated  by  means  of  seals.  There  are 
different  seals,  which,  in  practice,  are  applied 
to  different  purposes.  As,  1.  The  Great  seal, 
which,  since  the  Union,  has  been  altered,  and 
a  new  (ireat  seal  for  the  private  affairs  of  Scot- 
land introduced.  By  the  article  of  Union,  it  is 
declared  to  come  in  place  of  tbe  former  Great 
seal ;  but  nochange  lias  been  made  on  the  other 
seals.  Under  the  Great  seal  are  authenti- 
cated charters  and  grants  of  lands,  and  gifts 
when  the  lands  hold  of  the  Crown,  as  also  the 
commissions  to  the  principal  officers  of  the 
Grown,  as  to  the  Lord  Justice-Clerk,  King'* 
Advocate,  Solicitor,  Ac.  2.  The  Privy  seal  h 
used  for  grants  and  presentations  to  lesser  of- 
fices and  to  the  transference  of  moveables,  ami 
whatever  rights  a  subject  may  transmit  by 
assignation ;  but  moveables  may  be  conveyed 
under  the  Great  sea),  if  conveyed  along  with 
some  feudal  subject.  3.  The  Quarter  seal  it 
so  called  from  its  having  been  originally  the 
quarter,  and  merely  tbe  testimonial  of  tbe 
Great  seal.  Under  this  seal  commissions  of 
tntory,  g^fts  of  bastardy,  forfeiture,  or  of 
ultimus  hares,  where  the  lands  hold  of  a  sub- 
ject superior,  are  passed ;  for,  where  the  lands 
hold  of  the  Crown,  these  gifts  pass  the  Great 
seal.  By  1687,  c.  82,  commissions  to  the 
justice-depute  pass  this  seal.  4.  The  Signet ; 
for  although  Erskine  (B.  i,  tit.  4,  §  39)  con- 
siders it  as  the  seal  of  the  Court  of  SoBsion, 
yet  this  is  obviously  a  mistake.  The  Signet 
existed  before  the  Court  of  Session  was 
established ;  the  writs  which  passed  under  it 
were  the  private  letters  or  orders  of  the  King, 
directed  "  to  sheriffs  in  thai  part,"  authorising 
them  to  summon  parties  before  the  King's 
Court,  or  to  execute  the  diligence  of  the  law. 
It  is  more  than  probable  that,  when  the  brieves 
and  forms  of  tne  old  law  came  to  be  disused 
Signet  Letters,  as  they  are  termed,  succeeded 
them  ;  and  that  the  orders  of  the  King  were 
given  to  the  sherifEs  in  that  part  (that  is,  to 
messengers-at-arms,  who  were,  for  the  special 
purpose  mentioned  in  the  letters,  invested 
with  the  powers  of  the  judge  ordinary),  so  as 
to  supply  all  that  was  requisite  for  calling 
parties  before  the  King's  Court,  or  for  carry- 
ing its  sentences  into  execution.  In  this  way, 
the  Letters  passing  the  Signet,  for  the  pur- 
pose of  judicial  procedure,  received  the  war- 
rant of  the  King's  Court ;  and  it  has  1>een 
inferred  that  the  Court  of  Session,  on  its  in- 
stitution, continued  the  practice  which  bad 
been  previously  established.  Hence  the  Signet 
is  not  properly  the  seal  of  a  court,  though  it 
answers  the  purposes  of  one ;  but  a  seal  ori- 


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'(finally  intended  to  authenticate  tbe  King's 
warrants  connected  with  the  administration  of 
justice.  Formerly,  in  expeding  Crown  char- 
ters, the  signatures  passed  in  Exchequer  were 
the  warrants  of  precepts  under  the  Signet, 
which  were  directed  to  the  Great  seal,  for  the 
purpose  of  completing  a  royal  grant.  Brsk. 
B.  ii.  tit.  5,  §  82,  H  seq.;  B.  Hi.  tit.  2,  §  7  ; 
Bawfc-B.  Hi.  tit.  3,  §  39 ;  Stair,  B.  iv.  tit.  42, 
§  6 ;  Hop<fs  Minor  Praeticks,  pp.  86-9 ;  Jurid. 
Stylet,  i.  341 ;  Ross's  Leet.  i.  109, 123-30.  See 
Signet.  Privy  Seal.   Quarter  SeiiU  Great  Seal. 

By  the  act  10  and  11  Vict,  c  51, 1847,  sig- 
natures and  precepts  to  Chancery,  as  prelimi- 
nary to  the  granting  of  charters,  are  abolished. 

S«Bmen ;  are  either  sailors  in  the  royal 
navy,  or  in  the  merchant  or  fishing  service. 
All  persons  using  the  sea  (as  it  is  expressed) 
are  liable  to  be  impressed  for  the  navy,  by 
authority  of  impress  warrants  from  the  Ad- 
miralty. There  are,  however,  certain  excep- 
tions to  this  rule.  Thus,  generally,  all  per- 
sons nnder  eighteen  or  above  fifty-five  years 
of  age;  all  persons  during  two  years  after 
beginning  to  use  the  sea ;  apprentices  to  the 
sea  service  during  three  years  from  the  dates 
of  their  indenture,  unless  they  formerly  used 
the  sea ;  and  seamen  who  have  bona  fide  re- 
tired from  the  sea  service.  There  are  also 
certain  particular  exemptions,  such  as  the 
masters  of  fishing  vessels,  having  at  least  one 
apprentice  under  sixteen  years,  bound  for  five 
years  and  fishing;  other  persons  connected 
with  the  fishing  and  coal  trade  are  exempted ; 
13  Oeo.  II.  c.  17.  A  seaman  of  the  navy  can- 
not be  taken  out  of  the  service  by  any  process 
or  execution,  unless  for  some  cause  criminal,  or 
unless  the  plaintiff,  or  some  one  for  him, 
makes  affidavit  before  a  judge  of  the  court  out 
of  which  the  process  issues,  or  before  some 
person  authorised  to  take  affidavits  in  such 
courts,  that  the  cause  of  action  amounts  to 
L.20 ;  a  memorandum  of  which  oath  must  l)e 
marked  on  the  back  of  the  process  or  writ, 
without  fee.  A  seaman  cannot  be  arrested 
otherwise ;  but  a  plaintiff,  on  giving  notice  to 
the  seaman  personally,  or  leaving  it  at  the 
place  where  he  resided  before  entering  into 
the  navy,  may  have  judgment  and  execution 
other  than  against  the  person  of  the  seaman ; 
31  Oeo.  II.  c.  10,  §§  28-9.  A  petty  officer  or 
seaman  who  has  been  arrested  for  debt  or 
crime  is  not  discharged  on  payment  of  the 
debt,  or  tormination  of  the  imprisonment; 
but  is  delivered  to  the  commander-in-chief  of 
some  of  the  royal  ships,  or  some  commissioned 
officer  authorised  to  raise  seamen,  or  some 
principal  regulating  officer  of  the  impress, 
whichever  is  nearest ;  44  Geo.  III.  c.  13. 
Provision  is  made  by  several  statutes  to  enable 
petty  officers  of  the  navy,  seamen,  non-com- 
missioned officers    of   marines,    boatswains, 


gnnners,  and  carpenters  in  the  navy,  to  allot 
part  of  their  pay  to  their  wives,  mothers,  or 
children.  The  statute  5  and  6  Will.  IV.  c. 
24,  was  passed  with  a  view  of  encouraging 
the  voluntary  enlistment  of  seamen,  and  mak- 
ing regulations  for  manning  the  navy.  By 
this  act  the  torm  of  service  in  the  navy  is 
limited  to  five  years.  If  the  ship  be  abroad 
when  the  term  of  service  of  seamen  expires, 
provision  is  made  for  their  being  sent  home 
by  the  earliest  opportunity.  The  admiral,  or 
commanding  officer  of  the  squadron  or  fleet 
in  which  a  seaman  whose  term  has  expired 
is  serving,  is  empowered,  in  case  of  emergency, 
to  detain  him  six  months  longer,  with  one- 
fourth  increase  of  pay.  '  Seamen  under  arrest 
for  trial,  when  their  service  expires,  cannot 
be  discharged  till  after  their  trial.  Seamen, 
though  entitled  to  be  discharged,  must  per- 
form their  duties,  and  be  amenable  to  naval 
discipline  until  actually  discharged.  Seamen, 
when  discharged  after  a  service  of  five  years, 
are  entitled  to  receive  protoctions  from  service 
in  the  navy  for  two  years.  Provision  is  made 
by  the  same  statute  for  bounties  and  other 
privileges  to  volunteers. 

Merchant  Seamen;  have  been  the  subject  of 
various  statutory  regulations ;  but  these  have 
all  been  repealed  by  17  and  18  Vict.  c.  104, 
1854,  and  18  and  19  Vict.  c.91,  1855,  which 
consolidates  the  law  as  to  this  matter. 

Search  of  Incnmbranoet.  It  is  of  impor- 
tance for  a  lender  or  a  purchaser  to  discover 
the  burdens  which  affect  the  borrower's  or 
seller's  estate.  The  system  of  records  in  Scot- 
land furnishes  the  most  advantageous  means 
for  this  purpose,  which  is  effected  by  what  is 
technically  called  a  Search,  A  search  of  the 
records  comprehending  a  period  of  forty  years 
is  supposed  to  give  sufficient  security.  But 
to  render  the  search  completo,  it  onght  to 
be  continued  down  to  the  date  of  the  record- 
ing of  the  purchaser's  sasine,  for,  without 
this,  the  purchaser  is  exposed  to  the  risk  of 
a  new  sasine  being  recorded  between  the  date 
of  signing  the  disposition  and  the  registration 
of  the  sasine  following  on  it.  In  practice, 
however,  purchasers  generally  trust  to  the 
execution  of  the  disposition,  and  pay  the  price 
on  the  delivery  of  that  deed ;  and  there  is  no 
known  instance  of  the  seller  taking  advan- 
tage of  this  opportunity  to  defi'aud  the  pur- 
chaser. A  search  embraces  the  following 
particulars :  1st,  A  search  of  the  General  and 
Particular  Register  of  Sasines ;  2dly,A  search 
of  the  Record  of  Abbreviatesof  Adjudications ; 
and,  Sdly,  A  search  of  the  General  and  Parti- 
cular Register  of  Inhibitions.  If  the  property 
consist  of  burgage  subjects,  a  search  of  the 
Record  of  Sasines  kept  in  the  burgh  must  be 
produced ;  and  a  search  of  the  Dean  of  Guild 
Record  of  Jodges  and  Warrants  is  sometimes 

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demanded ;  for  by  these  a  preferable  seenrity 
over  burgage  subjeets  may  be  created,  dis- 
coverable from  no  other  record.  But  there 
are  certain  daugera  against  which  a  search, 
even  for  the  whole  period  of  the  long  pre- 
soription,  affords  no  protection,  and  others 
against  which  it  aiFords  only  a  partial  protec> 
tioD.  Thos,  against  litigiosity,  a  search  fur- 
nishes no  protection.  This  is  a  legal  restraint 
imposed  on  a  debtor  for  the  benefit  of  those 
creditors  who  have  commenced  diligence  for 
attaching  his  heritage.  The  diligences  by 
which  heritage  is  affected  are  inhibition  and 
adjudication ;  and  in  both  of  these  litigiosity 
takes  place.  In  executing  the  inhibition,  there 
are  three  stages:  1.  The  execution  of  the 
diligence  against  the  debtor ;  2.  Its  publica- 
tion against  the  lieges,  prohibiting  them  from 
taking  any  right  n'om  the  debtor ;  and,  3. 
The  act  of  registration  in  the  county  within 
which  the  lands  lie,  or  in  the  Qeneral  Regis- 
ter at  Edinburgh.  Litigiosity  commences  at 
the  completion  of  the  second  stage,  and  a  sale 
by  the  debtor  after  that  period  will  be  struck 
at  by  the  inhibition.  The  security  thus 
afforded  to  creditors  against  all  voluntary 
deeds  granted  after  publication,  is  conditiontd 
on  their  perfecting  their  diligence  by  regis- 
tration ;  hence,  during  the  forty  days  within 
which  the  inhibition  may  be  recorded,  there 
is  a  risk  against  which  a  search  affords  no 
protection.  In  the  case  of  abjudications,  liti- 
giosity commences  from  the  date  of  citation. 
Litigiosity  strikes  against  voluntary  deeds 
only ;  and  a  deed  granted  in  implement  of  a 
previous  obligation  is  unchallengeable.  Delay 
or  mora  in  the  completion  of  the  diligence 
constitutes  another  exception  to  the  doctrine 
of  litigiosity.  Thus,  in  one  case,  a  delay  of 
four,  and  in  another  of  two,  years  in  com- 
pleting an  at^judication  was  held  suflScient  to 
take  off  the  effect  of  litigiosity,  and  render  the 
deeds  of  the  debtor  binding.  There  are  other 
dangers  to  the  purchaser  which  cannot  be  dis- 
covered from  the  records.  The  plea  of  death- 
bed, and  the  fraud  or  forgery  of  the  author, 
are  each  a  ground  of  reduction  of  a  deed,  and 
constitute  a  lahes  realis  even  in  the  hands  of 
an  onerous  holder.  The  act  1661,  c.  24,  de- 
clares, that  no  right  or  disposition  granted 
by  the  apparent  heir  of  a  deceased  proprietor 
shall  be  valid,  in  so  far  as  it  prejudices  the 
creditors  of  the  deceased,  unless  granted  a  full 
year  after  the  defunct's  death.  A  purchaser, 
therefore,  from  the  heir  within  the  year,  is 
exposed  to  this  risk.  The  granting  of  a  deed 
gratuitously  in  favour  of  conjunct  and  confi- 
dent persons,  is  a  ground  of  reduction  which 
follows  the  subject  into  a  purchaser's  hands. 
(See  CortjuHct  and  Confident.)  Servitudes  en- 
ter no  record,  and  are  yet  effectual  against  a 
purchaser.    The  legal  liferents  of  terce  and 


courtesy  are  burdens  affecting  heritage  in  tin 
hands  of  a  purchaser,  wherever  Ute  marri&ge 
has  been  dissolved  before  the  purchaser  lisi 
been  infeft.    Such  are  the  burdens  which  do 
not  enter  the  records,  and  against  which  a 
search  has  no  protection.    To  ascertain  them, 
therefore,  inquiries  must  be  made  in  other 
quarters.,   There    is    edso  a  class  of  dan- 
gers discoverable  from  the  records,  bat  which 
may  escape  notice  m  a  search  for  forty  years. 
The  minority  of  the  parties  entitled  to  dial- 
lenge  the  right  of  the  party  in  possession,  is 
deducted  in  reckoning  the  years  of  the  long 
prescription ;  and  if  it  appears  from  the  pro- 
gress of  the  seller's  or  borrower's  titles  that 
there  is  any  reason  to  apprehend  such  an  in- 
terruption, the  search  ought  to  be  extended 
farther  back  than  the  forty  years.    Yet  the 
purchaser  is  bound  to  accept  of  a  feudal  title 
standing  in  the  seller  or  his  predecessors  for 
forty  years,  unless  he  can  show  a  precise  bur- 
den still  subsisting.    See  Progrttt.  Prescrip- 
tion may  be  interrupted  by  the  raising  of  so 
action,  and  there  is  a  register  where  citations 
for  interrupting   prescription  are  recorded 
which  ought  to  be  examined,  although  it  is 
seldom  done.    Prescription   begins  to  mn 
against  heritable  securities,  not  from  the  date 
of  the  security,  or  its  entering  the  record,  but 
from  the  time  that  no  demand,  has  been  made 
by  the  creditor,  or  no  interest  paid ;  so  that 
the  fact,  that  no  sasiue  on  an  heritable  bond 
appears  on  record  for  forty  years  back,  is 
not  sufficient  evidence  that  the  land  is  un- 
affected   by  heritable    debts.     Prescription 
against  an  inhibition  raised  on  a  depending 
action  begins  to  run,  not  from  the  date  of  the 
inhibition,  but  from  the  date  of  the  decree  in 
the  action.    Prescription  on  an  infeftment  in 
real  warrandice  does  not  begin  to  run  until 
eviction  has  actually  taken  place.  These  bur- 
dens, like  the  former,  are  here  adverted  to, 
in  order  that  conveyancers,  in  conducting  a 
starch,  may  have  in  view  the  dangers  against 
which  the  usual  search  of  the  records  is  no 
guarantee,  and,  according  to  circumstances, 
direct  such  farther  inquiries  as  prudence  may 
suggest.    Rott't  Led.  iL  384 ;  Bdl  on  Fut' 
duuer's  Title,  365 ;  Jwrid.  Slylet,  i.  301.  See 
Burdens.    Incumbrances.    Record. 

Seat!  in  ChorohM.  In  landward  parishes 
in  Scotland,  the  area  of  the  church  is  divided 
among  the  heritors  according  to  their  valued 
rents.  The  area  of  a  parish  partly  landward 
and  partly  within  a  town  ought  to  be  i^por- 
tioned,  like  the  expense  of  bniUingtheehureb, 
according  to  therealrentsoftheownersof  lands 
and  houses.  Where  part  of  the  parish  is  within 
a  burgh,  if  the  burgh,  as  a  community,  bear 
the  expense  of  building  in  proportion  to  the 
rent  of  the  property  within  burgh,  it  would 
seem  that  they  are  entitled  to  a  share  of  the 


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area  in  the  same  proportion,  which  they  may 
let  or  dispoee  of  to  the  inhabitants.  The  pa- 
tron of  the  parish,  at  least,  if  likewise  an 
heritor,  is  entitled  to  a  family-seat  for  him- 
self, in  the  choice  of  which  he  has  a  prefer- 
ence over  all  the  heritors.  See  Patronage. 
The  Court,  in  one  or  two  cases,  have  recog- 
nised a  species  of  right  to  charoh-seats,  of  the 
nature  of  private  property,  in  parties  neither 
heritors  nor  inhabitants  of  the  parish.  The 
minister  is  entitled  to  a  seat  for  his  family ; 
and  seats  are  generally  set  apart  for  the  poor. 
Each  heritor  is  entitled  to  have  a  seat  for  his 
family,  which  is  taken  into  account  in  making 
up  his  share  of  the  area.  The  right  of  pri- 
ority of  choice  after  the  patron  is  determined 
by  the  amount  of  valuation  of  the  several 
heritors.  After  all  the  heritors  have  selected 
their  family-seats,  they  choose,  in  the  same 
order,  each  as  much  of  the  area  as  will  make 
up  the  share  to  which  he  is  entitled ;  and  it 
.would  appear,  that  what  he  chooses  ought  to 
,be  all  in  one  place.  An  heritor  not  satisfied 
with  the  division  made  by  the  other  heritors 
may  challenge  it,  and  insist  in  a  process  of 
division  before  the  sheriff.  The  sheriff's 
judgment  is  subject  to  the  review  of  the  Court 
of  Session.  The  area  assigned  to  each  land- 
ward heritor  does  not  become  his  private  pro- 
perty ;  it  is  merely  an  inseparable  pertinent 
of  the  lands,  for  the  accommodation  of  his 
family  and  of  his  tenants,  and  others  dwell- 
ing on  his  property.  An  heritor  may  sell 
the  maferials  of  a  seat  which  he  has  erected 
upon  his  area  at  his  own  expense.  Although 
there  does  not  seems  to  be  any  restriction  of 
the  heritor's  right  to  dispose  of  his  title  to  sit 
in  his  family-seat,  he  cannot  exclude  his  ten- 
ants aud  others  dwelling  on  the  property  from 
occupying  his  portion  of  the  area ;  and  suit- 
able accommodation  in  that  part  of  the  area 
of  the  parish  church  which  belongs  to  the 
landlord  is  held  to  be  included  in  a  lease  of 
lands.  In  town  churches,  or  in  that  part  of 
^  church  in  a  parish  partly  landward  and 
partly  in  a  town  which  has  been  assigned  to 
the  community  generally,  the  magistrates  may 
let  the  seats ;  and  it  is  the  practice  for  them 
to  make  them  a  source  of  revenue.  In  the 
jcase  of  Clapperton  t.  MagistraUs  of  Edinburgh, 
July  14, 1840,  it  was  held  that  the  magis- 
trates were  not  entitled  to  levy  seat  rents  for 
the  purpose  of  increasing  the  revenue  of  the 
burgh.  Where  a  parish  is  partly  within 
)>urgh  and  partly  landward,  and  the  com- 
munity has  a  share  assigned  to  them,  they 
would  appear  to  be  entitled  to  a  Mat  for  their 
mi^istrates.  The  law  with  regard  to  the 
division  of  church  areas*  has  been  clearly 
stated  by  Mr  Duniop,  Parochial  Law,  30.  See 
also  Mor^s  Notes  w  Stair,  cc. ;  BelPs  Frine. 
§§774,  836;  Illust.  ib.;  Hunter's  Landlord 


and  Tenant;  Suteh.  Jutt.  ii.  467;  Brown's 
Synop.  1456,  2S34.  See  Church.  Burying- 
Place.    Church-Yard. 

Seaworthineu.  Questions  frequently  arise 
relative  to  the  implied  condition  of  seaworthi- 
ness, both  in  the  contract  of  affreightment  and 
of  insurance.  The  obligation  is,  "  that  the 
ship  shall  be  tight,  staunch,  and  strong,  pro- 
perly manned,  and  provided  with  all  necessary 
stores,  and  in  all  respects  fit  for  the  intended 
voyage."  A  distinction,  however,  must  be 
taken  between  the  condition  of  seaworthiness 
in  insurance  and  in  affreightment.  In  the 
former,  it  is  a  warranty,  the  breach  of  which 
voids  the  contract ;  in  the  latter,  it  is  only 
part  of  the  contract  of  the  shipowners,  and 
the  want  of  it  gives  relief  from  the  hire,  or 
grounds  a  claim  of  damages.  In  affreightment, 
ignorance  of  the  defect  does  not  avail  the 
owners ;  nor  will  the  most  regular  and  formal 
survey  at  setting  out  on  the  voyage  have  any 
other  effect  than  to  strengthen  the  evidence  in 
their  favour,  should  the  vessel  be  wrecked  in 
questionable  circumstances.  In  insurance, 
in  like  manner,  no  ignorance  or  innocence 
on  the  part  of  the  insured  will  be  an  answer 
to  the  fact  that  the  ship  was  unfit  for  the 
voyage.  Seaworthiness  is  presumed;  and  it 
is  not  sufficient  for  the  underwriter  to  prove 
that  the  ship  became  unseaworthy  after  the 
risk  began,  but  if  the  ship  spring,  a  leak, 
or  go  down,  or  become  unnavigable  without 
adequate  cause,  unseaworthiness  will  be  in- 
ferred. The  opinion  of  the  carpenters  who 
repaired  a  vessel,  although  it  strengthens  the 
presumption,  is  not  conclusive  proof  of  sea- 
worthiness. Disrepair  of  any  kind  left  in  the 
hull,  rigging,  sails,  ground-tackling,  &o.  of  a 
vessel,  is  a  breach  of  this  warranty.  Over- 
loading may  make  a  vessel  unseaworthy.  The 
policy  is  binding  if  the  defect  have  been  dis- 
covered and  remedied  before  any  harm  is  done, 
provided  this  occasions  no  delay  or  deviation 
not  authorised  by  the  underwriters.  See  Bell's 
Com.  i.  5^0,  and  Bell's  Iliust.  §  477,  for  cases 
as  to  what  amounts  to  a  breach  of  the  war- 
ranty of  seaworthiness.  See  Abbott's  Law  of 
Shipping.  See  also  Brodie's  Supp.  to  Stair, 
960, 981 ;  Bell's  Com.  i.  534, 617 ;  BeU's  Privc. 
§§  166, 408, 477 ;  lUntt.  §  166 ;  Shavfs  Digest, 
247;  Pari&r,  Feb.  16,  1815,  3  Dow,  23; 
Wilkie,  Feb.  27, 1816,  8  Dow,  67  ;  Douglas, 
May  17,  1816,. 4  Dow,  269.  See  Insurancs. 
Affreightment. 

Seoeders.    See  Rdigion.    Society. 

Second.     See.2>ue2.    ChtUlenge.. 

Secondary  Creditor ;  is  an  expression  used 
in  contradistinction  to  catholic  creditor.  Thus, 
a  creditor  who  has  an  heritable  security  over 
two  estates,  for  the  same  debt,  is  a  catholic 
creditor ;  and  a  creditor  who  has  a  postponed 
heritable  security  over  one  of  those  estates,  is 

Digitized  byLjOOQlC 


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t«chnicaUy  called  a  secondary  creditor.  Btfft 
Com.  ii.  523.     See  (ktkolie  Creditor. 

Seotator;  " a  seytor in  court"  Sk«ne,h.t. 
-See  Sok. 

Saenritiet,  Heritable.  See  HeritdbiU  8«- 
cwritiet.     Burdmt. 

Sedemnt,  Acts  oL    See  AeU  of  Sederunt. 

Sedition;  consists  in  attempts  made,  by 
meetings,  or  bj  deed,  word,  or  writing,  of  what- 
ever kind,  to  disturb  the  tranquillity  of  the 
State,  to  produce  public  trouble  or  commo> 
tion,  and  to  excite  the  subjects  to  the  dislike, 
resistance,  or  subversion  of  the  established 
government.  Sedition  is  distinguished  from 
ieatiny-making  in  this  respect,  that  the  object 
of  leasing-making  is  to  disparage  or  prejudice 
the  private  character  of  the  Sovereign,  where- 
M  sedition  is  directed  against  the  order  and 
tranquillity  of  the  State;  and  although  the 
two  offences  may  be  combined,  yet  the  great 
distinction  seems  to  be,  that  the  offence  against 
the  Sovereign,  in  the  former  case,  is  of  an  in- 
dividual nature,  extending  no  farther  than  to 
.the  person  of  the  King ;  whereas  sedition,  by 
whatever  means  it  may  attain  its  object,  is  an 
attack  upon  Government  and  the  constitution 
«f  the  State.  Where  this  offence  is  carried  the 
length  of  tumultuous  meetings  for  the  pro- 
fessed purpose  of  altering  the  constitution,  it 
assumes  a  different  character,  and  becomes 
treason.  The  punishment  of  sedition  was 
formerly  arbitrary ;  but  by  6  Geo.  IV.  c.  67, 
it  was  restricted  to  fine  and  imprisonment, 
with  an  alternative  of  banishmenton  asecond 
offence.  This  alternative,  however,  was  taken 
away  by  7  Will.  IV.  c.  5.  See  Hume,  i.  544 ; 
£rA.  B.  iv.  tit.  4,  §  29 ;  Hutch.  JutUce,  i.  367 ; 
Aliam't  Priite.  581 ;  Tati's  Justice,  k. «.;  Blair' t 
Justice,  LL  SeeTVftuon.  Debating  Societies. 
Drilling. 

Sednetion.  An  action  of  damage*  is  com- 
.petent  at  the  instance  of  a  husband  against 
the  seducer  of  his  wife ;  and  that  although 
the  husband  have  not  previously  raised  an 
action  of  divorce  against  his  wife.  In  like 
manner,  the  seduction  of  an  unmarried  woman 
may  be  the  foundation  of  a  similar  claim  of 
damages  at  her  own  instance  against  her  se- 
ducer. Ersk.  B.  iii.  tit.  1,  §  13,  in  notes;  Bell's 
Princ.  §  2033 ;  Breton's  Synop.  2132.  See 
Damages.    Delict.    Jury  Trial. 

Seignory;  in  English  law,  a  manor  or 
loi-dahip.     Tomlin's  Diet.  h.  t. 

Set     See  Serplath. 

Self-Defenoe.  Homicide  in  self-defence  is 
justifiable.  Hume,  i.  212.  See  Homicide. 
Murder.  Chaud  MeOe.  Justifiable  Homicide. 
Culpable  Homicide. 

Semiplena  Frobatio;  has  been  defined, 
*'  something  less  than  proof,  and  more  than 
suspicion  ;  per  Lord  Gillies  in  M'Crone,  9th 
June  1831,  9  S.  <t  D.  692.    It  has  also  been 


laid,  "  that  a  sem^kna  probatio  does  not  mesa 
merely  a  suspicion:  That  suspicion  depends 
merely  on  the  tarn  of  mind  of  the  person  «ho 
suspects ;  some  persons  suspecting  mereij 
where  there  is  possibility ;  but  that  a  tern- 
plena  probatio  must  amount  to  such  evidence 
as  induces  a  reasonable  belief,  though  not 
complete  evidence ;"  per  Lord  President  Blair 
in  Craig  v.  Creigkton,  June  14, 1809,  Fac  CoU. 
In  M'Laren  r.  M'CuUo<A,  June  12, 1844, 6  D. 
1133,  Lord  Maokenzib  defined  semipleM 
probatio  to  be  such  a  measure  of  probation  as, 
taken  along  with  what  is  to  l>e  added  to  it, viz., 
the  oath  of  the  pursuer,  makes  a  plena  pro. 
batio — such  an  amount  of  proof,  that  when  to 
it  shall  be  added  the  oath  of  the  pursuer,  it 
will  be  reasonable  to  be  satisfied  that  the  case 
is  established  against  the  defender ;  and  in  this 
definition  Lord  jBrFsxr  concurred.  When- 
ever semiplena  probatio  is  made  out  (which  is 
in  all  cases  a  question  of  evidence),  the  pur- 
suer is  entitled  to  the  oath  in  supplement. 
When  a  merchant's  books  are  regularly  kept, 
there  is  semiplena  probatio  that  they  are  cor- 
rect, and  his  oath  in  supplement  is  eompeteot 
to'  prove  the  truth  of  what  is  contained  in 
them  ;  Ivory,  Feb.  21, 1816, 4  Dow,  467.  Bat 
the  most  frequent  cases  in  which  questions  of 
semiplena  prdatio  occur  are  actions  of  filiation, 
or  for  the  aliment  of  bastard  children.  When- 
ever the  pursuer  is  able  to  make  out  acts  of 
indecent  or  suspicions  familiarity  on  the  part 
of  the  putative  father,  or  other  the  like  cir- 
cumstances, inducing  a  reasonable  belief  that 
he  is  the  father  of  her  child,  she  is  entitled 
to  her  oath  in  supplement  to  that  effbct.  Such 
cases  necessarily  depend  entirely  upon  speci- 
alties ;  but  the  inclination  of  the  Court  may 
be  gathered  from  such  as  have  been  decided, 
several  of  which  are  noted  in  Macglathan  on 
Aliment,  p.  80.  See  also  Stair,  B.  iv.  tit.  44, 
§  9  ;  tit.  45,  §  17  (2) ;  Ersk.  B.  i.  tit.  6,  §  50, 
and  note  by  Mr  Ivory;  B.  iv.  tit.  2,  §  14; 
Bank.  ii.  630  ;  Bell's  Princ  §  2061. 

Since  the  passing  of  the  act  16  Vict  c.  20, 
by  which  parties  are  made  admissible  as  wit- 
nesses, it  may  be  doubted  whether  an  oath  in 
supplement  would  now  be  allowed,  as  the 
reason  for  allowing  such  evidence  no  longer 
exists.    In  the  case  of  Scott  v.  Chalmers,  Dee. 
2, 1856, 19  D.  119,  which  was  a  case  of  filia- 
tion, Lord  Justice-Clerk  Hopk  observed, — 
"  I  do  not  think,  though  it  is  not  neceaary  to 
determine  that  in  the  present  case,  that  the 
provisions  of  the  former  law  are  still  in  force, 
allowing  to  the  pursuer  in  those  actions  the 
benefit  of  giving  an  oath  in  supplement  if  tlie 
case  made  out  a  semiplena  pr<^>aiio.    Her  oath 
in  supplement  was  allowed  because  she  could 
not  be  a  witness,  while  the  nature  ofhercisei 
implying  secret  matters,  required  that  ber 
oath  should  be  allowed.    Bat  now  she  it  si- 


Digitized  by 


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749 


lowed  to  be  a  witness,  and  what  can  she  re- 
quire more?"  Lord  Wood  observed, — "There 
may  perhap  be  reason  to  doubt  whether  the 
old  law  of  semiplena  has  been  wholly  abro- 
gated. If  the  pursuer  do  not  offer  herself 
aa  a  witness,  and  the  defender  does  not  put 
her  into  the  witness-box,  I  am  not  sure  that 
we  might  not  have  to  proceed  upon  the  old 
law,  and  to  consider  whether  or  not  a  semi- 
plena  probatio  had  been  made  out  without  her 
evidence,  and  if  satisfied  that  it  had  been,  to 
admit  her  oath  in  supplement.  But  upon 
such  a  state  of  the  case  I  give  no  opinion 
now,  it  not  being  necessary  for  the  decision  of 
that  which  is  before  the  Court."  . 

Senaton  of  the  College  of  Justice.  By 
the  act  1540,  c.  93,  the  Judges  of  the  Court 
of  Session  are  styled  Senators  of  the  College  of 
Justice.  See  Session,  Court  of.  College  of 
Justice.    Council  and  Session. 

Sentenoei.  See  Summons.  Judicial  Pro- 
cedure. Decree.  Criminal  Prosecution.  Execu- 
tion of  Sentences.    Appeal. 

Separation  of  Married  Persons;  maybe 
either  the  act  of  the  law,  or  it  may  proceed  on  a 
voluntary  contract.  1.  Where  a  husband  de- 
serts his  family,  turns  his  wife  out  of  the  house, 
or  abuses  her  "  in  such  a  manner  as  to  render 
hercondition  quite  uncomfortable,"  she  may  apply 
to  the  Court  of  Session  either  for  a  separate 
aliment,  or  to  the  same  Court,  as  coming  in 
place  of  the  Commissaries,  for  a  decree  of  se- 
paration, finding  her  husband  liable  to  sup- 
port her  during  her  continuing  to  live  as  his 
wife  separate  from  him.  2.  An  agreement  to 
live  separate  may  be  entered  into  extrajudi- 
cially between  husband  and  wife.  But  if  the 
husband  express  his  readiness  to  receive  his 
wife  again  into  his  family,  or  if  the  wife  con- 
sent to  return  to  it,  the  contract  of  separa- 
tion is  at  an  end  4  although  a  judicial  separa- 
tion may  notwithstanding  be  applied  for  by 
either  party.  The  wife  cannot  sue  her  hus- 
band for  aliment  during  voluntary  separation ; 
and  although,  at  the  time  of  entering  into  the 
contract  of  separation,  the  husband  may  have 
assigned  her  an  aliment,  he  is  entitled  to  recall 
it  at  any  time,  if  he,  at  the  same  time,  oflTer  to 
receive  her  back.  The  wife's  only  remedy  is 
to  return  to  his  house,  or  to  obtain  a  judicial 
separation,  which,  if  there  be  good  grounds 
for  it,  is  competent,  notwithstanding  the  volun- 
tary separation.  Bank.  B.  i.  tit.  5,  §  136  ; 
Ersk.  B.  tit.  6,  §§  19,  30;  Lothian's  Consistorid 
Prac.  194  ;  Mor^s  Notes  on  Stair,  p.  xxvii. ; 
BelPs  Com.  i.  643  ;  Bell's  Princ.  §1539,  et  seq.  ; 
lUust.  ib. ;  Fraser  on  Domestic  Relation.  See 
Marriage.  Desertion.  Divorce.  Husband  and 
Wife. 

Separatists ;  a  sect  of  religious  dissenters, 
who,  from  conscientious  scruples,  refuse  to 
^ke  an  oath  in  courts  of  justice  and  other 


places.  By  statute  3  and  4  Will.  IV.  c.  82, 
the  members  of  this  sect  are  permitted  to 
make  a  solemn  affirmation  in  all  cases  where 
by  law  an  oath  may  be  required.  See  Affir- 
mation. 

Septennial  Prescription.  See  Prescrip- 
tion. 

Sepulchres,  Violating.  Although  tho 
abstraction  of  a  corpse  before  interment  may 
be  prosecuted  as  theft,  yet  the  violation  of  a 
sepulchre  is  not  considered  as  such,  but  as 
an  indecency  and  a  crime  sui  generis.  The 
offence  is  committed  by  raising  the  body, 
though  ever  so  little,  from  the  shroud.  The 
body  raised  must  be  identified  with  that  set 
forth  in  the  libel.  The  punishment  varies, 
from  imprisonment  for  a  short  period  to 
transportation.  Hume,  i.  85;  Syme,  321  <>. 
Steele,  158 ;  Alison's  Princ.  461.  See  Dead 
Body. 

Sequels ;  in  thirlage,  are  the  small  allow- 
ances of  meal,  or  of  manufactured  victual,  or 
of  money  composition,  made  to  the  servants 
at  the  dominant  mill  for  their  real  or  implied 
trouble  in  grinding  the  victual  of  the  servient 
lauds.  Stair,  B.  ii.  tit.  7,  §  21 ;  Ersk.  B.  ii. 
tit.  9,  §  19  ;  Bank.  i.  684 ;  Bell's  Princ. 
§  1018  ;  Hunter's  Landlord  and  Tenant ; 
Hutch.  Justice  of  Peace,  ii.  400.    See  Thirlage. 

Sequestration.  Under  this  name  are  com- 
preheuded  two  proceedings  of  characters  very 
different — the  sequestration  ef  land  estates, 
and  the  sequestration,  in  a  mercantile  bank- 
ruptcy, of  the  whole  estate,  both  heritable 
and  moveable,  of  a  bankrupt.  The  former 
is  intended  to  preserve  a  disputed  property 
from  dilapidation  or  waste;  the  latter  to 
convert  into  money,  and  distribute  the  estate 
equitably  amongst  the  creditors  of  the  bank- 
rupt, 

1.  Sequestration  of  land  estate. — ^During  the 
dependence  of  a  process  of  ranking  and  sale, 
or  where  two  or  more  creditors  are  in  com- 
petition for  the  property  of  a  land  estate,  the 
owner  of  which  is  bankrupt,  or  nearly  so,  and 
none  of  the  competitors  has  attained  posses- 
sion, or  where  the  right  to  a  land  estate  is 
the  subject  of  litigation,  the  Court  may,  if 
they  think  proper,  sequestrate  the  rents,  and 
appoint  a  judicial  factor,  to  preserve  the 
estate,  collect  the  rents,  and  manage  or  dis- 
pose of  the  whole,  under  the  authority  of  the 
Court,  for  behoof  of  those  in  whose  favour 
the  Court  shall  in  the  end  decide.  But 
where  one  of  the  competing  parties  is  in  pos- 
session, under  a  title  which  is  the  subject  of 
an  action  of  reduction,  the  Court  will  not 
sequestrate  the  rents,  or  appoint  a  factor  on 
the  application  of  one  of  the  competitors; 
Ralston,  June  18,  1831,  9  S.-d;  D.  766.  By 
Act  of  Sederunt,  it  is  not  competent  to  pre- 
sent a  petition  praying  for  the  sequestration 

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of  a  land  ««tote  after  27th  Feb.  in  the  win- 
ter, or  25th  Jnne  in  the  summer  senion; 
A.  S.  17th  Jvis  1764 ;  A.  S.  btk  June  1790. 
The  judicial  footor  must  find  caution  for  his 
intromiasions  and  actings;  and  within  six 
months  after  hie  appointment,  he  must  make 
up  a  rental  of  the  estate,  and  a  list  of  arrears, 
which  he  must  deposit  with  the  clerk  to  the 
proeeas,  as  forming  the  charye  against  him. 
The  judicial  factor  must  also,  under  penalties 
preseribed  by  Act  of  Sederunt,  make  up  and 
lodge  with  the  clerk  annually  a  scheme  of  his 
aocounts,  showing  the  charge  and  discharge ; 

A.  S.  22d  Not.  1711 ;  13tt  Fa.  1730.  By 
another  Act  of  Sederunt,  July  31,  1690,  the 
judicial  factor  is  liable  for  the  interest  of  the 
rents  reoorered,  or  which  might  hare  been 
recovered,  from  a  year  after  the  term  they  fell 
due.  The  factor-fee  is  settled  by  the  Court, 
and  is  fixed  commonly  at  fire  per  cent,  on  the 
amount  of  the  intromiasions.  See  Omimu- 
Mpn.  Jvdkiai  Factor.  A  judicial  factor  can 
make  no  payment,  and  carry  through  no  sale, 
without  the  warrant  of  the  Court ;  and  when 
be  acquires  right  to  any  debt  aflfoeting  the 
subject,  it  operates  as  a  complete  discharge 
of  the  debt.  The  judicial  factor  is  di»- 
cluurged  of  his  office  by  the  Court,  and  he 
aooonnt*  to  the  party  found  to  have  the  best 
right,  or  to  the  preferable  creditor;  and  upon 
paying  over  the  babuoe  in  terms  of  the  onler 
of  Court,  his  bond  of  caution  is  given  up. 
The  cautioner  may  at  any  time  apply  to  hare 
his  bond  of  caution  delivered  up,  when  the 
Court  will  order  new  caution;  and  the  factor's 
proceedings  may  at  all  times  be  bronght 
under  review  of  the  Court  by  petition  and 
complaint  at  the  instance  of  those  having 
interest  therein.    BdPt  Com.  ii.  262;  Ertk. 

B.  iL  tit.  12,  §  55,  et  teq. ;  Stair,  B.  i.  tit  13, 
«  5 ;  B.  iv.  tit,  41,  §  7 ;  tit.  60,  §  27 ;  ifore** 
Notet,  pp.  Ixxviii.  ecexciv. ;  Bank.  i.  377 ; 
ii.  312,  239  ;  BdFt  Prine.  §§  2418-22  ; 
Shand^t  Prac  980.  See  Judicial  S<Ue.  Factor. 
Trustee.  Judicial  Factor.  Petition  and  Com- 
plaint. 

2.  SequettraOon  ta  a  mereantile  bankruptcy. 
■ — This  sequestration  is  awarded  under  the 
statute  19  and  20  Vict.  c.  79,  1856,  on  an 
application  to  the  Court  of  Session  by  the 
bankrupt  himself,  with  the  concurrence  of 
one  or  more  creditors  having  the  undermen- 
tioned qualification,  or,  where  the  bankrupt 
does  not  concur,  on  the  application  of  one 
creditor  of  L.50,  or  of  two  creditors  whose 
aggregate  debt  is  L.70,  or  of  three  or  more 
cr^itors  whose  aggregate  debt  amounts  to 
L.lOO  and  upwardis.  Sequestration  may  also 
be  awarded  of  the  estate  of  a  deceased  debtor 
on  the  petition  of  a  mandatory  to  whom  he 
had  granted  a  mandate  to  apply  for  seques- 
tration, or  on  the  petition  of  a  creditor  or 


creditors  who  have  the  above  qnalification. 
The  general  provisions  of  this  statute  ba?e 
been  already  given  in  the  article  "BoHbrnfl.'' 
See  Alexandet't  Digett  cf  Ae  Bankrupt  Ad. 
Kinneai't  Law  of  BtimhrupUy.  JfBrait'M  Prae- 
tke  in  Bankruptcy. 

Seqiurtratioiit  for  Bent.    Sequestration 
is  the  judicial  means  by  which  the  landlord 
makes  his  ri^t  of  hypothec  effectaal.    Se- 
questration ia  obtained  on  a  summary  peti- 
tion to  the  aheriff,  setting  forth  the  arrears, 
and  praying  for  a  warrant  to  sequestrate  the 
crop  and  other  articles  subject  to  the  hypo- 
thec, and  for  warrant  to  seU  to  the  extent  of 
the  arrears.     The  first  deliveranee  on  this 
petition  is  a  warrant  to  sequestrate  as  prayed, 
and  an  appointment  on  the  tenant  to  answer 
the  petition.     The  application  may  be  made 
both  where  there  are  arrears  due,  and  where 
the  landlord  has  reason  to  apprehend  that 
the  tenant  ia  endeavouring  to  deprive  him  of 
his  hypothec  by  displenishing  the  farm  or 
removing  his  effects,  or  where  the  credit  of 
the  tenant  is  snspeoted.    The  sequestration 
renders  special  the  landlord's  right,  which 
was  before  geneiral,  and  makes  it  attach  to 
each  individual  article  sequestrated,  so  as  to 
entitle  the  landlord  to  recover  the  property 
or  the  value  of  the  cattle,  &&,  into  whose 
bands  soever  they  may  have  gone.    The  re- 
gular issue  of  the  application  for  a  seques- 
tration is  a  roup  and  sale  of  the  goods  for 
payment  of  the  rent.    See  the  form  of  the 
petition,  of  the  sheriff's  deliverance,  and  of 
the  inventory  of  the  goods  sequestrated,  in 
BM  on  Leases,  ii.  318.    See  also  same  work, 
i.  369,  389  ;  ii.  30 ;  Hunter's  Landlord  and 
Tenant ;    Madaurin's  Steriff  Prac. ;  Bogft 
Judicial  Proceedings,  302.    See  Hypothec  and 
authorities  there  cited. 

Seranteria ;  was,  according  to  Skene,  a 
tenure  common  in  England.  "  Grande  ae- 
riantye,"  was  where  a  man  held  his  lands  of 
the  King,  with  the  reddendo  of  passing  with 
him  in  his  host,  or  bearing  his  banner  with 
him  in  his  wars,  or  leading  his  host  or  army. 
"Petit  seriantye"  was  when  one  held  his 
lands  of  the  King,  paying  a  knife  or  buckler, 
a  sheaf  of  arrows,  or  the  like  service ;  18 
Edw.  I. ;  Skene,  h.  t. 

Seriant;  according  to  Skene,  seijeant  is 
he  who,  at  the  command  of  the  magistrate, 
encloses  or  locks  in  prison  guilty  persons  de- 
lated, or  suspect  of  any  crime.  Seriandui 
euruB,  the  seijeant  of  the  court,  the  officer  or 
executor  of  letters  or  summonses ;  Skene,  h.  t 
See  Becordwn. 

Seijeant-at-Law ;  is,  in  EngUmd,  the 

highest  degree  in  the  law  except  ^e  judges, 

who  are  chosen  from  the  Serjeants,    fonw 

Diet.  h.  t. 

Soplaih ;  in  the  old  Scottish  eompntato 

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of  weights  and  measures,  contained  fourscore 
stones,  a  term  chiefly  used  in  the  accounts  of 
merchants  and  shipmaaters  (skippers).     A 
"  8ek  "  (sack)  of  wool  contained  24  stones,  and 
by  the  daily  calculation  of  merchants,  40 
stones  Troy,  although  this  was  not  invariable. 
Each  stone  Troy  contained  16  pounds  Troy, 
and  each  pound  16  ounces.    Each  "tunne" 
contained  6  cwt.  Troy,  and  each  cwt.  five- 
score pounds,  or  6}  stones  Troy.     "  A  last  of 
gudes  fared  hame"  (imported),   commonly 
contained  12  barrels,  or  half  a  serplath.    A 
last  was  two  packs,  and  each  pack  was  as 
great  as  half  a  sack  of  wool-skins,  and  con- 
tained in  weight  36  "Sprusse"  stones.    A 
Sprusse  stone  contained   28   pounds  Troy. 
For  every  last  of  wax  imported  by  strangers 
there  were  14  ship  pounds,  and  imported  by 
Scotch  shipmasters,  12  ship  pounds!,    There 
were  12  great  or  14  small  barrels  for  the 
last  of  tar,  pitch,  and  such-like  wares.    By 
strangers,  24,  and  by  Scotch  "  skippers,"  18 
barrels  of  rye-meal  were  imported  for  the 
last,  and  a  last  of  rye  was  sometimes  18  and 
sometimes  19  bolls  in  measure.    Ten  packs 
of  wool  made  a  last  of  wool.  Ten  hides  made 
a  daiker,  and  20  daikers  made  a  last;  12 
dozen  of  gloves  or  "  ledder  poyntes"  made  a 
gross,  and  a  great  gross  contained  12  single 
gross.    Ten  stones  of  brass  made  a  barrel. 
Six  barrels  of  English  drinking  bear  made  a 
tun.    Twelve  bairels  of  salmon  were  bought 
for  the  last ;  but  in  "  furing"  them  over  the 
sea,  skippers  counted  only  9  barrels  for  the 
last.    The  Adder  of  lead  contained  nearly  6 
score  and  8  stones.    A  "  sohip  pound"  con- 
tained 16^  stones  of  Scotch  Troy  weight 
Six  score  skins  or  ells  of  woollen  cloth  were 
counted  to  the  hundred.    Skene,  L  t.    See 
Weightt  and  Meoiures. 

Serrant;  is  one  who  hires  his  service  at  a 
certain  rate.  SeoLocation.  Master  and  Servant. 

Serranti' Wages.  Sw  Wages.  Farm  Ser- 
vants Wages. 

Service  of  an  Heir.  Before  an  heir  can 
regularly  acquire  a  right  to  the  estate  of  his 
ancestor,  he  ought  to  be  served  heir,  which 
formerly  proceeded  upon  a  brieve,  and  in- 
cluded in  it  the  verdict  of  a  jury,  fixing  the 
right  and  character  of  the  heir  to  succeed  to 
the  estate  of  the  ancestor.  An  heir  before 
his  entry  is  termed  apparent  heir,  and  as 
such  possesses  certain  rights.  See  Apparent 
Heir.  The  heir,  who  desires  to  complete  his 
title,  may  proceed  either  by  a  service ;  or, 
where  he  holds  of  a  subject,  he  may,  on  sa- 
tisfying the  superior  of  his  propinquity  and 
of  his  right  to  receive  an  entry,  obtain  from 
him  a  precept  of  clare  constat,  infeflment  on 
which  will  complete  the  heir's  title.  See 
Clare  Constat.  Or  the  heir  may  grant  a 
(rust-bond  to  a  confidential   friend,   who, 


having  charged  him,  as  his  debtor,  to  enter, 
may  adjudge,  and  in  that  way  acquire  a  title 
by  an  abjudication,  which  will  enable  the 
heir,  by  means  of  his  trustee,  and  without 
incurring  a  representation,  to  try  the  effect 
of  any  right  the  ancestor  may  have  given. 
And  if  the  estate  be  in  this  way  cleared  of 
any  claims,  the  confidential  adjudger  may 
transfer  to  the  heir  the  whole  right  under  the 
abjudication.   See  Adjudication  on  Trust- Bend. 

Where  the  title  is  to  be  completed  by 
service,  the  form  of  the  procedure  will  be 
afiected  by  circumstances.  Where  the  an- 
cestor has  died  feudally  vested  in  the  estate, 
the  heir  must  complete  his  title  by  a  special 
service ;  and  on  a  precept  following  on  this 
special  service,  he  must  be  infeft ;  for  if  he 
should  die  after  being  served  heir  in  special, 
but  without  being  infefb,  the  whole  procedure 
falls,  and  the  next  heir  who  enters  disre- 
gards the  special  service,  and  enters  to  the 
person  last  infeft,  as  if  no  such  service  had 
been  expede  by  the  person  who  died  uninfeft. 
Where,  again,  the  ancestor  was  not  infeft, 
but  held  personal  rights  to  the  suhject,  as 
dispositions  with  unexecuted  procuratories  or 
precepts,  the  heir,  in  place  of  a  special  ser- 
vice, expedes  a  general  service,  in  virtue  of 
which  he  acquires  a  complete  right  to  the 
unexecuted  procuratories  and  precepts,  and 
may  be  forthwiUi  infeft  on  them  precisely  as 
his  predecessor  might  have  been.  And 
should  he  die  without  being  infeft,  still  the 
personal  rights  are  thus  completely  trans- 
ferred to  him,  and  will  pass  to  his  own  heir- 
at-law,  who,  in  order  to  acquire  right  to  the 
unexecuted  procuratories  and  precepts,  must 
be  served  heir  in  general  to  him,  and  not  to 
the  former  proprietor.  Where,  again,  the 
estate  is  burdened  with  the  debts  of  the  an- 
cestor in  such  a  manner  as  to  render  it 
hazardous  for  the  heir  to  enter  and  incur  a 
universal  representation,  it  is  competent  for 
him,  within  the  tempus  deliberandi,  to  enter 
by  an  inventory,  and  he  will  be  liable  no 
further  than  to  the  value  of  the  subjects 
contained  in  the  inventory.  See  Inventory. 
Ben^ieium  InventarH, 

A  general  service  formerly  proceeded  on  a 
brieve  issning  from  Chancery.  A  note  was 
given  in  to  Chancery  stating  the  nature  of  the 
brieve  required,  and  that  it  must  be  a  brieve 
directed  to  such  a  judge  ordinary  (and  any 
judge  ordinary  was  competent  in  the  genenJ 
service)  for  serving  the  claimant  heir  in 
general  to  his  ancestor — care  being  taken  to 
describe  the  heir  in  his  proper  character.  A 
brieve  was  then  issued  from  Chancery  and 
delivered  to  the  claimant's  agent,  containing 
all  the  heads  of  the  brieve  in  a  special  ser- 
rice,  for  there  was  no  distinction  in  the  terms 
of  the  brieve  &rther  than  in  the  character 


Digitized  by 


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762 


SBR 


SER 


of  the  heir,  as  described  in  the  briere.  This 
brieve  was  proclaimed  and  published  at  the 
head  burgh  of  the  jurisdiction  within  which 
the  heir  was  to  be  served,  which  superseded 
the  necessity  of  any  personal  service.  It  was 
not  necessary  to  summon  a  jury  ;  any  fifteen 
persons  (the  numl>er  of  which  the  jury  con- 
sists) who  might  be  in  Court,  or  who  might 
be  selected  by  the  claimant's  agent,  were 
allowed  to  act  as  jurors.  See  Inquest.  At 
the  distance  of  fifteen  days  after  the  publica- 
tion, the  service  proceeded  before  the  judge. 
The  inquest  was  sworn  by  the  judge  to  act 
faithfully.  The  heir,  or  one  acting  for  him, 
then  produced  his  claim,  which  stated  his 
relationship,  and  claimed  that  he  might  be 
served  heir  under  the  character  stated  in  the 
brieve;  Evidence  was  also  produced  in  sup- 
port of  the  claim.  Under  the  general  ser- 
vice there  were  only  two  of  the  heads  of  the 
brieve  inquired  into,  vis.,  1.  Whether  the 
deceased  died  at  the  faith  and  peace  of  the 
Queen,  which  was  presumed,  unless  the  con- 
trary be  asserted ;  and,  2.  Whether  the 
claimant  be  the  real  and  lawful  heir.    The 

Sroplnquity  must  be  proved;  but  where  a 
agree  of  propinquity  was  proved,  it  was 
presumed  to  be  the  nearest ;  and,  in  the 
same  way,  the  person  was  presumed  a  lawful 
heir,  unless  the  contrary  was  asserted.  The 
jury,  if  satisfied  on  these  heads  with  the  evi- 
dence laid  before  them,  served  the  claimant, 
and  their  sentence  was  attested  by  the  judge 
and  retonred  to  the  Chancery,  whence  the 
brieve  issued.  From  the  Chancery  a  cer- 
tified copy  was  given  out  which  was  called  a 
retour.  A  general  service  established  the 
right  of  the  persons  served  to  the  character 
of  heir,  and  also  vested  those  rights  which 
did  not  require  infeftment.  It  was,  for  the 
former  purpose,  considered  at  one  time  merely 
as  a  kind  of  declarator  of  propinquity;  and 
in  conformity  with  this  idea,  it  was  held  in 
the  Court  of  Session,  after  a  consultation  of 
the  whole  judges,  that  a  general  service  was 
competent,  although  there  had  been  a  prior 
general  service  to  the  same  person,  without 
the  necessity  of  serving  through  the  party 
who  had  obtained  the  prior  service;  Cochrane, 
March  11,  1828,  6  S.  tt  D.  751.  This  de- 
cision, however,  was  reversed  April  29, 1830, 
4  W.  di  S.  128.  Where  a  party  infeft 
ii>  fee-simple  executed  an  entail,  not  dis- 
poning in  favour  of  himself,  but  reserving  a 
power  of  revocation,  and  died  leaving  the 
deed  unrevoked  and  undelivered,  a  general 
service  as  heir-substitute  of  entail  to  the 
entailer  is  inept  to  take  up  the  procuratory 
or  precept  granted  by  him  ;  Col^uhcun,  July 
8,  1831,  9  &  «t  Z).  911.  See  Betour.  Brieve. 
Ertk.  B.  iii.  tit.  8,  §§  63,  d  teg.,  75, 78 ;  Bank. 
B.  iii.  tit.  5,  §  14,  et  $eq. ;  Stair,  B.  iii.  tit.  4, 


§33,  et  teq. ;  Mare's  Notes,  p.  cccxxiii. ;  Beiei 
Frine.  §  781,  1848,  et  seq. ;  Sandford  on 
Heritable  Succession,  i.  287,  290-6  ;  San^ord 
on  Entails,  318, 339, 347 ;  Jurid.  Styles,  i.  280. 
The  special  service  includes  not  only  a  title 
to  a  special  estate  in  which  the  ancestor  died 
infeft,  but  also  a  title  to  all  personal  rights 
which  were  vested  in  the  ancestor,  and  which 
are  descendible  to  the  heir  in  the  character 
described  in  the  special  service.  In  other 
words,  the  special  service  embraces  a  general 
service  to  the  same  heir.  The  special  ser- 
vice also  formerly  proceeded  on  a  brieve 
issued  from  Chancery,  but  directed  not  to 
any  judge  ordinary,  as  in  the  former  ease, 
but  to  the  sheriff  of  the  county  within  whose 
territory  the  lands  lay  to  which  the  heir  was 
to  be  served.  The  brieve  was  published  at 
the  head  burgh  of  the  jurisdiction,  and  the 
service  might  proceed  fifteen  days  after  the 
publication.  The  jury,  consisting  of  the  same 
number  (fifteen),  was  selected  or  taken  ex 
astantibus,  in  the  same  manner  as  in  the 
general  service ;  and  the  claim  was  made, 
and  the  evidence  in  like  manner  laid  before 
this  jury  or  inquest.  The  heads  of  the  brieve 
in  the  special  service  were  —  1.  That  the 
deceased  died  at  the  faith  and_peace  of  the 
Queen :  This  was  presumed.  That  he  died 
infeft :  This  was  proved  by  production  of  the 
investiture  of  the  estate.  The  precise  period 
of  the  death  required  also  to  be  proved,  to 
show  how  long  the  lands  had  been  in  non- 
entry.  2.  That  the  claimant  was  the  next 
and  lawful  heir  :  This  required  to  be  proved 
by  parole  evidence,  the  testimony  even  of  the 
jurymen  being  admitted;  and  propinquity 
being  proved,  the  degree  was  presumed  to  be 
the  nearest  in  existence ;  but  where  the  pro- 
pinquity was  remote,  ancient  deeds,  specify- 
ing the  relationship,  were  received  in  evi- 
dence.  3.  Of  whom  the  lands  are  held : 
This  was  proved  by  the  ancestor's  charter. 
4.  By  what  tenure  they  were  held:  This 
was  also  proved  by  the  charter.  5.  What 
was  the  extent  of  the  lands  old  and  new  :  This 
was  proved  by  the  production  of  a  former 
retour,  or,  where  there  was  none,  by  the  re- 
port of  an  accountant,  stating  the  extent  at 
the  same  rate  with  the  neighbouring  lands 
in  the  same  county,  in  proportion  to  the 
valued  rents  of  the  said  lands,  of  which  the 
cess-books  afford  sufficient  evidence.  6.  That 
the  claimant  was  of  lawful  age :  This  was 
affirmed  by  the  jury,  whatever  the  age  of  the 
claimant  might  be.  7.  In  whose  hands  the 
fee  had  been  since  the  death  of  the  ancestor  : 
This  was  no  further  answered  than  to  prove 
liferents  where  they  had  existed,  as  they  ex- 
cluded non-entry  while  they  lasted.  Theee 
heads  being  proved,  the  jury  served  the  heir, 
and  the  judge  retoured  the  service  to  ChaiH 

Digilized  by  LjOOQIC 


SBR 


SER 


753 


eery ;  an  extract  from  which,  as  in  the  case 
of  the  general  service,  was  called  the  retow 
of  the  heir's  service.  Ersk.  B.  iii.  tit.  8, 
§67  ;  Bank.  B.  iii.  tit.  5,  §  24,  ei  seq. ;  Stair, 
B.  iii.  tit.  5,  §  25,  et  seq.;  More"*  Notet,  p. 
cccxxvi. ;  Btte$  Pritu.  §§  780,  1826  et  teg., 
1841  et  seq. ;  Sandford  on  Sent.  Success,  i. 
273 ;  Sandford  on  Entaih,  318, 335-8;  Jurid. 
Styles,  i.  280,  et  seq. 

A  service  cum  benefieio  inventarii  is  autho- 
rised by  the  act  1695,  c.  24.  The  service 
differs  in  no  respect  from  the  ordinary  ser- 
vice of  an  heir,  further  than  that  he  is  said 
in  the  service  to  be  heir  cum  benefieio  inven- 
tarii. Ersk.  B.  iii.  tit  8,  §  68,  et  seq. ;  Bell's 
Prine.  §§  781,  1926,  et  seq.;  Jurid.  Styles, 
i.  361.     See  Benefieium  Inventarii.  Inventory. 

The  general  service  was  completed  as  soon 
as  it  was  retoured ;  and  all  the  right  which  a 
general  service  can  give  was  thenceforwanl 
vested  in  the  person  served.  The  special  ser- 
vice, as-  already  observed,  carried  no  right  to 
the  heir  served,  until  his  title  was  completed 
by  sasine.  Where  the  lands  held  of  the 
Crown,  the  heir  applied  to  the  Chancery ;  and, 
npon  production  of  his  retour,  a  precept  was 
issued  of  course,  directed  to  the  sheriff  of  the 
county,  requiring  him  to  infeft  the  heir,  and 
to  take  security  for  the  non-entry  and  relief 
duties ;  and  the  precept  required  to  be  exe- 
cuted before  the  next  term,  or  it  could  not  be 
executed  at  all,  and  a  new  one  had  to  be  ap- 
plied for.  On  this  precept  the  heir  was  in- 
feft, and  his  title  to  the  estate  of  his  ancestor 
thereby  completed.  See  Post  Proximum  Ter- 
minum.  Where  the  lands  held  of  a  subject, 
the  heir  must  obtain  a  precept  of  elare  am- 
slat  from  the  superior,  proceeding  on  a  nar- 
rative of  his  special  retour,  and  infeftment 
on  that  precept  completed  his  title ;  but 
should  the  superior  refuse,  the  heir  might 
under  the  act  20  Geo.  II.  c.  50,  upon  produc- 
tion of  his  special  retour  to  the  Court  of  Ses- 
sion,obtain  a  warrant  to  charge  the  superior  to 
receive  him  within  fifteen  days ;  and  on  pay- 
ment of  the  non-entry  and  relief  duties,  and 
production  of  the  ancient  titles,  the  superior 
was  bound  to  give  his  precept  in  terms  of  the 
ancient  rights.  See  Charge  to  Enter.  Charter. 
But,  should  the  superior  still  delay,  a  precept 
might  be  obtained  from  Chancery  for  iufett- 
ing  the  heir.  Where  the  superior  was  un- 
entered, he  must,  in  place  of  being  charged 
under  the  20  Geo.  11.,  be  charged  to  enter 
himself  heir,  and  thus  to  complete  his  title 
to  the  superiority,  in  terms  of  the  act  1494, 
c.  58,  within  forty  days,  that  he  may  be  in  a 
situation  to  receive  his  vassal's  heir;  and 
should  he  fail  so  to  do,  he  loses  the  casualties 
which  he  might  have  claimed.  But  he  does 
not  lose  the  feu-duties :  these  remain  due  to 
the  immediate  superior ;  and  the  heir  pro- 
Sb 


ceeds  against  the  higher  superiors,  succes- 
sively, on  their  respective  refusals,  until  he 
arrives  at  the  Crown,  from  whom  a  precept 
is  obtained  without  the  necessity  of  a  charge. 
In  one  or  other  of  these  ways  is  the  title  of 
the  heir  holding  of  a  subject-superior  com- 
pleted. On  the  subject  of  service  generally, 
see  Ersk.  B.  iii.  tit.  8,  §  59,  et  seq.;  Stair,  B. 
iii.  tit.  5,  §28,  et  seq.;  Bank.  B.  iii.  tit.  5, 
§  14,  et  seq. ;  BeWs  Com.  i.  659 ;  BeU's  Princ. 
§  779;  Karnes'  Stat.  Lav)Ahridg.h.t.:  Sand- 
ford on  Herit.  Success,  i.  265  et  seq.,  280, 326, 
338,  380,  402 ;  Maefarlane's  Jury  Prac.  42, 
72.  See  Brieve.  Apparent  Heir.  Succession. 
Clare  Constat.    Error,  Summons  of. 

Alterations  in  the  Forms  of  Service. — By  the 
act  10  and  11  Vict.  c.  47,  1847,  the  practice 
of  issuing  brieves  from  Chancery  for  ser- 
vice of  heirs  is  abolished.  A  general  ser- 
vice now  proceeds  by  petition  to  the  sheriff 
of  the  county  within  which  the  deceased  had 
his  ordinary  or  principal  domicile  at  the  time 
of  his  death,  or,  in  the  option  of  the  peti- 
tioner, to  the  Sheriff  of  Chancery.  Where 
the  deceased  had  no  domicile  in  Scotland,  the 
petition  must  be  presented  to  the  Sheriff  of 
Chancery.  When  a  special  service  is  de- 
sired, the  petition  must  be  presented  to  the 
sheriff  within  whose  jurisdiction  the  lands  com- 
prehended in  the  petition  are  situated,  or,  in 
the  option  of  the  petitioner,  to  the  Sheriff  of 
Chancery.  Where  the  lands  are  situated  in 
different  counties,  the  petition  must  be  pre- 
sented to  the  Sheriff  of  Chancery.  A  petition 
of  service  is  equivalent  to  a  brieve  and  claim 
under  the  former  law,  and  an  extract  decree 
of  service  is  equivalent  to  an  extract  retour. 
A  decree  of  special  service,  besides  operating 
as  a  retour,  has  the  operation  and  effect  of  a 
disposition  from  the  deceased  to  theheirserved. 
Such  decree  of  service,  however,  cannot  be 
transmitted  for  the  purpose  of  completing  the 
title  of  the  heir  or  assignee  of  the  party 
served.  No  person  is  entitled  to  appear  and 
oppose  a  service  proceeding  before  the  sheriff 
who  could  not  competently  appear  and  oppose 
such  service  proceeding  under  a  brieve  of  in- 
quest under  the  former  law.  In  cases  of  com- 
petition the  proceedings  may  be  advocated  to 
the  Court  of  Session,  in  order  that  the  case 
may  be  tried  by  a  jury.  Where,  also,  the 
sheriff  refuses  to  serve  the  petitioner,  his  judg- 
ment may  be  brought  under  review  of  the 
Court  of  Session  by  a  note  of  advocation.  A 
special  service  does  not  nbw  infer  a  general 
representation,  either  active  or  passive,  but 
only  a  limited  passive  representation  to  the 
extent  and  value  of  the  subjects  embraced  in 
the  special  service.  In  a  petition  for  a  special 
service,  an  heir  of  line  or  heir-male  may  also 
apply  for  a  general  service  in  the  same  cha- 
racter.   A  general  service  may  be  applied  for. 

Digitized  byCjOOQlC 


754 


SBR 


SBR 


and  olitained  to  a  limited  effect,  bj  annexing 
a  specification  letting  forth  the  particular 
subjects  to  which  the  serrice  is  limited,  and  the 
serrice  obtained  infers  ovlj  a  limited  pas- 
sive representatiTe  to  the  extent  of  the  subjecta 
contained  in  the  specifiation. 

SerrioH,  FenonaL  See  Ptrtonal  iS«r- 
viees, 

Serviena  Ciirin.    See  Striamt. 

Servient  Tenement ;  is  the  tenement  over 
which  a  servitude  has  been  granted  or  ao- 
quired  in  favour  of  a  dominant  tenement.  See 
Servitudes. 

Servitndet;  are  either  predial  or  personal. 
A  predial  servitude  it  a  servitude  constituted 
over  one  subject  or  tenement,  in  &vonr  of  the 
proprietor  of  another  subject  or  tenement.  It 
is  only  in  virtue  of  his  property  that  a  person 
enjoys  a  predial  servitude ;  and  when  he 
transfers  the  property  to  another,  the  servi- 
tude passes  along  with  it.  The  tenement  over 
which  a  prediid  servitude  is  constituted  is 
called  the  servient  tenement,  and  its  proprie- 
tor the  servient  proprietor :  that  in  favour  of 
which  the  servitude  is  constituted  is  called 
the  dominant  tenement,  and  its  proprietor  the 
dominant  proprietor.  Personal  servitudes  are 
those  constituted  over  a  subject  in  favour  of 
a  person,  without  reference  to  his  possession 
of  another  subject.  In  the  Roman  law  there 
were  four  classes  of  personal  servitudes — luu- 
fntetus,  tMiM,  habitatio  and  optrce  tervorum.  In 
Scotland  the  only  rights  which  have  been 
classed  under  jpersonal  servitudes  are  the  dif- 
ferent kinds  of  usufruct ; — liferent,  by  reser- 
vation or  constitution,  terce,  and  courtesy. 
See  Liferent.  Terce.  Cowrtety.  And  it  has 
been  doubted  whether  liferent  would  not  with 
more  propriety  be  considered  as  limited  pro- 
perty than  as  a  servitude.  Those  who  ad- 
here to  the  Roman  law  classification  maintain 
that  servitude  is  the  category  to  which  life- 
rents are  moat  conveniently  referred.  But 
this  is  merely  a  matter  of  arrangement.  Pre- 
di)d  servitudes  are  either  runl  or  urban. 
This  distinction  has  no  reference  to  the  cir- 
cumstance of  the  tenements  being  within  or 
beyond  the  limits  of  a  town.  A  rural  servi- 
tude is  a  servitude  which  does  not  affect 
houses  or  other  edifices,  but  which  is  consti- 
tuted over  fields,  iuclosures,  &c.,  though  in  a 
town :  to  this  class  belong  the  servitudes  of 
passage,  road,  way,  pasture,  feal,  and  divot, 
aqueduct,  watering,  or  agwBhomttnt,  thirlage. 
See  these  articles,  and  also  Actut.  Iter.  Via. 
An  urban  servitude  is  in  some  way  connected 
with  houses:  to  this  class  belong  support, 
oneritferetidi,  tigni  immittendi,  stillicide,  Jlu- 
men,  aUiui  U^Undi,  light,  prospect.  See  these 
articles.  Predial  servitudes  are  either  posi- 
tive or  negative.  A  positive  servitude  is  one 
in  virtue  of  which  the  dominant  proprietor  is 


entitled  to  perform  some  act  affecting  the  ser- 
vient tenement,  which,  but  for  the  servitude, 
the  servient  proprietor  would  be  entitled  to 
prohibit:  thus,  a  proprietor  is  not  entitled 
to  rest  his  house  upon  another  proprietor's 
pillar ;  but  if  the  servitude  onerit  ferenii  be 
constituted  in  his  favour,  he  may  do  so.  A 
negative  servitude  is  one  in  virtue  of  which  a 
servient  proprietor  is  prohibited  from  per- 
forming some  act,  which,  but  for  the  servi- 
tude, he  would  be  entitled  to  perform.  Thus 
a  proprietor  is  entitled  to  build  his  house  as 
high  as  he  chooses;  but  if  the  servitude 
aUxM  turn  (oUcndt  be  constituted  in  favour  of 
a  neighbouring  tenement,  he  will  be  re- 
stricted from  building  it  higher  than  it  is 
when  the  servitude  is  constituted.  A  podtive 
servitude  is  oonstituted  either  by  grant  or  by 
prescription.  When  it  is  constitute  by  grant, 
it  must  be  followed  by  possession,  either  ac- 
tual, as  by  use,  or  civil,  by  the  recording  of 
a  sasine  containing  the  grant.  Charter  and 
sasine  in  the  dominant  subject,  with  use  of  the 
servitude  for  forty  years,  completes  the  right 
to  a  positive' servitude.  A  negative  servitude 
can  only  be  constituted  by  grtmt.  It  does 
not  admit  of  possession,  and  therefore  cannot 
be  acquired  by  prescription.  For  the  same 
reason,  the  grant  alone,  without  use,  is  sufS- 
cient  for  its  constitution.  A  distinction  be- 
tween such  services  as  are,  and  such  as  are 
not,  known  and  recognised,  has  been  consi- 
dered in  the  article  NeiminaXt  and  Innonmate. 
Servitudes  are  extinguished,  1.  Confuticne; 
that  is,  by  the  dominant  and  servient  tene- 
ments becoming  the  property  of  the  same  per- 
son. Professor  Bell's  doubt,  whether  such 
extinction  is  permanent,  has  been  stated  in 
the  article  Ret  sua  nemini  tervit  2.  By  re- 
nunciation. 3.  By  the  extinction  of  either 
the  dominant  or  servient  tenement;  or  by 
a  change  of  circumstances  rendering  the  Mr- 
vitude  no  longer  available.  Sometimes,  how- 
ever, where  such  change  is  only  temporary, 
the  servitude  may  be  merely  suspended  un- 
til matters  are  restored  to  their  former  state. 
4.  By  prescription;  and  this  applies  both 
to  positive  and  neg^ive  servitudes.  A  ser- 
vitude only  creates  an  obligation  ad  jNttim- 
dtm;  and  therefore  the  servient  proprietor 
cannot  be  called  on  to  do  anything,  such  as 
to  repair  his  wall  for  the  purpose  of  giving 
better  support  for  the  dominant  proprietor'a 
roof.  A  stipulation  that  the  servient  pro- 
prietor be  bound  ad  agendum,  imposes  merelj 
a  personal  obligation.  A  servitude  la  in- 
tended for  the  benefit  of  the  dominant  tene- 
ment; and  the  dominant  pn^rietor,  there- 
fore, is  not  entitled  to  exercise  his  right 
merely  to  distress  the  servient  proprietor, 
where  it  is  productive  of  no  ben^  to  him- 
self.   The  benefit  is  oonfioed  entbely  to  the 

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dominant  tenement.  The  aerWent  proprietor 
must  do  nothing  to  ^miniih  the  use  or  eon- 
Tonience  of  the  aerntude.  See  Erik.  B.  ii. 
tit.  9.  §  1,  et  seq.;  Bank.  B.  iL  tit.  6,  §  1,  << 
teqt ;  tit.  7,  §  1>  «t  teq. ;  Stair,  B.  ii.  tit.  7,  § 
1,  et  teq. ;  B.  ir.  tit.  45,  §  17  ;  Mor^s  Nates, 
p.  eczx. ;  BelPt  Com.  i.  757  ;  BeU't  Princ.  $ 
979,  et  teq.;  lUusL  ib. ;  Bt^  on  Leatea,  i. 
210;  Hunter'*  Landlord  and  Tenant;  BeU 
on  Purchaser's  TiUe,  44, 372 ;  Dempster,  Nov. 
26, 1813,  2  Dow,  40. 

SeMion,  Court  oC  The  Conrt  of  Session 
is  the  supreme  civil  eonrt  of  Scotland,  and 
was  instituted  in  the  year  1532.  This  Court 
formerly  consisted  of  fifteen  Judges,  who  sat 
all  in  one  court.  But  by  48  Qeo.  lU.  o.  151, 
the  Judges  were  required  to  sit  in  two  Di- 
visions;  fuid  by  1  WilL  lY.  c.  69,  their 
number  was  reduced  to  thirteen — the  Lord 
President,  the  Lord  Justice- Clerk,  and  eleven 
Ordinary  Lords.  The  Lord  President  and 
three  Ordinary  Lords  form  the  First  Di- 
vision, and  the  Lord  Justioe-Clerk  and  other 
three  Ordinary  Lords  the  Second.  There 
are  five  permanent  Lords  Ordinary,  the  last 
i^pointed  of  whom  officiates  on  the  Bilk 
during  session.  The  jurisdiction  and  other 
powers  of  the  Court  of  Session  are  necessarily 
treated  of  in  many  separate  articles  through- 
out this  work.  They  have  a  privative  juris- 
diction in  competitions  relative  to  heritage 
«nd  declarators  of  the  right  to  it.  But  ao- 
tions  respecting  moveables,  and  other  rights 
to  which  their  privative  jurisdiction  does  not 
extend,  cannot  be  brought  in  the  Court  of 
Session  in  the  first  instance,  where  the  sub- 
ject of  the  action  does  not  exceed  the  value 
of  L.25.  This  rule  is,  however,  modified  in 
certain  cases.  Many  classes  of  cases  have 
been  appr^riated  to  the  Court  of  Session  by 
statute.  Their  jurisdiction  as  a  court  of 
review  is  treated  of  in  the  articles  Appeal. 
Advoeaium.  Suspension,  In  cases  where  the 
power  of  review  is  excluded,  the  Court  of 
Session  may  nevertheless  interfere  wherever 
any  inferior  court  exceeds  its  powers  or 
deviates  from  statutory  regulations.  The 
Court  have  a  criminal  jurudiction  (which 
however  is  seldom  exercised)  in  certain  oases 
in  which  the  civil  question  at  issue  implies 
crime  in  one  of  the  parties.  See  FrauittleHt 
Bankruptcy.  Forgery.  Fraud,  Ac.  The 
Conrt  has  power  to  punish  contempts  of  its 
authority,  and  to  control  the  conduct  of  the 
members  of  the  College  of  Justice.  They 
have  the  right  of  passing  Acts  of  Sederunt 
for  the  regulation  of  judicial  procedure.  See 
Acts  of  Sederunt.  The  Judges  of  the  Court 
of  Seuion  hold  their  office  ad  vitam  out  eul- 
pam.  Their  nomination  and  appointment  is 
in  the  Crown.  No  one  can  be  appointed  who 
has  not  served  as  an  advocate  or  principal 


clerk  of  Session  for  five,  or  as  a  writer  to  the 
Signet  for  ten  years.  Certain  forms  are  pre- 
scribed for  ascertaining  the  qualifications  of 
the  nominee.  By  10  Geo.  1.  c  19,  if  the 
pi-esentee  be  found  duly  qualified,  he  must 
immediately  be  admitted ;  but  if  he  be  found 
unqualified,  the  whole  matter  must  be  cer- 
tified to  the  Sovereign;  and  if  the  Sovereign, 
notwithstanding,  desire  that  he  be  admitted, 
he  must  be  admitted  forthwith.  For  the 
quorum  of  the  Court,  and  of  each  Division, 
see  Quorum.  Upon  a  vacancy  occurring  in 
the  Inner-House  of  either  Division,  any  one 
of  the  Inner-House  Judges  of  the  other  Di- 
vision nuiy,  if  he  desire  it,  be  removed  to  the 
Division  in  which  the  vacancy  has  occurred ; 
and  the  vacancy  thus  created  in  the  Divisioa 
which  the  Judge  has  left  is  supplied  by  the 
senior  permanent  Lord  Ordinary.  If  no 
Inner-House  Judge,  not  in  the  JDivision  ia 
which  the  vacancy  has  arisen,  desire  to  be 
transferred,  the  vacancv  is  supplied  by  the 
senior  permanent  Lord  Ordinary,  whethn-  he 
belongs  to  the  Division  in  which  the  vacancy 
has  occurred  or  not.  Upon  a  vacancy  among 
the  permanent  Lords  Ordinary  of  the  Second 
Division,  the  junior  or  last  appointed  Ordi- 
nary of  the  First  Division  is  appointed  to 
sit  as  junior  of  the  two  permanent  Lords 
Ordinary  of  the  Second  Division ;  69  Geo.  III. 
e.  45,  §§  1  and  2.  In  case  of  equality  of 
votes  of  the  Judges  of  either  Division,  the 
cause  is  directed  to  remain  for  a  subsequent 
discussion  and  decision.  In  all  eases,  upon 
report  of  the  Lord  Ordinary  on  the  Bills, 
where  there  is  an  equality,  the  Lord  Ordi- 
nary on  the  BiUs  is  called  in  to  vote ;  and 
in  all  other  eases,  where,  in  consequence  of 
equality,  the  cause  remains  for  subsequent 
discussion,  if  the  question  have  prerionsly 
depended  before  any  Lord  Ordinary  of  the 
same  Division,  being  at  the  time  of  the  dis- 
cussion one  of  the  permanent  Ordinaries, 
such  Lord  Ordinary,  without  regard  to  rota- 
tion, is  called  in  to  be  present  at  the  discus- 
sion and  vote  in  the  case ;  but  when  one  of 
the  Inner-House  Judges  is  absent  at  the  first 
advising  when  the  equality  takes  place,  but 
is  present  when  the  consideration  of  the  case 
is  resumed,  the  Lord  Ordinary  is  not  called 
in ;  1  and  2  Will.  IT.  o.  38,  $  3.  The 
Judges  of  either  Dirision  may,  in  every  cause 
in  which  they  are  equally  divided  in  opinion, 
direct  the  cause  to  be  judged  either  by  the 
Inner-House  Judges  of  both  Divisions,  or  by 
the  whole  Court,  including  the  Lords  Ordi- 
nary ;  13  and  14  Vict,  c  46, 1860.  See  Gon- 
iwatioH  of  Judges.  Provision  ia  made,  by 
2  Will.  Iv.  c.  5,  for  carrying  on  the  busi- 
ness in  case  of  the  death  or  sickness  of  any 
of  the  Judges.  See  Deaih.  On  the  subject 
of  this  article,  and  for  a  history  of  the  origin 

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of  the  Conrt  of  Senion,  the  followlnf^  autho- 
rities may  be  consulted:  Lamg's  Scotland, 
i.  446  ;  Bobertsm's  Scotland,  i.  45  ;  Tytkr't 
Scotland,  vol.  iii.  p.  241 ;  vol.  v.  pp.  24  and 
237;  Maitiand'B  History  of  Edinburgh,  p.  423; 
Stair,  B.  iv.  tit.  1 ;  Ertk.  £.  i.  tit.  3 ;  Bank- 
vol.  ii.  p.  508 ;  Ivory's  Forms  of  Process,  i.  3  to 
80 ;  Beoeridge  in  Introduction  ;  ShaniPs  Prac. 
See  College  of  Justice. 

SesBion,  Kirk,  See  Kirk-Session.  ChurA 
Judicatories.    Elder. 

8«t«ff;  is  the  English  law  term  corre- 
sponding to  compensation.  Where  there  are 
mutaal  debts  due  by  the  plaintiff  and  de- 
fendant, the  debts  may  be  set  off  against  each 
other ;  that  is,  they  may  be  allowed  to  ex- 
tinguish each  other.  Like  compensation, 
set-off  must  be  pleaded,  and  is  only  allowed  in 
liquidated  money  debts.  Tomlin^  Diet.  h.  t. ; 
BeU's  Com.  ii.  124 ;  BeU's  Princ.  §  672 ; 
Thomson  on  Bills,  762  ;  Skme's  Digest,  p.  70. 
See  Compensation. 

Sett,  Action  of.  Where  the  owners  of  a 
ship  disagree  as  to  the  manner  in  which  the 
vessel  is  to  be  employed,  or  where  one  of  the 
owners  is  desirous  to  sell  his  share,  he  usually 
offers  it  at  a  certain  price  to  the  other 
owners ;  and  failing  an  extrajudicial  ar- 
rangement, an  action  of  sett  is  competent. 
This  action  is  an  Admiralty  process.  It  is 
directed  by  the  owner  who  wishes  to  be  free 
against  the  other  owners ;  and  the  conclu- 
sions of  the  summons  are,  that  the  defenders 
shall  be  decreed  either  to  take  his  share  at  a 
certain  price,  or  to  let  him  have  their  shares 
at  the  same  rate  ;  or  otherwise,  that  the 
vessel  shall  be  sold  by  public  roup,  and  the 
price  divided  amongst  the  owners  according 
to  their  respective  shares.  If,  when  the  ac- 
tion comes  into  court,  either  of  the  parties 
agree  to  take  the  shares  of  the  others  at  the 
price  put  on  them,  an  interlocutor  is  pro- 
nounced decerning  and  adjudging  accord- 
ingly ;  but  if  not,  a  judicial  sale  is  ordered, 
and  the  price  divided,  in  terms  of  the  con- 
clusions of  the  summons.  The  jurisdiction 
in  this  matter,  formerly  exercised  by  the 
High  Court  of  Admiralty,  was  transferred  to 
the  Court  of  Session  and  to  the  Sheriff  Courts, 
by  1  Will  IV.  c.  69,  whereby  the  High  Court 
of  Admiralty  was  abolished.  Ersk.  B.  iii. 
tit.  3,  §  56 ;  Bank.  B.  i.  tit.  22,  §  21 ;  B<^d's 
Judicial  Proceedings,  8vo,  p.  26 ;  Darling's 
Prac.  i.  262  ;  Stair,  B.  i.  tit.  16,  §  4 ;  Smith's 
Maritime  Prac.  48.  See  Common  Property. 
Admiralty. 

Sett  of  a  Burgh ;.  is  its  constitution.  The 
setts  are  either  established  by  immemorial 
usage,  or  were  at  some  time  or  other  mo- 
delled by  the  Convention  of  Burghs.  There 
is  an  instance  of  a  new  sett  being  granted  to 
the  burgh  of  Montrose  by  royal  warrant ; 


Milt,  Jan.  28, 1824,  2S.<tD.  652 ;  appealed, 
June  28,  1825,  1  W.4tS.  570.  See  Ersk. 
B.  i.  tit.  4,  §  20 ;  Ba/nk.  B.  iv.  tit.  19,  §  4 ; 
Shaw's  Digest,  p.  96. 

SetterciayiB  Slop ;  according  to  Skene,  is 
a  space  of  time  within  which  it  is  not  leasom 
to  take  salmon  fish,  i.e.  from  the  time  of 
"  even-sang"  after  noone  on  Setterday,  until 
the  rising  of  the  sun  on  Mononday.  Skene,  k.  t. 
See  Saturday's  Slop.    Cruive. 

Settlement  See  Testament  Ditp9siium 
and  Settlement. 

Settlement  of  Poor.    See  Poor. 

Settlement  with  Creditors.  See  Composi- 
tion by  a  BarJcrupt.    Discharge. 

Sexton.    Siee  Church  Officers. 

Shares.  As  to  the  transference  of  shares 
in  a  company,  see  Joint  Stock  Coe^ny.  For 
the  form  of  the  transference  of  a  share  in  a 
theatre,  see  2  Jurid.  Styles,  241. 

8heq».  According  to  Professor  Bell,  the 
circumstances  which  constitute  delivery  of 
sheep,  sufBcient  to  pass  the  property,  depend 
entirely  on  usage.     BeWs  Com.  i.  176. 

Sheriff;  the  chief  local  judge  of  a  county. 
According  to  Skene,  the  name  is  derived  frma 
his  jurisdiction,  extending  over  a  "  schire, 
that  is,  a  cutting  or  section,  like  as  we  say,  a 
pair  of  scheirs,  qnairwith  claith  is  eutted;" 
Skene,  voce  Schireff.  The  institution  of  this 
office  is  very  ancient  The  first  notice  of  it 
appears  in.  the  beginning  of  the  twelfth  cen- 
tury, in  the  reign  of  Alexander  I.  But  the 
institution  was  at  that  time  but  imperfect ; 
regular  sheriffdoms  having  been  established 
somewhat  later.  The  appointment  of  sherifi 
properly  belonged  to  the  Crown ;  but  the 
great  barons  frequently  assumed  the  right  of 
naming  them.  The  term  "  schire,"  was 
anciently  given  to  districts  of  much  smaller 
extent  than  the  sheriffdoms  of  the  present  day, 
each  of  which,  however,  had  not  a  sheriSl 
Previous  to  the  year  1296,  these  smaller  di- 
visions had  disappeared,  and  the  enactments 
of  Edward  I.  give  an  exact  enumeration  of 
thirty-four  sheriffdoms,  over  most  of  which  a 
separate  sheriff  had  jurisdiction.  The  juris- 
diction of  this  judge,  civil  as  well  as  criminal, 
was  anciently  very  extensive,  and  within  his 
own  district  nearly  as  unlimited  as  that  of  the 
great  justiciars  throughout  the  kingdom.  See 
Tytler's  History  of  Scotland,  vol.  ii.  p.  244.  In 
Skene,  De  verborum  signifecitione,  voce  Schiref, 
a  very  full  account  is  given  of  the  institutioa 
of  the  office  of  sheriff,  and  the  purposes  it  was 
intended  to  serve.  According  to  him,  the 
sheriff  had  for  his  fee  of  the  escheat,  tea 
pounds,  paid  when  he  accounted  to  the  Ex- 
chequer for  his  intromissions.  He  was  bonnd 
to  have  a  good  and  sufficient  bailie,  for  whom 
he  was  answerable.  He  was  obliged  to  hold 
a  sheriff-court  for  the  execution  of  justice 


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after  every  forty  days ;  and  afterwards,  all 
sheriffs,  stewards  and  bailies,  were  bound  to 
hold,  three  head  courts  in  the  year  "  by  them- 
selves in  proper  person,  at  which  all  barons 
And  freeholders  who  owed  suit  and  presence 
in  the  said  courts  compeared  personally.  The 
sheriff  had  no  jurisdiction  beyond  his  own 
sheriffdom,  in  which  he  was  bound  to  take  all 
means  to  have  the  laws  proclaimed, that  no  one 
might  pretend  ignorance.  It  was  his  duty  also 
to  be  present  in  all  courts  of  bbhops,  abbots, 
earls  barons  and  freeholders,  who  could  not 
hold  their  courts  unless  the  sheriff  or  his 
deputes  were  present,  or  had  been  summoned. 

By  20  Geo.  II.  c.  43,  the  sheriff  must  be 
an  advocate  of  at  least  three  years'  standing 
at  the  bar.  He  is  disqualified  to  act  as 
counsel  in  any  cause  from  the  county  of  which 
he  is  sheriff.  He  holds  the  office  ai  viiam 
oiuX  ett^m,  except  when  nominated  merely 
fn  tempore  by  the  Court  of  Session,  in  the 
event  of  a  vacancy ;  and  he  may  be  removed 
for  misconduct  in  his  office,  on  a  complaint 
presented  by  the  Lord  Advocate,  or  by  four 
freeholders  of  the  county,  to  the  Court  of  Ses- 
sion. The  Court,  on  the  presentation  of  such 
a  complaint,  judge  of  the  sheriff's  conduct, 
and  decide  accordingly.  The  sheriffs  have  a 
power  of  appointing  substitutes,  who  receive 
stated  salaries  from  Government  for  perform- 
ing the  duties  of  their  office.  The  substitutes 
must  be  advocates,  or  writers  to  the  Signet, 
or  solicitors  before  the  Supreme  Court,  or 
Sheriff-court  procuratorsofat  least  three  years' 
standing,  and  certified  by  the  Lord  President 
and  the  Lord  Justice-Clerk  to  be  duly  qaali- 
fied ;  and  they  must  not  act,  directly  or  indi- 
rectly, as  procurators  in  any  court  within 
their  bounds;  6  Oeo.  IV.  c.  23.  For  the 
appointment  of  substitutes  to  perform  parti- 
cular duties  at  elections,  see  the  article  Re- 
form Act.  The  Crown  may  still  appoint  a 
high-sheriff,  but  he  must  not  (by  the  foresaid 
act,  20  Geo.  II.  c.  43)  be  appointed  heritably, 
or  for  life,  or  for  any  longer  time  than  for 
one  year,  and  cannot  judge  in  virtue  of  such 
appointment. 

The  civil  jurisdiction  of  the  sheriff  extends 
to  all  personal  actions  on  contract,  bond,  or 
obligation,  to  the  greatest  extent ;  to  actions 
for  rent — furthcomings — poindings  of  the 
ground — and  even  adjudications,  though  that 
is  now  little  more  than  a  nominal  jurisdiction, 
as  actions  of  adjudication  are  seldom  bronght 
before  the  sheriff.  In  all  possessory  actions, 
as  remevings  and  spuilzies,  &c. ;  in  M  brieves 
issuing  from  Chancery,  as  of  inquest,  terce, 
division,  tutory,  &c. ;  and  generally  in  all  civil 
matters  not  specially  committed  to  other 
courts,  the  sheriff  may  judge.  By  1  Vict, 
c.  41,  he  has  a  summary  jurisdiction  in  all 
causes  not  exceeding  L.8,  6s.  8d.  sterling  ex- 


clusiv6  of  expenses  and  extract.  See  SmaU 
Debts.  By  4  Geo.  IV.  o.  97,  the  sheriff- 
depute  of  each  county  is  also  commissary. 
He  may  appoint  his  substitute  to  be  commis- 
sary substitute  also.  See  GommisBory  Court. 
The  jurisdiction  of  the  sheriff  has  been  ex- 
tended to  cessio  bonorum,  and  certain  Admi- 
ralty cases.  See  Cessio  Bonorum.  Admiralty. 
The  judgments  of  the  sheriff  in  civil  causes 
are  reviewable  by  the  Court  of  Session  only ; 
except  that,  where  the  case  embraces  matters 
partly  civil  and  partly  criminal,  the  Court  of 
Justiciary  is  the  proper-court  of  review ;  and 
in  civH  causes,  where  the  sum  in  dispute  does 
not  exceed  L.25,  there  is  a  statutory  appeal 
to  the  Circuit  Court ;  and  in  small  debts,  an 
appeal  to  the  Circuit  Court  is  made  competent 
in  certain  circumstances.  See  SmcUl  Debts. 
Appeal  to  Circuit  Court 

By  16  and  17  Vict.  c.  80, 1853,  the  summary 
juri»liction  of  sherlflb  in  small  debts  is  ex- 
tended to  L.12. 

The  sheriff's  criminal  jurisdiction  extends, 
generally  speaking,  to  the  trial  of  all  crimes 
which  do  not  infer  death,  or  banishment  from 
Scotland,  and  also  to  murder  (though  seldom 
thus  prosecuted),  bigamy,  sedition,  theft,  rob- 
bery (if  not  from  the  person) ;  and  he  may 
fine,  imprison,  banish  from  the  county,  and, 
in  the  general  case,  even  inflict  corporal  pains, 
without  a  jury.  Of  late,  however,  the  criminal 
jurisdiction  of  the  sheriff  without  a  jury  has 
been  considerably  restricted;  and  a  prose- 
cutor who  proceeds  without  a  jury  may  be 
made  liable  in  damages.  See  Jury,  He  may 
take  cognisance  of  theft,  either  at  the  instance 
of  the  private  prosecutor  or  by  indictment ; 
and  all  offences  against  the  police  are  cognis- 
able before  the  sheriff.  He  likewise  possesses 
a  cnmulative  jurisdiction  with  the  justices  of 
peace  in  all  riots  and  breaches  of  the  peace. 
He  is  authorised  to  apprehend  rebels  and  of- 
fenders ;  and  where  it  is  necessary,  in  prose- 
cution of  this  duty,  he  may  call  out  the  posse 
comitatus,  or  force  of  the  county,  to  his  assist- 
ance. He  may  give  warrant  to  arrest  for 
'any  crime,  even  treason.  He  has  the  charge 
of  taking  all  precognitions ;  is  answerable  for 
the  accuracy  of  the  copies  served  on  panels ; 
he  had  tho  charge  of  the  Porteous  Boll  for  the 
Circuit  Court  under  the  old  practice ;  and  he 
is  bonud  to  attend  on  the  judges,  and  to 
answer  to  any_  complaint  made  against  him 
there.  His  decision  may  be  appealed  from  to 
the  Court  of  Justiciary,  ffume,  i.  4^4 ;  ii. 
22  et  seq.,  57  et  seq.,  139  et  seq.,  241 ;  Alison's 
Prae.  35,  et  seq.  See  Precognition.  Porteous 
RoU.  Criminal  Prosecution.  Delegated  Juris- 
diction. Procurator-Fiscal.  Appeal  to  Circuit 
Court. 

Sheriffs  act  also  ministerially  in  returning 
juries  to  serve  on  trials.     They  execute  all 

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writi  from  Bxchequer;  aod  for  tb«  Uaneh 
and  fen-dutifis,  and  other  eanalties  dne  to  the 
Crovn,  th^  are  bound  to  aoeonnt  in  Bx- 
«beqn«r ;  and  they  annually,  in  the  nonth  of 
Febmary,  strike  ik»  fiare,  with  the  aisistance 
of  a  Jury.  Writi  for  electmg  raemben  of 
Pariiament  are  directed  to  the  iberifi,  to  be 
«zeeated  and  returned  to  the  Crown  OfBee. 
The  prooedure  in  Sheriff  Ck>urii  is  treated  of 
in  separate  articles  throughoat  this  bode. 
See  on  the  salgeet  of  8heri&,  aid  their  Joria- 
diction  generally,  EriL  6.  i.  tit.  4,  §  1, «( teq. ; 
Bmk.  ii.  651, «( teg.;  BeWt  Com.  i.  713;  ii. 
389,  898, 481;  BMt  Prine.  6§  2207-9, 2227 ; 
SwM.  Abriig.  k.  t. ;  Kama?  Stat.  Lam  Ahriig. 
k,  t. ;  Wattcm't  Stat  Lata,  k.  (.;  IfOtaskan't 
Nota;  Ma(iamin'tSktrif-G«mrtPtoceu,l,etMi. 

Sharil^nerk ;  is  clerk  to  the  sheriff's 
court.  He  alone  could  be  notary  in  those 
sasines  which  were  given  by  the  sheriff,  pro- 
iseeding  on  precepts,  for  infefting  hwrs  hold- 
ing of  the  (Jrown.  The  act  6  Geo.  IV.  c.  23, 
jnade  prorision  for  the  regulation  of  his  fees, 
by  the  i^tpointment  of  a  oMnmission,  eonsist- 
ing  of  fire  sheriffit-depute,  to  examine  and  re- 
port. The  report  baring  aecordin^y  been 
giren  in,  the  Act  of  Sederunt  7th  July  1836 
was  passed,  by  which  tlM  fees  of  the  sheriff 
.aiid  steward  elerks  are  r^^ated.  See  Jfao- 
Isuria's  SkmfPrae.  59,  322 ;  Jurid.  %<«*, 
il.  602 ;  Skau,  roee  Sokirgf. 

Shariff  in  tliat  Fart ;  is  a  person  appointed 
br  the  Queen,  in  Signet  letters,  to  supply  the 
place  of  the  sheriff.  He  was  tmrmed  the  she- 
riff ia  that  part  from  being  i^pointed  to  exe- 
cuta  a  particular  duty,  which  prerionsly  had 
been  in  me  to  be  peifonned  by  the  sheriff. 
By  uniform  and  immemorial  custom,  all  the 
diligenees  of  Ute  law  are  directed  to  "  mes- 
aeagerB-at-arms,"as<i«rt^m<Aa<jMr<.  Stair, 
B.  ii.  tit.  38,  §  10 ;  Enk.  B.  L  tit.  4,  {  38 ; 
Rott't  Led.  i.  286,  418.  See  Adjudieation. 
Pomdin^. 

ghenff ;  in  Bngland,  an  offioer  appointed 
by  the  Crown  to  execute  process,  preeerre  the 
peace,  Mid  giro  assistance  to  justices  and 
oUiers  ia  doing  so.  During  his  office,  he  is 
the  first  man  in  his  county.  The  sheriffs 
of  London  and  Middlesex  are  chosen  by  the 
citizens  of  London.  The  office  of  sheriff  iu 
Bngland  is  entirely  different  from  that  which 
goes  under  the  same  name  in  Scotland.  See 
Tmliiuf  Diet  k.  t. 

Shewen ;  in  jury  causes,  are  the  persons 
named  by  the  Court,  usually  on  the  sugges- 
tion of  the  parties,  to  accompany  the  six  ju- 
rors when  a  riew  is  allowed.    See  Viewen. 

Sbtmiag  of  Holding ;  an  action  formerly 
oompetent  to  the  superior,  to  have  a  deed 
granted  to  his  raasal  judicially  exhibited  to 
him,  that  its  ralidity  or  import  might  be 
ascertained.    It  is  now  long  since  this  action 


was  laid  aside ;  but  its  purpose  is  answered  by 
an  action  of  reduetion-improbation.  Bnk.  B. 
u.tit.6,$S;  Book. I  616 ;£ame»' Stat. Law 
Abridf.kt. 

ih^.  Property  in  ships  differs  from  ordi- 
nary meveaUe  or  personal  |Ht>perty  in  sereral 
rw^wets ;  and  the  form  of  tiie  title,  as  well  as 
the  mede  of  transferring  or  burdening  tiiis 
species  of  property,  has  be«i  the  subject  of 
statutory  enactments,  BritiA  ik^  hare  a 
monopoly  of  the  British  trade  with  the  colo- 
nies and  settlenwnts  of  this  eountry ;  and  of 
the  importation  of  many  articles;  and  of 
fisheries  for  importation.  Foreiyn  Sk^  are 
also  privileged  to  share  with  Britirii  ships  in 
the  imp<»*tation  of  oranmodities  grown  or 
manufactured  in  the  country  to  whieh  the 
ressel  belongs.  But  in  ot^r  to  confer  this 
pririlege,  the  foreign  reasel  must  be  built  in 
that  oonatry ;  or  prise  of  war  tiiere ;  or  con- 
demned nni£9r  the  slare-trade  laws ;  or  British 
built,  not  captured  fnmi  a  British  subject; 
and,  finally,  in  all  those  cases,  the  ship  must 
be  owned  by  snbjecte  of  that  eountry,  and 
three-fourths  of  tiie  crew  mnat  be  subjects  of 
that  country.  In  order  to  toaSer  the  priri- 
lege of  a  Brititk  si^p,  the  ressel  must  be  of 
the  build  of  this  country,  or  her  colonies ;  or 
condemned  in  the  Court  of  Admiralty  as  a 
prize ;  or  forfeited  under  the  slare-trade  acta, 
excluding  ships,  aUhougfa  bniU  in  Great 
Britain,  if  repaired  in  a  foreign  eountry  at  am 
expense  exoeediag  20s.  a  ton,  unless  such  re- 
pair has  been  occasioned  by  damage  on  the 
voyage,  and  to  enaUe  the  ressel  to  retuns 
home.  British  ships,  if  oapUired,  and  sold  to 
foreigners,  are  excluded.  See  ra  this  subject, 
12  Ckarlei  II.  c.  18 ;  1661,  c  46 ;  26  (Taa.  ///. 
c.  60;  4  Geo.  IV.  e.  41  ;Je»iuolidatmg  prior 
ttoMes),  repealed  6  Geo.  IT.  c  105,  emd  ra- 
emaeted  6  Geo.  IV.  e.  104;  6  Gee.  IV.  n.  109  ; 
6  Geo.  IV.  c.  110;  %  and  A^WO.  IV.  1 64 
and  56  ;  BdPs  iVmc  §  1322  «<«}.,§  1379, 
and  an&oriiiee  Aere  etied. 

By  the  act  17  and  18  Viet.  e.  104, 1854, 
foreign  ships  are  admitted  to  the  coastiBg 
trade,  and  all  matters  in  regard  to  mereha4at 
shipping  are  now  regulated  by  the  acts  17  and 
18  Vict.  cc.  104  and  120, 1854,  and  18  and  19 
Vict.  c.  91, 1856. 

Where  the  owners  of  a  ship  cannot  agree 
how  she  is  to  be  employed,  or  if  one  or  more 
of  die  owners  wish  to  sell  the  ressel,  the  re- 
medy is  by  the  process  of  eett  aitd  lale  (see 
Sett) ;  and  where  the  ressel  has  been  arreted 
by  creditors,  instead  of  tlie  usual  process  of 
Jvrtkeoming,  an  action  ot  arrettmeiU  and  saie  a 
raised  by  the  creditor,  settbg  forth  the  ground 
of  debt  and  the  arrestment,  and  concluding 
that  the  ship  should  be  sold  and  the  proceeds 
made  furthcoming  to  the  pursuer,  at  least  to 
the  amount  of  his  debt     When  the  action  is 


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ealled  in  court,  if  there  be  no  oppoeition,  the 
punoer  lodges  a  minute,  praying  the  Lord 
Ordinary  to  name  a  per8(m  to  make  on  oath 
an  inventory  of  the  ship,  and  to  give  his 
opinion  as  to  the  upset  price.  Commission 
will  be  granted  to  any  justice  of  the  peace  to 
take  the  valuator's  oath,  and  on  the  oath 
being  reported,  another  minute  is  lodged, 
craving  warrant  to  expose  the  vessel  to  ^e, 
at  the  upset  price  so  fixed,  after  due  advertise* 
ment,  and  to  consign  the  price  in  the  hands 
of  the  clerk  of  Court.  Articles  of  roup  are 
then  prepared  by  the  clerk,  who  officiates  as 
elerk  at  the  sale ;  and  when  the  sale  is  made, 
A  third  minute  is  lodged,  reporting  the  pro- 
ceedings, and  praying  for  decree  of  sale  in 
favour  of  the  purchaser,  and  that  his  bond  of 
caution  for  the  price  may  be  delivered  up. 
The  same  minute  may  also  pray,  that  as  much 
of  the  proceeds  as  may  be  necessary  to  pay 
the  pursuer's  debt  should  be  paid  over  to  him. 
Where  the  debt  has  not  been  previously  con- 
stituted, the  summons  in  this  action  may  also 
conclude  for  decree  constituting  the  debt,  and 
in  that,  case  the  action  will  be  called  an  ac- 
tion of  cotutitiUion  and  tah.  Where  there  is 
a  shortcoming  in  the  proceeds,  the  nxpense  of 
the  sale  will  be  deducted  in  the  first  place ; 
and  if  there  be  competing  claimants  on  the 
residue,  the  competition  will  be  disposed  of 
precisely  as  in  a  process  of  multiplepoinding. 
Condescendences  and  claims  will  be  lodged 
by  the  several  claimants,  and  the  competition 
will  be  closed  by  an  interlocutor  of  ranking 
and  preference,  and  a  warrant  to  the  clerk  to 
pay  the  competitors  as  ranked.  If,  pending 
this  process,  the  vessel  is  to  be  dismantled,  a 
petition  ought  to  be  presented  for  authority 
to  that  effect.  This  process  was  formerly 
competent  only  in  the  High  Court  of  Admi- 
ral^, and  the  forms  of  procedure  will  be  found 
in  Soytt  Judicial  Proceeimgt,  8vo.  edit.  p.  29, 
et  seq.  The  jurisdiction  is  now  transferred  to 
the  Court  of  Session  and  Sheriff  Courts ;  1 
Will.  IV.  c.  69,  §  22.  See,  on  the  subject  of 
ships  generally.  Stair,  B.  ii.  tit.  1,  §  42 ;  tit. 
2,  $  20,  et  teq. ;  Mort^t  Notes,  p.  cclzxxvii. ; 
Mr  Brodu/t  Supp.  94 ;  Erti.  B.  iii.  tit.  1,  §  34; 
tit.  6,  §  3,  «<  seq.,  and  Notes  hy  Ivory ;  Bank. 
i.  86,  220,  448 ;  iii.  26 ;  BeWs  Con,  i.  151  et 
teq. ;  602  rf  seq. ;  ii.  612  e«  seq.,  527-8  ;  BelVs 
Prine.  §§  1322  et  seq.  1379 ;  ShatuTs  Prae.  i. 
417  ;  Brown  on  Sale,  65,  et  seq.;  Jwrid.  Styles, 
2d  edit.  ii.  606  to  523 ;  Stewart,  Nov.  10, 
1813,  2  Dou),  29.  See  also  Admiralty.  See 
also  Navtce,  Caupones,  Staiularii.  Average.  In- 
surance. Jactus  Mereium.  Contribution.  Ven- 
dition. Exercitor.  Master  cf  a  Skip,  Bottomry. 
Mypothee.  Respondentia.  Foenus  Nauticum, 
Abandonment.  Registry  Acts.  Navigation  Acts. 
Shij^s-Husband.  Supercargo. 
Ship-Carpmter ;  has  a  lien  on  the  ship  for 


repairt,  which  appears  to  be  preferable  to  all 
other  securities  over  the  ship.  BeWs  Com.  ii. 
97,  612 ;  Brodie's  Supp.  to  Stair,  963 ;  Jurid. 
Styles,  ii.  520.    Seei^n.    Vendition  of  a  Ship. 

Ship't-Hiubaiid ;  the  person  whose  duty  it 
is  to  arrange  everything  for  the  outfit  and 
repair  of  the  ship,  to  enter  into  the  contract 
of  affreightment  and  superintend  the  papers 
of  the  rfiip.  The  ship's-husband  cannot,  as 
such,  bind  the  owners  to  the  expenses  of  a  law- 
suit; Campbell,  March  2  and  June  6,  1818,6 
Dow,  116.  He  cannot  delegate  his  authority ; 
BelPs  Com.  L  603 ;  Bell's  Prine.  §  449 ;  lUutt. 
ib. ;  Brodi^t  Supp.  to  Stair,  969 ;  Brown's 
Synop.  2Z62;  Shau/s  Digest,  67S. 

SMpmaater.    See  Master  of  a  Ship. 

Shooting  or  Stabbing;  with  intent  to 
murder,  or  to  injure,  is  a  statutory  offence. 
See  Attempt  at  Murder. 

Sbopa.  As  to  the  landlord's  hypothec  over 
goods  in  shops.    See  Hypothec. 

Shopman;  the  person  who  has  the  ma- 
nagement of  a  shop,  sells  and  receives  the 
price,  or  buys, articles  in  the  course  of  the 
trade,  so  as  to  bind  his  master.  BeWs  Com. 
i.  480 ;  Belt's  Prine.  §  231. 

Shore.    See  Sea,  and  Sea  Shore. 

Short-Entry ;  of  a  bill  in  a  banker's  books, 
is  done  by  stating  the  amount  in  an  inner 
column,  and  carrying  it  out  into  the  account 
between  the  parties,  only  when  the  bill  is  paid. 
Such  an  entry  forms  the  best  evidence  that 
the  banker  has  got  the  bills  merely  as  an 
agent  to  recover  payment,  subject  to  a  lien  for 
his  indemnity  against  his  own  acceptances. 
BeWs  Com.  i.  271 ;  Thomson  on  BiUs,  731. 

ShOTt>Haiid  HotOL  Notes  taken  by  a 
short-hand  writer,  when  sworn  to  by  himself, 
are  considered  the  best  evidence  of  what  oc- 
curred at  a  former  trial.  A  party  himself  is 
the  best  evidenco  of  what  he  said  in  a  speech ; 
but  failing  him,  any  short-hand  writer  who 
was  present,  and  took  notes,  may  be  adduced. 
The  evidence  of  witnesses  at  a  former  trial 
can  be  proved  only  by  themselves ;  but  where 
the  witnesses  are  dead,  or  where  their  evi> 
dence  is  otherwise  unattainable,  their  previous 
evidence  may  be  proved  by  the  notes  of  a 
short-hand  writer,  or  of  the  judge,  or  from 
the  bill  of  exceptions,  when  the  evidence  has 
been  engrossed  in  it  from  the  judge's  notes. 
Macfarlamfs  Jury  Prae.  180,  282.  See  Evi- 
dence. 

Si  Sine  Liberu.  See  Condition  ri  eine  Li- 
berie. 

Sick  Bill    See  BiU  of  Health. 

Side  Bar ;  the  name  given  to  the  bar  in 
the  Outer  Parliament  House,  at  which  the 
Lords  Ordinary  were  in  use  to  call  their  hand- 
rolls.    .Batub.  ii.  610.    See  Rolla  of  Court. 

Side-Soription.  Before  the  introduction 
of  the  present  system  of  writing  deeds  "  book- 


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wise,"  the  slieeU  were  pasted  together  nt 
length  ;  and  iu  order  to  authenticate  them, 
the  party  was  required  to  sign  his  name  at 
each  junction,  half  on  the  one  sheet  and  half 
on  the  other.  This  was  called  side-scription. 
See  Testing  CUmte. 

Signatnres.    A  signature  was  a  writing 
prepared  and  presented  by  a  writer  to  the 
Signet  to  the  Baron  of  Exchequer,  as  the 
ground  of  a  royal  grant  to  the  person  in  whose 
name  it  is  presented ;  which  having,  in  the 
ease  of  an  original  charter,  the  sign-manual 
of  the  Sovereign,  and  in  other  canes  the  cachet 
appointed  by  the  Act  of  Union  for  Scotland 
attached  to  it,  became  the  warrant  of  a  con- 
veyance, under  one  or  other  of  the  seals,  ac- 
cording to  the  nature  of  the  subject  or  the 
object  in  view.    Every  Crown  charter  was 
preceded  by  a  signature  containing  the  prin- 
cipal clauses  of  the  charter,  and  specifying  the 
seal  or  seals  through  which  it  was  to  pass,  and 
required  to  be  revised  and  authorised  by  the 
Baron  of  Exchequer,  who  acted  ministerially 
in  this,  and  in  the  character  of  Crown  com- 
missioner, in  the  same  way  with  the  com- 
missioner of  any  private  superior,  who  may 
have  granted  a  commission  for  receiving  re- 
signations and  renewing  the  titles  of  his  vas- 
sals.   In  every  feudal  conveyance  from  the 
Crown,  requiring  charter  and  sasine,  the  pre- 
cept required  to  pass  the  Privy  Seal  and  the 
Great  Seal,  and  to  be  registered  in  their  res^c- 
tive  registers  before  passing  ;  1672,  c.  7.  big- 
natures  and  charters  of  the  vassals  of  kirk 
lands  within  L.10  Scots  valuation,  and  all 
commissions  to  the  principal  Crown  officers, 
passed  the  Great  Seal  alone.   Ertk.  B.  ii.  tit.  5, 
%  82,  ei  feq.;  Bank.  B.  iv.  tit  4,  §  10  ;  tit.  11, 
Is  12, 13;  Jurid.  SU/Us,  i.  432  to  611.    See 
Seals, 

By  the  act  10  and  11  Vict.  c.  61, 1847, 
signatures  and  precepts  to  Chancery,  as  pre- 
liminary to  the  granting  of  charters,  are  abol- 
ished. 

Signet ;  the  teal  by  which  the  Sovereign's 
letters  for  diligence  are  authenticated.  See 
Seals.  Clerks  to  t/w  Signet. 
Signet,  Writers  to.  Sw  Clerks  to  the  Signet. 
SUTer  and  Gold  Plate.  The  act  6  and  7 
Will.  IV.  c.  69  fixes  the  standard  qualities  of 
gold  and  silver  pl^te  in  Scotland,  and  provides 
for  the  assaying  and  marking  of  it.  Gold- 
smiths and  silversmiths  must  not  work  plate 
inferior  to  certain  standards  specified  in  the 
act;  §  1.  Persons  following  the  trade  of 
silversmith,  goldsmith,  or  plateworker,  before 
sending  their  names,  descriptions,  and  marks 
to  the  Goldsmiths'  Incorporation  of  Edin- 
burgh, or  the  Goldsmiths'  Company  of  Glas- 
gow, forfeit  L.lOO  ;  §  2.  Goldsmiths,  &c., 
must  strike  their  mark  on  the  plate,  and  send 
it  to  the  assay- office  to  be  assayed,  where,  if 


SIM 

it  is  found  to  be  standard,  it  is  marked  with 
certain  marks  ;  §  3.   Assayers  are  empowered 
to  levy  specified  rates  upon  plate  sent  to  be 
assayed ;  §  4.    Plate  of  objectionable  manu- 
facture is  returned  without  assay ;  but  if  it 
is  found  nnubjectionable,    a  few  grains  are 
scraped  from  it  to  be  assayed ;  §  6.    If  the 
assayer  suspects  that  too  great  a  quantity  of 
base  metal,  or  solder,  is  contained  or  concealed 
in  the  plate,  he  must  test ;  but  if  it  is  found 
that  his  suspicions  are  groundless,  compen- 
sation must  be  made  for  the  damage  done  the 
plate  in  testing.    Disputes  are  settled  by  two 
justices  or  magistrates ;  §  6.     The  scrapings 
are  assayed,  and  if  found  inferior  to   the 
standard,  the  plate  is  defaced;  if  equal  to 
standard,  it  is  marked;  §  7.    The  assayer 
weighs  and  selb  the  scrapings  for  the  behoof 
of  the  assay-office ;  §  8.    Provision  is  made 
for  the  accuracy  and  faithful  administration 
of  the  assayers,  Ac. ;  §§  lU  to  16.     Certain 
small   gold    and    silver  articles  require  no 
marks  or  stamp,  such  as  rings,  chains,  neck- 
lace beads,  filigree  work,  pencil  cases,  && ; 
§§  16  and  17.     Selling  or  exporting  plate 
not  duly  marked,  subjects  the  offender  to  a 
penalty ;  §  18.     Forging  or  imitating  dies 
or  marks,  stamping  with  forged  dies,  &c.,  and 
fraudulently  using  the  lawful  dies,  is  felony; 
§  19.    Members  of  the  incorporation  or  com- 

5 any  are  competent  witnesses  in  prosecutions; 
23.  The  act  is  declared  not  to  affect  the 
act  59  Geo.  III.  c  28,  for  establishing  an 
assay-office  in  Glasgow,  except  in  so  far  as 
alterations  are  expressly  made  upon  it,  nor  to 
affect  »ny  other  acts  for  granting  duties  on 
plate,  or  on  dealers'  licences;  §  24. 

Simindlns;  white  bread  or  "maine" 
bread.    Skene  k.  t. 

Simony;  an  unlawful  contract,  for  the 
presenting  of  a  clergyman  to  a  benefice,  or 
procuring  him  a  presentation ;  so  called  from 
its  supposed  resemblance  to  the  offence  of 
Simon  Magus.  Simoniacal  practices  afford 
a  ground  for  deposing  a  clergyman  who  has 
been  guilty  of  them,  or  for  depriving  a  pro- 
bationer of  his  license ;  and  the  same  penalty 
is  imposed  where  clergymen  or  probationers 
do  not  divulge  such  practices  to  the  preeby- 
tery  of  the  bounds,  as  soon  as  they  come  to 
their  knowledge.  By  the  canon  law,  the 
party  who  took  benefit  by  a  simoniacal 
paction,  even  without  his  knowledge,  was 
declared  incapable  <tf  holding  that  or  any 
other  benefice.  Bank.  B.  iv.  tit.  8,  §  2;  Act 
of  Assembly  30tt  May  1759 ;  <S<a»V,  B.  ii.  tit. 
8,  §  35  ;  B.  iv.  tit.  1,  §  30 ;  Jfore's  Notts,  p. 
Ixv. ;  Karnes'  Stat.  Lata  Ahidg.  Lt;  Connelton 
Parishes,  639,  et  seq. ;  Dunlop  on  Patronage,  § 
172.  See  HUn  Theological  Institutes,  p.  442. 
See  Minister.    Depi  tiliou. 

Simple  Contract.    In  England,  a  debt  by 


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•    SLI 


761 


simple  contract  is  where  the  contract  is  as- 
certained neither  by  matter  of  record,  nor  by 
deed  or  special  instrument,  but  by  mere  oral 
evidence,  or  notes  unsealed.  Tomlins'  Diet.  h.  t. 
Sine  Quo  Non.  It  frequently  happens,  that 
in  nominations  of  curators,  tutors,  trustees 
and  the  like,  one  of  the  nominees  is  named 
sine  quo  non;  and  the  legal  construction  of 
such  a  nomination  is,  that  by  the  death  or 
uon-acceptance  of  the  sine  quo  non  the  nomi- 
nation falls.  So  also  the  sine  quo  non  has  a 
pegative  on  the  acts  of  the  rest.  BeU's  Frine. 
§§  1993, 2074,  and  authorities  there  died.  See 
Curatory.  Quorum. 
•     Single  Escheat.    See  Esil^t. 

Single  Combat ;  was  admitted  in  the  law 
of  Scotland  as  a  species  of  evidence,  in  the 
case  of  capital  crimes,  where  the  accusation 
was  supported  by  presumptive  evidence  only. 
This  mode  of  proof  was  in  use  in  the  reign  of 
Kobert  III.  Ersk.  B.  iv.  tit.  2,  §  2 ;  Ross's 
Leet  i.  121.    See  Combat. 

Singular  Snocessor.  A  purchaser,  or 
other  disponee,  or  acquirer  by  titles,  whether 
judicial  or  voluntary,  is  called  a  singular 
successor,  in  contradistinction  to  the  heir, 
who  succeeds  by  a  general  title  of  Buccession 
or  universal  representation.  A  singular  suc- 
cessor, on  the  other  hand,  acquires  right  solely 
by  the  singular  title  acquired  from  the  former 
proprietor.  Ersh.  iii.  81 ;  Bell's  Com.  i.  23 ; 
BelPs  Prine.  §§  719,  783-6,  990.  See  Heir. 
Service. 

Sist  on  a  Snspennon ;  is  the  order  or  in- 
junction of  the  Lord  Ordinary  prohibiting 
diligence  to  proceed,  where  relevant  grounds 
of  suspension  have  been  stated  in  the  bill  of 
suspension.  Stair,  B.  iv.  tit.  52;  Ersh,  B. 
iv.  tit.  3,  §  18,  and  note  by  Ivory ;  Bank.  iii. 
9 ;  Maclaurin's  Sheriff  Prac.  17.  See  Sus- 
pension. 

Skat-Land.  See  Udal  Rights. 
Skeleton  Bills;  signed  blank  papers 
stamped  with  a  bill  stamp.  The  subscriber 
will  be  held  the  drawer  or  acceptor,  as  it 
may  be,  of  any  bill  afterwards  written  above 
his  name,  for  any  sum  which  the  stamp  will 
cover.  Ersk.  B.  iii.  tit.  2,  §  28,  note  by  Ivory; 
BeWs  Com.  i.  890  ;  BeWs  Prine.  §  321. 

Slains,  Letters  of;  were  letters  subscribed 
by  the  relations  of  a  person  who  had  been 
slain,  declaring  that  they  had  received  an 
assythment,  and  concurring  in  an  applica- 
tion to  the  Crown  for  a  pardon  to  the  offender. 
These  or  other  evidences  of  concurrence  were 
necessary  to  found  the  application ;  1457,  c. 
74,  and  1528,  c.  7 ;  1692,  c.  165,  No.  1 ; 
1693,  c.  174 ;  so  far  at  least  as  to  prevent  a 
pardon  from  being  pleaded  without  them. 
£ume,  i.  280 ;  ii.  478 ;  Ersk.  B.  iv.  tit.  4,  § 
105 ;  Bank.  i.  247.  See  Assytiiment.  Pardon. 
SUvery ;  the  condition  of  human  beings. 


when,  without  their  consent,  they  are  sub- 
jected to  the  will  of  another  human  being, 
whom  they  are  in  all  things  compelled  to 
obey.   In  the  B«mau  law,  slaves  were  things, 
not  persons;  and  at  first  they  were  placed 
entirely  at  the  disposal  of  their  masters,  who 
had  the  power  of  life  and  death  over  them. 
By  the  later  law,  however,  many  regulations 
were  made  to  protect  them  from  the  cruelty 
or  caprice  of  their  masters.    See  an  excellent 
work  on  the  subject  of  Roman  slavery  by 
William    Blair,    Esq.    advocate.       Slavery 
existed  in  Scotland  at  an  early  period,  as 
indeed  it  did  in  all  the  nations  of  Europe. 
See  Nalivi.    Cottiers  and  Salters.     Adscripti 
GUbcE.    The  general  character  of  slavery  was 
different  among  the  Homans  under  the  feudal 
system.    Almost  all  the  Roman  artificers  and 
domestics  were  slaves;  while  the  bondsmen  of 
the  feudal  ages  were  labourers  perpetually 
attached  to  the  soil  which  they  cultivated. 
A  slave  is  free  whenever  he  touches  British 
ground,  or  goes  on  board  a  ship  belonging  to 
the  British  navy.    But  it  is  said,  that  if  he 
return  to  the  country  of  his  former  master, 
he  may  be  reclaimed.    The  acte  passed  with  a 
view  to  abolish  slavery  in  the  British  colonies, 
and  to  suppress  the  slave-trade,  are  3  and  4 
Will.  IV.  c.  72  and  73 ;  5  and  6  WiU.  IV. 
c.  45 ;  6  and  7  Will.  IV.  c.  6, 16,  81,  and 
82. 

Sleeping  Partners ;  are  partners  of  a  com- 
pany, not  proclaimed  or  known  as  such 
There  may  be  dormant  partners  where  the. 
trade  is  apparently  carried  on  either  by  one 
individual,  or  by  fewer  individuals  than  the 
company  consists  of.  Dormant  partners  differ 
in  no  respect  from  ordinary  partners ;  they 
are  equally  liable  for  the  debts  of  the  com- 
pany. The  steps  to  be  taken  for  discovering 
and  proceeding  against  the  latent  partnera  in 
a  sequestration  of  a  company  are  suggested 
in  BelVs  Com.  ii.  673.  See  also  lb.  622,  648 ; 
Bdl's  Princ.  §  359 ;  Thomson  on  BiUs,  250. 
See  Society. 

Sleeping  of  Process.  In  the  judicial  pro- 
cedure of  the  Court  of  Session,  a  process,  in 
the  Outer-House,  is  said  to  be  asleep  when 
a  year  and  day  have  elapsed  without  any 
judicial  order  or  interlocutor  having  been 
pronounced  therein.    See  Wakening. 

Slip.  In  the  contract  of  insurance,  the 
policy  is  preceded  by  a  note  of  the  contract, 
made  out  for  the  purpose  of  asking  the  con- 
sent of  underwriters  to  the  proposed  policy. 
This  is  called  a  slip.  It  is  merely  a  jotting 
or  short  memorandum  of  the  terms,  to  which 
the  underwriters  subscribe  their  initiab,  with 
the  sums  for  which  they  are  willing  to  engage. 
It  has  no  force  as  a  contract  of  insurance ;  it 
cannot  be  received  in  evidence  to  contradict 
the  policy ;  aud  it  is  ineffectual  to  show  even 

Digitized  byCjOOQlC 


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prioritj  of  lalMoriptioD.  Whether  it  might 
ground  an  setion  to  oompel  the  signing  of  a 
policy,  has  never  been  tried.  The  form  of  a 
slip  will  be  found  in  Jurid.  Sfylet,  ii.  564. 
See  also  B«W$  Com.  i.  60S ;  BttTs  Prine.  §  469 ; 
lUmat,  ib.     See  Intwance.    PoUey. 

Basil  Oebtf.  1.  Jtutteet.— The  itatnte 
39  and  40  Geo.  III.  c.  46,  eommonlj  called 
the  Smail-D«bt  Act,  conferred  a  summary  civil 
joriadietion  on  justices  of  the  peace  in  small 
debt  causes.  This  statute  was  superseded  by  6 
Geo.  IV.  c.  48,  of  which  the  following  are 
the  prineipal  provisions :  It  is  made  compe- 
tent for  any  two  or  more  justices  of  the  peace 
to  hear  and  determine  all  causes  and  com- 
plaints brought  before  them  concerning  the 
recovery  of  debts,  or  the  making  any  demand 
effiectuai,  provided  the  debt  or  demand  do  not 
exceed  L.5  sterling,  exclusive  of  expenses ; 
§  2.  All  such  causes  proceed  upon  a  com- 
pl^t,  agreeably  to  a  form  (A)  subjoined  to 
the  act,  stating  shortly  the  ground  of  action, 
and  oMicludiiig  against  the  defender ;  to 
which  complaint,  and  on  the  same  paper,  the 
clerk  of  tlM  peace  adjects  a  warrant  signed 
by  him,  agreeably  to  the  form  subjoined  to 
the  act,  containing  authority  to  cite  the  de- 
fender to  appear  at  the  next  meeting  of  the 
justices  in  the  district  within  which  he  re- 
sides, or  where  the  meetings  of  the  court  are 
held  weekly ;  then,  in  the  option  of  the  pur- 
suer, at  the  second  or  third  «iiet  of  court  n-om 
the  date  of  the  warrant,  the  diet  not  being 
sooner  in  either  case  than  the  sixth  day  after 
the  date  of  citation,  and  for  summoning  wit- 
nesses at  either  party's  instance  to  the  same 
day  and  place.  A  copy  of  the  complaint  and 
warrant,  with  a  citation  annexed,  and  also  a 
copy  of  the  account  or  other  ground  of  action, 
is  delivered  by  a  constable  or  peace-officer  to 
the  defender  personally,  or  left  at  his  dwell- 
ing-place ;  in  which  latter  case,  if  the  de- 
fender de  not  appear,  he  must  be  cited  again, 
either  personally  or  at  his  dwelling-place, 
upon  the  words  de  novo  being  signed  and  sub- 
joined to  the  original  complaint,  or  signed 
and  inserted  in  the  procedure  book  kept  by 
the  clerk,  to  appear  either  at  the  next  stated 
meeting,  or  at  a  meeting  to  be  held  by  ad- 
journment for  that  purpose,  not  sooner  than 
three  days  from  the  date  of  the  first  meeting, 
with  certification  that  if  he  do  not  then  ap- 
pear he  shall  be  held  as  confessed.  If  the 
defender  have  been  cited  at  first  to  a  diet  of 
court  not  sooner  than  twelve  free  days  from 
the  date  of  citation,  the  officer,  in  case  the 
defender  have  not  been  found  personally  at 
the  time  of  the  first  citation,  may  cite  him  a 
second  time,  either  personally  or  at  his  dwell- 
ing-place, to  the  same  diet  of  court,  on  the 
origmal  warrant,  and  without  previously  re- 
porting an  execution  of  the  firet  citation  to 


the  court.  Such  second  citation  must  not  be 
given  sooner  than  the  sixth  day  aiier  the  first, 
nor  later  than  the  sixth  day  before  the  diet 
to  which  the  defender  is  dted  for  the  aecaai 
time :  if  the  defender  do  not  then  appear,  he 
is  held  as  confessed.  The  constable  must  in 
all  cases  return  an  ezecation  of  citation 
signed  by  him,  or  appear  and  make  oath  that 
he  cited  the  defender  in  manner  foresaid;  §  3. 
Where  a  constable  is  required  by  either 
party  to  cite  witnesses,  he  must  lodge  in  the 
clerk's  hands  a  written  execution  of  every 
such  citation  at  or  before  the  diet  to  which 
the  defender  is  cited,  or  otherwise  verify  in 
court  the  execution  of  citation,  as  the  justices* 
see  fit.  And  if  the  witneaaes  cited  do  not 
appear,  a  new  warrant  may  be  obtained  to 
compel  their  attendance  at  next  stated  or 
adjourned  meeting,  under  a  penalty  not  ex- 
ceeding twenty  shillings,  to  be  awarded  by 
the  justices,  in  case  a  sufficient  excuse  be  not 
ofiTered  and  sustained.  This  penalty  is  pay- 
able to  the  party  at  whose  instance  the  wit- 
ness was  cited,  and  may  be  recovered  in  the 
same  manner  as  other  small  debts.  Or,  in 
the  option  of  the  justices,  tiie  witness  fiuUng 
to  appear,  without  a  sustained  excuse,  may  be 
imprisoned  for  any  time  in  the  eonnty  jsil 
not  exceeding  ten  days.  But  the  peniJty  is  ' 
not  exigible,  nor  the  witness  liable  to  im- 
prisonment, unless  the  second  citation  have 
been  given,  not  later  than  the  sixth  day  be- 
fore the  diet  of  court  to  which  he  has  been 
cited ;  §  4.  When  the  parties  appear,  the 
justices  hear  them  viva  wet,  and  examine 
witnesses  upon  oath,  and  ako  the  parties  by 
declaration  or  upon  oath ;  but  no  practi- 
tioners of  the  law  are  allowed  to  plead  for 
them  either  wm  vte»  or  in  writing ;  and  the 
pleadings  must  not  be  taken  down  in  writing 
or  entered  on  record ;  §  5.  If  a  defender, 
who  has  been  duly  cited  anyhow,  do  not 
^pear  by  himself,  or  a  substitute  not  a  prac- 
titicmer,  he  is  held  as  confessed,  unless  he 
send  an  excuse  by  one  of  his  family,  satisfying 
the  justices  that  delay  ought  te  be  gruited ; 
in  which  case,  or  for  some  other  good  reason, 
the  justices  may  adjotim  the  cause  to  the 
next  stated  meeting,  or  other  day  to  be  spe- 
cially appointed ;  §  6.  A  pursuer  or  de- 
fender, if  the  justices  see  cause,  may  be  heard 
by  one  of  his  family ;  or  if  fjie  pursuer  be 
not  resident  within  twenty  mUes  of  the  place 
where  the  court  is  held,  the  justices,  if  they 
see  fit,  may  hear  him  by  a  person  holding  a 
written  mandate  for  that  purpose,  the  said 
mandatary  not  being  a  l^al  practitioner; 
§  7.  Where  decree  has  been  pronounced  in 
absence  of  the  defender,  he  may,  upon  con- 
signing the  sum  decerned  for  in  the  clerk's 
hands,  obtain  warrant  under  the  clerk's  hands 
at  any  time  before  the  days  of  the  charge  are 


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expired,  sisting  execnti(»i  nntil  the  next  eomrt- 
day,  and  containing  an  authority  to  cite  the 
pursuer  and  witnesses.  This  warrant  being 
serred  on  the  pnisner  in  the  manner  already 
pointed  out,  is  an  authority  for  having  the 
matter  reheard  at  next  eenrt-day,  provided 
it  be  not  sooner  than  the  sixth  day  after  per- 
sonal citation,  or  tiie  second  citation  left  at 
bis  dwelling-place,  or,  if  so,  at  the  next  court- 
day  thereafter.  The  justices  may  delay  such 
rehearing  to  snch  time  as  may  be  thought  fit. 
In  like  manner,  where  decree  of  absolvitor 
has  passed  in  absence  of  the  pursuer,  he  may 
at  any  time,  within  one  calendar  month 
thereafter,  upon  consigning  two  shillings  and 
sixpence  to  be  paid  to  the  defender,  obtain  a 
warrant  for  citing  the  defender  and  witoesses; 
.which  being  served  on  the  defender  in  man- 
ner foresaid,  is  an  authority  for  having  the 
matter  reheard,  as  is  pointed  out  in  the  case 
of  a  rehearing  at  the  defender's  instance ; 
{  8.  The  constable,  in  the  event  of  his  re- 
iuming  a  false  execution,  or  otherwise  ne- 
glecting his  duty,  is  punishable  by  fine  not 
exceeding  208.,  or  imprisonment  for  not  more 
than  ten  days.  Recourse  against  the  con- 
stable at  common  law  is  reserved  to  the  party 
-njnred ;  §  9.  The  clerk  must  keep  a  book 
in  which  must  be  entered  the  names  and  de- 
agnations  of  the  parties,  and  whether  present 
or  absent  at  the  calling  of  the  cause — the 
nature  aaA  amount  of  the  daim  and  date  of 
in-giving — the  mode  of  citation — the  several 
interloontors  of  the  justices — andjthe  decree 
dated  uid  signed  by  the  justices  or  by  the 
proses,  if  more  than  two,  agreeably  to  the 
form  annexed  to  the  act.  A  copy  of  the 
•decree,  containing  warrant  for  arresting,  or 
.poinding,  or  for  imprisonment,  together  with 
a  note  of  the  expenses  awarded,  is  annexed  to 
the  complaint.  And  this  copy  of  decree, 
signed  and  delivered,  is  a  warrant  for  execn- 
tion  alter  ten  free  days  from  the  date  of  pro- 
nouncing the  decree,  if  the  party  agunst 
whom  it  has  been  given  was  present,  by  him- 
self OP  family,  when  it  was  pronounced ;  or  if 
he  was  not  present,  execution  only  proceeds 
after  a  charge  of  ten  free  days,  given  in  com- 
mon form  by  the  constable ;  §  10.  The  jns- 
.tices,  if  they  see  fit,  may  direct  sums  found 
due  to  be  paid  by  bstalments ;  §  II.  The 
execution  of  the  poinding  by  the  constable  is 
.summary,  by  carrying  the  poinded  efiTects  to 
the  nearest  market  town,  kirk  town,  or  vil- 
lage in  the  parish ;  and  after  their  being  ap- 
praised, and  after  one  hour's  notice,  selling 
them  by  auction  at  the  cross,  or  other  most 
public  place,  between  the  honrs  of  eleven  and 
one,  or  any  other  later  hour  fixed  by  the  jus- 
tices. The  overplus  of  the  price,  after  pay- 
ment of  the  debt  and  expenses  of  process,  if 
any,  and  of  the  expense  of  carrying  the 


poinding  into  exeention,  is  delivered  to  the 
owner ;  or  the  effscts,  if  not  sold,  delivered  to 
the  creditor  at  the  appraised  value,  to  the 
amount  of  his  debt,  &c.  If  the  place  of  sale 
is  not  a  market  town,  but  only  a  kirk  town 
or  village,  two  days'  previous  notice  must  be 
given  at  the  parish-church  door  on  Sunday 
after  the  forenoon  service;  §  12.  In  aU 
cases  of  execution  by  poinding  or  imprison- 
ment, the  constable  employed  must,  on  or 
before  the  next  court-day  thereafter,  make  a 
return,  either  verbally  or  in  writing,  to  the 
clerk,  of  the  date  and  manner  of  the  execu- 
tion, the  number  of  assistants  employed,  and 
the  sum,  if  any,  recovered ;  and  in  the  case 
of  a  poinding,  stating  farther  the  value  at 
which  the  goods  were  appraised — the  time 
and  place  of  sale — the  charges  paid  for  con- 
veying or  warehousing  goods,  where  such  have 
been  incurred— and  the  price  for  which  the 
goods  sold  where  a  sale  was  made.  If  the 
execution  was  by  imprisonment,  he  must  state 
the  jail  in  which  the  debtor  was  incarcerated. 
These  particulars  are  entered  by  the  clerk  in 
the  procedure  book,  or  other  book  kept  for 
the  purpose,  and  laid  before  the  justices  at 
next  meeting,  and  exhibited  to  any  person 
desiring  inspection  of  them ;  §  13.  Decrees 
pronounced  by  the  justices  under  authority  <^ 
this  act  are  not  subject  to  advocation,  sus- 
pension, appeal,  or  other  stay  of  execution, 
except  in  the  case  of  consignation  for  a  re- 
hearing, as  before  provided ;  nor  can  they  be 
set  aside  by  reduction  before  the  Court  of 
Session,  except  on  the  ground  of  malice  and 
oppression  on  the  part  of  the  justices.  Bven 
such  reduction  is  incompetent  unless  brought 
within  a  year  after  the  date  of  the  decree  of 
the  justices ;  §  14.  When  a  reduction  is 
brought,  the  pursuer  must,  before  the  sum- 
mons of  reduction  is  called,  find  caution  for 
the  expenses  which  may  be  awarded  against 
him  ;  ^  15.  One  justice,  in  case  no  more  be 
present,  may  hold  a  court  for  the  purpose  of 
calling  the  roll  of  causes — of  pronouncing 
deo'ees  in  absence — receiving  returns  of  exe- 
cution of  citations — and  granting  warrants  of 
citations  de  novo,  but  for  no  other  purpose ; 
§  16.  Provision  is  made  respecting  the  fees 
payable  to  the  clerk,  the  ofBcers  or  constables, 
and  the  crier ;  §  17.  An  abstract  of  the 
table  of  fees  must  be  printed  on  the  com- 
plMut,  and  copy  thereof  for  service ;  and  a 
copy  of  the  table,  signed  by  two  justices  and 
the  clerk,  is  hung  np  in  the  court-room  and 
the  clerk's  ofSce.  The  fees  are  subject  to 
modification  by  the  justices ;  §  18.  Where 
the  clerk  or  other  officer  of  court  exacts  any 
fee  not  anthorised  by  the  act,  the  person  so 
offending  shall  he  liable  to  a  penalty  not  ex- 
ceeding, if  he  is  a  clerk  or  depute-clerk,  L.5, 
if  a  constable  or  other  officer,  20s.  for  each 

Digitized  byLjOOQlC 


764 


SMA 


SMA 


offence.  These  penalties  are  awarded  by  the 
jaKtices  on  complaint  from  the  party  ag- 
grieved, and  satisfactory  proof,  and  are  paid  to 
the  party  complaining,  or  to  the  poor,  or 
partly  to  both,  as  the  jiislices  see  6t.  The 
justices  may  further  punish  their  officers  by 
suspension  or  dismissal  for  this  and  other 
offences ;  §  19.  An  account  must  be  kept  by 
the  clerk  of  all  court-fines  awarded  by  the 
justices,  which,  where  not  otherwise  provided 
for  by  the  act,  are  paid  to  the  poor  as  the 
justices  direct ;  §  20.  The  justices  of  each 
county  are  empowered,  at  quarter  sessions, 
to  maJce  suitable  divisions  of  the  county  into 
districts,  or  to  alter  the  divisions  already 
made ;  within  which  they  are  directed  to 
meet  at  such  time  and  place  as  they  may  fix 
at  quarter  sessions,  in  order  to  carry  the 
purposes  of  the  act  into  execution.  These 
meetings  may  be  adjourned  to  any  other  law- 
ful day  at  the  same  place.  Of  these  divi- 
sions into  districts,  and  of  the  stated  times 
and  places  of  meetings  so  to  be  appointed,  or 
of  the  alterations  of  such  divisions  or  stated 
meetings,  the  justices,  at  their  quarter  ses- 
sions, must  order  due  notice  to  be  given,  by 
advertisement  at  the  church-doors  of  every 
parish  in  the  county,  at  least  two  Sundays 
previous  to  the  first  stated  meeting  so  ap- 
pointed or  altered ;  §21.  Where  the  clerk 
faib  to  attend  personally,  or  by  depute,  at 
any  of  the  district  meetings  of  which  he  has 
had  due  notice,  the  justices  present  at  the 
meeting  may  name  an  interim-clerk,  who 
may  be  removed  by  subsequent  quarter  ses- 
sions, and  another  clerk  appointed  from  time 
to  time  ;  §  22.  The  justices  are  empowered, 
at  their  quarter  sessions,  to  make  from  time 
to  time  such  rules  and  orders  as  may  be 
thought  necessary  for  carrying  the  provisions 
of  the  act  into  effect ;  such  rules  not  being 
inconsistent  with  the  conditions  of  the  act 
itself  or  contrary  to  law.  These  rules  and 
orders  remain  in  force  until  repealed  by  the 
justices  at  their  quarter  sessions,  or  by  the 
Court  of  Session  or  Justiciary  at  Edinburgh, 
or  by  the  Circuit  Court  of  Justicianr,  on  the 
application  of  two  or  more  justices;  §23.  No 
person  is  exempt  from  the  jurisdiction  of  the 
court  under  this  act,  on  account  of  privilege, 
as  being  a  member  of  any  other  court ;  §  24. 
The  act  does  not  extend  to  any  debt  where 
the  title  to  land  or  other  heritable  right  is  in 
question,  nor  to  any  debt  or  matter  arising 
upon  or  concerning  the  validity  of  wills  or 
contracts  of  marriage,  although  such  debts 
do  not  amount  to  L.5 ;  nor  to  gaming  debts, 
or  debts  contracted  for  spirituous  liquors; 
§  25.  The  constables  or  officers  of  the  peace 
«re  declared  exempt  from  the  penalties  for 
selling  goods  or  effects  under  authority  of  the 
decree  and  warrants  of  the  justices  by  public 


sale  or  auction,  although  such  constables  or 
officers  be  not  licensed  auctioneers ;  §  2& 
Solicitors  or  procurators  in  inferior  courts,  or 
the  partners  of  such  solicitors  or  procurators, 
are  prohibited  from  acting  as  justices  of  the 
peace  while  they  continue  to  he  legal  practi- 
tioners ;  §  27. 

The  act  12  and  13  Vict.  c.  34, 1849,  amends 
the  previous  act,  and  gives  the  form  of  com- 
plaint on  which  the  claim  is  to  proceed. 

2.  Sheriffs. — The  sheriff's  exdnsive  juris* 
diction  in  small  debts  was  introduced  by  6 
Qoo.  lY.  c.  24.  This  was  repealed  by  10  Oeo. 
I Y.  c.  66,  which  has  in  its  turn  been  repealed 
by  the  existing  act,  1  Yict.  c.  41.  The  chief 
provisions  of  that  statute  are  the  following : 
bherifi^  are  empowered  to  determine  civil 
causes,  prosecutions  for  statutory  penalties, 
and  maritime  civil  causes,  where  the  debt, 
demand,  or  penalty  does  not  exceed  the  value 
of  L.8,  6s.  Sd.,  exclusive  of  expense  and  fees 
of  extract,  the  pursuer  or  prosecutor  being 
held  to  have  passed  from  all  claim  beyond 
the  sum  concluded  for ;  §  2.  All  snch  causes, 
unless  otherwise  provided  in  the  act,  proceed 
upon  summons  or  complaint,  according  to  the 
form  in  schedule  (A.)  annexed  to  the  act,  and 
containing  warrant  to  arrest  upon  the  de- 
pending action,  stating  shortly  the  origin  of 
debt  or  ground  of  action,  and  concluding 
against  the  defender.  This  summons  or  com- 
plaint being  signed  by  the  sheriff-clerk,  is  a 
warrant  to  a  sheriff's  officer  to  snmmon  the 
defender  to  appear  at  the  time  and  place 
mentioned  in  it ;  not  being  sooner  than  upon 
the  sixth  day  after  the  citation ;  and  the  same, 
or  the  copy  thereof,  served  on  the  defender, 
is  a  sufficient  warrant  for  summoning  such 
witnesses  and  havers  as  either  party  requires. 
A  copy  of  the  summons  or  complaint,  with 
the  citation  annexed,  and  also  a  copy  of  the 
account,  if  any,  must  be  served  at  the  same 
time  on  the  defender,  personally,  or  at  his 
dwelling-place,  or  in  case  of  a  company,  at 
their  ordinary  place  of  business.  The  sum- 
moning officer  must,  in  all  cases  under  the 
act,  retnm  a  signed  execution  of  citation,  or 
appear  and  give  evidence  on  oath  of  tlie  cita- 
tion having  been  duly  made ;  and  citatkms 
given  by  an  officer  alone,  without  witnesses, 
and  executions  subscribed  by  the  officer,  are 
good  and  effectual ;  §  3.  Any  cause  before 
the  sheriff's  ordinary  court,  in  which  the  debt, 
&C.,  did  not  originally  exceed  L.8,  Gs.  Sd.,  or 
in  which,  by  an  interim  decree  or  otherwise, 
it  has,  previous  to  the  closing  of  the  record, 
been  reduced  to  that  sum,  may,  with  the  pur- 
suer's consent,  be  remitted  to  the  small-debt 
roll  by  the  sheriff,  either  ex  pnprio  motu,  or 
on  the  motion  of  a  party.  If  the  pursuer  do 
not  consent,  the  provisions  of  the  act  as  to 
the  fees  or  expenses  to  be  allowed  in  causes 

Digitized  byLjOOQlC 


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SMA 


765 


below  L.8,  6s.  8d.,  brought  not  according  to 
the  gnmmary  form  provided  in  the  act,  are 
applied  to  such  causes  subsequent  to  the  pro- 
poaition  for  remit,  if  the  sheriff  think  fit  so 
to  modify  the  expenses;  see  §  36.  When  a 
case  has  been  remitted  by  the  sheriff-substi- 
tute from  the  ordinary  court  to  the  small- 
debt  court,  an  appeal  is  competent  to  the 
sheriff  against  the  remit,  but  no  reclaiming 
petition  is  allowed  against  the  remit ;  §  4. 
The  sheriff  may  try,  in  his  small-debt  court, 
in  the  above  summary  way,  applications  by 
landlords  or  others,  baring  right  to  the  rents 
and  hypothec,  for  sequestration  and  sale  of  a 
tenant's  effects  for  recovery  of  rent,  provided 
the  rent  or  balance  claimed  do  not  exceed 
L.8,  6s.  8d.  The  summons  and  warrant  of 
sequestration  and  procedure  must  be  accord- 
ing to  the  forms  directed  in  schedule  (B). 
Provision  is  made  respecting  the  appraise- 
ment, the  inventory  and  other  procedure,  in 
carrying  the  sequestration  into  effect;  §  5. 
The  pursuer  of  any  civil  cause  may  use  ar- 
restment, on  the  dependence  of  the  action,  of 
any  money  or  effects  to  the  amount  of  L.8, 
6s.  8d.,  owing  or  belonging  to  the  defender,  in 
the  hands  of  any  third  party.  The  arrestment 
ceases  by  the  mere  lapse  of  three  months,  nn- 
less  it  be  renewed  by  a  special  order  or  war- 
rant intimated  to  the  arrestee,  in  which  case 
it  continues  in  force  for  the  like  period  and 
under  the  same  conditions ;  or  unless  an  action 
of  furthcoming  or  multiplepoinding  have  been 
raised  before  the  end  of  the  three  months,  in 
which  case  the  arrestment  continues  in  force 
until  the  termination  of  the  action;  §  6. 
Wages  of  labourers  and  manufacturers,  so  far 
as  necessary  for  their  subsistence,  are  deemed 
alimentary  ,and,in  like  manner  as  servants' fees 
and  other  alimentary  funds,not  liableto  arrest- 
ment ;  §  7.  Arrestment  may  be  loosed,  on  the 
defender's  lodging  with  the  sheriff-clerk  a  bond 
of  caution  by  one  or  more  sufficient  cautioners, 
to  the  satisfaction  of  the  sheriff-clerk,  agree- 
ably to  the  form  in  schedule  (C) ;  or  on  his 
consigning  in  the  hands  of  the  clerk  the 
amount  of  the  debt  or  demand,  with  5s.  or 
10s.  for  expenses,  according  as  the  action  was 
for  a  sum  above  or  below  L.5  ;  or  on  his  pro- 
ducing evidence  of  having  obtained  decree  of 
absolvitor,  or  having  paid  or  consigned  the 
debt.  A  certificate  of  the  sheriff-clerk 
.operates  as  a  warrant  of  loosing  the  arrest- 
ment ;  §  8.  Provision  is  made  for  rendering 
arrestment  effectual  by  furthcoming  sum- 
marily, and  the  forms  of  the  summons  and 
complaint  are  given  in  schedule  (D) ;  §  9. 
An  action  of  multiplepoinding  may  be  raised 
in  the  same  summary  way,  in  name  of  the 
holder  of  a  fund  not  exceeding  L.8,  6s.  8d. ; 
see  §  10,  and  rekUive  uhedule.  Where  the 
defender  intends  to  plead  a  countar  account 


or  claim  against  the  debt,  he  mnst  serve  a 
copy  of  such  counter  account  or  claim,  by  an 
officer,  on  the  pursuer,  in  the  form  set  forth 
in  schedule  (A),  or  to  the  like  effect,  at  least 
one  free  day  before  the  day  of  appearance, 
otherwise  it  cannot  be  heard  except  with  the 
pursuer's  consent,  but  action  is  reserved  for 
it ;  §  11.  Provision  is  made  for  compelling 
the  attendance  of  witnesses,  by  imposing 
penalties  in  case  of  their  neglect;  §  12. 
When  the  parties  appear,  the  sheriff  hears 
them  viva  voce,  and  examines  witnesses  or 
havers  upon  oath.  He  may  also  examine  the 
parties,  and  put  them  or  any  of  them  upon 
oath,  in  case  of  oath  in  supplement  being  re- 
quired, or  a  reference  made ;  and  if  he  see 
causa,  he  may  remit  to  persons  of  skill  to  re- 
port, or  to  any  person  competent  to  take  and 
report  in  writing  the  evidence  of  witnesses  or 
havers  unable  to  attend,  upon  special  cause 
shown.  Such  cause  must,  in  all  cases,  be 
entered  in  the  book  of  causes  kept  by  the 
sheriff-clerk.  Due  notice  is  given  of  the  ex- 
amination to  both  parties.  Thereupon  the 
sheriff  may  pronounce  judgment.  The  decree, 
stating  the  amount  of  expenses  (if  any)  found 
due  to  any  party  (which  may  include  personal 
charges  if  the  sheriff  think  fit),  and  containing 
warrant  for  arrestment,  and  for  poinding  and 
imprisonment,  when  competent,  is  directed  to 
be  annexed  to  the  summons  or  complaint; 
and  on  the  same  paper  with  it,  agreeably  to 
the  form  in  schedule  (A),  or  to  the  like  effect. 
The  decree  and  warrant  being  signed  by  the 
clerk,  are  a  sufficient  authority  for  instant 
arrestment,  and  also  for  poinding  and  sale 
and  imprisonment,  where  imprisonment  is 
competent,  after  the  lapse  of  ten  free  days 
from  the  date  of  the  decree,  if  the  party 
against  whom  it  has  been  given  was  personally 
present  when  it  was  pronounced ;  but,  if  he 
was  not  present,  poinding  and  sale  and  im- 
prisonment can  only  proceed  after  a  charge  of 
ten  free  days,  by  serving  a  copy  of  the  com- 
plaint and  decree  on  the  party  personally  or 
at  his  dwelling-place.  If  any  decree  be  not 
enforced  by  poinding  or  imprisonment  within 
a  year  from  its  date,  or  from  a  charge  for 
payment  given  upon  it,  the  decree  cannot  be 
enforced  without  a  new  charge  given  as  afore- 
said ;  §  13.  No  procurator,  igolicitor,  or  legal 
practitioner  is  allowed  to  appear  or  plead  for 
any  party  without  leave  of  the  court,  on 
special  cause  shown.  Nor  can  any  of  the 
pleadings  be  reduced  to  writing,  or  entered 
on  any  record,  unless  with  leave  of  the  court, 
obtained  in  consequence  of  any  difficulty  in 
point  of  law,  or  of  the  special  circumstances 
of  any  particular  case.  When  the  sheriff 
orders  pleadings  to  be  reduced  to  writing,  the 
case  is  thenceforth  conducted  according  to  the 
ordinary  forms  and  proceedings  in  civil  causes, 

Digitized  byLjOOQlC 


766 


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BMA 


and  in  proMcntions  for  lUtatorj  penalties  ; 
§  14.  A  defender  not  appearing  penonally  or 
by  one  of  his  familj,  or  by  inch  person,  not 
being  an  officer  of  eoart,  as  the  sheriff  shall 
allow,  is  held  as  confessed,  and  the  other 
party  obtains  decree  against  him.  In  like 
manner,  if  the  pursner  fail  to  appear,  person- 
ally or  otherwise,  the  defender  obtains  decree 
o{  ab$olvitor ;  anless,  in  either  ease,  a  safficient 
excuse  for  delay  be  stated ;  on  which  aoeoant, 
or  on  account  of  the  absence  of  witnesses,  or 
any  other  good  reason,  the  sheriff  may  adjourn 
any  ease  to  the  next  or  any  other  conri-day, 
and  ordain  the  parties  and  witnesses  then  to 
attend ;  §  15.  Where  a  decree  has  been  pro- 
nounced in  absenoe  of  a  defender,  he  may,  on 
eonsigning  the  expenses  decerned  for,  and  the 
sum  of  10s.  to  meet  farther  expenses,  in  the 
hands  of  the  clerk,  at  any  time  before  a  charge 
is  given,  or  in  ti>e  event  of  charge  being  given 
before  implement  of  the  decree  has  followed 
on  it  (provided,  in  the  latter  case,  the  period 
from  the  date  of  the  charge  does  not  exceed 
three  months),  obtain  from  the  clerk  a  war- 
rant, signed  by  him,  sisting  ezeention  till  the 
next  court-day,  or  to  any  snbseqaent  court- 
day  to  which  the  same  may  be  a4Joumed,  and 
eontaining  authority  for  citing  the  other 
party,  and  witnesses  and  havers  for  both 
parties  ;  and  such  warrant  being  served  upon 
the  other  party,  is  aa  authority  for  hearing 
the  cause.  In  like  manner,  where  absolvitor 
has  passed  in  absence  of  the  pursuer  or  pro- 
secutor, he  may,  at  any  time  within  one 
calendar  month,  on  consigning  in  the  hands 
of  the  clerk  the  sum  awarded  by  the  sheriff, 
as  the  expenses  of  the  defender  and  his  wit- 
nesses, with  5s.  to  meet  further  expenses,  ob- 
tain a  warrant,  signed  by  the  derk,  for  citing 
the  defender  and  witnesses  for  both  parties ; 
and  this  warrant,  being  served  upon  the  de- 
fender, is  an  authority  for  hearing  the  cause. 
The  sum  of  expenses  awarded  by  the  sheriff, 
and  consigned  as  aforesaid,  is  in  every  case 
paid  over  to  the  other  party,  unless  the  con- 
trary be  specially  order«l  by  the  Court.  All 
such  warrants  for  hearing  are  in  force,  and 
may  be  served  by  any  sheriff-officer  in  any 
eounty,  without  indorsation,  or  other  authority 
than  this  act ;  §  16.  The  sheriff-clerk  is  di- 
rected to  keep  a  book,  in  which  must  be  en- 
tered all  causes  conducted  under  the  authority 
of  the  act,  &C. ;  §  17.  The  sheriff  may,  if  he 
think  proper,  direct  the  sums  found  due  to 
be  paid  by  instalments  weekly,  monthly,  or 
quarterly,  according  to  the  circumstances  of 
the  party  found  liable,  and  under  such  condi- 
tions and  qualifications  as  he  thinks  fit  to 
annex ;  §  18.  A  decree  may  be  enforced  in 
any  other  county  besides  that  in  which  it 
is  issued,  provided  it,  or  an  extract  of  it,  be 
endorsed  by  the  sheriff-elerk  of  such  other 


county ;  $  19.  Provision  is  made,  in  detail, 
for  carrying  into  effect  the  sequestration,  or 
poinding  and  sale,  in  a  summary  way,  by  ap- 
praisement, &C. ;  §  20.  In  all  ehai^pes  and 
arrestments,  and  executions  of  charges  and 
arrestments  under  this  act,  one  witnea  is  suf- 
ficient ;  §  21.  Aetion  of  damages  for  loss  or 
injury  by  riots,  authorised  by  3  Qtw>.  IV.  e. 
33,  where  the  sum  concluded  for  does  not  ex- 
ceed JiS,  6s.  8d.,  may  be  heard  and  deter- 
mined in  the  summary  way  provided  by  iiu» 
act ;  as  likewise  actions  for  recovery  of  assesa- 
ments,  by  virtue  of  9  Geo.  IV.  c  39,  although 
the  amount  of  the  aeseesments  exceeds  L.8, 
6s.  8d.;  §  22.  The  sheriffs  must,  in  addition  to 
their  ordinary  soialMebt  eourts,  by  them- 
selves or  their  substitutes,  bold  circuit  courts 
for  the  purposes  of  tiie  act.  Provisiim  is  made 
for  the  times  and  places  at  which  sneh  eonrta 
shall  be  held,  the  attendance  of  sheriff-clerks, 
by  themselves  or  deputes,  &c. ;  §f  23,  24,  25. 
The  sheriff  is  directed,  three  months  before 
holding  a  circuit  court,  to  ^portion  the 
parishes  to  be  within  the  jariraiction  of  the 
court.  And  all  eaases  are  brought  before  the 
ordinary  small-debt  court,  or  any  circuit  oonrt 
within  the  jurisdiction  of  which  the  defender 
resides,  or  to  the  jurisdiction  of  which  he  is 
amenable.  But  if  there  be  more  defendsra 
than  one,  in  one  cause  of  acti<Hi,  amenable  to 
the  jurisdiction  of  different  courts,  or  if,  froa 
any  other  cause,  the  sheriff  think  it  just,  be 
may,  on  summary  application  in  writing,  mad* 
by  or  for  any  pursuer,  lodged  with  the  dieriff- 
clerk,  or  on  verbal  application  made  by  or  f*r 
the  pursuer  in  open  court,  order  a  summoHS 
or  complaint  to  be  issued,  and  the  cause  to  be 
brought  before  his  ordinary  small-debt  court, 
or  any  of  his  circuit  courts;  §  26.  The 
sheriff  ma^  adjourn  causes  from  one  court  t* 
another ;  §27.  Provision  is  made  for  accoanta 
being  given  in  to  Exchequer  of  the  expensea 
of  sheriffs  and  of  sheriff-derks  at  circuit 
courts ;  §  29.  No  decree  given  by  any  aherii^ 
in  any  cause  decided  under  authority  of  this 
act,  is  subject  to  reduction,  advocation,  sna- 
pension,  or  appeal,  or  any  other  form  of  re- 
view, or  stay  of  execution,  other  than  provided 
by  this  act,  either  on  account  of  any  omissioa 
or  irregularity,  or  informality  in  the  citatioa 
or  proceedings,  or  on  the  merits,  or  on  any 
other  ground ;  §  30.  Any  one  thinking  himsetf 
aggrieved  by  a  decree  of  a  sheriff  under  this  act, 
may  bring  the  case  by  appeal  before  the  aezl 
Circuit  Court  of  Justiciary,  or,  where  there 
are  no  circuit  courts,  before  the  High  Ckxirt 
of  Justiciary  at  Edinburgh,  in  the  manner 
directed  by  20  Q«o.  II.  except  in  so  fu-  aa 
altered  by  this  act.  (For  this  mode  of  i^peal, 
see  the  article  Appeal  to  Oiremt  Cotut)  Such 
appeal  is  only  competent  when  founded  oo  the 
ground  of  malice  and  oj^resskn  on  the  part 


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of  the  sheriff;  or  on  such  deriations,  in  point  of 
form,  from  the  statutory  enactments,  as  the 
Court  may  think  took  place  wilfully,  or  as 
have  prevented  substantial  justice  Arom  hav- 
ing been  done;  or  on  incompetency,  including 
defect  of  jurisdiction  of  the  sheriff.     Such  ap- 
peals are  heard  and  determined  in  open  courts ; 
and  the  Court  may  correct  such  deviation  in 
point  of  form,  or  remit  the  cause  to  the  sheriff, 
with  instructions,  or  for  rehearing  generally. 
It  is  not  competent  to  produce  or  found  upon 
any  document,  as  evidence  on  the  merits  of 
the  original  cause,  which  was  not  produced 
to  the  sheriff  when  the  case  was  heard,  and  to 
which  bis  signature  or  initials  were  not  then 
affixed,  which  he  only  does  if  required ;  nor  to 
found  upon  or  refer  to  the  testimony  of  any 
witness  not  examined  before  the  sheriff,  and 
whose  name  is  not  written  by  him,  when  the 
case  is  heard,  upon  the  record  copy  of  the 
summons ;  which  he  does  when  specially  re- 
quired to  that  effect.    No  sist  or  stay  of  the 
process  and  decree,  and  no  certificate  of  ap- 
peal, can  be  issued  by  the  sheriff-clerk,  except 
upon  consignation  of  the  whole  sum,  if  any, 
decerned  for  by  the  decree,  and  expenses  if  any, 
and  security  found  for  the  whole  expenses 
which  may  be  incurred  and  found  due  under 
the  appeal ;  §  31.    Provision  is  made  for  the 
fees  payable  under  this  act  to  the  clerk,  officer, 
and  crier ;  §  32.    It  is  enacted,  that  a  copy 
of  section  32,  containing  the  fees,  be  printed 
on  each  summons  or  complaint,  and  on  each 
service  copy,  and  hung  up  in  every  sheriff- 
clerk's  office,  and  in  every  sheriff-court  place, 
&c ;  §  33.    Provision  is  made  for  fining  of- 
ficers who  neglect  their  duty,  reserving  all 
further  claim  of  damages  against  them ;  §  34. 
No  person  is  exempt  from  the  jurisdiction  of 
the  sheriff  in  any  cause  raised  under  this  act, 
on  account  of  privilege,  as  being  a  member  of 
the  College  of  Justice,  or  otherwise ;  §  35. 
In  all  causes  and  prosecutions  in  which  the 
demand  or  penalty  does  not  exceed  L.8, 6s.  8d., 
brought  before  any  court  not  according  to  the 
summary  form  provided  in  this  act,  it  is  made 
lawful  to  the  judge  to  allow  no  other  or  higher 
fees  or  expenses  to  be  taken  or  paid  than 
those  above  mentioned ;  §  36.    On  the  con- 
struction of  the  Sheriffs  and  Justices  Small- 
Debt  Acts  generally,  the  following  authorities 
may  be  consulted :  Ertk.  B.  i.  tit.  4,  §  13,  et 
seq.,  and  notes  by  Mr  Ivory  ;  BdPt  Goto.    BeWt 
Prine.   §§   2206-7;  Madawin's  Sheriff-Court 

By  the  act  16  sod  17  Vict.  e.  80, 1853,  the 
small-debt  jurisdiction  of  sheriffs  is  extended 
to  causes  not  exceeding  L.12,  and  parties  may 
agree  by  minute  to  have  actions  for  a  larger 
amount  than  Ii.12,  tried  in  the  small-debt  form. 

3.  Iv^mtonment. — The  following  are  the 
provisions  of  5  and  6  Will.  IV.  c.  70,  for  the 


abolition  of  imprisonment  for  civil  debts  of 
small  amount.     It  is  declared  unlawful  to  im- 
prison any  person  on  account  of  a  civil  debt 
not  exceeding  L.8, 68. 8d.,  exclusiTO  of  interest 
and  expenses.     But  it  is  lawful  to  imprison 
debtors  on  debts  incurred,  or  which  may  be- 
come due  under  contracts  made  before  the 
passing  of  this  act,  in  like  manner  as  if  it  had 
not  passed,  provided  imprisonment  for  such 
debts  commence  before  1st  January  1840;  §  1. 
It  is  unlawful  for  a  magistrate,  or  for  any 
person  having  the  charge  of  a  prison  in  Scot- 
land, to  receive  into  prison,  or  for  any  mes- 
senger-at-arms,  or  other  officer  of  the  law,  to 
apprehend,  or  detain  in  custody,  the  person 
of  any  debtor  for  a  civil  debt  not  exceeding 
L.8,  68. 8d.,  exclusive  of  interest  and  expenses, 
in  virtue  of  letters  of  caption,  or  other  war- 
rant, unless  in  the  case  of  debts  contracted 
before  the  passing  of  the  act  as  aforesaid ;  §  2. 
On  application  made  to  the  sheriff  of  the 
county  in  which  the  prison  is  situated,  or  to 
the  magistrates  having  charge  of  a  prison,  by 
any  person  incarcerated  in  it,  showing  that 
he  is  imprisoned  or  detained  in  jail,  for  a 
civil  debt  or  debts,  contrary  to  the  provisions 
of  this  act,  the  sheriff  or  magistrates  must 
cause  intimation  to  be  made  to  the  incarcer- 
ating creditor  or  creditors,  upon  indueice  of 
six  days  after  intimation  ;  and  on  being  satis- 
'fied  that  the  statement  of  the  prisoner  is  true, 
the  sheriff  or  magistrates  must  grant  warrant 
for  his  liberation,  in  so  far  as  regards  the 
debt  due  to  such  creditor ;  §  3.    It  is  unlaw- 
ful for  any  person  to  acquire  from  third  par- 
ties, by  assignation  or  otherwise,  except  by 
marriage  or  inheritance,  one  or  more  civil 
debts,  of  or  below  the  amount  of  L.8,  6s.  8d., 
against  one  individual,  to  the  effect  of  accu- 
mulating such  debts  into  one  decree,  or  war- 
rant, or  writ,  or  of  adding  the  same  to  debts 
previously  due  to  him,  for  the  purpose  of  de- 
feating this  act,  by  imprisoning  the  debtor 
for  such  accumulated  debts ;  {  4.     The  act  is 
declared  not  to  extend  to  obligations  ad/aeta 
prcestanda;  nor  to  affect  the  right  ef  the  Sove- 
reign, or  the  Crown  officers,  or  the  fiscals  of 
courts  of  law,  or  others,  to  imprison  as  for- 
merly, or  on  account  of  taxes  or  penalties  due 
to  the  revenue,  or  on  account  of  any  fines  or 
forfeitures  imposed  by  law;  or  apply  to  im- 
prisonment for  poor-rates,  or  local  taxation, 
or  to  imprisonment  for  sums  decerned  for  ali- 
ment ;  §  5.     See  Cestio  Bonorum. 

Small  Stipends.  By  50  Geo.  III.  c.  84, 
and  5  Oreo.  IV.  e.  72,  the  minimum  stipend 
to  be  modified  to  ministers  having  a  right  to 
stipend  from  the  teinds  of  their  parishes  is 
fixed  at  L.150  per  annnm,  with  L.8, 6s.  8d. 
for  communion  elements ;  and  where  there  is 
not  a  sufficient  amount  of  teinds  in  the  parish, 
the  sum  is  to  be  made  np  by  a  payment  from 

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Exchequer.  In  addition  to  their  stipend, 
these  ministers  have  right  to  a  manse  and 
glebe,  or  a  provision  of  L.50  per  annum,  in 
lieu  of  both.  Under  these  statutes  the  Teind 
Court  has  a  ministerial  jurisdiction ;  Bev«- 
ridge,  ii.  739.  See  Teind  Court.  Locality, 
d;e.  Glebe.  As  to  what  are  called  Gorern- 
ment  or  Parliamentary  churches  in  the  High- 
lands of  Scotland,  and  the  stipend  and  accom- 
modations of  the  ministers,  see  5  Geo.  IV.  c.  90. 
Smith's  Forg^.  The  right  of  forges  is- 
given  by  the  clause  in  the  Crown  charter, 
cum  fabrilibttt,  &c.  Anciently  the  right  to 
have  a  forge  for  making  plough-irons,  or 
shoeing  horses,  could  not  exist  in  the  vassal's 
person  without  a  special  clause  in  his  grant; 
but  modern  practice  has  rendered  this  un- 
necessary,   arsk,  B.  ii.  tit.  6,  §  8. 

Bnraggling ;  is  the  making,  transferring, 
importing  or  exporting,  of  goods  without  pay- 
ing the  duties  to  Government,  and  with  the 
intention  of  defrauding  the  revenue.  If  a 
merchant  sells  smuggled  goods,  knowing  them 
to  be  so,  he  cannot  sue  for  payment  of  their 
price,  in  a  transaction  entered  into  in  this 
country,  and  no  action  lies  for  delivery  of 
them,  if  purchased  as  such  ;  the  maxim  as  to 
all  Illegal  contracts  being,  Potior  est  conditio 
pos$identis  et  de/endentit.  Where  an  action  is 
brought  for  the  price  of  smuggled  goods  by  a 
foreign  merchant,  the  determination  seems  to 
depend  a  good  deal  on  the  question,  whether 
the  foreign  merchant  was  accessory  to,  and 
aiding  in,  the  plan  of  smuggling  the  goods 
into  this  country ;  for  where  he  has  had  no 
accession  to  the  fraud,  but  merely  sells  the 
goods,  and  the  merchant  in  this  country  takes 
upon  himself  all  the  risk  of  importing  them 
contrary  to  the  revenue  laws  of  this  country, 
an  action  may  competently  be  brought  by  the 
foreign  merchant  in  the  courts  of  this  country. 
A  bill  for  smuggled  goods  cannot  be  charged 
on  by  one  aware  of  its  character;  and  a 
debtor,  whose  losses  have  arisen  from  such 
illegal  transactions,  will  not  obtain  the  bene6t 
of  the  cetsio,  even  if  he  might  otherwise  have 
obtained  it,  until  the  Court  conceive  that  the 
length  of  his  imprisonment  has  atoned  for  his 
fault.  Many  statutes  have  been  passed  with 
a  view  to  prevent  smuggling.  These  have 
been  consolidated  by  3  and  4  Will.  IV.  c.  53, 
amended  by  4  and  5  Will.  lY.  c.  13.  These 
acts  make  many  important  provisions  respect- 
ing the  management  of  vessels  and  boats,  the 
licensing  of  ships,  the  delivery  of  goods,  &c. 
Ertk.  £.  iii.  tit.  3,  §3.  vide  noU;  Karnes'  Elw. 
Art.  23 ;  BeWi  Com.  i.  306 ;  ii.  688 ;  Stair, 
B.  ii.  tit.  2,  §  9 ;  More's  Notes,  p.  Ixir. ;  Bank, 
i.  94 ;  BeWs  Princ.  §§  42, 460  ;  Kamet"  Princ. 
of  Equity,  223,  231  (1825);  Broum  on  Sale, 
131.  See  Contraband  Good*.  Excite.  De- 
frauding Revenue,    Pactum  lUicitum. 


Sooeage ;  an  ancient  tenure,  under  which 
the  vassal  performed  exclusively  agricultural 
services  to  the  superior  in  the  lands  which 
the  vassal  occupied,  a  tenure  which  is  said  to 
have  prevailed  at  one  time  in  Scotland,  but 
which  is  now  unknown.  It  would  appear  that 
in  soccage  tenures,  the  right  of  primogeni- 
ture did  not  originally  hold ;  on  the  contrary, 
all  the  children  succeeded  equally,  according 
to  the  principles  of  the  civil  law ;  Bank.  B.  iii. 
tit.  4,  1 17 ;  Ertk.  B.  i.  tit.  1,  §36 ;  B.  ii. 
tit.  4,  f  6 ;  Roi^t  Led.  ii.  322 ;  Karnes'  StaL 
Law,  h.  t.;  Tomlnuf  Diet.  k.  t. 

Society;  orp<iWners&<p,  is  a  consensual  con- 
tract, by  which  the  parties,  either  in  writing 
or  r^mt  ipsis  etfactis,  agree  to  conduct  a  cer- 
tain business,  trade,  or  manufacture,  under 
certain  conditions,  and  by  the  aid  of  a  certain 
capital,  dividing  the  profits  and  suffering  the 
losses  arising  in  the  course  of  the  connection, 
according  to  certain  proportions  stipulated  in 
the  contract.  Where  the  proportions  are  not 
previously  arranged,  the  presumption  is  for 
equality  of  rights  and  of  liability ;  but  this 
presumption  may  be  overcome  by  contrary 
proof  or  presumption.  This  contract  does  not 
differ  essentially  from  joint  adventure,  in  which 
the  partners  are  liable  singuli  in  tolidum  for 
the  obligations  contracted  in  reference  to  the 
adventure,  and  warranted  by  the  terms  of  the 
contract.  See  Joint  Adventure.  See  Pe(icode 
V.  Peacock,  iCampbell,  45 ;  and  Campbell's  Trus- 
tees V.  Morrison,  7  S.  660 ;  and  in  Honse  of 
Lords,  5W.itS.  16.  See  also  SRott't  L.G.  C. 
381.  Partners,  even  if  lending  their  names 
merely,  and  whether  ostensible  or  not,  are 
liable  for  the  company  debts  singuU  in  soli- 
dum,  to  the  extent  of  their  whole  estates. 
See  Sleeping  Partner.  Persons  are  also  made 
responsible  to  third  parties,by  receiving  a  share 
in  the  profits,  or  by  an  agreement  entitling 
them  to  share  in  the  profits.  But  wages  may 
be  paid  to  clerks  and  other  servants,  rateably 
according  to  the  profits;  or  a  third  person 
may,  by  private  agreement  with  one  of  the 
partners,  get  part  of  his  share,  without  sneh 
responsibility  being  incurred.  When  the 
partner  of  a  company  acquires  a  right  in  name 
of  the  company,  the  property  belongs  to  the 
company;  or  where  the  partner  acquires  a 
right  in  bis  own  name,  with  the  money  of  the 
company,  he  lies  under  an  obligation  to  com- 
municate the  benefit  to  the  company.  Every 
member  of  a  company  is  understood  to  have 
the  power  of  using  the  company  firm ;  and 
in  every  act  of  ordinary  administration,  in  the 
line  of  the  company's  trade  or  employment,  he 
may  bind  the  company  by  the  use  of  that  firm. 
But  he  cannot  use  it  to  execute  a  deed  which 
is  not  an  act  of  ordinary  administratioi^— 
to  execute  a  submission,  for  example,  or  to 
grant  a  bond  ;  nor  would  his  giving  the  com^ 

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j^any'g  firm  for  a  prirate  debt,  where  the 
party  reoeiring  it  was  aware  of  the  frand,  be 
effectual  to  the  person  reoeiring  it.  A  guaran- 
tee is  implied  by  each  of  the  partners  of  a 
company  to  third  parties,  of  all  the  engage- 
ments legally  undertaken  in  the  name  of  the 
company.  The  partners  are  even  liable  in  res- 
titution of  what  one  of  their  number  baa  ob- 
tained by  fraud  in  the  line  of  the  company's 
trade. 

Where  there  is  no  special  agreement  on  the 
subject,  a  partner's  share  cannot  be  trans- 
ferred, either  by  conveyance  or  by  succession, 
except  to  the  amount  of  his  claim  on  the  com- 
pany at  the  time  of  their  dividend.    Any 
partner  whom  he  may,  independently  of  the 
company,  assume,  continues  to  he  his  part- 
ner, not  the  company's,  <m  the  maxim,  Socitu 
mei  tocii  non  est  metu  soeiut.    But  one  com- 
pany may  become,  as  it  were,  an  individual 
partner  of  another  company,  and  thus  subject 
to  the  obligations  of  partnership  in  a  variety 
of  companies.    The  stock  of  the  company  is 
liable,  in  the  first  place,  to  the  iwmpany's 
debts ;  and  the  company  debts  rank  on  the 
private  estate  of  the  partners  of  the  company, 
or  of  the  survivors,  or  of  those  remaining  sol- 
vent;  who,  however,  have  their  recourse. 
The  debts  or  losses  of  a  private  partner  can- 
not come  upon  the  company's  funds  until  all 
the  company's  debts  are  paid.    His  creditors 
cannot  transfer  his  share  by  poinding,  though 
they  mvr  attach  it  prospectively  by  arrest- 
ment.   The  death  of  a  copartner  dissolves  the 
company,  unless  the  contrary  be  provided  for 
in  the  contract,  or  where  the  survivors  tacitly 
or  expressly  agree  to  continue.    The  death 
of  one  of  the  partners  does  not  dissolve  the 
company,  if  it  be  expressly  provided  that  heirs 
shall  become  partners ;  or  if  the  right  of  heirs 
be  necessarily  implied,  as  in  a  contract  exceed- 
ing the  term  of  human  life.   Thus,  a  partner- 
ship in  a  coal  concern  for  124  years  was 
binding  on  the  heirs  taking  up  the  succession ; 
and  while  the  concern  was  prosperous,  and 
there  was  no  reasonable  apprehension  of  loss, 
the  heir  of  one  of  the  parties  was  not  entitled  to 
s  dissolution  of  the  partnership,  to  the  preju- 
dice of  the  other  party;  Warner,  Jan.  24, 
1798,  M.  14603  ;  affirmed,  April  25  and  May 
19,  1815,  3  Vow,  76.     Although  the  contract 
he  declared  to  endure  for  a  certain  time,  a 
partner  may  judicially  dissolve  the  partner- 
ship upon  good  grounds.     Insanity,  insol- 
vency, or  bankruptcy,  nnder  1696,  c.  6,  of  one 
of  the  partners,  is  a  ground  of  dissolution. 
Sequestration  is  eo  ipso  dissolution.    Where 
no  term  of  endurance  has  been  agreed  upon, 
any  of  the  partners  may  retire  whenever 
he  chooses,  and  so  dissolve  the  partnership. 
In  order  that  a  partner  who  has  once  appeared 
in  a  concern  may  not  mislead  the  public  into  |  house  was  vested  in  tmstM*  for  behoof  of  th» 

**■  /Google 


a  belief  that  he  remains  a  partner,  after  he 
has  withdrawn,  and  thus  give  greater  credit 
to  the  company  than  they  would  otherwise 
have  received,  he  and  the  remaining  partners 
must  be  at  great  pains,  by  public  advertise- 
ments, and  even  by  circular  letters  to  the  cor- 
respondents of  the  company,  to  notify  his  re- 
tirement from  the  company.     The  partner- 
ship continues  to  subsist  even  after  dissolution, 
for  the  purpose  of  winding  up  the  concern. 
During  this  period  no  new  debto  can  be  con- 
tracted.   Special  stipulations,  as  to  the  wind- 
ing up,  are  effectual ;  but  if  no  arrangements 
have  been  made  in  that  manner,  the  surviving 
or  solvent  partners  are  entitled  to  take  the 
management ;  or,  in  case  of  dispute,  a  neutral 
person  is  judicially  appointed  to  wind  up.  An 
agreement  to  refer  disputes  to  arbitration  is 
effectual  only  if  the  arbiter  be  named.    See 
Arbitration, 

Questions  occasionally  occur  respecting  the 
rights  and  obligations  of  an  association  for 
religious  purposes,  or  other  similar  voluntary 
association.  It  was  at  one  time  held  that 
such  societies  could  not  hold  lands  or  tene- 
ments even  by  the  intervention  of  trustees ; 
but  it  is  now  settled,  by  a  long  course  of  de- 
cisions, that  they  may  hold  property  in  the 
name  of  trustees.  In  such  cases,  the  trustees 
may  maintain  action  respecting  the  property ; 
and  the  purposes  of  the  trust,  where  not  ex- 
pressly declared,  may  be  inferred  from  cir- 
cumstances. Thus,  it  was  decided,  that  where 
a  schism  takes  place  among  a  religious  society,, 
the  use  of  the  meeting-house  remains  with  the 
members  who  adhere  to  the  religious  prin- 
ciples of  those  by  whom  it  was  erected ;  Crauf- 
dallie,  &c.  v.  Aikman,  27th  June  1805,  M. 
14,584 ;  appealed  in  1813, 1  Dow,  1 ;  in  1829, 
2  Bligh,  529.  The  members  of  a  religious 
association  are  not  bound  to  pay  the  stipend 
of  the  minister  whom  they  have  called  and 
appointed,  longer  than  they  adhere  to  the 
congregation;  Etftlop  v.  JVairn,  14th  June 
1825,  4S.d!D.  84.  A  number  of  persons 
having  formed  themselves  into  a  society  for 
religious  purposes,  under  the  denomination 
of  Bereans,  purchased  a  piece  of  ground  to 
bniid  a  meeting-house,  in  the  name  of  certain 
persons,  as  trustees  for  the  congregation,  who 
were  infeft.  A  schism  happening  in  the  con- 
gregation, one  party  seceded,  and  pnreued  the 
trustees  for  their  share  of  the  property.  It 
was  held  that  the  trustees  were  bouud  to  de- 
nude in  favour  of  the  mt^rity  of  the  contri- 
butors for  purchasing  the  groond  and  build- 
ing the  meeting-house ;  AUauv.  Macrae,  25th 
May  1791,  M.  14^83 ;  Befft  Caut,  538.  A 
question  respecting  the  poaaeiBion  of  ameeting- 
bouse  arose  out  of  a  dupnte  between  two  sec- 
ticms  of  a  Relief  cong^gation.  The  meeting- 


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eongregation.  One  section  adhered  to  the 
Relief  Synod,  who  declared  the  miniiter  oat 
of  connection  with  the  Relief  body,  and  ap- 
pointed the  church  to  be  preached  vacant; 
the  other  section  adhered  to  their  minister. 
In  the  circnnutanees,  and  until  the  question 
of  right  was  settled,  the  interim  possession 
was  divided  between  the  two  sections,  each 
baring  the  meeting-hoase  half  of  the  day, 
forenoon  and  afternoon,  on  alternate  Sundays; 
Gatbraitk  t.  Smith,  Mar.  10, 1837, 15  D.  B.  U. 
808.  In  the  same  case  it  was  sabaequently 
held,  that  the  pursuers  had  failed  in  proving 
that  the  principle  of  Establishments  was  held 
>riginally  as  a  fundamental  and  essential  tenet 
of  the  Dissenting  body  in  question,  and  the 
defence  was  sustained,  that  the  chapel,  being 
held  in  trust  for  a  Relief  congregation,  can  be 
enjoyed  and  occupied  only  by  a  congre^tion 
and  minister  in  communion  with  the  Relief 
Presbytery  and  Synod,  and  that  this  was  an 
essential  condition  of  the  trust.  Smith  t. 
Qntbratik,  Feb.  21,  1843,  6  D.  666.  See 
generally,  on  the  subject  of  Society,  Erik.  £. 
i.  tit.  7,  §  64;  B.  ui.  tit.  2,  §  18 ;  Btfft  (km. 
ii.  611 ;  Stair,  B.  i.  tit.  16;  MonftNotet,f. 
xeviii.;  Bank.  i.  443,  et  teq.;  BeWi  Ptinc. 
f  350,  a  uq. ;  lUust.  ib. ;  Thonum  on  Bills, 
234,  564 ;  Rot^s  Ltd.  i.  83.  See  Joint  Stode 
Companiei. 

Sooina  Crimiida;  an  aecomplice  or  asso- 
ciate in  the  commission  of  a  crime.  See  Ac- 
eompUee.    Evidenee.    Einy't  Evidence. 

Sodomy;  the  crime  of  carnal  copulation 
against  nature.  The  punishment  is  death, 
iiji  attempt  to  commit  this  offence  is  punish- 
able arbitrarily.  Bume,  i.  465 ;  Aliaon's  Prine. 
666. 

Sok  {teda  de  kominibu»  suit,  in  curia,  tecun- 
dmn  eoMuetudinem  regni);  was  an  old  word 
used  in  charters  and  infeflments.  According 
to  Skene,  he  who  was  infeft  with  sok  or  soyt 
had  the  right  of  holding  courts  within  his  own 
barony  or  lands,  at  which  "  homiTut  tut,"  or 
his  vassals,  gave  "soyt,"  according  to  the 
tonor  of  their  infeftmente.  ;S^Jk<n«,  A.  (.  See 
Heritable  JwritdietioM.    Fwrea  et  Fotta. 

Sokmaniia ;  or  soccage,  according  to  Skene, 
was  a  kind  of  holding  of  lands,  when  any  man 
was  infefl  freely  without  any  service,  ward, 
relief,  or  marriage,  and  paid  to  his  master  the 
duty  called  "  petit  seriantie."  Skene,  h.  t.  See 
Soccaae.    Seranterice. 

Seuttiiiin.  It  is  a  principle  of  the  law  of 
Scotland,  not  recognised  in  English  law,  that 
one  who  injures  another  is  bound,  not  only  to 
repair  the  actual  loss  suffered,  but  also  to  give 
a  lolatium  for  wounded  feelings.  Thus  tola- 
tinm  for  wounded  feelings  is  sllowed  in  eases 
ofbreach  of  promise  of  marriage.  And  where 
a  father,  husband,  or  near  relative  is  killed 
through  negligenee,  a  solatium  will  be  given 


eren  where  the  death  of  the  sufferer  miglii 
be  regarded  as  a  benefit  instead  of  a  loss  to 
his  family.  Ertk.  B.  iii.  tit.  1>  §  14,  Mie  by 
Ivory:  Kamet'  Equity,  305.  See  Damages.  De- 
famation. 

Soldiers ;  all  persons  in  her  Majesty's  land 
forces, except  militia,yeomanry,  or  volunteers, 
if  these  be  not  ezpre»ly  included.     With  re- 
gard to  the  enlisting  of  soldiers,  see  the  article 
EnUsHng.     The  annual  act  for  the  govem- 
ment  and  regnlation  of  the  forces  is  called 
the  Mutiny  Act.    SwMiUinyAeL    This  act 
declares  soldiers  exempt  from  personal  arrest 
for  debt,  unless  it  be  sworn  to  amount  to  L.30. 
As  to  the  question  whether  an  officer  or  soldier 
can  be  arrested  in  meditatione  fugce,  see  Medi- 
tatio  Fugce.    No  soldier  can  be  reclaimed  from 
the  army,  on  the  ground  ofbreach  of  contract, 
except  an  apprentice  indentured  for  not  less 
than  four  years.    See  Apprentice.    Soldiers 
are  liable  to  trial  by  the  ordinary  courts,  for 
crimes  or  offences  not  of  a  military  kind ;  and 
when  accused  of  such  offences,  their  officers 
must  aid  in  delivering  them  up  to  the  ciril 
power.    Midlers  are  billeted  or  quartered  on 
all  the  inhabitants  in  royal  burghs,  burghs  of 
regality,  or  chief  market  towns,  except  school- 
masters, widows,  unmarried  women,  and  pau- 
pers.   But  it  is  customary  to  pay  a  composi- 
tion instead  of  actually  giving  the  soldiers 
Juarters.     ErA.  B.  i.  tit.  2,  §  21 ;  tit.  3, 
36 ;  B.  iv.  tit.  4,  §  29 ;  Banhi.  vol.  p.  70,  et 
seq. ;  BeU's  Com,  ii.  563 ;  Swint.  Abridg.  k.  U  ; 
Alison' t  Princ.  39,  et  seq.;  Prac.  3, 13;  HutA. 
Justice,  ii.  25 ;  TaiPs  Justice,  h.  t. ;  Blair's 
Justice,  h.  t.  p.  183.    See  Mutiny.  Desertion. 
Furlough.  Martial  Law.  Court-MartiaL  Kin^t 
Freemen.    Militia. 

Selioitor-General,  of  Scotland ;  one  of  the 
Crown  counsel,  next  in  dignity  and  import- 
ance to  the  Lord  Advocate,  to  whom  he 
gives  his  aid  in  protecting  tiie  interests  of 
the  Crown,  in  conducting  prosecutions,  &c. 
Like  the  Lord  Advocate,  the  Solicitor-Gene- 
ral has  precedency  and  the  privilege  of  plead- 
ing within  the  bar.  Formerly,  the  Solicitors 
used  to  get  a  special  letter  to  that  effect;  but 
now,  when  there  is  only  one  Solicitor,  it  is 
held  to  be  a  privilege  of  his  office,— not  when 
there  are  two,  as  there  sometimes  hare  been. 
The  Solicitor  has  been-held  not  to  be  a  calutn- 
niator  publicut :  he  cannot  therefore  concur 
in  or  authorise  a  complaint  as  such,  except 
in  his  character  of  advocate-depute;  Com- 
plainer  v.  KeUies,  18th  Nov.  1775,  Taifs  Cotes, 
in  Brown's  Supp,  v.  602.  All  proclamations 
for  observance  of  days  of  public  fasting  or 
thanksgiving  are  directed  to  the  Solicitor- 
General.    See  Bank.  vol.  ii.  p.  492. 

The  right  of  the  Lord  Advocate  to  plead 
within  the  bar  has  the  authority  of  statute. 
By  the  Act  1537,  cap.  57,  it  ia  enaeted. 


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"  that  nane  advocate  nor  procurator  within 
the  bar  stand  to  pley,  hot  passe  out  with,  with 
the  partie,  except  the  Eingis  Adrocat."  And 
the  King,  on  20tb  Jana&ry  1538>  sent  a 
letter  to  the  Court,  recorded  in  the  Acts  of 
Sederunt,  directing  them  to  allow  the  Lord 
Advocate  to  remain  during  the  advisings  of 
the  Benchf  which  then  took  place  in  private. 
The  Lord  Advocate  also  acted  judicially,  and 
•  had  a  vote  with  the  Judges  in  the  decision 
of  causes.  Sw  AclsqfSederuntl7thNov.l610, 
p.  69.  In  those  cases  where  he  himself  was 
counsel,  his  vote  was  rejected.  "  Mr  James 
M'Gill  allegit  that  the  Advocate  sulde  nocht 
remain  and  vote  on  the  mater  forsaide,  becaus 
the  accione  is  perseuit  be  bim,  and  at  his  in- 
stance as  Advocate,  and  therfor  snide  nocht 
vote.  The  Lords  be  sentence  interlocutour 
findis  that  the  Advocate  sulde  ryse,  and  pass 
to  the  Bare,  and  nocht  vote  thereon.  See  Acts 
xif  Sederunt,  4tt  Feb.  1564,  p.  47. 

With  regard  to  the  Solicitor-General, 
there  is  the  following  provision  in  an  Act 
of  Sederunt,  28th  February  1662 :— "  The 
macers  are  authorised  to  remove  all  persons, 
of  whatsoever  quality  who  diall  be  found 
■within  the  innermost  bar,  where  the  Ordi- 
nary, Lords,  and  Clerks  do  abide,  except  the 
Keeper  of  the  Minute-book,  the  King't  SoU- 
eitor,  and  one  servant  appointed  by  his  Ma- 
jesty's Advocate."  But  this  privilege  was 
soon  taken  from  the  Solicitor,  and  the  old 
practice  returned  to,  of  allowing  only  the 
Lord  Advocate  and  Clerks  to  be  within  the 
bar.  On  16th  December  1686,  the  Court, 
without  any  instructions  from  the  Crown, 
and  upon  their  own  authority,  issued  the 
following  declaration  in  regard  to  the  parties 
who  had  right  to  come  within  the  bar : — 

"  The  Lords  of  Councill  and  Session  con- 
sidering. That  by  the  ancient  custome,  no 
persons,  of  whatsoever  quality,  were  per- 
mitted to  come  within  the  bar  of  the  Inner 
House  dnreing  the  time  of  debateine  causes, 
except  his  Majesty's  Advocat,  the  Clerks 
of  Session,  the  Clerk  of  the  Bills  and 
his  deput,  and  one  maoer:  They  do  revive 
that  custome,  and  ordain  the  Mune  to  be 
duely  observed  in  time  comeing,  dischargeing 
hereby  the  macers  to  permitt  any  persnes, 
-except  those  above  exprest  to  come  within 
the  said  bar,  as  they  will  be  answerable  on 
their  perill :  And  in  case  any  person  be  de- 
syreous  to  speak  with  any  of  the  Lords  while 
they  are  upon  the  Bench,  that  he  call  for  a 
maoer  at  the  door,  and  give  notice  thereof  by 
him :  It  is  always  hereby  declared,  that  the 
Lord  Thesaurer,  and  Thesaurer-depute,or  the 
Commissioners  of  his  Majestie's  Thesaurary, 
not  being  of  the  Bench,  shall  be  allowed  to 
be  within  the  bar  when  the  King's  causes 
«re  called  and  debated,  and  no  otherways." 


In  1713,  when  Forbes  published  his  col- 
lection of  Decisions,  he  describes  the  Lords 
as  sitting  at  a  semicircular  bench :  "  the  bar, 
like  a  diameter  line,  at  which  the  advocates, 
even  the  King's  Solicitors,  stand  and  plead  un- 
covered, is  opposite  to  the  Bench.  Her  Ma- 
jesty's Advocate  sits  in  chair  within  this 
bar,  and  pleads  always  with  his  hat  on."  The 
practice  of  the  Advocate  pleading  with  his 
hat  on  was  introduced  in  the  time  of  Sir 
Thomas  Hope,  who  was  Advocate  to  King 
Charles  I.  "  This  indulgence  he  owed  to 
his  having  two  sons  on  the  Bench,  Sir  John, 
his  eldest,  and  Sir  Thomas,  Lord  Kerse."— 
Ifotes  to  Taifs  Index,  p,  500. 

The  Crown,  however,  interfered  on  behalf 
of  the  Solicitor-General.  When  Charles 
Areskins,  afterwards  Lord  Tinwald,  was  ap- 
pointed sole  Solicitor  on  10th  June  1725  (rt 
being  the  practice  both  then  and  afterwar<b 
to  have  more  Solicitors  than  one),  he  pro- 
duced a  letter  to  the  Court  from  the  King  in 
the  following  terms : — 

"George  R. — Right  trusty  and  well- 
belored,  we  greet  yon  well;  Whereas,  we 
have  appointed  Mr  Charles  Areskine,  ad- 
vocate, to  be  sole  Solicitor  for  that  part  of 
Great  Britain  called  Scotland,  and  we  being 
pleased  to  show  him  a  farther  mark  of  our 
royal  favour,  it  is  our  will  and  pleasure  that 
a  seat  be  placed  for  him  within  the  bar 
of  your  Court,  where  and  from  whence  he 
may  be  at  liberty  to  plead  cases  in  your 
presence;  and  we  do  hereby  direct  you  to 
cause  such  to  be  placed  accordingly.  Given 
at  our  Court  at  St  James,  this  2d  day  of 
June  1725,  in  the  8th  year  of  our  reign. 
By  his  Mi^esty's  appointment,  sic  subsoribi- 
tur,  RoxBDBeH."  —  MS.  Records  of  Frivy^ 
GouneH. 

The  entry  in  the  Book  of  Sederunt  bears 
that  the  letter  was  read  and  ordered  to  be 
recorded,  that  the  Solicitor  took  the  oaths, 
''and  that  the  Lords  appointed  a  seat  for  him 
within  the  bar."  —  MS.  Books  of  Sedentni. 
When  Mr  Robert  Dundas  was  appointed 
Solicitor  in  1742,  he  produced  a  similar  letter, 
and  the  entry  in  the  Books  of  Sederunt  is  in 
the  same  terms.  But  when  Mr  Henry  Dun- 
das was  appointed  Solicitor  in  1766,  no  letter 
Appears  granting  him  this  privilege,  and  the 
Minute  in  the  Sederunt  Book  does  not  con- 
fer it. 

From  Tait's  Reports,  it  would  appear  that 
the  privilege  thus  granted  by  the  Crown  to 
the  Solicitor  had  come  to  be  recognised,  in 
1775,  as  one  he  was  entitled  to  claim  irre- 
spective of  express  grant.  Tait  states  that 
"when  Mr  ^ntgomery  presented  his  com- 
mission as  sole  Solicitor,  with  the  whole  pri- 
vileges of  his  office  as  enjoyed  by  his  prede- 
cessors, the  Lords  unden^^  one  of  them  to 

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be  his  being  allowed  to  sit  and  plead  wttbin 
the  bar ;  therefore  he  wai  admitted  to  do  so. 
Pormerly  the  Solicitors  used  to  get  a  special 
letter  to  that  effect ;  but  nov,  when  there  is 
<m\j  one  Solicitor,  it  is  held  to  be  a  privilege 
of  his  office,  not  when  there  is  two." — 5 
Browik't  Sup.  p.  603.  Apparently  it  was  npon 
some  idea  of  this  kind  that  the  two  Solicitors 
in  Bankton's  time  acted :  "  The  Solicitor 
takes  care  of  the  King's  interest  as  assistant 
to  the  Advocate.  Both  hare  the  privilege 
of  pleading  within  the  bar ;  at  least  the  Soli- 
citor formerly  enjoyed  it,  thoogh  now  the 
two  gentlemen  joined  in  the  commission  as 
Solicitors  do  not  nae  sneh  privilege." — Bank. 
vol.  ii.  p.  492. 

In  modem  times  the  practice  is  for  the 
President  of  the  Coort  to  direct  the  Solicitor 
to  take  his  seat  within  the  bar,  alter  he  has 
taken  the  oaths. 

From  the  above  aoeonnt  it  vould  appear 
that  the  Lord  Advocate  has  right  to  sit 
within  the  bar  in  virtue  of  a  statute ;  and  the 
Solicitor's  admission  to  the  same  privilege 
may  be  said  to  have  originated  with  the 
Grown,  since  the  Act  of  Sedernnt  of  1662 
was  repealed  in  1686.  At  the  same  time, 
the  Court  seem  to  have  asserted  the  right  to 
admit  sach  parties  as  they  pleased  within  the 
bar.  By  the  Act  of  Sederunt  of  16th  Decem- 
ber 1686,  above  quoted,  they  permitted  the 
Lord  Treasurer,  or  the  Commissioners  of  the 
Treasury,  to  be  within  the  bar  when  Crown 
causes  were  heard.  And  by  Aet  of  Sedernnt 
of  7th  July  1763, "this  day  the  Lords  re- 
solved to  admit  «J1  the  members  of  His  Ma- 
jesty's Most  Honourable  Privy  Council,  whe- 
ther Peers  or  Commoners,  within  the  bar, 
and  to  have  a  seat  in  this  house  "  (p.  541). 
This  was  a  decided  alteration  of  the  old  rule 
and  practice.  Pountainhall  reports  a  case 
where  the  practice  was  thus  stated :  ";The 
Marquis  of  Montrose  compearing  to  choose 
his  curators  m  preuntia,  the  Lords,  by  the 
fault  of  their  raaoere,  suffering  the  Lady  Mar- 
chioness, his  mother,  and  many  with  her,  to 
enter  within  the  Inner  Bar,  were  necessitated 
to  desire  her  to  remove ;  and  then  cause  sig- 
nify it  was  the  privilege  of  none  to  stand 
within  but  Duket  and  Ducheuu— which  my 
lady  obeyed." — MarquU  of  Montrcte,  6th  Nov. 
16»5, 4  Awn's  Svp.  277. 

It  wonld  thus  appear  that  both  the  Grown 
and  the  Court  have  the  right  to  authorise 
any  parties  they  please  to  come  within  the 
bar.  ^m  Report  of  FaatUji  of  Advocattttl^^' 
See  also  Robe*. 

Solieit(Hr<Oeiieral,  of  England ;  is  one  of 
the  officers  of  the  Crown,  next  in  rank  to  the 
Attorney-General,   ,7'omltns'  Ditt.  h.  i. 

SoUciton  before  the  Supreme  Covxt.  The 
solicitors  or  agents  practising  before  the  Sa> 


preme  Court  of  Scotland  were  formed  iniin  it 
society  in  the  year  1784,  and  incorporated  by 
royal  charter  in  1797,  with  the  nsual  powers, 
and  with  the  liberty  of  holding  lands    to 
an  amount  not  exceeding  L.500.    Thej  are 
empowered  to  hold  certain  annual  meetings, 
to  elect  office-bearers,  on  the  1st  of  June  in 
each  year,  and  to  make  bye-laws,  subject  to 
the  review  of  the  Court  of  Session,  on  the 
summary  application  of  any  one  interrated. 
The  office-bearers  are  a  president,  vice-presi- 
dent, treasurer,  and  secretary.    They  hare 
also  two  censors,  two  auditors,  and  a  libra- 
rian.   The  qnaliilcations  of  agents  in  the  Su> 
preme  Courts  are  regulated  by  A.  S.  lOth 
August  1754,  11th  March  1772,  and  13(fa 
February  1787 ;  and  these  are  all  ratified  by 
21st  December  1833,  which  mi^es  corUin 
regulations  for  checking  irregnlarities  and 
abuses  in  conducting  the   bvsiDess  of  the 
Court.    Among  other  provisions,  it  is  enacted, 
that  each  person  entitled  to  act  as  agent  or 
solicitor,  shall  give  in  to  each  of  the  Clerk's 
offices,  and  to  the  Bill-Chamber,  a  signed  list 
of  the  names  (^  his  clerks  and  apprentices, 
for  whom  he  is  answerable.    And  when  any 
of  those  contained  in  the  list  leave  his  service, 
he  must,  within  three  days  at  farthest,  notify 
the  fact  at  the  above  places,  that  their  names 
may  be  expunged  firom  the  list.    By  a  bye- 
law,  1st  December  1808,. ao  aeKcitor  can 
enter  into  an  indenture  with  an  i^prentiee 
for  a  shorter  period  than  five  years.    The 
apprentice  must  attend  the   Humanity  or 
Greek  clan  in  a  university,  either  two  ses- 
sions before  the  commencement  of  his  inden- 
ture, or  one  previous  to,  and  one  during  his 
apprenticeship.     Previous  to  bis  admission 
into  the  society,  he  must  have  attended  tiie 
Scots  Law  class  in  the  University  of  Edin- 
burgh, at  least  one  session.    The  society  poa- 
sess  a  library  and  a  widows'  fund.   They  are 
members  of  the  College  of  Justice ;  Brmte, 
Jan.  24, 1833, 11  S,  tt  D.  313.    See  SmM. 
Abridff.  k.  t. ;  Earned  StaL  Law,  h.  t. ;  Skani's 
Prae.  i.  61 ;  AleiMndtr't  Ahridg.  «f  A.  S.  pp. 
67,86,423.    Sob  Attorn^' t  Lietnet.    AgnU. 

Solioiton  *t  Law ;  a  society  of  law-agents 
in  Edinburgh,  incorporated  by  royal  charter, 
and  entitled  to  practise  before  the  Sheriff 
Court  of  Edinburgh,  and  ether  inferior  eoorts. 

SoIidaiB.  To  be  bound  tn  tolidmn  is  to  be 
bound  for  the  whole  debt,  although  <»ly  one 
<^  several  obligants.  In  order  to  constitute 
an  obligation  of  this  kind,  the  person  must 
be  taken  bound,  -conjunctly  and  severally, 
with  the  others,  or  as  principal  and  fidl 
debtor ;  except  in  bills  of  exchange,  where 
simple  acceptance  by  one  of  several  accepters 
imports  a  joint  and  several  liability.  Where 
several  debtors  are  bound  each  for  his  owa 
share,  they  are  said  to  be  bound  jmv  rala^ 


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SrO;.  B.  iii.  tit  3,  §  68;  Stair,  B.  I.  tit.  9, 
(  5 ;  More't  Notes,  xviii ;  Earned  Stat.  Law, 
L  t. ;  Broton't  Syiu^,  h.  t ;  Shav/'s  Digett,  813. 
See  Correi  Debendi.  Conjunethf  and  Severalfy. 
Jifint  ObliganL    Ben^idun  Divitionit. 

Somen.  A  person  is  guilty  of  soming 
wbo  takes  meat  and  drink  from  others  by 
foree  or  menaces,  without  paying  for  it 
This  practice  bad  formerly  proTailed  to  such 
an  extent  in  Scotland,  that  the  most  vigorous 
measures  were  requisite  for  its  suppression ; 
ID  so  much,  that  the  offence  was  punishable 
with  the  severest  penalties,  and  at  one  period 
with  death.  Robert  ILe.12;  1449,  c  22 ; 
1465,  c.  45;  1477,  c  77 ;  Hume,  i.  471 ; 
ErO:,  B.  ir.  tit.  4,  §  64 ;  i%»a^  L  274 ;  Htttth. 
Justice,  ii.  75. 

SonndnsMyWarruityof,  inHonet.  See 
Horses,  J 

Bowadng  and  Sowmiag ;  are  two  old  law 
terms,  now  applied  to  the  action  whereby  the 
number  of  cattle  to  be  brought  upon  a  com- 
mon, by  the  persons  respectively  having  a 
servitude  of  pasturage,  may  be  ascertained. 
The  criterion  is  the  number  of  cattle  which 
each  of  the  dominant  proprietors  is  able  to 
fiodder  daring  winter.  This  action  (which  is 
competent  before  the  Judge  Ordinary)  lies 
against  such  of  the  claimants  on  the  common 
as  have  had  indefinite  promiscuous  possession 
for  forty  years ;  such  possession  being  contrary 
to  the  nature  of  the  right,  and  calculated 
to  injure  the  other  parties  interested.  But 
the  acticm  does  not  lie  against  the  proprietor 
of  the  servient  tenement  himself,  who,  it  is 
presumed,  will  not  overstock  his  property  so 
as  to  impoverish  it.  A  Mtom  of  land  is  as  much 
as  will  pasture  one  cow  or  ten  sheep  {Hutchi- 
t»n,  ii.  412) ;  and  strictly  speaking,  to  sotom 
the  common,  is  to  ascertain  the  several  sotenu 
it  may  hold ;  and  to  rowm  it,  is  to  portion  it 
out  amongst  the  dominant  proprietors.  But 
to  such  apportionment  the  parties  interested 
cannot  be  compelled  by  this  particular  process, 
which  is  confined  to  the  ascertainment  of  the 
numbers  each  may  pasture.  Ersk.  B.  ii.  tit.  9, 
§  15 ;  Stair,  B.  ii.  tit.  7,  §  14 ;  Bank.  B.  ii. 
tit.  7,  §  32.    See  Pasturage.    Commonly. 

Special  Oaae.  In  civU  jury  causes,  a  spe- 
cial case  differa  from  a  special  verdict  only  in 
this,  that  the  special  verdict  is  returned  by 
the  jury,  whereas  the  special  case  is  adjusted 
by  the  parties  themselves,  or  by  their  counsel, 
and  sets  forth  the  special  facts  on  which  they 
are  agreed,  without  the  evidence.  On  the 
case  thus  adjusted,  the  Court  decides  the 
points  of  law  raised  by  the  facts  as  admitted. 
Jfa^arlane's  Jury  Prac.  243,  and  authorities 
titers  cited.    See  SpecuU  Verdict. 

Special  Ohar^.  Letters  of  special  charge 
were  letters  passing  under  the  Signet,  charg- 
ing the  heir  of  one  who  has  died  infef't  in 


lauds,  to  enter  heir  to  him,  under  certifica- 
tion, that,  if  no  entry  take  place,  the  com- 
plainer  shall  have  the  same  execution  against 
the  lands  as  if  the  heir  had  entered.  They 
are  now  abolished.  See  Charge.  Adjudica- 
tion.   Hoereditas  Jacms.    Annus  Ddiberandi. 

Special  Jury  Book ;  a  book  kept  by  the 
sheriff,  and  prepared  by  copying  from  the 
general  jury  book  the  names  of  those  quali- 
fied to  serve  as  special  jurors,  i.e.,  persons 
possessed  of  heritable  property  yielding  Ii.100 
of  yearly  rent,  or  personal  property  to  the 
amount  of  L.1000;  6  Geo.  IV.  c  22,  §jd  4 
Geo.  JV.  e.  8 ;  Alison's  Prac  377 ;  jS<^ere 
See  General  Jury  Book.    Jury.  4ed 

Special  Semce ;  is  that  form  of  seney 
by  which  an  heir  u  served  to  his  ancesto^>     f 
a  special  feudal  subject,  and  under  m*^' 
character.    &ee  Service  of  Heirs.  ♦  - 

Brieve.  •■'^.v'"^'*tf''  -' 

Special  Verdict  In  civil  '*"lj.»^ffte8  ,<y' 
jury,  where  it  happens  that  tb&<e]4^  proved 
raise  difficult  questions  of  law,  a  special 
verdict  may  be  returned  by  the  jury,  under 
direction  of  the  judge  at  the  trial.  The 
usual  course  is  for  the  judge  to  state  the  facts 
in  detail  to  the  jury,  and  to  ask  them  how  they 
find  as  to  each  of  them;  and  the  facts  so 
found  having  been  taken  down  by  the  clerk 
of  Court,  the  special  verdict  is  afterwards 
transmitted  to  the  Division  of  the  Court  to 
which  the  cause  belongs,  in  order  to  have 
the  law  applied.  It  is  also  competent  for 
the  judge  to  retire,  and  draw  up  the  special 
verdict,  and  afterwards  to  return  to  Court 
and  read  it  to  the  jury  for  their  assent,  si\b- 
ject  to  the  observation  of  the  counsel  in  the 
cause.  Or  the  counsel  may  themselves  agree 
on  the  special  findings  in  point  of  fact,  and 
lead  evidence  only  as  to  those  facts  with  re- 
spect to  which  they  are  not  agreed.  The 
special  verdict  must  be  confined  to  specific 
findings  of  fact,  with  no  detail  of  the  evidence 
on  which  the  verdict  rests.  See  on  this  sub- 
ject Lord  Chirf'Commissioner  Adam's  Treatise 
on  Jury  Trial,  and  Maefarlan^s  Jury  Practise, 
242,  and  App.  349.  See  also  Issue.  Jury 
Trial.    Ex^tions,  BiU  of. 

Spedal  verdict,  in  a  criminal  trial ;  is  a 
return  of  certain  facts  or  circumstances  as 
proved,  without  any  general  conclusion  from 
them  as  to  the  panel's  guilt ;  the  conclusion 
being  left  to  be  made  by  the  judge,  according 
to  his  opinion  of  the  lawful  construction  of 
the  facts  so  laid  before  him.  Hume,  ii.  439  ; 
Alison's  Prae.  647 ;  Steele,  213.  See  VerdicL 
General  Verdict,    Issue. 

Specification ;  is  the  formation  of  a  new 
property  from  materials  belonging  to  another. 
In  this  manner  of  creating  property,  a  trans- 
ference of  the  right,  with  indemnification, 
however,  to  the  owner  of  the  materials,  is 

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made  wherever  the  materials  eannot  be  re- 
duced to  their  original  state.  Thns,  vine,  as 
it  cannot  be  again  reduced  into  grapes,  be- 
longs  to  the  msiker.  But  silver  plate,  formed 
from  bullion,  may  be  reduced  to  its  original 
state,  and  therefore  still  belongs  to  the  per- 
son to  whom  the  bullion  belonged.  Er$k. 
B.  ii.  tit  1,  §  16 ;  BeW$  Com.  i.  276,  et  seq. ', 
SMr,  B.  ii.  tit.  1,  §  41 ;  BeU'$  Prine.  S§  1298, 
1350 ;  Jurid.  Stylet,  ii.  515.  See  Adjnnclion. 
Contextfire.    Commixtien. 

Spei  Bmptio;  the  sale  of  the  hope  or 
eit<m .  of  a  thing's  existence ; «.  g.,  the  draught 
two  j)t,  or  the  hope  of  a  succession.  Di&r- 
Solif  from  the  sale  of  a  res  /hUuv,  such  a 
ToLis  good  though  the  thing  never  exist. 

/^2-'^  *»i«.  Ill ;  •B«W»  ^■»»«-  §  91.  Se« 
'^g  -^La  OoodtriU  rfa  Skop. 
i-^8»/oi,.'?Md0lli8.  The  right  or  hope  of 
ti2r'*te«3^j  \f  the  law  of  Scotland,  a  «pet 
*v  Fcwi  %^^i  be  sold,  but  it  cannot  be  ad- 
judged ;  i>!^7th  June  1821,  lS.4iD.  49. 
In  righto  taken  to  parent  and  child,  unles 
verj  strong  terms  are  used  to  limit  the  father's 
right  to  a  mere  liferent,  he  is  understood  to 
have  the  fee,  and  the  child's  right  is  merely 
a  »pt$  tuecettimU.  See  Erek.  B.  iii.  tit.  8, 
§  23 ;  Bdet  Con.  i.  56 ;  BeWe  Prine.  §§  1954, 
1964.    See  Paettm  de  HaredUalt  Viventit. 

Spiritiulity  «f  BeneioM ;  the  tithea  of  all 
lands ;  used  in  contradistinction  to  the  Urn- 
porality  cf  benejicet,  which  consisted  of  the 
property  of  such  lands  as  had  been  gifted  to 
the  Church.  Ertk.  B.  ii.  tit.  10,  §  4 ;  Stair, 
B.  ii.  tit.  8,  §  35 ;  Bank.  iL  50.    See  Teind*. 

Splitting  of  Snperiority,  A  superior 
cannot  split  the  snperiority  into  parts,  where 
there  is  one  fee  and  one  reddendo,  so  as  to 
compel  the  vassal  to  seek  his  entry  from  more 
than  one  superior ;  BeWt  Prine.  §  859 ;  Ilhut. 
ib.    See  Superiority. 

Spoliatns  Ante  Omnia  Eeatitnondu ;  a 

maxim  importing  that  spuilzied  goods  must 

be  restored,  immediately  on  the  pursuer  prov- 

ig  that  he  was  in  lawful  possession  of  them, 

^  that  the  allegation  of  a  preferable  right, 
luough  instantly  verified,  will  not  be  received 
as  an  answer  to  this  demand.  Ertk.  B.  iv. 
tit.  1.  §  15 ;  Ami:.  B.  i.  tit.  10,  §  148.  See 
SpuiUie. 

Sponaalia.    See  EtpousaU. 

Sponaio  Lvdiora ;  an  agreement,  in  which 
the  contracting  parties  are  held  not  to  be 
serious  in  their  intention  of  binding  them- 
selves. Eamet'  Equity,  22;  Broton't  Synop. 
p.  1438.  See  Gaming.  Wager,  Pactum 
JUieitum. 

Spring-Chini ;  and  similar  engines,  are 
thought  to  be  justifiable  when  employed  to 
ward  off  attacks  on  houses.  Their  legality 
is  very  doubtful  when  placed  in  enclosed 
grounds,  even  with  notice ;  and  they  are  cer- 


tainly illegal  wl^n  employed  to  protect  unen- 
closed grounds.  •  It  was  thought  unnecessary 
to  extend  to  Scotland  the  English  statute  7 
and  8  Oieo.  IV.  c.  18,  prohibiting  such  engines, 
as  the  evil  was  alresdy  provided  for  by  the 
common  law.    See  BeU^t  Prine  §  961. 

Spnillie ;  corresponding  to  ejection  and  in- 
trusion in  heritage,  may  be  defined,  the  tak- 
ing away  of  moveable  goods  in  the  possession 
of  another,  against  the  declared  will  of  the 
person,  or  without  the  order  of  law.  In  con- 
sequence of  this  unlawful  act,  an  action  Ilea 
not  only  for  restoring  the  goods,  but  for  all 
the  profits  which  it  was  possible  for  the  owner 
to  have  made  of  the  g^>ods,  as  these  profits 
shall  be  proved  by  his  oath  in  litem,  which,  by 
1503,  c  65,  the  sheriff  may  administer.  Tbis 
action  must  be  brought  within  three  years,  in 
order  to  entitle  the  pursuer  to  the  violent 
profits,  and  will  be  elided  by  any  probable 
ground  of  excuse,  or  by  the  rooliator's  volun- 
tary restitution  de  reeaUi,  But  an  action  for 
recovery  of  the  goods  carried  off  illegally,  and 
for  ordinary  damages,  may  be  brought  at  any 
time  within  forty  years,  not  against  the  ^li- 
ator  alone,  but  against  all  abettors,  who  are 
liable  tinguU  in  tolidum,  and  against  his  heirs, 
who  are  liable  in  violent  profits  also,  if  litia- 
contestation  took  place  with  the  ancestor. 
The  spuilxied  property  may  be  evicted  from 
bona  jide  purehaseis,  for  spuilaie  tamt  labem 
reaUm.  Stair,  B.  i.  tit.  9,  §  16,  e<  m;.  ;  ErtL 
B.  iv.  tit.  1,  §  15,  and  B.  iii.  tit  7,  §  16; 
Jforo's  Notes  to  Stair,  p.  Ixi ;  Bank.  i.  274,  et 
teq.;  Kamet'  Stat.  Law  Abridg.  A.  t ;  Blaii't 
Manual,  k.  L  ;  Jurid.  Sublet,  ii.  337 ;  iii.  85, 
130-2,  654;  Broum't  Synop.  k.  t,  and  pp. 
454, 1541.    See  VioUnt  Profit. 

Spnnging-HoiiMS.  In  England  a  bailiff 
must  detain  persons  arretted  for  debt  for 
twenty-four  hours  in  a  private  house,  before 
lodging  them  in  prison.  They  are  usually 
carried  to  taverns  kept  by  the  bailiff;  uid 
such  taverns,  on  account  of  the  extortion  often 
practised  in  them  upon  the  prisoners,  are 
called  spunging-honses.  Ross't  Lect.  i.  340. 
Squalor  Caroerii.  This  term  means 
merely  the  strictness  of  imprisonment  whi<^ 
a  creditor  is  entitled  to  enforce,  with  the 
view  of  compelling  the  debtOT  to  pay  the 
debt,  or  disclose  any  funds  which  he  may 
have  concealed.  It  does  not  imply  (as  it  did 
with  the  ancient  churchmen,  from  whom  the 
term  is  derived)  anything  loathsome  or  un- 
healthy in  the  imprisonment  in  Scotland, 
which  is  indeed  lees  close  than  in  England. 
Squalor  eareerit  is  not  necessary  in  imprison- 
ment on  a  meditatio  fugx  warrant,  security 
being  all  that  is  required  in  such  cases.  See 
Stair,  B.  iv.  tit  47,  §  22 ;  BOl't  Com.  iu  647, 
565 ;  Hutch.  Juttice,  \U277.    Sw  Imprison^ 


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Stabbing;  is  indictable  at  commoii  lav, 
either  as  a  species  of  assault,  or  uuder  the 
general  head  of  tteUionate;  and  nothing  will 
excuse  such  intentional  stabbing  but  the  plea 
of  self-defence,  not  ultra  modtramen  incuipata 
tutdw,  in  an  affray  not  begun  by  the  indi- 
vidual accused ;  for  if  the  affray  was  begun 
l>y  him,  he  will  hardly  be  exculpated  even 
on  that  plea.  The  ordinary  punishment  for 
stabbing,  is  whipping  and  banishment.  Htme, 
i.  322,  324,  et  seq.  See  Assault.  Stdlitmate. 
With  regard  to  cutting  or  stabbing  with  in- 
tent to  murder  or  iqjure,  see  Attempt  at 
Murder. 

Stablen  ;  ate  liable  under  the  edict 
Naut<B,  Caupones.  See  Innkeeper.  Nautas, 
Cat^ones. 

Staff  Mid  Baton.  These  were  the  usual 
symbols  of  resignation  when  the  vassal  re- 
signed his  feu  into  the  hands  of  his  superior, 
either  ad  remanentiam  or  tn  favorem.  A.  S, 
nth  Feb.  1708 ;  Ersk.  B.  ii.tit.  3,  §  36 ;  Ross's 
Led.  ii.  216,  229 ;  Ersk.  Frine.  p.  210 ;  BeU 
on  Oompktinff  Titiet,  136.    See  Ketignation. 

Stage-Coaches.  The  owners  and  drivers 
of  stageMM>aches  are  liable  for  the  safety  of 
the  passengers  and  goods,  as  has  been  ex- 
plained in  the  articles  Nautw,  Cauponet.  Pttfr- 
lie  Carriages.  Driving,  Gardess.  The  licen- 
sing and  duties  for  stage-coaches  have  been 
the  subject  of  several  statutes,  the  most  re- 
cent of  which  are  2  and  3  Will.  lY.  c.  120, 
and  6  and  7  Will.  IV.  c  65.  The  act  2  and 
3  Will.  IV.  in  addition  to  the  duties,  con- 
tains certain  general  provisions  respecting 
the  conduct  of  stage-coaches,  and  in  this  re- 
spect it  has  been  amended  by  3  and  4  WiJl. 
IV.  c.  47.  These  provisions  are  too  minute 
and  numerous  for  insertion  in  this  work. 
They  will  be  found  well  abridged  in  Blair's 
Justice,  h.  t.  The  following  may  be  noticed : 
A  stage-carriage  is  defined  by  the  older  act 
to  be  any  carriage  employed  to  convey  pas- 
sengers for  hire,  to  or  from  any  place  in  Great 
Britain,  and  which,  when  passing  along  any 
highway  or  other  road,  travels  at  the  rate  of 
three  miles  or  more  in  the  hour,  whatever  be 
its  form  or  construction,  provided  the  passen- 
gers, or  one  or  more  of  them,  pay  separate 
and  distinct  fares  for  their  respective  seats. 
The  term  stage-carriage  is  not  applied  to  car- 
riages employed  wholly  upon  any  railway, 
nor  to  any  carriage  drawn  by  steam,  or  other- 
wise than  by  animal  power ;  §  5.  The  later 
act  provides,  that  not  above  a  certain  number 
of  passengers  shall  ride  on  the  outside  ;  and 
this  number  varies  according  to  the  number 
tlie  coach  is  licensed  to  carry.  If  this  pro- 
vision is  contravened,  the  driver  forfeits  Ij.5  ; 
§  2.  The  driver,  guard,  and  children  in  the 
lap,  are  not  counted  as  passengers;  and  two 
children  under  seven  yean  of  age  are  reckqned 


as  one  passenger ;  §  3.  No  person  must  sit 
on  the  luggage  on  the  roof,  nor  more  than 
one,  besides  the  driver,  on  the  box,  under  a 
penalty  of  L.5,  forfeited  by  the  driver ;  §  4. 
See,  on  the  law  as  to  stage-coaches,  Ersk.  B.  iiL 
tit.  1,  §§  13  and  29,  notes  hy  Ivory ;  BeWa 
Com.  i.  462,  et  seq.;  ii.  104;  Bell's  Princ* 

236 ;  Hutch.  Justice,  ii.  373 ;  Blair's  Justiee, 

t;  Tait  on  Evidence,  283-6.  See  NautCBi 
Caupones.  Innkeepers,  Damages.  Lien,  Sor 
ItUium.  M 

The  act  3  and  4  Will.  IV.  c.  47,  ^of 
amended  by  5  and  6  Vict.  c.  79.  See^  4 
11  and  12  Vict.  c.  118, 1848.  ."here 

Stake-Kets.  Some  years  ago  a  copj]^,^ 
cated  machine,  for  tho  capture  of  saf^],gy 
known  under  the  name  of  the  stake-nel)}  i\^q 
introduced,  the  use  of  which,  on  accoi.,j;|u.g 
the  success  attending  it,  and  on  accou'.^  ^f 
its  falling  under  the  prohibitions  of  va.-  \f, 
Scotch  statutes  against  particular  modes  (V, 
fishing,  has  been  obstinately  resisted  by  the 
upper  heritors,  and  has  consequently  led  to 
much  litigation.  The  stake-net  consists  of  a 
sheet  of  net- work,  stretched  upon  stakes  fixed 
into  the  ground,  generally  in  rivers  or  friths, 
where  the  sea  ebbs  and  flows,  with  contri- 
vances for  entangling  and  securing  the  fish. 
The  result  of  the  numerous  questions  which 
have  been  tried  is,  that  stake-nets,  and  other 
contrivances,  of  the  nature  of  fixed  machinery, 
for  capturing  the  fish,  or  detaining  or  inter- 
rupting them  in  their  free  passage  up  the 
river,  are  illegal,  and  may  be  put  down, 
whether  they  are  expressly  prohibited  by  any 
statute  or  not.  This  illegality,  however,  only 
applies  to  stake-nets,  and  other  such  contri- 
vances, when  made  use  of  in  rivers  where  the 
sea  ebbs  and  flows,  or  in  estuaries,  and  not  in 
the  sea  itself,  or  on  the  proper  shore  of  the 
sea.  It  is  generally,  therefore,  a  question  of 
evidence,  whether  the  prohibition  applies  to 
any  particular  spot  or  not;  and  there  has 
been  much  curious  inquiry  as  to  where  the 
precise  position  of  the  fauces  terra  is.  In 
granting  execution,  pending  appeal  of  a  judg- 
ment decerning  for  the  removal  of  a  stake-net 
fishing,  the  Court  have  repeatedly  allowed 
the  stakes  to  remain.  In  Mr  Buchanan's 
Remarkable  Cases,  p.  254,  will  be  found  a  full 
and  excellent  report  of  the  case  the  Duke  of 
Aihole  V.  Matile,  in  which  the  principles  of  the 
law  as  to  stake-nets  are  well  brought  out. 
See  also  Mor^s  Notes  on  Stair,  cci.  See  Sd- 
mon^Jishing.    Fishing,     Cruives.     Tairs. 

Stallangiatores ;  according  to  Skene,  were 
persons  who,  in  a  market  or  fair  within  burgh, 
kept  stalls,  for  which  they  paid  duty.  Skme, 
h,t. 

Stamp-Laws.  These  are  laws  enacted  with 
a  view  to  provide  a  revenue  to  the  Crown, 
by  requiring  that  all  contcacts,  bills  of  ex- 

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change,  bonds,  deedi,  and  many  other  writings 
of  a  similar  nature,  should  be  written  upon 
stamped  paper,  a  duty  l)eing  payable  to  the 
Crown  on  every  stamp.  The  stamp-laws,  in 
addition  to  serving  the  purpose  for  which  they 
were  enacted,  have  been  of  considerable  use  in 
checking  fraud,  and  rendering  forgery  diffi- 
cult, and  supplying  means  of  detecting  the 
j^one  or  the  other.  The  revenue  collected  in 
l^is  way  was  first  granted  to  the  Grown  by 
GonWil\.  and  Mary,  c.  21.  By  several  acts  of 
8(  same  and  of  the  subsequent  reign,  these 

,  citor<»  were  continued;  extended  to  various 
two  pet  not  included  in  tbe  above  act ;  and 

'    SoIi(  fG^eo.  I.  c.  12,  they  were  made  perpetual. 

vol.  igluties  imposed  for  England  did  not  apply 

/"■^^otland  previous  to  the  union  of  the 

.  <^^  Adorns.  By  the  10th  article  of  the  Act  of 
'.^^t  it  was  stipulated  that  Scotland  should 

I    t^^iMte  charged  with  the  duties  on  stamped 

J^>v>aper,  &c.,  granted  by  the  acts  then  in  force 
in  England.  But,  by  6  Anne,  c  5,  the  stamp- 
duties  then  payable  in  England  were  expressly 
extended  to  the  whole  kingdom;  and  since 
that  time  Scotland  has  been  subject,  in  com- 
mon with  England,  to  the  several  charges  and 
regulations  imposed  by  tbe  various  acts  of 
Parliament  relating  to  this  branch  of  revenue, 
unless  when  specially  exempted.  By  5  Will, 
and  Mary,  c.  21,  the  Crown  is  authorised  to 
appoint  commissioners  of  stamps ;  and  these 
commissioners  are  enjoined  to  observe  and 
perform  the  rules  and  orders  of  the  Treasury. 
The  commissioners  are  appointed  during  plea- 
sure ;  and  when  a  vacancy  in  their  number 
is  to  1>e  supplied,  new  letters-patent  issue,  by 
which  the  preceding  patent  is  revoked,  and 
the  former  members  are  re-appointed  in  con- 
junction with  the  new  commissioner.  There 
were  formerly  separate  boardsfor  England  and 
Ireland ;  but  by  7  and  8  Geo.  IV.  c.  55,  these 
boards  were  consolidated.  And  by  4  and  5 
Will.  IV.  c.  60,  the  Boards  of  Stamps  and 
Taxes  are  consolidated.  The  duties  of  the 
board  consist  in  carrying  into  effect  the  several 
acts  of  Parliament  and  letters-patont  which 
relate  to  this  branch  of  revenue.  They  have 
a  general  superintendence  of  every  depart- 
ment, both  at  the  head  office  and  elsewhere ; 
they  report  to  the  Treasury  upon  references, 
or  make  representations  on  matters  which  re- 
quire it ;  carry  on  the  whole  coirespoudence 
with  the  officers  of  the  establishment  and  the 
public ;  order  prosecutions  for  ofifences  against 
the  stamp-laws ;  and  consider  the  propriety 
of  mitigating  tbe  penalties,  on  the  petition  of 
the  parties ;  make  the  regulated  allowances 
for  spoiled  stamps,  and  cancel  those  allowed ; 
and,  generally  speaking,  nothing  is  done,  ex- 
cept the  receipt  of  money,  the  keeping  ac- 
counts, and  the  stamping  instruments,  in  the 
common  course  of  daily  business,  which  does 


not,  or  may  not,  require  the  iDterventiom  of 
tbe  board,  either  coUectively,  or  by  ■<Hne  one 
of  its  members.  See  the  13A  Report  of  t&« 
Comminion  appointed  to  inquire  itUo  the  Stamp 
EstahUthment. 

Before  the  passing  of  44  Geo.  III.  &  98, 
much  confusion  existed  on  this  subject,  on  ac- 
count of  the  numerous  statutes  requiring  to 
be  referred  to.  That  statute,  which  was  in- 
tended to  remedy  the  evil  by  consolidating 
the  acts,  in  so  far  as  regards  the  amount  of 
stamp-duties  on  writings,  was  repealed  by 
48  Geo.  III.  c.  149,  which  again  was  super- 
seded by  55  Geo.  III.  c  184.  The  recent 
Stamp  Acts  are  IS  and  14  Vict.  c.  97, 1850; 
16  and  17  Vict.  cc.  69  and  63  ;17  and  18  Vict, 
c.  83, 1864;  18  and  19  Vict.  c. 78, 1865 ;  and 
23  Vict.  c.  16, 1860. 

Forgery ;  and  Licenses  to  SM  Stamps. — Many 
acts  make  provision  against  the  foi^ry  of 
stamps,  and  a  special  statute  was  lately  passed 
upon  the  subject ;  3  and  4  Wili.  IV.  c  97. 
By  this  act,  the  commissioners  are  empowered, 
by  writing  under  the  hands  of  any  two  or 
more  of  them,  to  grant  a  license,  free  of  ex- 
pense, to  any  person  whom  they  think  fit  (not 
being  a  distributor  appointed  by  themaelvM, 
nor  a  sub-distributor  appointed  by  a  distri- 
butor), to  vend  and  deal  in  stamps  at  any 
place  in  Great  Britain  named  in  the  license, 
each  licensed  person  entering  into  a  bond,  in 
a  penal  sum  of  L.lOO,  not  to  sell,  or  offer  for 
sale  or  exchange,  or  keep  or  have  in  his  pos- 
session for  sale  or  exchange,  any  stamps  not 
proenred  at  the  head  office  for  stamps  in  West- 
minster or  Edinburgh,  or  from  a  duly  k^ 
pointed  distributor,  or  from  a  person  licensed 
under  the  act ;  §  1.  Any  person,  except  dia- 
tribntors  or  sub-distributors, dealing  instamps 
without  a  license,  or  in  a  place  not  specified 
in  his  license,  forfeits  L.20 ;  and  if  any  pro- 
ceedings he  had  for  recovery  of  this  penalty, 
and  it  appear  that  any  of  the  stamps  so  dealt 
in  were  false,  forged,  or  counterfeit,  although 
this  may  not  have  been  alleged  in  the  infor- 
mation or  pleading,  the  penalty  is  doubled, 
the  reason  for  the  increase  of  penalty  being 
stated  in  the  judgment ;  and  in  any  issue  re- 
lating to  the  vending  of  stamps,  the  jnry  are 
required  to  say  whether  or  not  they  are 
forged.  These  provisions  are  declared  not  to 
exempt  any  person  from  the  legal  conse- 
quences of  uttering  or  having  in  his  posses- 
sion stamps,  knowing  them  to  be  forged ;  §  3. 
Any  person  employed  to  prepare,  write,  (h- 
engross  a  deed  or  instrument  liable  to  stamp- 
duty,  may  charge  his  employer  with  the 
amount  of  the  stamp  without  obtaining  a 
license ;  §  4.  Licensed  persons  are  required 
to  paint  their  names,  and  the  words  "  Licensed 
to  sell  Stamps,"  in  front  of  their  houses  or 
shops ;  and  unlicensed  persons  are  prohibited 


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under  a  penalty,  to  paint  anything  import- 
ing tliat  they  are  dealers  in  (tamps ;  §§  6  and 
6.    Allovanee  is  made  for  stamps  in  the  pos- 
setaion  of  unlicensed  vendors,  dying  or  be- 
coming bankrupt  or  insolvent,  or  whose  li- 
censes are  revolted ;  §  8.    The  commissioners 
are  empowered  to  grant  warrants  to  search 
and  inspect  the  stoclu  of  stamps  of  distribu- 
tors and  licensed  dealers,  withpower  to  break 
open  doors  if  necessary ;  §  9.  The  person  exe- 
cuting the  warrant  must,  if  required,  give 
an  acknowledgment  for  the  stamps  which  he 
seizes.    A  licensed  vendor  is  entitled  to  bo 
paid  the  amount  of  the  genuine  stamps  seized, 
or  to  have  them  returned  to  him ;  §  10.    Li- 
censed vendors  having  counterfeit  stamps  in 
their  possession,  are  liable  to  the  penalties  of 
vending  forged  stamps,  unless  it  be  proved 
that  they  were  procured  from  some  distribu- 
tor or  licensed  vendor ;  §  11.    If  any  person, 
knowingly  and  without  lawful  excuse  (the 
proof  of  which  lies  on  the  accused),  have  in 
his  possession  any  counterfeit  die,  plate,  Ac, 
or  any  vellum,  parchment,  or  paper,  having 
thereon  an  impression  of  any  such  counterfeit 
die  or  plate  ;  or  fraudulently  use,  join,  fix,  or 
place,  for,  with,  or  upon  one  vellum,  Sic,  any 
stamp  or  impression  cut  from  another ;  or 
erase  from  any  stamped  vellum,  &o^  any  name, 
sum,  date  or  other  thing,  with  the  intention 
of  using  the  stamp  for  some  other  instrument, 
&C.,  on  which  a  stamp  duty  is  payable ;  or 
knowingly  use,  utter,  sell,  or  expose  to  sale, 
or  knowingly  and  without  excuse  have  in  his 
possession,  any  stamped  vellum,  &c.,  so  erased, 
he,  and  all  who  aid  and  abet  in  such  offences, 
shall  be  adjudged  guilty  of  felony,  and  shall 
be  liable,  at  the  discretion  of  the  Court,  to  be 
transported  for  life,  or  for  any  term  not  less 
than  seven  years,  or  to  be  imprisoned  for  not 
more  than  four,  nor  less  than  twojears;  §  12. 
On  the  information  given  before  a  justice, 
upon  the  oath  of  one  or  more  credible  persons, 
that  there  is  just  cause  to  suspect  any  one 
of  being  concerned  in  the  forging  of  dies  or 
stamps,  or  in  the  commission  of  other  felonious 
acts  therewith   connected,  and  specified  at 
length  in  the  act,  the  house  of  such  suspected 
person  may  be  ordered  to  be  searched ;  §  13. 
Hawkers  of  stamps  are  liable  to  a  penalty  of 
h.20 ;  and  may  be  apprehended  by  any  person, 
and  taken  before  a  justice  ;  §  14.    Justices 
may  issue  warrants  for  seizing  stamps  sus- 

ricted  to  be  stolen  or  fraudulently  obtained ; 
16. 

Ltgacy-DvUa. — The  act  65  Geo.  III.,  from 
§  38  to  §  61,  enacts  certain  regulations  re- 
specting the  duties  on  probates  of  wills  and 
on  Tetters  of  administration  in  England.  The 
analogous  instruments  in  Scotland  are  testar 
ments- testamentary  and  testaments-dative. 
iSee  Confirnuiivm,    The  duties  on  probates  and 


letters  of  administration  were  exigible  in 
England  upwards  of  a  century  before  the  du- 
ties on  confirmation  were  introduced  in  Scot- 
land.   These  were  first  charged  by  44  Geo. 
III.  c  98,  §  23,  but  were  payable  only  in  the 
case  of  actual  confirmation,  which  was  gene- 
rally optional.    A  new  system  was  introduced 
by  48  Geo.  III.  c.  149,  §§  38  to  42,  which 
transfers  the  duties  to  inventories ;  and  thesr 
inventories  mnst  be  given  in  whether  a  cob 
firmation  be  obtained  or  not.    The  act  ie 
Geo.  III.  c  184,  increased  the  duties,,  of 
made  a  distinction  between  testate  and  jid  4 
tate  succession ;  see  Fart  III.  of  the  sc/here 
The  only  clause  in  this  act,  applicableoiled 
cially  to  Scotch  confirmations  and  inven  they 
is  the  61st,  which  is  considered  defectiv-d  the    , 
further,  on  this  snlnect,  the  articles  Cof'itage 
(ion.    I^veatory.    Legacy  and  Rettdue  D\t^o{  - 

Dutiet  on  Succession. — The  act  16  aiiu^f ' 
Yict.  c  61,  imposes  duties  on  succession  i/t 
property  not  charged  under  the  Legacy-duties 
Acts.     See  Succession  Dviies. 

Denomination  of  Stamps. — It  is  provided  by 
43  Geo.  III.  c.  127,  §  6,  that  if  the  stamp  be 
of  a  proper  denomination,  it  shall  not  be  in- 
effectual from  its  being  of  greater  value  than 
the  Stamp  Act  requires.  And  by  65  Geo.  III. 
c.  184,  §  10,  all  instruments  for  or  npon  which 
any  stamp  or  stamps  shall  havo  been  used  of 
an  improper  denomination  or  rate  of  duty,  but 
of  equal  or  greater  value  in  the  whole,  with 
or  than  the  stamp  or  stamps  which  ought  re- 
gularly to  have  been  used  thereon,  the  same 
shall  be  held  valid  and  effectual  in  law,  ex- 
cept in  cases  where  the  stamp  or  stamps  nsed 
on  such  instruments  shall  have  been  specially 
appropriated  to  any  other  instrument,  by 
having  its  name  on  the  face  thereof.  As  to 
such  special  appropriation,  see  65  Oeo,  III. 
c.  184,  §§  S,  4,  and  6,  supra,  p.  936. 

Nunwer  of  Stamps  required. — It  is  provided 
by  44  Geo.  III.  c.  98,  that  no  single  instru- 
ment, article,  matter,  or  thing  liable  to  only 
one  specific  duty,  is  chargeable  under  any  two 
or  more  separate  and  distinct  heads  or  denomi- 
nations. A  deed  executed  and  indorsed  on  a 
former  deed,  as  a  further  security  for  advances 
made  and  to  be  made  under  the  first  deed,  is 
exempted,  by  48  Geo.  III.  c.  49,  from  the  ad 
o(ifer«ffiduty,  provided  the  first  deed  be  stamped 
with  a  proper  ad  wUorem  stamp.  But,  in  ge- 
neral there  must  be  distinct  stamps  for  each 
distinct  contract,  instrument,  or  transaction. 
Thus,  in  a  case  where  three  several  infeft- 
mente  were  taken  under  three  several  char- 
ters, and  included  in  one  instrument  vritten 
on  a  9s.  stamp,  it  was  held,  in  a  question 
as  to  a  claim  of  enrolment  as  a  freeholder, 
that  the  instrument  afforded  no  legal  evidence 
of  the  infeftment,  and  therefore  that  the  claim 
was  properly  dismissed ;  Mackintosh,  May  12, 

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1831,  9  S.  »t  D.  163.  Several  subjecta  of 
contract  may,  however,  be  included  in  one 
iDstrnment  impressed  with  one  stamp.  And 
where  the  interest  of  all  the  parties  relates  to 
one  sabject-matter,  one  stamp  is  sufficient, 
however  numerous  the  parties  may  be.  Thus, 
it  was  found  that  an  obligation  in  security 
granted  by  several  persons,  for  payment  of 
/^'he  sums  due  to  the  creditors  of  a  common 
l^btor,  may  be  executed  upon  a  single  stamp, 
Con^vtever  be  the  number  of  creditors ;  John- 
St.  7th  March  1801,  M.  App.  voce  Writ,  5. 
•  citor'it  has  been  held  in  the  English  courts, 
two  pi  several  persons  bind  themselves  in  a 
Solir'ftjr  by  one  bond,  agreeing  to  the  perfor- 
Tol.  islby  each  of  them  of  the  same  matters, 
*'^'«nd  requires  only  one  stamp.  Where 
■^^  ^.Vare  several  transactions,  distinct  aa  to 
V^^^eral  parties,  and  on  a  paper  stamped 
muGTonly  one  stamp,  action  may  be  main- 
fkined  on  it  against  one  party  if  the  stamp  be 
affixed,  or  in  "juxtaposition  to"  his  signature; 
and,  in  general,  the  stamp  will  be  held  to  apply 
to  the  person  first  executing  the  instrument ; 
a%  oa  SUmpt,  21;  BMt  Com.  i.  322. 
Where  rarious  letters  are  offered  in  evidence 
to  prove  any  agreement  between  the  parties 
who  have  written  such  letters,  it  is  sufficient 
if  one  of  them  be  stamped  with  a  duty  of  L.l, 
15s.,  though  the  same,  in  the  whole,  contain 
more  than  twice  the  number  of  1080  words ; 
55  Oeo.  III.  e.  184,  sch.  tit.  Agreement.  To 
explain  this,  it  is  necessary  to  state,  that  in 
ordinary  agreements  a  duty  of  L.l,  15s.  is 
payable  for  the  first  1080,  and  a  progressive 
duty  of  L.l,  5s.  for  every  additional  1080 
words.  Before  an  instrument  is  completed, 
an  alteration  may  be  made  without  render- 
ing a  new  stamp  necessary ;  but,  in  general, 
any  material  alteration  or  qualification  of  a 
deed  or  contract,  after  it  is  complete,  requires 
a  new  stamp. 

Whm  ana  how  Writings  $hoM  be  Stamped. — 
In  general,  writings  may  either  be  executed 
on  paper  previously  stamped,  or  they  may 
(with  the  exception  of  policies  of  insurance, 
indentures  of  apprenticMhip,  receipts,  bills  of 
exchange  and  promissory-notes)  be  stamped 
after  execution,  on  payment  of  a  penalty  of 
L.IO,  whether  they  have  orginally  had  an  in- 
sufficient stamp  or  no  stamp  at  all,  without 
any  re-execution  by  the  parties.  The  proper 
stamp,  when  added,  gives  effect  to  the  instru- 
ment from  its  date.  For  an  instance  of  this, 
see  Creditors  of  Kingstorie,  competing,  12th 
Jan.  1743,  ElcL  voce  Writ,  14.  An  unstamped 
writing  may  be  stamped  even  after  an  abjudica- 
tion has  been  deduced  upon  it ;  Lamont,  4th 
Dec.  1789,  M.  16,945  and5494.  The  excepted 
articles  are,  for  the  most  part,  declared  ab- 
solutely null  and  void,  if  not  properly  stamped 
at  the  time  they  commence  operation.  When 


deeds  are  stamped  after  execution,  a  receipt 
for  the  penalty  is  indorsed  at  the  office,  which 
is  considered  as  valuable  in  evidence  as  the 
stamp  itself.  Where  an  executor-creditor,  in 
confirming  to  a  defunct,  stated  that  he  could 
put  no  value  on  one  item  till  the  claim  was 
constituted,  this  was  held  no  objection,  under 
the  Stamp  Acts  regarding  inventories,  to  his 
title  to  piirsue  for  it,  it  being  sufficient  to  add 
the  amount  to  the  inventory  when  constituted 
before  extract;  Williamson,  Nov.  13,  1832, 
11  S.  AD.  7.  Where  an  unstamped  writing 
is  founded  upon,  it  is  customary  for  the  Court 
of  Session  to  sist  process  until  the  stamp  is 
affixed.  The  competency  of  this  has,  how- 
ereis  been  occasionally  called  in  question; 
and  it  has  been  pleaded  that  the  action  ought 
to  be  dismissed,  leaving  it  to  the  pursuer  to 
bring  another  action  when  the  writing  has 
been  stamped.  In  a  case,  in  which  the  com- 
petency to  sist  process  was  maintained,  the 
LoBO  Justiob-Clkkx  said,  "  Our  practice  has 
been  invariable  to  sist  process,  and  we  wiU 
adhere  to  it  till  corrected  elsewhere ;"  Eat- 
ton,  June  16, 1833, 11  S.  d)  D.  727. 

By  the  act  13  and  14  Vict  c.  97, 1850,  the 
penalty  exacted  for  stunping  a  document  after 
it  has  been  signed  is  L.IO ;  but  the  Com- 
missioners of  Inland  Revenue  may  remit  the 
penalty,  in  whole  or  in  part,  if  the  document 
is  brought  within  twelve  months  after  being 
signed,  provided  it  is  proved  to  their  satisfac- 
tion that  it  was  not  previously  stamped  by 
reason  of  accident,  mistake,  inadvertency,  or 
urgent  necessity,  and  without  any  wilfol  de- 
sign to  evade  or  delay  the  payment  of  the  doty. 
If  a  deed  is  executed  by  any  one  abroad,  it 
may  be  stamped  without  payment  of  any 
penalty,  if  brought  for  that  purpose  within 
two  calendar  months  from  the  time  of  being 
received  in  the  United  Kingdom. 

Setting  out  the  true  Consideration. — It  is  en- 
acted by  48  Geo.  III.  c  149,  §§  22,  23,  that 
in  sales,  the  consideration-money,  directly  or 
indirectly  paid,  or  secured  or  agreed  to  be 
paid,  be  truly  expressed  in  words  at  length  in 
the  conveyance ;  and  in  default,  the  purchaser 
and  seller  forfeit  L.50,  and  are  charged  with 
five  times  the  amount  of  the  excess  of  duty  due 
beyond  what  was  actually  paid.  Parties 
liable  to  such  penalties  informing  against 
others,  are  indemnified  and  rewarded.  Fur- 
ther, where  the  consideration  is  not  truly  set 
forth,  the  purchaser  may  recover  back  as 
much  as  is  not  truly  set  forth ;  see  also  ro(< 
to  55  Geo.  III.  c.  184,  sch.  voce  Convofanco. 
Penalties  are  also  imposed  upon  attorneys  or 
other  persons  preparing  deeds  in  which  the 
consideration  is  not  truly  set  forth ;  48  Geo. 
HI.  c.  149,  §1 30  to  34. 

Evidence  in  Conntetion  witk  tke  Stamp-Laics. 
— No  deed  is  effectual  in  any  eoart  unless 


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Btamped  with  the  daties  imposed  by  the  exist* 
ing  acts.  Previous  to  a(finitting  secondary 
evidence  of  the  contents  of  a  writing,  lost  or 
destroyed,  there  must  be  positive  or  presump- 
tive evidence  that  it  was  properly  stamped. 
Although  it  \a  pare  judicia  to  refuse  sanction 
to  any  evasion  of  the  act,  yet  it  is  incumbent 
on  the  party  who  relies  on  the  objection  that 
a  writing  is  not  stamped,  to  show  that  it  is 
within  the  operation  of  the  law,  unless  in  the 
case  of  exemption,  when  the  party  producing 
the  instrument  must  establish  the  exemption. 
It  has  been  questioned  whether  an  unstamped 
instrument,  when  judicially  founded  on,  is  or 
can  be  at  all  recognised  in  law,  or  read  in  a 
court  of  jnstice.  Such  an  instrument,  how- 
ever, may  be  adduced  in  proof  of  fraud,  and 
for  certain  collateral  or  extrinsic  purposes; 
Ertkine,  July  16, 1819,  2  Mur.  1 84.  In  some 
cases  (e,g.  a  receipt),  an  unstamped  writing 
may  be  shown  to  a  witness  to  refresh  his 
memory.  And  a  witness  was  allowed  to  look 
at  an  unstamped  contract  between  a  collier  and 
coalmaster,  to  refresh  his  memory  as  to  its 
contents;  Didaon,  Nov.  1,1816,  1  Mur.  142. 
If  an  agreement  be  written  on  unstamped 
paper,  it  cannot  be  proved  by  parole  evidence. 
The  want  of  the  stamp  voids  the  instrument 
merely,  leaving  the  party  to  resort  to  other 
evidence.  It  is  therefore  sufBcient,  in  the 
ordinary  case,  if  the  opposite  party,  on  a  re- 
ference to  his  oath,  admit  the  fact,  which,  in 
absence  of  such  aiidmission,  the  instrument 
might  have  been  necessary  to  prove ;  BelPt 
Com.  i.  322. 

In  the  case  of  UtUheton  y.  Ross,  June  25, 
1847,  9  D.  1866,  an  unstamped  receipt  was 
tendered  in  evidence,  not  for  the  purpose  of 
proving  the  receipt  of  the  money  for  which 
it  was  granted,  but  for  the  purpose  of  show- 
ing the  state  of  an  account  as  it  stood  before 
the  receipt  was  granted.  The  Court,  by  a 
majority  of  nine  to/our,  were  of  opinion  that 
the  receipt  could  not  be  received ;  but  in  the 
House  of  Lords  this  judgment  was  reversed; 
Boim  of  Lords,  March  27,  1849,6  Bell,  374. 

Spoued  Stamps. — All  who  have  stamped 
paper  or  parchment  written  or  engrossed 
upon,  and  undesignedly  spoiled,  or  by  any 
means  rendered  unfit  for  the  purpose  intend- 
ed, and  which  has  not  been  used,  may,  on 
^th  of  the  circumstances,  to  the  satisfaction 
of  the  commissioners,  obtain  an  equal  supply 
of  fresh  stamps,  either  in  one  or  sever^ 
stamps.  If  the  writing  has  been  executed, 
the  stamp  is  held  to  have  been  used,  and  is 
not  considered  a  spoiled  stamp  entitling  the 
party  to  an  allowance,  though  circumstances 
should  render  it  useless.  It  is,  however,  pro- 
vided by  50  Oco.  III.  c.  35,  §  14,  that  allow- 
ance may  be  made  for  stamps  used  upon  any 
instrument  which   has  been  executed,   but 


which,  by  some  mistake,  is  found  unfit  for 
the  purpose,  or  which,  by  the  death  of  any 
party  thereto,  cannot  be  executed,  provided 
such  fact  be  proved  by  affidavit  or  otherwise. 
In  general,  no  allowance  is  made  for  a  spoiled 
or  misused  stamp  after  six  calendar  months 
from  the  time  it  is  spoiled  or  misused.  The 
commissioners  are  directed  to  make  rules  and 
orders  for  the  regulation  of  the  allowance  for 
spoiled  stamps.  This  allowance  is  not  paid 
in  money,  but  a  ticket  is  given,  transferable 
without  indorsement,  for  an  equal  number  of 
stamps.  It  is,  however,  enacted,  by  S  and  4 
Will.  IV.  c.  97,  §  19,  that  in  any  case  where 
the  commissioners  make  allowance  for  spoiled 
stamps,  they  may,  if  in  their  discretion  they 
think  fit,  instead  of  giving  stamps,  refund  the 
amount  in  moAey,  deducting  the  percentage 
allowed  by  law  on  the  purchase  of  stamps  of 
the  same  description  as  those  in  respect  of 
which  the  allowance  is  made.  They  are  also 
empowered  to  refund  money  for  stamps  not 
spoiled,  but  for  which  the  possessor  has  no 
immediate  occasion,  if  applied  for  within 
three  months  after  being  purchased. 

Exemptions  from  Stamp-DuU/. — There  are 
exemptions  from  payment  of  stamp-duty  in 
favour  of  certain  transactions  and  writings. 
If  the  agreement  do  not  admit  of  pecuniary 
estimation  (e.  g.,  a  promise  of  marriage),  it 
may  be  proved  by  unstamped  letters.  On 
the  same  principle,  a  missive  containing  a 
consent  to  remove  i^ithout  warning  does  not 
require  to  be  written  on  stamped  paper; 
Madaren,  Dec.  17,  1831, 10  S.  ds  D.  163.  A 
holograph  letter  by  a  party  arrested  on  a 
meditatio  fugoB  warrant,  to  his  cautioner  de 
judicio  sisti,  that  he  will  not  leave  the  conn- 
try,  is  admissible  as  evidence  without  a  stamp ; 
Clark,  Jan.  9,  1817,  1  Mnr.  180.  All  pro- 
ceedings under  the  Scots  statutes  relative  to 
the  aliment  of  poor  prisoners  are  exempted 
from  stamp-duty ;  and  it  has  been  held  that 
a  disposition  omnium  borwrum,  executed  under 
an  application  for  the  benefit  of  the  Act  of 
Grace,  falls  within  the  exemption ;  Rae,  Feb. 
23,  1837,  15  S.  A  D.  653.  An  agreement 
for  the  hire  of  a  servant  or  labourer  requires 
no  stamp  ;  but  an  agreement  for  the  assign- 
ment of  an  apprentice  from  one  master  to 
another  must  be  stamped.  A  memorandum, 
letter,  or  agreement,  the  primary  object  of 
which  is  the  sale  of  goods  or  merchandise, 
requires  no  stamp.  The  following  writings 
are  also  exempted :  'Bills  for  payment  of 
ofBcers  of  the  navy  drawn  in  pursuance  of 
57  Geo.  III.  c.  20 ;  see  §  11.  Bills,  Ac,  for 
pay  and  allowance  to  lo»al  militia  or  volun- 
teers; 57  Qeo.  III.  c.  41,  §  8.  Proceedings 
connected  with  savings  banks  and  friendly 
societies.  See  Savings  Banks.  Friendly  So- 
cieties.    Proceedings  relating  to  charitable 

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fliDds  under  59  Qeo.  III.  e.  91 ;  bm  §  3. 
Insorancea  on  farming  itock,  and  implements 
of  husbandry ;  see  3  and  4  WilL  IV.  c.  23, 
§  5,  1853.  See  Inturanee.  See  also  ChiUy 
on  Stamps,  Coventry  on  Stamps.  TiM^» 
Stamp-Laws,  and  Supplement  to  do. 

Draft  and  Receipt  Stamps. — ^AU  drafts  or 
orders  for  the  payment  of  any  sum  of  money 
to  the  bearer  or  order,  on  demand,  are  liable 
to  a  stamp  of  one  penny,  and  there  is  now  no 
exemption  in  farour  of  drafts  drawn  upon  a 
banker  residing  within  fifteens  miles  of  the 
place  where  the  draft  was  issued.  All  receipts 
or  discharges  given  for  or  upon  the  payment 
of  money  amounting  to  L.2  or  upwards  are  also 
liable  in  a  stamp  of  one  penny.  These  stamps 
may  be  either  impressed  or  affixed.  Where 
adhesive  stamps  are  used,  the  party  who 
makes,  signs,  or  issues  the  document,  must, 
before  he  deliver  the  same  out  of  his  hands, 
affix  the  proper  adhesive  stamp,  and  must 
effectually  cancel  and  obliterate  the  same,  by 
writing  upon  it  his  name.orthe  initials  thereof, 
and  the  date  of  the  day  and  year  in  which  he 
shall  so  write  the  same,  and  in  such  manner 
as  clearly  and  distinctly  to  indicate  that  the 
stamp  has  already  been  used,  and  so  that  it 
cannot  without  fraud  be  again  made  use  of. 
In  doing  this,  the  grantor  and  receiver  of  the 
document  are  liable  in  a  penalty  of  twenty 
poutuls.    See  Act  23  VicL  c.  15, 1860. 

Heritable  Bonds  chargeable  wiik  Frobate  and 
Inventory  Duties. — By  the  act  23  Vict,  c  15, 
1860,  all  personal  estate  appointed  or  dis- 
posed of  by  will  under  any  power  authorising 
the  disposal,  is  chargeable  with  probate  and 
inventory  duties,  and  these  duties  are  made 
chargeable  on  such  estate.  Money  secured  on 
heritable  property,  and  by  heritable  bonds  in 
Scotland,  are  also  made  chargeable  with  those 
duties.  No  will,  testamentary  instrument,  or 
disposition  mortis  causa  is  chargeable  with  any 
stamp-duty. 

Doubts  as  to  Sufficiency  of  Stamp. — By  the 
act  13  and  14  Vict.  c.  97,  §  14, 1850,  it  is 
provided  that  the  opinion  of  the  Commissioners 
of  Inlaud  Revenue,  as  to  what  stamp-duty 
is  chargeable  on  any  deed,  may  be  obtained 
by  presenting  the  deed,  whether  previously 
stamped  or  not,  to  the  commissioners  at  the 
office,  and  paying  a  fee  of  <«n  shillings.  The 
opinion  of  the  commissioners  may  be  appealed 
from  to  the  Court  of  Exchequer  at  West- 
minster. By  the  act  16  and  17  Vict,  c  59, 
§  13, 1853,  the  opinioif  of  the  commissioners 
may  also  be  obtained  in  the  same  manner  as 
to  whether  a  deed  is  not  chargeable  with  any 
stamp-duty. 

Stampings  of  Ezeontioiu.  The  executions 
of  messengers  were  formerly  allowed  to  be 
authenticated  by  being  stamped — 1540,  c.  74; 
but  by  1686,  c.  2,  this  practice  was  abolished, 


and  the  sahacription  both  of  messengen  and 
witnesses  required.    See  Execution. 

Standing  Orden ;  are  the  orders  made  by 
either  House  of  Parliament  respecting  the 
manner  in  which  business  shall  be  conducted 
in  it.  The  orders  of  the  General  Assembly, 
respecting  the  management  of  business  there, 
have  also  been  called  standing  orders ;  OkwA 
Lam  Styles,  270.  Clerks  of  the  peace  and 
others  are,  by  express  statute,  ordered  to  take 
the  custody  of  documents  directed  to  be  de- 
posited with  them  under  the  standing  orders 
of  either  House  of  Parliament ;  1  Vict,  c  83. 
See  ParliamenL    Private  BiUs. 

Statu ;  a  Roman  law  term,  signifying  a 
quality  attaching  to  persons,  in  virtue  of 
which  they  differed  in  the  eye  of  the  law. 
Thus,  a  Roman  citizen  differed  in  status  from 
a  stranger, »  pateffamilias  from  &filiusfamilias, 
A  change  of  status  was  called  capitis  dimi- 
nutio,  which  was  called  maxima,  media,  or 
minima,  according  to  the  rights  lost  or  ac- 
quired. See  Heinec.  Elem.  §§  76  and  224 ; 
Bank.  i.  45. 

Statnte  Labour ;  is  the  amount  of  work 
appointed  by  law  to  be  furnished  annually  for 
the  repair  of  highways  not  turnpike,  l^or- 
merly  the  persons  liable  to  give  statnte  la- 
bour were  tenants,  cottars,  and  labourers,  in- 
cluding inhabitants  of  royal  burghs,  artificers, 
&c. ;  but  sailors  employed  in  distant  or  coast- 
ing voyages,  colliers,  and  others  engaged  ia 
collieries,  were  exempted.  Heritors  do  not 
furnish  statute  labour,  but  may  be  ctUled  on 
to  supply  its  insufficiency.  The  number  of 
days  of  work  is  six  a  year  for  the  first  three 
years,  and  four  fur  each  year  thereafter.  The 
labour  is  divided  between  two  seasons — any 
time  before  the  last  of  June,  not  being  seed- 
time; and  any  time  after  harvest.  Those 
having  carts  and  horses  must  bring  them; 
and  others  must  bring  the  requisite  imple- 
ments. The  call  to  perform  statutelabourmust 
be  intimated  in  the  parish  churches  on  the 
Sunday  preceding  the  proposed  working  days. 
The  penalty  for  default  of  attendance,  or  find- 
ing a  substitute,  is  Is.  6d.  for  each  day's  non- 
attendance  of  a  man,  and  2s.  6d.  for  each  day's 
non-attendance  of  a  man  and  horse.  The 
joint  board  of  justices  of  peace  and  com- 
missioners of  supply  has  full  powers  in  deter- 
mining the  roads  to  be  repaired,  and  in  ap^ 
portioning  and  commuting  statute  labour. 
Ersk.  B.  i.  tit.  4,  §  14,  notes  by  Ivory  ; 
Hunter's  Landlord  and  Tenant ;  Blair's  Justice, 
voce  Highways;  Hutch.  Justice,  ii.  471,  et 
seq.;  Cleland,  July  21,  1835,  13  S.  «fc  D. 
1143. 

The  act  8  and  9  Vict  c  41,  1845,  is  en- 
tituled  "  An  Act  for  Amending  the  Laws  con- 
cerning Highways,  Bridges,  and  Ferries  in 
Scotland,  and  the  making  and  maintaining 

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thereof  by  Statute  Service,  and  by  the  conver* 
Bion  of  Statute  Service  into  Money."  By  this 
statute,  it  is  provided  that  no  person  shall 
be  liable  to  perform  statute  service,  or  be 
assessed  for  the  same,  vho  is  not  a  proprietor 
or  occupier  of  lands,  buildings,  or  other  herit- 
able subjects,  of  the  yearly  value  of  Two' 
Pounds,  or  more.  See  the  various  provisions 
of  the  statute. 

Statute  Law.  The  proper  statute  law  of 
Scotland  commences  with  those  acts  which 
were  passed  in  the  reign  of  James  I.  of  Scot- 
land, continuing  from  that  period  down  to 
the  union  of  the  kingdoms.  After  the  dnion, 
the  Scotch  statute  law  is  to  be  found  in  those 
British  statutes  which  extend  to  Scotland.  A 
statute  is  held  to  be  published  by  being  printed 
and  circulated.  It  may  be  subdivided  into  the 
rubric  or  title ;  the  preamble,  which  states 
the  reasons  and  grounds  on  which  the  new 
enactment  has  been  made,  and  the  other  sta- 
tutes to  which  it  refers;  and  the  statutory 
part,  by  which  the  enactment  is  actually 
made.  In  explaining  the  statutory  part  of  a 
law,  the  following  rules  are  received :  That 
no  sense  is  to  be  taken  which  implies  injustice 
or  absurdity :  That  there  is  place  for  inter- 
pretation only  where  the  words  admit  of  two 
different  meanings :  That  where  they  do  not 
admit  of  a  double  meaning,  the  words  must 
be  explained  in  that  sense  only  which  they 
can  bear,  whatever  hardship  may  be  the  con- 
sequence :  That  the  interpretation  of  laws, 
where  they  admit  of  it,  ought  not  to  depend 
on  critical  refinement  .or  subtle  distinctions ; 
since,  being  directed  to  the  great  body  of  the 
people,  they  ought  to  be  interpreted  in  that, 
sense  which  the  words  most  obviously  bear : 
That,  when  a  law  term  of  known  legal  signi- 
fication occurs  in  a  statute,  it  is  to  be  under- 
stood, not  in  its  popular,  but  in  its  legal  sense : 
That  private  statutes  are  not  to  be  applied 
at  large  :  That,  when  the  words  of  a  statute 
are  obscure,  their  meaning  may  be  sought  in 
a  comparison  of  them  with  other  parts  of  the 
same  statute,  or  by  a  reference  to  former  sta- 
tutes, or  by  the  usage  of  the  country :  That 
doubtful  laws  ought  to  receive  that  interpre- 
tation which  suits  best  with  the  avowed  in- 
tention of  the  Legislature ;  and  that  restric- 
tive statutes  are  always  .to  be  strictly  inter- 
preted. JJntil  the  year  1793,  all  acts  of  the 
same  session  of  Parliament  were  held  to  com- 
mence thejr  operation  on  the  same  day ;  and 
as,  in  ancient  times,  the  royal  assent  was  re- 
served till  the  end  of  the  session,  the  whole 
enactments  of  each  session  were  considered  as 
one  statute.  The  Chancery  enrolment  of 
acts  specified  no  date  except  that  of  the  com- 
mencemen.t  of  the  session,  and  accordingly  all 
acts  were,  in  legal  construction,  held  to  have 
been  in  force  ^m  th^t  day.    The  incon- 


venience and  injustice  of  this  construction, 
which  made  every  statute  an  ex  post  facto  law, 
led  to  the  act  33  Geo.  III.  c  13,  directing 
the  clerk  of  Parliament  to  indorse  on  every 
act  the  date  when  it  receives  the  royal  assent, 
and  declaring  that  this  indorsement  shall  be 
taken  to  be  a  part  of  the  act,  and  the  date  of 
its  commencement,  where  no  other  commence- 
ment is  provided  therein.  Since  that  time, 
the  date  of  the  royal  assent  is  printed  under 
the  title  of  every  act.  In  November  1797,  a 
standing  order  was  made,  that  the  duration  of 
every  new  temporary  act  should  be  expressed 
in  the  title  and  last  clause  of  the  act ;  and 
another  order  requires  distinct  acts  for  the 
revival  and  for  the  continuance  of  expiring 
laws ;  but  these,  which  were  called  "  hotch- 
potch acts,"  and  until  1806  were  usually 
founded  upon  successive  reports  of  the  Expir- 
ing Law  committee,  have  been  superseded  by 
a  separate  act  for  reviving  or  continuing  each 
expiring  law  thought  fit  to  be  continued.  It 
was  enacted  by  48  Geo.  III.  c.  106,  that  when 
a  bill  is  introduced  for  the  continuance  of 
any  act  expiring  within  the  session,  and 
such  act  expires  before  the  continuing  bill 
has  received  the  royal  assent,  the  continu- 
ing act  shall  be  held  to  have  effect  from  the 
date  of  the  expiration  of  the  act  intended 
to  be  continued.  In  the  end  of  the  session  in 
which  Geo.  III.  died  and  Geo.  IV.  succeeded, 
an  act  was  passed. continuing  till  the  next 
session  such  acts  as  should  expire  within  a 
limited  period ;  but  this  was  not  done  at  the 
death  either  of  George  IV.  or  William  IV. 
Soon  after  the  union  with  Ireland,  it  was 
enacted  by  the  last  session  of  41  Geo.  III. 
c.  90,  that  the  publications  of  statutes  by  the 
King's  (Queen's)  printer  should  be  deemed 
legal  evidence  in  Great  Britain  and  Ireland 
respectively;  and  this  law  is  retrospective 
with  regard  both  to  British  and  Irish  Acts  of 
Parliament,  as  well  as  prospective  with  re- 
gard to  the  statutes  of  the  United  Kingdom. 
On  the  subject  of  statute  law  generally,  as 
well  as  for  the  construction  of  particular  sta- 
tutes, consult  the  following  authorities  :  Ersk. 
B.  i.  tit.  21,  §  37 ;  Bank.  B.  i.  tit.  24,  §  60 ; 
Stair,  B.  i.  tit.  1,  §  16 ;  BelPs  Princ.  §§  1701, 
2035 ;  Karnes'  Eg^uty,  220,  285,  250 ;  BMr's 
ManMal,h.t. 

Statutes.  Index  of  important  statutes 
affecting  Scotland  passed  during  the  current 
reign  : — 

Absent  Persons,  Protection  of  Property  of, 

12  and  13  Vict,  c  51,  1849. 
Acts  of  Parliament,  Abbreviation  of. 

13  Vict.  c.  21, 1850. 
Advocations  and  Suspension, 

I  and  2  Viet.  c.  86,  1838. 
Affirmations. 

18  Vict.  c.  25, 1856. 


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22  Viet.  c.  10, 1859. 
Arsenic,  Sak  tf. 

14  Vict.  c.  IS,  1861. 
Assessed  Taxes. 

13  and  14  Vict.  c.  97, 1850. 

16  and  17  Vict  e.  90, 1853. 

17  Viot.  c.  1, 1854. 

20  and  21  Vict  c.  28, 1857. 
Bankrupts,  Sequestratim  of. 

2  and  3  Vict.  c.  41, 1839. 

16  and  17  Vict  c.  53, 1853. 

19  and  20  Vict  c.  79, 1856. 
Bankrwt  Law,  Amendment  of. 

54  Geo.  III.  e.  137,  Relating  to  Judicial 
Procedure  and  Securities  for  Debts. 

19  and  20  Vict  c.  91, 1856. 
Bankruptcy,  Removal  <f  Doubts  as  to  the  Law 

of  Bankruptcy  and  Real  Securities. 

20  and  21  Vict  c.  19, 1857. 

Bonk  Notes,  Forgery  and  Gounierfeitinp  of. 

16  Vict  c.  2, 1853. 

Registration  of  the  Issue  of. 

8  and  9  Vict  c.  38, 1845. 

Bankers,  Amendment  of  the  Law  relating  to 
Drafts  on. 

19  and  20  Vict  c.  25, 1856. 

21  and  22  Vict  c.  79,  1858. 

Banking  Companies,  Amendment  of  the  Law 
relating  to. 

20  and  21  Vict.  c.  49, 1867. 
Banks — Registration  of  Joint-Stock. 

9  and  10  Vict  c.  75, 1846. 

17  and  18  Vict  c.  73, 1854. 
19  Vict  c.  3, 1856. 

Limited  Liability  of  Joint'StoA. 

21  and  22  Vict  c.  91, 1858. 
Savings. 

16  and  17  Vict.  c.  46, 1863. 

19  and  20  Tict  c.  41, 1856. 

22  and  23  Vict  c.  53, 1859. 
BUls  of  Lading. 

18  and  19  Vict.  c.  Ill,  1855. 
Births,  Registration  of. 

17  and  18  Vict  c.  80, 1854. 

18  Vict  c.  29, 1855. 
Bribery  at  Elections. 

4  and  5  Vict.  c.  57, 1841. 

17  and  18  Vict  c.  102, 1854. 

21  and  22  Vict  c.  87, 1868. 
BuUion,  Sale  of. 

16  Vict  c.  29, 1853. 
Burgage  Tenure. 

10  and  11  Viet  c.  49, 1847. 
Burghs,  Police,  dsc. 

9  Vict  c.  17. 

10  Vict  c.  49. 

10  and  11  Vict.  c.  37, 1847. 

15  and  16  Vict  c.  32, 1852. 

16  Vict  c  26, 1863. 

16  and  17  Vict  c.  93, 1853. 

20  and  21  Vict  c.  72, 1857. 

21  and  22  Vict  c.  65, 1858. 


Burghs,  Abolition  of  &tiusivs  PnmUgt  sf 
Trade  in. 

9  and  10  Vict  c  17, 1848. 
Bwgh  Registration. 

19  and  20  Vict  c  68, 1856.  (See£i»- 
tion.) 

Burial. 

18  and  19  Vict  c  68, 1865. 

20  and  21  Vict  c  42, 1867. 
Commeru  and  Trade,  Amendment  tf  (k*  Lorn 

relating  to  the  Law  of. 

19  and  20  Vict  cc.  60  and  97, 1856. 
Commissioners  of  Supply. 

19  and  20  Vict  c.  93, 1866. 

20  Vict  c.  11, 1867. 
Companies  Glauses  Consolidatum  Act. 

8  and  9  Vict  c.  17, 1846. 
Confirfttation  of  Executors. 

21  and  32  Vict  c.  66, 1868. 

22  and  23  Vict  c  30, 1859. 
Constables. 

2  and  3  Vict  c.  66, 1839. 

8  and  9  Vict  c  3, 1845. 
Court  of  Session. 

1  and  2  Vict.  c.  118. 

2  and  3  Vict,  c  36, 1839. 
13  and  14  Vict  c  56, 18S6. 
20  and  21  Vict  c.  56, 1857. 

Court  of  Exchequer. 

I  Vict.  c.  65, 1837. 

18  and  19  Vict  c.  90, 1856. 

19  and  20  Vict  c.  56, 1856. 
22  and  23  Vict  c.  21, 1859. 

Court  of  Justiciary. 

II  and  12  Vict  0.79,1848. 
Crown  Charters. 

10  and  11  Vict  c.  61, 1847. 
Cruelty  to  Animals. 

13  Vict.  c.  92, 1860. 
17  and  18  Vict,  c  60, 1864. 
Deaths,  Registration  of. 

17  and  18  Vict  c.  80, 1854. 

18  Vict.  c.  29, 1855. 

Deeds,  Abolition  of  unnecessary  Forms  <f. 

19  and  20  Vict  c.  89, 1856. 
Diligence,  Personal  Diligence,    Arrestmsuls 

and  Poindings. 

I  and  2  Vict  c.  114, 1838.^ 

9  and  10  Vict  e.  67, 1846. 
Drainage. 

9  and  10  Vict  c.  101, 1846. 

10  and  11  Vict,  c  113, 1847. 

II  and  12  Vict  c.  119, 1848. 

12  and  13  Vict  c.  100, 1849. 

13  and  14  Vict  c.  31, 1850. 
19  Vict.  c.  9, 1866. 

Education,  Tides  to  Schools, 

13  Vict  c.  13, 1850. 
Education,  Parliamentary  Orants. 

18  and  19  Vict.  e.  131, 1865. 
Election  of  Mtmstrates. 

16  and  16  Vict  c  32, 1862. 


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16  Vict  e.  26, 1853. 

Members  of  Parliament. 

11  and  12  Vict.  cc.  18  and  98, 1848. 

15  and  16  Vict.  c.  57, 1852. 

16  Vict.  0. 28, 1853. 

17  and  18  Vict.  c.  102, 1854. 

18  Vict.  c.  24, 1856. 

19  and  20  Vict.  c.  58, 1856. 
Election  of  Peers. 

10  and  11  Vict.  c.  52, 1847. 

14  and  15  Vict.  c.  87. 1851. 

15  and  16  Vict.  c.  35, 1852. 
Emigraiion,  Advances  for. 

14  and  15  Vict.  c.  91, 1861. 
Entail,  Feus  and  Leases  to  Churtihes  and 
Schools. 

3  and  4  Vict.  o.  48. 1840. 
Leases  and  Excambions. 

1  and  2  Vict.  c.  70,  1838. 
Amendment  of  the  Law  of. 

11  and  12  Vict.  c.  36, 1848. 

16  and  17  Vict,  c  94, 1853. 
Evidence.  , 

3  and  4  Vict.  c.  59, 1840. 
16  Vict,  c  27, 1862. 
16  Vict.  c.  20, 1863. 
19  and  20  Vict.  c.  113, 1856.   See  Wit- 
nesses. 
Factories. 

7  Vict  c.  15, 1844. 

8  and  9  Vict  c.  29, 1846. 

9  and  10  Vict  c.  40, 1846. 

10  Vict  e.  29, 1847. 

13  and  14  Vict  c.  64, 1850. 
16  and  17  Vict,  c  104, 1853. 
19  and  20  Vict  c.  38, 1856. 

Factors,  Judicial. 

12  and  13  Vict  c.  51, 1849. 
Fisheries,  Deep  Sea. 

13  and  14  Vict  c.  80, 1856. 

14  and  15  Vict  c.  26. 
Herring. 

10  and  11  Vict.  c.  91, 1847. 

14  and  15  Vict,  c  26, 1851. 
21  and  22  Vict  e.  69, 1858. 

Oysters. 

3  and  4  Vict  c.  74, 1840. 
Mussels. 


10  and  11  Vict  c.  47, 1847. 
—  Seimon. 

7  and  8  Vict  c.  95, 1844. 
Salmon,  Tweed. 


•20  and  21  Vict.  c.  148, 1857. 

22  and  23  Vict  c.  70, 1859. 
Salmon,  Tay. 

21  and  22  Viot  e.  26, 1858. 
Trout. 

8  and  9  Vict  e.  26, 1846. 
Friendbf  Societies. 

13  and  14  Vict  e.  115, 1850. 

16  and  16  Vict  o.  65, 1852. 

16  and  17  Vict  e.  123, 1853. 


17  and  18  Vict  c  56, 1854. 
18andl9  Vict  0.63,1355. 

21  and  22  Vict  c.  101, 1858. 
Game  Certificates. 

11  and  12  Vict.  o.  30, 1848. 
Night  Poaching. 

7  and  8  Vict  c  29, 1844. 
Sores,  Killing  of. 

11  and  12  Vict.  c.  30, 1848. 
Health  of  Towns. 

19  and  20  Vict  c.  103, 1856. 
Heritable  Securities. 

8  and  9  Vict  c.  31 ,  1845. 

10  and  11  Vict  c.  50, 1847. 

17  and  18  Vict.  c.  62,  1854. 
Highland  Roads  and  Bridges. 

11  and  12  Vict  c  40, 1848. 
14  and  15  Vict  c  66, 1851. 

Houses,  Duties  on. 

14  and  15  Vict  c.  36, 1861. 
Working-Classes'. 

18  and  19  Vict  c.  88, 1865. 
—  Lodging. 

19  and  20  Vict.  c.  108, 1856. 
Imprisonment^  DAt. 

19  and  20  Vict  c.  46, 1856. 
Improvement  of  Land. 

19  Vict  c.  9, 1856.    (See  Drainage.) 
Income  Tax. 

6  and  6  Vict  c.  86, 1842. 
8  Vict  c.  4, 1845. 
11  Vict  c.  8, 1848. 

14  Vict  c.  12, 1861. 

15  Vict  c.  20, 1852. 

16  and  17  Vict.  c.  34, 1858. 

17  Vict  cc  10  and  24, 1864. 

18  Vict  c.  20, 1855. 

20  Vict.  c.  6, 1857. 

20  and  21  Vict.  c.  28, 1857. 

22  and  23  Vict  c.  18, 1869. 

23  Vict,  c  14,  1860. 

Relief  in  Assessing  Lands. 

19  and  20  Vict.  c.  80, 1856. 

Abatements  for  Assurance  on  Lives. 

16  and  17  Vict.  c.  91,  1853, 

17  and  18  Vict.  c.  40, 1854. 

18  and  19  Vict  c.  35, 1865. 

19  and  20  Vict.  c.  33, 1856. 

20  and  21  Vict  c.  5, 1857. 
Industrial  and  Provident  Societies. 

15  and  16  Vict  c.  31, 1852. 
17  and  18  Vict  c.  25, 1854. 
19  and  20  Vict  c.  40, 1856. 
Reformatory  Schools. 

17  and  18  Vict  cc.  74  and  86, 1854. 
18andl9  Vict  c  87, 1856. 

19  and  20  Vict,  cc,  28  and  109, 1866. 
Inf^iment. 

8  and  9  Vict.  o.  35, 1845. 
Intestan. 

18  Vict  c.  23, 1866. 
Joint-Stoek  Banks. 


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7  Md  8  Vict.  c.  113, 1844. 

9  and  10  Vict,  c  75, 1846. 
17  and  18  Vict.  c.  78, 1864. 

19  Vict  c.  3, 1856. 

20  and  21  Viet  c.  49,  1857. 

21  and  22  Vict  c.  91, 1858. 
Joint-Stock  Companies. 

7  and  8  Vict.  c.  95, 1844. 

11  and  12  Vict.  c.  45, 1848. 

12  and  13  Vict  c.  108, 1849. 

19  and  20  Vict  c,  47, 1856. 

20  and  21  Vict  cc.  14, 78,  and  80, 1857. 

21  and  22  Vict  c,  60, 1858, 
Jury,  Verdiett. 

17  and  18  Vict  c.  69, 1854. 

22  and  23  Vict,  e.  7, 1869, 
Ltatet,  Regittration  <f  Long. 

20  and  21  Vict  c  26, 1867. 
Legaciet,  Dutitt  on. 

16  and  17  Vict  c.  51, 1853. 
Land,  Title*  to. 

21  and  22  Vict  c.  76, 1858. 
Tramfermee  of. 

10  and  11  Vict  ce,  48  and  49, 1847. 
Land-Tat,  Redemption  of. 

16  and  17  Vict  oo.  74, 90,  aod  11 7, 1853. 
— —  Payment  of. 

20  and  21  Vict,  c  28, 1857. 
Lands  Clauses  Consolidation  Act 

8  Vict  c.  19, 1846. 
Valuation. 

17  and  18  Vict  c  91, 1864. 

20  and  21  Vict.  o.  68, 1867. 
Law,- Ascertainment  of. 

22  and  23  Vict.  c.  63, 1859. 
Legitimacy,  Procedure  for  Declaring. 

21  and  22  Vict  e.  93, 1858. 

4  and  5  Vict.  c.  60, 1841. 

15  and  16  Viet  c.  48, 1862. 

20  and  21  Vict  c.  71, 1857. 

21  and  22  Vict.  e.  89, 1868, 
Marriage,  Amendment  of  Law  of. 

19  and  20  Viet.  c.  96, 1856. 
Procedure  for  Dedaring  Validify  of. 

21  and  22  Vict,  c,  93, 1858. 
Registration  of. 

17  and  18  Vict  c,  80, 1864, 

18  Vict  c.  29, 1855. 

Member  <^ Parliament.    (See  Election.) 
Mercantile  Law  Amendment. 

19  and  20  Vict.  cc.  60  and  96, 1856. 
Merchant  Shipping. 

16  and  17  Vict  c.  131, 1853. 

17  and  18  Vict  cc  104  and  120, 1864. 

18  and  19  Viet  e.  91, 1866. 
MiUtia. 

17  Viet  c.  IS,  1854. 

17  and  18  Viet.  ee.  106  and  108, 1854. 

18  and  19  Vict  c.  100, 1866. 

20  and  21  Vict  e.  82, 1857. 
Mines,  Inspection  of. 


13  and  14  Viet  c.  100, 1850. 
18  and  19  Vict.  c.  108, 1866. 
Ministers,  Admission  of. 

6  and  7  Vict  c.  61, 1843. 
Moveable  Succession. 

18  Vict  e.  23, 1856. 
Nuisance. 

11  and  12  Vict  c,  123»  1848. 

12  and  13  Viet.  c.  Ill,  1849, 

19  and  20  Vict  c.  103, 1866. 

20  and  21  Vict  e.  73, 1867. 
Oaths.    (See  Affirmations.) 
Parishes,  Erection  of. 

7  and  8  Vict  c.  44, 1844. 
Parliamont,  Abbreviation  of  Acts  of . 

13  Vict  c.  21, 1850. 

Shortening  the  Time  required  for  At' 

sembling. 

15  Vict  c.  23, 1852. 

Repealing  certain  Disabilities  on  Mem- 

hers  of. 

16  and  16  Vict  c.  43, 1852. 

AhoifMon  of  Property  Qualifieation. 

21  and  22  Viet  e.  26, 1858. 
Partnership.    (See  Joint-Stock  Cowipaiues.) 
Paraxial  Sdtoohnasters. 

8  and  9  Vict  e.  40, 1845. 

17  and  18  Viet  o,  98, 1864. 
20  and  21  Viet  e,  69, 1867. 

Patents. 

16  and  16  Vict  c,  83, 1862. 

16  Viet  c.  5, 1863. 

16  and  17  Vict  c.  115, 1853. 
Paumbrokors. 

19  and  20  Tiet  o.  27, 1856. 
Penal  Servitude. 

16  and  17  Viet  c.  99, 1853 

20  and  21  Vict  c  3, 1857. 
Police. 

13  and  14  Viet  c.  33, 1860. 
20  and  21  Vict  e.  72, 1857. 

Poisons,  Sale  of. 

14  and  16  Vict  e.  13, 1851. 
Poor. 

8  and  9  Vict  e,  83, 1845. 
19  and  20  Vict  c.  117, 1856. 
Post,  Transmission  of  Publications  by. 

18  Viet  e.  27, 1856. 
Prisons. 

2  Md  3  Viet,  c,  42, 1839. 

7  and  8  Viet  e,  34, 1844. 

11  and  12  Vict  c.  88, 1848. 

14  and  16  Viet  c,  27, 1851. 
Regulating  Prison  at  PerA. 

6  and  6  Vict.  c.  67, 1842. 
Proxy,  Duties  on  Instruments  cf. 

19  and  20  Viet  e.  81, 1856. 
PttUteoa*'  Licenses. 

11  and  12  Vict  e.  49, 1848. 
16  and  17  Vict  e.  67, 1858. 

Putil^  Protection. 

12  and  18  Viet  e.  61, 1849. 


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Rogue-Monm. 

2  and  3  Vict.  c.  65, 1839. 
EatlKayt. 

13  and  14  Vict.  e.  83, 1850. 

17  and  18  Vict,  c  31, 1854. 
22  and  23  Vict.  o.  59, 1859. 

Bailteay  Glauta  Contolidation  Act, 

8  and  9  Vict.  c.  33, 1845, 
RetU  Securities,  to  remove  Dovibtt  as  to  Lam  of. 

20  and  21  Vict.  c.  19, 1867, 
Registration  of  Sasines. 

11  and  12  Vict.  c.  74, 1848. 
Religious  Worship  Tities. 

13  Vict.  0. 13, 1860. 
Liberty  <4. 

18  and  19  Vict.  c.  86, 1855. 
Roads  and  Bridges. 

8  and  9  Vict  c,  41, 1846. 
Sasines.  (See  Regislratum.) 
Samng  Banks. 

16  and  17  Vict.  c.  46, 1853. 

19  and  20  Vict.  c.  41, 1856. 
School  Onmts. 

18  and  19  Vict.  c.  131, 1865. 
Schools.    (See  Industrial.) 
——  Sites  for, 

12  and  13  Vict  c  49, 1849. 

14  Vict,  c  24, 1861. 
—  Endowment  (f. 

1  and  2  Vict.  c.  87, 1838. 
Schoolmasters,  Salaries  of. 
8  and  9  Vict  c.  40, 1846. 

17  and  18  Vict  c.  98, 1854. 

20  and  21  Vict,  c  59, 1857. 
SecwriUes.    (See  Heritable.) 
Sequestration.    (See  Bantn^t.) 
Swviee  of  Heirs. 

10  and  11  Vict  c.  47, 1847. 
Session.    (See  Court.) 
Sherifi,  Interpretation  Act. 

1  Vict  c.  39, 1837. 
S^iorif  Court. 

1  and  2  Vict  o.  119, 1838. 

16  and  17  Vict  o.  80, 1863. 
Shipping.    (See  Merehai^.) 
SnuMDAts. 

1  Vict  c.  41, 1837. 

12  and  13  Vict  o.  34, 1849. 
Stamps  and  Taxes,  Consolidation  of  Boards. 

12  Vict.  c.  1, 1849. 
Stamp  Ditties. 

13  and  14  Vict.  c.  97, 1860. 
16  Viot  c.  6, 1863. 

16  and  17  Vict.  cc.  69  and  63,  1853. 

17  and  18  Vict  c.  83, 1854. 

18  and  19  Vict.  c.  78, 1855. 

19  and  20  Vict  c.  81, 1856. 

21  and  22  Viot  e.  20, 1858. 

22  and  23  Vict.  c.  24, 1859. 

23  Vict,  c  16, 1860. 
StatiUe  Labour. 

8  and  9  Vict  c.  41, 1846. 
3i> 


Succession,  Duties  on. 

16  and  17  Vict  c.  61, 1863. 
Moveable. 

18  Vict.  c.  23, 1855. 
Supply,  Commissioners  of. 

19  and  20  Vict  c.  93, 1856. 

20  Vict  c  11, 1857. 
Superannuation  Act. 

22  Vict  c.  26, 1859. 
Tariff,  Consolidation  of  Customs  Duties  Act. 

16  and  17  Vict  c.  106,  1853. 

18  and  19  Vict  c  97, 1855. 
Taxes,  Assessed. 

13  and  14  Vict  c.  97, 1850. 

16  and  17  Vict  c.  90, 1853. 

17  Vict.  0.  ,1, 1854. 

20  and  21  Vict  c.  28, 1857. 
Tea,  Duties  on. 

18  Vict.  00. 9  and  21, 1855. 

20  Vict  c.  15, 1867. 

TiHes  of  Religious  Congregations. 

13  Vict  c.  13, 1850. 
to  Lands. 

21  and  22  Vict  c.  76, 1858. 
Towns,  Police  and  Health  of, 

13  and  14  Vict  c.  33,  1850. 

19  and  20  Vict  c.  103, 1856. 
Trade  and  Commerce. 

19  and  20  Viot  c.  60, 1856. 
Transportation. 

16  and  17  Vict  c  99, 1853. 

20  and  21  Vict.  c.  3,  1857. 
Treating  at  Elections. 

17  and  18  Vict  c.  102, 1864. 
Trials  by  Jurv,  Verdicts  on. 

17  and  18  Vict  c.  59, 1854. 
Tump&e  Roads. 

12  and  13  Vict,  cc  31  and  87, 1849. 
Toy  Fishery. 

21  and  22  Vict  c  26, 1868. 
Tweed  Fishery. 

20  uid  21  Vict  0.  148, 1857. 
Universities,  Admission  of  Professors  to  Lay 

Chairs. 

16  and  17  Vict  o.  89, 1853. 
Qovemment  of, 

21  and  22  Vict  o.  83, 1868. 
Usury. 

1  Vict  c.  66, 1887. 

2  and  3  Vict.  o.  37, 1839. 

13  and  14  Vict  c.  66, 1860. 

17  and  18  Vict  c.  90*  1854. 

Vagrant  Children.    (See  Industrial  and  Re- 
formatory Schools.) 
Valuation  of  Lands  and  Heritages. 

17  and  18  Vict  c.  91, 1854. 

20  and  21  Vict  c.  68, 1867. 
Verdicts  by  Jury. 

17  and  18  Viot  c.  59, 1864. 

22  and  23  Viot  c.  7, 1869. 
Windows,  Rqpeal  Duties  on  DweUing-Houses. 

14  and  15  Viot  c  36, 1861. 


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Witneua  out  of  Juritdietion. 
17  and  18  Viet.  o.  34, 1854. 
22  Vict.  c.  20, 1859. 

Wages,  Arrestment  cf. 
1  Vict.  c.  41,  1837. 
8  and  9  Vict.  c.  3(i,  1846. 

Workmen^,  CominnaXiom,  of. 
22  Vict.  c.  34, 1859. 

Weiqhis  and,  Meatwres,  AmmdmaU  cf. 
5  and  6  Will.  IV.  e.  63. 
22  and  23  Vict.  e.  56, 1859. 

Steam-Power,  tease  tf.  See  Manufae- 
tories. 

Steam-YaMeb.  Steam-boat>  fall  under 
the  edict  Ntmta  Caupones ;  Bell's  Com.  i.  467; 
Brown's  Synop.  1412,  2307.  It  ia  culpable 
homicide  when  death  is  oceasioned  through 
want  of  caution  or  neglect-  of  the  rules  in 
managing  a  gteam-reesel.  The  master  must 
ha?e  one  or  more  peraons  constantly  on  the 
look-out,  80  as  to  have  a  clear  riew  of  the 
Teasel's  course.  At  night,  or  in  haiy  weather, 
a  light  must  he  kept  burning  in  a  conspicuous 
part  of  the  vessel,  and  in  a  crowded  channel 
a  bell  mnst  be  rung  or  a  horn  sounded,  if 
enstomary.  Vessels  meeting,  steer  each  to 
the  left;  and  where  one  overtakes  another 
sailing  in  the  same  direction,  the  one  which 
proposes  to  pass  steers  to  the  right,  the  other 
to  the  left  The  vessel  having  the  advantage 
of  wind  and  tide  makes  way  for  the  one  bei^ 
ing  up  against  it,  and  the  vessel  in  motion 
is  bound  to  avoid  the  one  stationary  or  at 
anchor.  The  man  at  the  helm  is  boond  to 
obey  the  orders  of  the  captain  ;  and  the  man 
on  the  look-out  is  ezonered  if  he  gives  the 
due  notlftcation  to  the  former  of  these  parties. 
When  a  pilot  is  taken  on  board  for  a  parti- 
cular piece  of  navigation,  he  is,  for  the  time, 
responsible  for  the  navigation  of  the  veuel. 
AUsm's  Prme.  122 ;  Stede,  77. 

Btoelbov  Oooda;  oonsist  in  eom,  cattle, 
straw,  and  implements  of  husbandry  delivered 
by  the  landlord  to  his  tenant,  by  means  of 
which  the  tenant  is  enabled  to  stock  and  la- 
bour the  farm,  and  in  consideration  of  which 
he  becomes  hound  to  return  articles  equal  in 
quantity  and  quality  at  the  expiration  of  the 
lease.  Stair,  B.  i.  tit.  11,  §  4 ;  B.  ii.  tit.  3, 
§  81;  B.  iii.  tit.  8,  §  68;  More's  Notes, 
p.  ccii. ;  Brsk.  B.  ii.  tit.  6,  §  12 ;  B.  iii.  tit  1, 
18 ;  Bank.  i.  355  ;  BeU's  Prine.  §§  208, 1264 ; 
lUust.  1264  ;  Bell  on  Leases,  i.  336 ;  Hunter's 
LamiUord  and  Tenant ;  Brown's  Synop.  h.  i, 
See  Lease.    Dung.    Fodder. 

Stdlionate;  is  a  term  applied,  in  the  law  of 
Scotland,  either  to  any  crime  which,  though 
indictable,  goes  under  no  general  denomina- 
tion, and  is  punbhable  arbitrarily,  or  to  any 
civil  delinquency  of  which  fraud  is  an  ingre- 
dient Those,  e.  g.,  who  grant  double  con- 
veyances of  the  same  subject,  are  guilty  of 


this  crime— 1640,  c.  106 ;  1692,  e.  140 ;  and 
are  punishable  arbitrarily  in  their  persons  and 
goods,  besides  becoming  infamous.  The  cog- 
nisance of  fraudulent  bankruptcy,  one  kind 
of  stellionate,  is  competent  to  the  Coart  of 
Session,  who  may  inflict  any  punishment  for  it 
short  of  death,  thoagh  a  remit  to  the  Jnstidary 
is  the  nsnal  praetiee ;  1696,^  c  5 ;  1621,  o.  18 ; 
33  Oee.  III.  o.  74;  54  Geo.  III.  c  137  ; 
Brsk.  B.  iv.  tit  4,  §  79 ;  Hume,  i.  322 ; 
AUsmCs  Prine.  624 ;  BelTsGom.  i.  288;  Earned 
Equity,  305 ;  Kametf  SiaL  Law,  h.  U ;  Brown's 
Synop.  532. 

Stent  and  Stentauurten.  Stent  is  an  old 
word  for  a  tax,  impost,  or  duty,  and  a  stent- 
master  is  a  person  named  to  allocate  the  stent 
on  the  persons  liable.  In  the  case  of  Wiitter  v. 
Magistrates  of  Edinburgh,  Dec  21, 1837, 16  8. 
276,  the  validity  of  the  i^pointment  of  tiie 
stentmasters,  who  allocate  the  annnity-tax 
and  impost  in  Bdinburg^,  wasquestioned.  The 
act  directed  that  three  stentmasters  should 
be  "  chosen  and  sworn  by  the  Town-GooneiL'* 
It  was  objecied  that  the  Magistrates,  and  not 
the  Town-Council,  had  chosen  them,  and  that 
they  had  not  been  duly  sworn ;  and  oo  these 
grounds  it  was  pleaded,  that  the  nominatioD 
was  invalid,  and  that  therefore  the  atentiBg 
and  collection  of  annuity  and  impost  follow- 
ing on  it  were  lllegaL  In  pursuance  of  these 
views,  a  bill  of  suq>ension  and  iateidiet 
against  the  collection  of  arroMrs  was  presented, 
and  after  a  full  discussion  on  cases,  passed 
unanimously  by  the  First  Division — the  opi- 
nion of  the  Court  being,  that  the  duties  were 
incompetently  stented  ror.  See,  on  Stent  ge- 
nerally, the  eases  cited  in  Avwh's  Sywp. 
pp.  302-3, 2023. 

Sterility;  barrenness.  Where, from  the 
effects  of  inundation,  the  devastation  of  a 
foreign  enemy,  or  ft-om  any  other  inevitable 
accident,  lands  possesaed  by  a  tenant  do  not 
yield  a  crop  sufficient  to  pay  the  expense  of 
seed  and  labour,  no  rent  is  payable  to  the 
landlord ;  Stair,  B.  i.  tit  16,  §|  2  and  3.  Bat, 
although  such  extraordinary  sterility  may  re- 
lieve the  tenant  from  payment  of  rent,  it  will 
not  lay  the  landlord  under  any  obligation  to 
indemnify  him  for  the  expense  of  seed  and 
labour.  The  landlord  loses  his  rent,  and  the 
tenant  the  expense  of  cultivation,  unless  he 
can  show  that  the  accident  has  arisen  from 
some  fault  of  the  landlord.  The  tenant  will 
not  be  relieved  from  payment  of  rent  if  the 
loss  has  arisen  from  his  having  used  bad  seed, 
or  from  the  natural  exhaustion  of  the  land ; 
neither  will  he  be  relieved  from  the  effects 
of  accidents  befalling  the  crop  after  the  grow- 
ing or  reaping.  ^«i.  B.  ii.  tit  6,  1 41 ; 
Stair,  B.  i.  tit  16,  §  2 ;  Mor^s  Notes,  p.  xcv. ; 
Sonib.  1.432;  Karnes' Prine.  of  Equi^(18i5\ 
216;  Bdl  on  Leases,  L431;  Fwntar's La»i- 

Digitized  byCjOOQlC 


STB 


STI 


787 


lord  and  Tenant;  Shauft  Digest, ^f.  290-1. 
See  Lease, 

Sterlingns;  a  kind  of  weight,  containing 
thirty-two  corns  or  grains  of  wheat.  Accord- 
ing to  Skene,  the  expression  "  sterling,"  as 
applied  to  money,  comes  from  its  weighing  a 
certain  number  of  grains ;  the  sterling  penny 
in  England  baring  weighed  thirty-two  grains. 
Skene,  h.t. 

Steward— Steward  of  SeoUand.  The 
steward  was  an  of3cer  appointed  by  the  King, 
with  jurisdiction  over  Crown  lands,  and  with 
the  same  power  as  that  of  a  lord  of  regality ; 
1540,  c.  97«  His  jurisdiction,  which  varied 
with  circumstances,  was  generally  heritable, 
until  the  20  Qeo.  II.  c.  43,  which  abolished 
all  minor  stewartries,  and  annexed  the  re- 
mainder. The  judicial  ofiSce  of  steward  is 
the  same  in  everything  but  name  with  that  of 
sherifT.  It  is  declared  by  express  statute  that 
the  words  sheriff,  sheriff-clerk,  &&,  in  any 
existing  or  future  statute,  ^all  be  held  to 
apply  to  steward,  steward-clerk,  dtc. ;  1  Vict. 
c  39.  See  Gmmty.  The  Steward  of  Scotland 
was  an  officer  of  the  highest  dignity  and 
trust.  He  administered  the  Crown  revenues, 
superintended  the  affairs  of  the  household, 
and  possessed  the  privilege  of  holding  the  first 
place  in  the  army  next  to  the  king  in  the 
day  of  battle.  From  this  office  the  royal 
house  of  Stewart  took  its  surname.  But  the 
office  was  sunk  on  their  advancement  to  the 
throne,  and  has  never  since  been  revived. 
Bank.  B.  ii.  tit.  3,  §18 ;  B.  iv.  tit.  14,  §  4 ; 
B.  iv.  tit.  15,  §  2  ;  B.  iii.  tit.  10,  §  28;  Ersk. 
B.  i.  tit.  4,  §§  7, 10, 11. 

StewMtry.    See  County. 

Stillicidii  Serritiu ;  a  Roman  law  nrban 
servitude,  whereby  a  proprietor  was  obliged 
to  permit  the  drop  from  the  roof  of  his  neigh- 
bour's house  to  fall  into  his  ground.  By  the 
law  of  Scotland,  a  proprietor  who  has  no  right 
of  servitude  cannot,  without  permission,  build 
so  as  to  throw  either  the  eaves-drop,  or  the 
rain  water  from  his  roof  collected  in  a  spout 
(called  Jlumen  in  the  Roman  law),  on  the 
property  of  a  neighbouring  proprietor.  Stair, 
B.  ii.  tit.  7,  §  6  ;  More's  Notes,  Ixxxiv.,  xciii., 
ocxxxvii.,  eclxxiv. ;  Ersk.  B.  ii.  tit.  9,  §  9 ; 
Bank.  B.  ii.  tit.  7,  §  12 ;  BeWs  Prine.  §  1004 ; 
lUust.  ih. ;  Brown's  Synop.  2256.  See  Eaves- 
Drop.    Fhtmen. 

StingiBdint;  a  "dint  or  straike  with  a 
sting  or  batton."    Skene,  k.  t. 

Stipend.  The  stipend  is  the  provision 
made  for  the  support  of  the  parochial  ministers 
of  the  Church  of  Scotland.  It  consists  of 
payments  in  money  or  grain,  or  both,  vary- 
ing in  amount  according  to  the  extent  of  the 
parish  and  the  state  of  the  free  teinds,  or  of 
any  other  fund  specially  set  apart  for  the 
purpose.  (See  Teinds.)   The  exdtnaive  powers 


of  the  Court  of  Session,  as  Commissioners  of 
Teinds,  in  assigning,  modifying,  and  local- 
ling  stipends,  are  not  infringed  by  the  Judi- 
cature Act.  All  stipends  which  come  short 
of  L.150  per  annum  are  made  up  to  that 
sum  from  Government  funds — 50  Geo.  II f. 
c.  84 ;  and  the  act  5  Geo.  lY.  e.  72,  allows 
to  those  clergymen  of  town  parishes  who  have 
neither  manse  nor  glebe,  nor  allowance  for 
them,  L.50  per  annum ;  to  those  who  have  no 
manse,  L.30 ;  and  to  those  who  have  no 
glebe,  L.30  per  annum ;  to  be  paid  by  Ex- 
chequer, according  to  a  schedule.  The  Com- 
mission of  Teinds  cannot  decern  for  a  sti- 
pend where  there  are  no  teinds,  as  in  burghs, 
or  exhausted  teinds  ;  or  in  parishes  where  a 
second  church  is  required ; — a  stipend  being, 
in  these  cases,  derived  either  from  royal  or 
parliamentary  grant,  or  from  voluntary  burgli 
or  private  contributions.  By  act  48  Geo.  III. 
c.  138,  no  augmentation  can  be  applied  for 
within  twenty  years  after  the  last  augmenta- 
tion (the  provision  as  to  the  fifteen  years' 
interval  being  now,  by  lapse  of  time,  inopera- 
tive). See  Augmentaiion.  Whitsunday  and 
Michaelmas  are  the  two  terms  at  which  the 
stipend  is  held  to  fall  due  to  incumbents. 
Wliere  the  incumbent  is  admitted  before 
Whitsunday,  he  is  entitled  to  the  whole  year's 
stipend,  because  his  entry  is  considered  as 
prior  to  the  sowing  of  the  corn ;  and,  for  tho 
same  reason,  if  his  interest  has  ceased  before 
that  term,  he  has  right  to  no  part  of  the 
fruits  of  that  year.  If  he  has  been  admitted 
after  Whitsunday,  and  before  Michaelmas,  ho 
is  entitled  to  the  half  of  that  year's  stipend ; 
and  in  the  same  way  the  incumbent,  whose 
interest  ends  before  Michaelmas,  has  a  right 
to  the  half-year's  stipend.  The  reason  why 
Michaelmas  is  taken  in  preference  to  Martin- 
mas is,  that  all  stipends  are  held  to  come  in 
place  of  the  tithes,  which  were  due  at  the 
separation  of  the  crop  from  the  ground.  These 
are  the  terms  by  which  the  interests  of  the 
executors  are  regulated,  as  regards  stipend 
due  to  the  minister  at  the  time  of  his  death, 
whether  it  consists  in  money  or  victual.  See 
Widowi^  Fund.  Ann.  Ministers' stipends  pre- 
scribe in  five  years.  As  to  the  di^osal  of 
stipends  during  a  vacancy,  see  Vacant  Sti- 
pend. Patronage.  Ersk.  B.  i.  tit.  5,  §§  13, 
14,  21,  e<  seq. ;  B.  ii.  tit.  10,  §  46 ;  B.  iii. 
tit.  7,  §  20 ;  Bank.  B.  ii.  tit.  8,  §§  138, 165, 
et  seq. ;  Stair,  B.  ii.  tit.  8,  $  29,  et  seq. ;  BeWs 
Com.  i.  128 ;  ii.  695 ;  BelPs  Princ.  Ǥ  634, 
836, 1162-4 ;  Kame)^  Stat.  Law  Ahridg.  voci- 
bas  Parish,  Kirk-Patrimony;  Bell  on  Leases, 
i.  321 ;  Hunter's  Landlord  and  Tenant;  Bdl 
on  Purchaser's  Title,  49;  Hutch.  Justice  of 
Peace,  ii.  451,  464 ;  Conned  on  PariAes,  120, 
I2&.  149, 182. 
In  the  case  of  the  Earl  of  KinnouU  v.  Gor- 

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8TI 


STO 


don,  it  was  beld  on  appeal  (4  Bdl,  12G),  that 
the  vacant  stipend,  caused  by  the  presbytery 
refusing  to  take  a  presentee  an  his  trials, 
belonged  to  the  trustees  of  the  Ministers' 
Widows'  Fund,  and  not  to  the  patron.  In  a 
competition  between  these  trustees  and  a 
minister  on  whom  sentence  of  deposition  bad 
been  pronounced  in  1842,  but  of  which  ex- 
tract had  been  delayed  till  1850  by  inter- 
dicts which  were  afterwards  recalled  as  un- 
founded, the  claim  of  the  minister  for  the 
vacant  stipend  between  the  date  of  the  sen- 
tence and  date  of  extract  was  sustained.  See 
the  case  of  Lmng$Ume  v.  Grant,  Dec.  20, 1850, 
13  D.  394 ;  affirmed  May  3, 1860. 

Stipvlatiini ;  a  Roman  form  of  agreement, 
attended  with  solemnities,  unknown  with  us. 
Stair,  6.  i.  tit.  10,  §  9 ;  Bank.  i.  329. 

Btirpet;  *itece$tion  per;  succession  by  the 
right  of  representation,  ao  called  became  the 
kareditag,  instead  of  being  divided  among  the 
individuals,  is  divided  among  the  different 
stocks  or  stirpes.  Ertk.  £.  iii.  tit.  8,  §  12. 
See  Repraentation.    Capita. 

Storage  in  Tnuuitn.  The  right  io  stop 
in  tramitu  is  possessed  by  the  seller  of  goods 
who  has  committed  them  to  some  middleman, 
such  as  a  carrier,  shipmaster,  tic,  to  be  con- 
veyed to  the  buyer.  As  long  as  they  are  in 
the  hands  of  the  middleman,  if  the  buyer  be- 
comes insolvent  and  unable  to  pay  the  price, 
the  seller  may  remand  them,  and  retain  them 
in  security.  The  doctrine  of  stoppage  tn 
trantitu  is  the  same  in  its  practical  operation 
in  the  laws  of  England  and  Scotland.  Goods 
are  *n  tramiiu  not  only  while  in  possession 
•f  the  carrier,  by  water  or  land,  but  also 
while  in  any  place  of  deposit  connected  with 
their  transmission  and  delivery,  until  they 
come  into  the  consignee's  possession.  The 
tranntut  is  terminated  not  only  by  delivery 
into  the  buyer's  own  hand  or  repositories,  or, 
as  it  is  called,  by  his  actual  poaession,  but 
also  by  his  constructive  possession  of  them. 
The  tran$itui  is  ended  by  the  goods  arriving 
in  the  warehouse  of  a  wharfinger,  packer,  &c., 
which  the  buyer  is  in  the  habit  of  using  a8 
his  own.  The  trantitu*  is  terminated  by  the 
goods  being  deposited  in  a  warehouse  which 
the  buyer's  agent  has  hired  for  the  purpose, 
and  by  the  buyer  exercising  any  act  of  owner- 
ship upon  them,  thougli  it  is  intended  that 
they  shall  afterwards  be  forwarded  from  the 
first  place  of  deposit  to  the  buyer's  abode. 
When  goods  have  been  delivered  .to  the 
buyer's  agent  at  a  seaport,  with  whom  they 
are  to  remain  until  the  buyer  sends  orders 
for  shipping  them  to  a  foreig^n  country,  the 
transit  is  at  an  end,  and  does  not  recommence 
on  the  goods  being  sent  on  their  new  desti- 
nation. Delivery  into  a  general  ship,  or 
into  a  ship  chartered  for  the  voynge  wholly 


by  the  bnyer,  does  not  end. the  trantit;  lint 
it  would  appear,  that  a  ship  hired  on  time 
by  the  buyer,  and  fitted  out  by  him,  is  held 
as  his  own,  and  that  delivery  into  it  ends  the 
traniit.  Where  goods  are  ordered  to  be  sent 
by  sea  from  a  distance,  if  the  shipmaster 
give  a  receipt  to  the  buyer,  bearing  that  the 
goods  are  received  from  him,  the  right  of 
stoppage  is  lost  to  the  seller.  The  right  of 
stoppage  may  be  lost  through  certain  acts  of 
the  buyer,  while  the  goods  are  still  in  trangOu. 
Thus,  where  goods  are  sent  by  sea,  and  an 
indorsed  bill  of  lading  has  been  transmitted 
to  the  buyer,  the  seller  loses  his  right  of 
stoppage,  if,  before  he  exercises  it,  the  bill  of 
lading  has  been  assigned  to  a  lonafide  onerous 
indorsee.  After  the  seller,  by  notice  to  the 
carrier,  has  sto|>ped  the  goods  m  tramii*,  his 
right  is  not  injured  by  the  goods  being  de- 
livered by  mistake.  In  such  a  case,  he  may 
not  only  bring  an  action  against  the  carrier, 
but  may  also  recover  the  goods  from  the 
buyer.  The  right  of  stoppage  in  transit* 
may  be  made  effectual  by  any  means  short  of 
actnal  violence.  Actual  repossession  is  not 
necessary  to  cause  the  property  to  revert  to 
the  seller.  Thus,  a  claim  made  to  wine 
lodged  in  the  Kin^s  cellar,  was  held  to  be  a 
sufBcient  stoppage.  It  is  settled  in  the  l»w 
of  England,  that  the  mere  bankruptcy  of  the 
buyer  does  not  of  itself  operate  as  a  counter- 
mand of  his  previous  order,  without  some  act 
of  stoppage  on  the  seller's  part.  Bat  Pro- 
fessor BeU  says  that  there  is,  "  in  Scotland 
at  least,  a  bias  to  an  opposite  rule ;"  Bdtt 
Princ.  §  1309  ;  Cm.  i.  229.  See  generally, 
Ertk.  B.  iii.  tit.  3,  §  8,  note  by  Ivory ;  BdPt 
Com.  i.  205,  et  t«q..  Add.  xi. ;  Broum  on  Sale, 
432  to  537  ,•  Mor«r$  Notes  on  Stair,  Ixxxiz. ; 
Brodie't  Supp.  859 ;  Bdl's  Princ.  §§  71 ,  1307  ; 
Illutt.  ib.  Paton  on  Stoppage  in  TrantUv. 
See  Sale. 

In  the  case  of  Morton  r.  Abercromby,  Jan.  7, 
1858,  20  D.  362,  goods  were  shipped  by  the 
sellers  for  Australia  by  directions  of  the  pur- 
chaser in  Glasgow,  and  the  bills  of  lading 
were  taken  in  name  of  the  purchaser.  It 
was  held,  that  when  the  goods  were  shipped 
the  purchase  was  complete,  and  that  the 
principle  of  stoppage  tn  (ranttlv  was  not  ap- 
plicable. See  2  Rost't  L,  C.  C,  p.  92  et  teq.^ 
and  p.  585  e(  seq. 

Stonthrief ;  masterful  theft  or  depreda- 
tion. The  term  is  usually  applied  in  eases  in 
which  robbery  is  committed  within  a  dwell- 
ing-house. Hume,  i.  101 ;  AUton't  Priae. 
i.  227  ;  SteeU,  121, 134 ;  ^rsjt.  B.  iv.  tit.  4, 
§  64 ;  Kamet'  Stat  Law,  h.  t.    See  Robbery. 

Stowage.  Under  the  contract  of  affreight- 
ment, the  shipmaster,  and  the  owners,  as  his 
constituents,  are  bound  to  make  up  the  da> 
mage  arising  to  goods  from  unskilful  stow- 

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SUB 


nd 


&ge.  In  insurance,  the  damage  occasioned 
by  bad  stowage  does  not  fall  on  the  under- 
writer. Enk.  B.  iii.  tit.  i.  §  28 ;  BeW$  Com. 
i.  648 ;  Brodi<^s  Sup.  to  Stair,  986.  See 
Loading.    Ship.    Affreightment. 

Struglitiiig  of  Harohes.  This  is  a  power 
giren  to  sheriffs  by  the  act  1669,  c.  17.  See 
Mardta, 

Stranding  of  Ships.  Under  the  contract 
of  insurance,  questions  have  frequently  arisen 
as  to  whether  or  not  a  ship  has  been  strand- 
ed. A  ship  is  stranded,  in  the  sense  of  an 
insurance  policy,  when,  by  accident  or  un- 
foreseen event,  and  not  in  ordinary  circum- 
stances to  be  expected  from  the  nature  of  the 
voyage,  the  ship  is  rendered  immovable  on 
the  strand.  Several  English  cases,  illustra- 
tive of  this  principle,  will  be  found  abridged 
in  Belts  lUutt.  §  489.  See  also  Shato's  Digest, 
248.  By  statute,  all  sheriffs,  justices,  &c.,  on 
application  from  those  in  danger  of  being,  or 
who  have  actually  been,  stranded  or  run  on 
shore,  are  required  to  call  together  as  many 
men  as  may  be  necessary,  and  demand  aid 
from  the  Queen's  ships,  or  those  of  her  sub- 
jects in  the  neighbourhood,  under  a  penalty 
of  L.  100  on  the  superior  officer  who  refuses 
to  obey  the  call.  The  master  of  the  stranded 
ship  is  entitled  to  repel  by  force  all  who  in- 
trude without  leave  of  the  officer  of  customs, 
&e. ;  aud  provision  is  made  for  the  orderly 
proceedings  of  salvors,  and  for  the  settling  of 
the  salvage  ;  12  Anne,  stat.  2,  c.  18  ;  1  and 
2  Geo.  IV.  c.  76,  §  37.  Under  these  statutes 
it  has  been  decided,  that  the  officers  of  excise 
and  customs  have,  for  behoof  of  the  owners, 
the  right  of  custody  of  all  vessels,  goods,  and 
merchandise  on  board  of  vessels  stranded  or 
cast  on  shore,  without  any  person  on  board  ; 
but  the  Yice-Admiral  (and  the  principle  of 
the  decision  extends  to  the  officers  of  excise 
and  customs)  has  no  power  to  interfere  with 
the  management  of  goods  saved  from  stranded 
vessels,  where  the  masters  or  owners  have 
themselves  given  sufficient  authority  for 
taking  charge  of  them,  and  damages  were 
accordingly  awarded  in  a  case  of  such  inter- 
ference. Ertk.  B.  ii.  tit.  1,  §  13,  note  by  Mr 
Ivory;  B.  iv.  tit.  4,  §  65,  note;  BeWs  Com. 
i.  695, 610-11 ;  BeW$  Prine:§  489 ;  lUugt.  ib. 
See  Ship,     Insurance.  ■  Wreeit*. 

Stratagem ;  a  dolus  bonus,  allowed  by  the 
law  of  nations.    See  Dolus  Bonus, 

Straw.    See  Fodder  and  Straw,    Dung. 

Streets.  The  streets  of  burghs  are  held 
by  the  magistrates  for  the  public  behoof,  and 
under  burden  of  the  public  use.  The  ma- 
gistrate who  has  more  particular  jurisdiction 
with  regard  to  the  streets  is  the  Dean  of 
Guild.  The  Dean  of  Guild  Court  has  the 
regulation  of  all  buildings  within  the  royalty, 
and  the  power  of  preventing  obstructions  in 


the  streets,  and  of  removing  old  and  ruinous 
tenements.  See  Dean  of  Guild.  The  streets 
of  burghs  cannot  be  encroached  on  by  indi-> 
viduals,  nor  can- they  be  appropriated  by  the 
magistrates  either  for  public  buildings  or  by 
fening.  Private  property  cannot  be  en- 
croached on  for  the  purpose  of  widening  or 
otherwise  improving  the  streets,  without  the 
authority  of  Parliament;  and  even  when 
power  is  given  under  police  acts  to  regulate 
the  line  of  houses  about  to  be  rebuilt,  full 
indemnification  must  be  made  for  the  damage 
thereby  occasioned  to  individuals.  The  pas- 
sage between  the  kennel  of  the  street  and  the 
houses  is  part  of  the  street  or  highway ;  and 
it  was  found  that  a  house,  the  bounds  of 
which  were  the  highway,  could  not  be  built 
so  as  to  encroach  on  this  passage.  Although 
the  magistrates  have  no  power  to  encroach 
on  the  street,  yet  In  some  cases  they  have 
been  found  entitled  to  exercise  discretion  in 
allowing  one  street  to  be  shut  up,  on  condi- 
tion that  another,  equally  or  more  commo- 
dious for  the  public,  should  be  opened.  Thus, 
on  the  petition  of  an  individual  in  Dunbar, 
the  magistrates  of  that  town,  by  act  of  coun- 
cil, allowed  the  petitioner  to  shut  up  a  nar- 
row street  or  lane,  on  his  becoming  bound  to 
open  a  new  and  more  commodious  street  in 
another  direction,  and  it  was  found  that  they 
had  not  exceeded  their  powers.  So  also  the 
magistrates  of  a  town,  where  the  inhabitants 
are  supplied  with  water  by  means  of  public 
wells  in  the  streets,  have  a  discretionary 
power  to  place  these  wells  in  such  parts  of 
the  streets  as  are  best  suited  for  the  accom- 
modation of  the  public.  Bell's  Princ.  §  650  ; 
lUust.  ib. ;  Brown's  Synop.  2039,  2099.  See 
Dean  of  Chtild.  Highway.  Judge  and  War- 
rant.    Houses.    Nuisance.     Property. 

Sturdy  B^^gar.     See  Vagabond. 

Style ;  is  the  particular  form  of  expres- 
sions and  arrangement  necessary  to  be  ob- 
served in  formal  deeds  and  instruments.  See 
Deed.    Conveyancing. 

Style,  ifew  and  Old.    See  Calendar. 
■  Sobaltem  Bights.    See  Base  Rights. 

Subinfendation.  Sdelnfeftment.  BaseRighis. 

Snhmission;  is  a  deed  by  which  parties 
agree  to  submit  a  disputed  point  to  arbitra- 
tion.   See  Arbitration, 

Submission  and  Surrender  of  Tithes,  See 
Teinds. 

Subornation  of  Feijnry ;  is  the  successful 
tampering  with  those  who  are  to  give  their 
evidence  on  oath,  in  any  way  causing,  or  in- 
ducing, or  directing  them  to  perjure  them- 
selves. This  crime  is,  liy  the  act  1566,  c.  47, 
punishable  in  the  same  way  with  perjury 
itself  (especially  with  infamy),  and  may,  in 
some  cases,  be  summarily  tried,  in  the  course 
of  proceedings,  either  ou-^complaint  or  ez 

Digitized  by  LjOOQ  IC 


790 


SUB 


SUB 


propria  mttu  of  the  Court.  The  attempt  to 
■uborn,  and  e?en  all  practices  for  the  ob- 
tkining  of  false  eridenre  and  the  preventing 
of  a  fair  trial,  are  indictable.  Httme,  i.  375  ; 
Alison't  Princ.  486  ;  Ersk.  B.  ir.  tit.  4,  §  76  ; 
Taif*  Jvttke,  voce  Perjury ;  Blair's  Jvttiee, 
voce  Perjury;  Shaw's  Digest,  148.  See  Perjury. 

Snbpona ;  in  English  law,  a  writ  by  which 
eommon  persons  are  called  into  Chancery,  in 
cases  where  the  common  law  has  provided  no 
ordinary  remedy.  Also,  the  writ  for  calling 
a  witness  to  bear  evidence,  whether  in  the 
Court  of  Chancery  or  in  any  other  court, 
called  the  Subpana  ad  tetUfietmdutt.  And 
where  the  witness  is  required  to  bring  with 
him  books  or  writings,  to  be  produced  i»  mo- 
dum  probationit,  it  is  called  a  tyJ>p<na  dueet 
tecum.  The  party,  or  witness,  is  called  to 
i^pear  tub  pana  centum  librorum  (under 
penalty  of  L.100);  hence  the  use  of  the 
word.     Tomlins'  Diet.  h.  t. 

Babreptiaii ;  the  obtaining  gifts  of  escheat, 
Ac,  by  concealing  the  truth.  Obreptiou,  ob- 
taining them  by  telling  a  falsehood.  B«nk. 
ii.  39. 

SnlMcription  of  Deedi.  The  subscription 
of  deeds  consists  not  only  in  the  subscription 
of  the  grantor,  but  in  the  subscriptions  of 
two  witnesses  specially  named  and  designed. 
The  subscriptions  of  parties  and  witnesses  are 
regulated  by  the  acU  1640,  c  117 ;  1579, 
c  80 ;  1593,  c.  175,  and  1681,  c  5.  See 
Obligation.  Evidence.  Testing  Clause.  Holo- 
graph Deeds.  Mark.  Deeds.  Designation. 
Seal.  Ersk.  B.  iii.  tit.  2,  j7,  et  seq. ;  BeUCs 
Com.  \.  823,  et  seq. ;  BeWs  Princ.  §  19,  et  seq. ; 
Bank.  B.  i.  p.  11,  §  330,  et  seq. ;  Stair,  B.  i. 
tit.  3,  §  9 ;  tit.  10,  §§  5,  8 ;  More's  Notes, 
pp.  Ixviin  ocxlv.,  cccc,  et  seq. ;  Ross's  Led.  i. 
122,  a  seq. ;  Thomson  on  BiUs,  43,  336,  554. 

Snbndy ;  a  casnahy  now  unknown,  which 
the  King  or  other  superior  levied  for  his 
eldest  daughter's  portion.  Reg.  Maj.  i.  2,  c 
73  ;  Craig,  lib.  ii.  dieg.  11,  §  22. 

gubrtaatialia ;  those  parts  of  a  deed 
which  are  essential  to  its  validity  as  a  formal 
instrument.    See  Deed.    Error  in  EssenUais. 

SubftitatM  in  an  Entail ;  are  those  heirs 
who  are  called  failing  the  institute,  whether 
disponee  or  grantee.  All  the  substitutes, 
even  the  most  remote,  have  an  interest  in 
supporting  the  entail,  and  will  be  allowed  to 
apply  for  having  it  recorded,  and  to  take 
other  steps  requisite  to  defend  themselves 
against  either  the  institute  or  third  parties. 
Sand/ord  on  Entails.    See  .Tailzie. 

Snbstitation.  A  substitution  is  an  enu- 
meration of  a  series  of  heirs  described  iii 
proper  technical  langnage.  The  substitution 
may  be  either  simple,  calling  certain  heirs  in 
their  order,  which  the  person  in  possession 
may  at  any  time  put  an  end  to,  even  by  a 


gratnitons  deed ;  or  it  may  be  a  sabsUtution 
with  prohibitory  clauses,  which  will  have  the 
effect  of  guarding  the  destination  against  the 
gratuitous  deeds  of  the  person  in  possession, 
but  will  not  defend  it  against  his  onerous 
deeds;  or,  lastly,  the  substitution  may  be 
guarded  by  irritant  and  resolutive  clauses, 
whereby  it  becomes  a  statutory  entail,  which, 
being  completed  by  sasine  and  by  registration, 
secures  the  estate  against  even  the  onerous 
debts  or  deeds  of  the  person  in  possessiim. 
Questions  of  great  nicety  have  arisen  as  to 
whether  or  not  the  party  called,  or  named  in 
a  destination,  is  to  be  considered  as  a  sub- 
stitute or  as  a  conditional  institute.  See 
TaUtie.  Destination.  InstiMe.  Conditional 
InstiUUt. 

There  are  snbetitntions  also  in  moveable^ 
as  in  bonds  of  provision,  legacies,  &&,  and 
these  substitutions  receive  effect  in  the  ge- 
neral case  only  in  so  far  as  not  defeated  by 
the  deeds  of  the  person  in  possession ;  for  he 
may,  by  discharging  the  debt,  or  assigning 
the  claim,  or  receiving  and  deposing  of  the 
subject  in  whole  or  in  part,  to  that  extent 
exclude  the  substitution.  A  conveyance  bur- 
dened with  sums  to  others,  in  favour  of  an 
heir-at-law,  and  failing  him  to  subetitutee, 
will  not  be  voided  by  his  repudiating  it 
and  serving  as  heir-at-law,  in  so  far  as  cmi- 
cerns  those  in  whose  favour  the  burdens  ex- 
isted. Heirs  substitute  in  bonds  cannot  be 
liable  for  the  grantor's  debts  ultra  valorem. 
Where  children  are  substituted  to  each  other 
in  a  bond  of  provision  by  a  father,  the  child 
deceasing  cannot  give  away  his  right  to  the 
prejudice  of  the  other  children ;  and  where 
a  bond  is  taken  to  two  brothers  or  sisters, 
excluding  assignees,  neither  of  them  can 
defeat  the  succession  of  the  other  by  a  traits- 
ference  of  the  right.  Ersk.  B.  iii.  tit.  3. 
i  44 ;  BanL  B.  ii.  tit.  3,  §  130 ;  B.  iii.  tit.  5, 
§  87  ;  Stair,  B.  iL  tit.  3,  §  43 ;  B.  iii.  tit  5. 
§§  5, 16, 50,  et  seq. ;  Moris  Notes,  pp.  cocxxviu 
et  seq.,  cccxlix.  ;  BeWs  Princ.  §§  1693-4, 
1704-8,  1716,  1720,  1878;  /«w<.  §1693; 
Sand/ord  on  Entails,  6,  9, 12;  15.  See  Heir. 
Legacy.  Provision.  DesHnfltion.  Discussion. 
Condition. 

Snbftitntion ;  in  the  Roman  law,  was  of 
two  kinds.  The  one,  called  vulgar  substi- 
tution, was  where  the  testator  apprehended 
that  his  heir  would  not  be  able  to  enter, 
from  death  or  other  disqualification,  and 
named  another  to  enter  in  default  of  his 
heir.  The  other  was  properly  a  fideieom- 
missum,  by  which  the  testator  directed  that 
the  inheritance  should  be  transferred  from 
one  to  another  in  a  certain  order.  See  Fidei- 
commissum.  Pupillary  substitution,  which 
was  allied  to  both  of  these  kinds,  was  where 
the  testator  had  a  pupil  son,  and   named 

Digitized  byCjOOQlC 


SITB 


sue 


791 


another  to  sncceed  if  the  son  should  not  be 
able  or  inclined  to  do  so,  or  should  die  before 
he  came  of  age  to  make  a  tegtament.  The 
substitute  had  no  right  of  succession  if  the 
child  survived  the  Ago  of  puberty,  even 
though  he  did  not  make  a  testament.  In$t. 
of  Just.  B.  ii.  tit.  15  and  16 ;  Heitue.  Elem. 
$  550.  The  Roman  law  doctrine  of  substi- 
tution was  taken  notice  of  in  the  case  of 
Mortm,  Feb.  11, 1813,  F.  C. 

Snbsnmption  of  Libel ;  is  a  narrative  of 
the  alleged  criminal  act,  which,  to  be  good, 
must  narrate  facts  amounting  to  the  crime 
charged.    The  subsumption  must  specify  the 
manner,  time,  and  place  of  the  crime  libelled, 
the  person  injured,  &c.  Hume,  ii.  192 ;  Steele, 
192.    See  Alibi.    Loau  DelicH. 
Snb-Taok.    See  Tack.    Lease. 
Sub-Vassal.    See  Vassal.    Svtperior. 
Snecession;  is  the  term  applied  to  the 
taking  of  property  by  one  party  in  the  place  of 
another.    Where  this  happens  in  consequence 
of  a  cfmveyance  from  the  proprietor,  the 
acquirer  is  said  to  be  a  singular  successor, 
because  he  takes  what  he  acquires  in  virtue 
of  the  single  title  by  which  he  holds.    But 
where  a  person  dies  intestate,  his  heir  suc- 
ceeds to  the  whole  of  bis  heritage  by  the  uni- 
versal title  of  heir.    In  this  sense  the  two 
terms  of  singular  swxessor  and  univers(d  suc- 
cessor are  opposed  to  each  other.     In  the  law 
of  Scotland  a  proprietor  is  allowed  to  dispose 
both  of  his  heritage  and  of  his  moveables  by 
gratuitous  deeds,  under  certain  restrictions, 
resulting  from  the  interests  of  his  widow  or 
children.    See  Deathied.    Jus  Rdieti.     Terce. 
Legitim.  But  when  the  proprietor  has  neglected 
to  use  this  privilege,  the  law  supplies  his  omis- 
sion, and  disposes  of  his  estate  and  effects  in  the 
way  in  which  it  is  presumed  that  he  would  have 
himself  disposed  of  them  ;  and  the  rule  being 
once  established  as  law,  the  presumption  is 
strengthened  where  a  person  has  executed  no 
settlement,  since  that  is  equivalent  to  a  de- 
claration that  he  means  to  allow  the  law  to 
take  effect.     It  becomes,  therefore,  important 
to  know  what  those  rules  of  law  are,  accord- 
ing to  which  the  property  of  a  person  dying 
intestate  will  descend;  and  this  leads  to  a 
necessary  distinction  in  regard  to  succession 
in  heritage  and  succession  in  moveables,  nei- 
ther of  which,  however,  admits  of  the  Roman 
succession  m  ca'pita ;  Stair,  B.  iii.  tit.  4,  §  1, 
etseq. 

\.Offke  Succession  in  Heritage. — In  herit- 
able succession,  the  law  of  Scotland  gives  the 
preference  to  descendants,  giving  the  succes- 
sion to  the  eldest  son,  to  the  exclusion  of  all 
t